ABBREVIATIONS USED. a, affirmed; c, criticised; d, distinguished; e, explained; /, followe< h, harmonized ; j, dissenting opinion ; /, limited ; m, modified ; o, overruled ; p, parallel case ; q, qualifiet r, reversed : a. same case ; email figures at the left of the page number indicate the section of the syllabi to which the citation applies ; capitals H. A. refers to Howard's Appeal ; Tr. Transcript Appeal ; K. Keyei S. N. Selden's Notes; S. A. Silvernail Appeal; Ab. D. Abbott's Decisions; A. D. American Decisioni A. R. American Reports; A. S. American State Reports; N. E. Northeastern; U. S. United States; wht there is no abbreviation it refers to New York Court of Appeals ; n refers to note; a, ft, c, d, e, etc., aft< the page number, refers to reprint edition. Vol. J. NEW YORK REPORTS. Cited in the following series: U. 8. Supreme Court (US; LEd, Lawyers' Edition); Federal Reports (Fed); Massachusetts (Mas); Connecticut (Con); New Jersey Law (NJL); New Jersey Equity (NJE) and the Lawyers' Reports, Anno- tated (LRA) and its Annotation (n). Shows where the decisions in this volume have been cited where to find precedents on their subjects from the courts carrying most weight in this state. The ANNOTATIONS referred to (marked n) give a complete presenta- tion of authorities on the point in question all the law. N. B. Cut out and stick each block on page at its head, or citations for entire volume on inside front cover. Always consult this table before using a case. 17:25 LRA 118n 32 LRA 580 40 LRA 319 113:1 LRA 817n 23 LRA 587 129:12 LRA 50n 261:124 US 49 31 LEd 341 87 Mas 3 38 NJL 541 379:161 US 598 40 LEd 821 37 NJL 160 13 LRA 66n 537:93 US 142 23 LEd 840 84 Fed 116 101 Mas 241 20:37 Fed 712 28 LRA 7a r > 144:1 LRA 3C8n 274:6 Fed 812 21 LRA 855n 31 LRA 62n 31 LRA 761n 32 LRA 323n 386:28 Fed 843 550:133 US 432 33 LEd 721 77 Mas 234 122 Mas 508 131 Mas 122 21 Con 126 3 LRA 791n 5 LRA 289n 173:136 US 206 34 LEd 518 25 Fed 837 101 Mas 7 128 Mas 409 151 Mas 421 13 LRA 196n 22 LRA 250 28 LRA 59n 47:69 US 22 17 LEd 778 92 US 515 23 LEd 740 109 US 377 27 LEd 969 9 Fed 836 10 Fed 345 38 Fed 703 70 Fed 760 94 Mas 441 33 Con 530 44 Con 581 44 Con 587 27 NJL 174 13 LRA 56n 413:59 Mas 548 30 NJL 44 423:53 Fed 10 290:82 Fed 516 83 Mas 36 159 Mas 506 1 LRA 704n 4 LRA 540n 26 LRA 551 38 LRA 564n 433:13 LRASlOn 452:81 Mas 333 14 NJE 180 564:150 US 491 37 LEd 1155 3 LRA 793 6 LRA 360n 11 LRA 648 11 LRA 803 15 LRA 59 19 LRA 444n 491:72 US 288 18 LEd 579 26 NJL 586 180:7 LRA 603n 12 LRA 862n 186:140 Mas 175 298:9 LRA 167n 496:23 Fed 352 8 LRA 21 7n 13 LRA !2n 20 LRA 49!) 201:4 LRA 418 29 LRA 233n 37 LRA 354n 206:80 Fed 873 305:7 Fed 421 54 Fed 92 85 Fed 748 65 Mas 350 37 LRA 015 39 LRA 048 509:20 LRA107n 515:99 US 654 25 LEd 489 43 Fed 358 4 LRA 841n 31 LRA 072 33 LRA 053 581:3 LRA 409n 22 LRA 80a 79:36 NJL 193 12 LRA a57n 214:1 LRA 572u 2 LRA 177 586:14 NJE238 83:13 LRA 269n 29 LRA 814n 310:70 Fed 285 595:107 Mas379 41 NJE 529 1 LRA 642n 5 LRA 281 n 13 LRA 020u 23 LRA 120n 223:15 LRA6S9n 321:78 Mas 473 00 Con 421 26 NJL 91 35 NJL 525 12 LRA 727 n 13 LRA 809 341:43 NJL 12 305:53 NJL357 90:23 LRA 468n 239:16 LRA314 96:09 US 737 17 LEd 769 62 Fed 725 40 NJE 166 1 LRA 192n 6 LRA 279u 8 LRA 69n 8 LRA 446n 13 LRA 50 13 LRA 290n 20 LRA 634n 240:10 LRA314 525:1)3 US 383 23 LEd 921 242:109 US 617 27 LEd 1052 139 US 682 35 LEd 309 20 Fed 591 18 NJE 496 32 LRA 372 530:150 Mas 568 rative Pub. Co. tuchcstcr, N. Y. awyers' Co-Ope 371:32 LRA496H TheL Copyrighted by All rig iits reserved. N UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY 13 REPORTS OF CASES ARGUED AND DETERMINED COURT OF APPEALS STATE OF NEW-YOfii BY GEORGE F. COMSTOCK, COUNSELLOR AT LAW. YOL. I. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS, No. 1-14 NASSAU STREET. ALBANY: -175 BROADWAY. 1859. Yj The additional Notes and References Entered according to Act of Congress, in the year Eighteen Hundred and Fifty, BY ABRAHAM W. LEWIS, In the Clerk's Office of the District Court of the Southern District of New Yorlc. The additional Notes and References Entered according to Act of Congress, in the year Eighteen Hundred and Fifty-three, BY BANKS, GOULD & CO., In the Clark's Office of the District Court of the Southern District of New York. JUDGES OF THE COURT OF APPEALS. FREEBORN G. JEWETT, Chief Judge. GREENE C. BRONSON, ) ADDISON GARDINER, } Judges. CHARLES H. RUGGLES, ) SAMUEL JONES, "1 Judges of the Supreme Court, and WILLIAM B. WRIGHT, I sitting in the Court of Appeals THOMAS A. JOHNSON, [ from July 1, 1847, to January CHARLES GRAY, J 1, 1849. [3] OASES REPORTED IN THIS VOLUME. Adams v. The People, 173 Aikin, Mathcws v 595 Allaire, Whitney v 305 American Exchange Hank, Cog- gill v 113 Anderson, Schennerhorn v 430 B Bank of Salina, Henry v 83 Bard, Fort v 43 Barron, The People v 386 Baucus, Mattison v 295 Bingham v. Weiderwax, 509 Bogert v. Morse, 377 Bouchaud v. Dias, 201 Brady v. Donnelly, 126 Brady v. McCosker 214 Brown v. Fargo,, 429 Burkle v. Luce, 163 Burkle v. Luce 239 Butler v. Miller, 428 Butler v. Miller 496 c Carhart, French v 96 Cayuga Co. Bank v. Warden, 413 Charles v. The People, 180 Chretien v. Doncy, 419 Clickman v. Clickman, 611 Clickman, Clickman v 611 Coddington v. Davis, 186 Coggill v. The American Exchange Bank, 113 Conover v. The Mutual Insurance Company of Albany, 290 Coon, Grover v 536 Comes v. Harris, 223 Corning v. McCullough, 47 Covell, Hillv 522 Cowell, Ruckman v 505 Crandall, Wendell v . 491 D Banks v. Quackenbush 129 Davis, Coddington v 181) Delamater, Pierce v 17 Deraismcs v. The Merchants' Mu- tual Insurance Company, 371 Des Arts, Moore v 359 Dias, Bouchaud v 201 Dodge v. Manning, 298 Doncy, Chretien v 419 Donnelly, Brady v 126 Doughty v. Hope, 79 Fargo, Brown v 4:29 Felton, Tcall v 537 Floyd, Rice v 608 Fort v. Bard, 43 Frecland, Gracie v 228 French v. Carhart, 96 Farmers' Loan and Trust Company v. Walworth, 433 G Gardner v. Hart, 528 Gilbert v. Wiman, 550 Gilmore, Spies v 321 Gracie v. Freeland, 228 Grover v. Coon, 53 S VI CASES REPORTED. H Halliday, Noble v 330 Hamilton College v. Stewart, 581 Harper, Wilkes v 586 Harris, Comes v 223 Hart, Gardner v 528 Hart, Stief v 20 Harvey v. Olmsted, 483 Henry v. Bank of Salina, 83 Hill v. Covell, 522 Hoes v. Van Hoesen, 120 Hope, Doughty v 79 Houghtaling v. Kilderhouse, 530 Houston, Shindler v 261 Jackson, Stagg v. 206 Jenks v. Smith, 90 Jewell v. Schouten, 241 Jones, Vilas v 274 K Kelsey, Van Dewater y 533 Kilderhouse, Houghtaling v 530 Kingman, Sparrow v 242 Kingsland, Spauldingv 426 Kinney, Winter v 365 Langley v. Warner, 606 Lohman v. The People, 379 Luce, Burkle v , 163 Luce, Burkle v 239 Lyke, Van Leuven v 515 Lyme v. Ward, 531 M Mallory, Van Derheyden v 452 Manning, Dodge v 298 Martin v. Martin, 473 Martin, Martin v 473 Martin v. Wilson, 240 Marvin v. Seymour, 535 Mattison v. Baucus, 295 Mathews v. Aikin, 595 Mayor, &c. of New-York v. Scher- merhorn, 423 Mayor, &c. of N. York Sherman v. 3 1 6 McCoskcr, Brady v 214 McCullough, Corning v 47 Merchants' Mutual Insurance Co., Deraismes v 371 Miller, Butler v 428 Miller, Butler v 496 Mohawk Bank, Schermerhorn v.... 125 Moore v. Des Arts, 359 Morris, Taylor v 341 Morse, Bogert v 377 Mott v. Palmer, 564 Mutual Insurance Company of Al- bany v. Conover, 290 N Noble v. Halliday, 330 Olmsted, Harvey v 483 Palmer, Mott v 564 Parmelee, Worrall v 519 People, Adams v 173 Barron v 386 Charles v 180 Lohman v 379 Phillips, Tilley v 610 Pierce v. Delamater, 17 Pitcher, Ruckman v 392 Pitts v. Wilder, 525 Quackenbush, Danks v 129 R Ricev. Floyd, 608 Ruckman v. Cowcll, 505 Ruckman v. Pitcher, 393 Selden v. Vermilya, 534 Seymour, Marvin v 535 Schermerhorn v. Anderson, 430 Schermerhorn v. The Mayor, &c. of New- York, 423 Schermerhorn v. Mohawk Bank,... 125 CASES REPORTED. vn Schoutcn, Jewell v 241 Sherman v. The Mayor of N. York, 316 Shindler v. Houston, 261 Slado v. Warren, 432 Smith, Jenks v 90 Spaulding v. Kingsland, 426 Sparrow v. Kingman, 242 Spear v. Wardell, 144 Spies v. Gilmore, 321 Stagg v. Jackson, 206 Stewart, Trustees of Hamilton Col- lege v 581 Stief v. Hart, 20 T Taylor v. Morris, 341 Teall v. Felton, 537 Tiller v. Phillips 610 Van Derheyden v. Mallory, 452 Van Dewater v. K sey, 533 Van Hoesen, Hoes v 120 Van Leuven v. Lyke, 515 Vermilya, Selden v 534 Vilas v. Jones, 274 w Wai worth, Farmers' Loan and Trust Company v 433 Wardell, Spearv 144 Ward, Lyme v 531 Warden, Cayuga County Bank v... 413 Warren, Langleyv 606 Warren, Slade v 432 Weiderwax, Bingham v 509 Weiant, Wood v 77 Wendell v. Crandall, 491 Whitney v. Allaire, 305 Wilder, Pitts v 525 Wilson, Martin v 240 Wilkcs v. Harper, 586 Wiman, Gilbert v 550 Winter v. Kinney, 365 Wood v. Weiant 77 Worrall v. Parmelee, 519 CASES ARGUED AED DETERMINED IN THE COURT OF APPEALS OF THE STATE OF NE W.YORK, IN SEPTEMBER AND NOVEMBER TERMS, 1847. d 3 28 59 PIERCE vs. DELAMATER. Under the new Constitution of this State, it is the right and the duty of a Judge of the Court of Appeals to take part in the determination of causes brought up for review from a subordinate court of which he was a member, and in the decision of which he took part in the court below. THIS was a writ of error to the Supreme Court ; and the judgment was affirmed by the unanimous opinion of the Judges. After the cause had been argued, and while the Judges were in consultation upon it, BRONSON J. expressed an opinion upon his right and duty to take part in the decision, which opinion he afterwards committed to writing. The case involved no other questions which seemed of sufficient importance to be re- ported. BRONSON J. Having acted as Chief Justice in the determi- nation of this cause by the Supreme Court, a question has arisen in my own mind, though it was not mentioned at the bar, con- cerning my right to take part in the decision of the cause by this court. If the right exists, it is of course my duty to act. This is a question of a good deal of practical importance, as not less than four of the present members of the court have recently sat in other courts whose judgments may come here for 18 CASES IN THE COURT OF APPEALS. Pierce v. Delamater. review ; and from the manner in which this court is constituted, one-half, at the least, of its members will always be in the like condition. Under the Constitution of 1821, the Chancellor and Justices of the Supreme Court, though members of the court for the correction of errors, were forbidden to take part in the af- firmance or reversal of their own decrees or judgments. (Art. 5, 1.) This provision, with an extended application, after- wards became a part of the statute la^, as follows: "No judge of any appellate court, or of any court to which a writ of certiorari or of error shall be returnable, shall decide, or take part in the decision of any cause or matter which shall have been determined by him when sitting as a judge of any other court." (2 R. S. 275, 3.) The Constitution of 1821 has been abrogated ; and the only question is, whether the statute has not been virtually repealed. I think it has. The Constitution of 1846 confers the same powers on all the Judges of the Court of Appeals, and on all the Justices of the Supreme Court, with the single exception, that no judicial officer can exercise his office while under impeachment. (Art. 6.) As the statute denies to a particular Judge or Justice, though not under impeachment, the powers which may be exercised by his associates, it comes in conflict with the fundamental law, and must of necessity be overthrown. In the case of judicial officers deriving their authority from the Constitution, it is settled, that the legislature cannot add any disqualification to those which are found in the Constitution itself. (Lieut. Gover- nor s case, 2 Wend. 213; Chancellor s case, 6 id. 158. And see per Thompson, J. and Kent Oh., J., in Yatcs V. The peo- ple, 6 John 408, 416.) The principle is quite too plain to admit a serious doubt that it has been properly settled. There is nothing in the nature of the thing which makes it improper for a Judge to sit in review upon his own judgments If he is what a judge ought to be wise enough to know that he is fallible, and therefore ever ready to learn ; great and honest enough to discard all mere pride of opinion, and follow truth wherever it may lead ; and courageous enough to ac- ALBANY, SEPTEMBER, 1847. Pierce v. Delamater. knowledge his errors he is then the very best man to sit in review upon his own judgments. He will have the benefit of a double discussion. If right at the first, he will be confirmed in his opinion ; and if wrong, he will be quite as likely to find it out as any one else. But I need not labor to maintain a principle which has been fully established, by abrogating the disqualification in question, after it had formed a part of our fundamental law for nearly three-fourths of a century. ( Const, of 1777, Art. 32. Const, of 1821, Art. 5, 1.) There is another and very decisive reason in favor of the view which I entertain of this question ; but as the point has not been considered by my brethren, and the matter stands firmly enough on the ground already noticed, I shall proceed no further with the discussion. I am of opinion that it is both my right and duty to take part in reviewing the decisions of the Supreme Court while I was a member of it, and shall act accordingly. All the other members of the Court concurred in the result of this opinion ; and three of them, to wit, JEWETT, CH. J., who had been a Justice of the Supreme Court, RUGGLES, J., who had been a Circuit Judge, and JONES, J., who had been Chief Justice of the Superior Court of the city of New-York> subsequently took part in reviewing their own decisions while sitting in the several Courts which have just been mentioned. 20 CASES IN THE COURT OF APPEALS. Slief v. Hart STIEF vs. HART. The judgment of the Supreme Court determining that a Sheriff holding an exe- cution against a pledger, may by virtue thereof take the property pledged out of the hands of the plsdgee into his own possession, and sell the right and in- terest of the pledger therein, affirmed, the Judges being equally divided upon the question. After a sale by the officer in such a case, the pledgee is entitled to the possession of the property until the purchaser redeems it from the pledgee. Whenever a power is given by statute, every thing necessary to make it effectu- al, or requisite to attain the end in view, is implied. Per JEWETT, C. J. So when the law commands a thing to be done, it impliedly authorizes the perform- ance of all acts necessary to the execution of the command. Per JEWETT, C. J. Error from the Supreme Court. Stief brought replevin for a quantity of caps and muffs, which the defendant as Sheriff of the city and county of New York, had levied upon and taken possession of under an execution against the pro- perty of Ezra Willmarth, Jr. Issue being joined, the cause was tried at the New York Circuit in April, 1843. On the trial it was shewn that when the Sheriff took the goods, they were in possession of the plaintiff as a pledge for the pay- ment of a note which the plaintiff held against Willmarth. The Circuit Judge charged the jury that a Sheriff holding an execution against a pledger may by virtue thereof take the property pledged out of the hands of the pledgee into his own possession, and sell the right and interest of the pledgor therein. To this charge the plaintiff cxccptcd. The jury found a verdict for the defendant, and the plaintiff moved in the Supreme Court for a new trial upon a bill of exceptions. That Court denied the motion and gave judgment for the de- fendant. A. Taber, for Plaintiff in error. 8. Stevens, for Defendant in error. Points for Plaintiff in error. I. STIEF had such a property in the goods, that he could have maintained trespass against the general owner, had he ALBANY, SEPTEMBER, 1847. 21 Stief v. Hart. removed them without Stief s consent, and before the lien was discharged. (10 Wend. 318.) II. If trespass would lie against the general owner for in- terference with Stief 's possessory title, it will lie against the Sheriff for the same cause, unless the Sheriff, by virtue of an execution, can acquire a greater right of control over, and a greater interest in, the property of the execution defendant than the latter himself has. III. The 2d Revised Statutes, page 366, sec. 20, authorizes the "right and interest" of a pledger to be sold on execution, but does not interfere with the rights of a pledgee. In this property, the right to the possession was in Stief, and of course the possessory title of the general owner had been divested, and could not be sold ; yet the Sheriff took the property from the possession of Stief, an act which the gene- ral owner himself could not do. IV. The greater power includes the less ; and if sections 20 and 23, as declared by the Supreme Court in 6th Hill, 484, give the Sheriff the power to have the property in view when sold, that power may, and therefore ought to be exercised with- out removing the property from the possession of the pledgee. If the Sheriff can remove, he can also enter upon the pledgee's premises to sell, and may advertise it to be sold without removal, and thus leave the rights of the pledgee un- disturbed. V. The statute does not confer upon the Sheriff power to remove the property, because, 1. At common law, the Sheriff could not remove pledged property without paying the lien ; (Story on Bailment, 238, sec. 353;) though the "right and interest" of the pledger could be sold on execution. (4 Wend. 292.) 2. The statute, sees. 20 and 23, 2 K. S. 367, does not alter, but is merely declaratory of the common law. (Re- visor s Notes, part 3rf, chap. 6, title 5, sees. 17 and 20; 17 J. R. 116 ; 14 do. 222.) Except that as to the power of a Sheriff to sell assigned or bailed goods, the 22 CASES IN THE COURT OF APPEALS. Stief v. Hart. decisions were conflicting. (5 J. R. 345 ; 4 Cowen, 469.) 8. If "personal property" in the 23d sec. includes the "right and interest" of a pledger in the 20th sec., then the last clause of the 23d sec. must also apply to pledged property, and the Sheriff who takes it must offer it for sale in such " lots and parcels as will bring the highest price ;" whereas pledged property must be sold in one parcel, and cannot be divided. Points for Defendant in error. I. The statute confers the right of levy upon goods pledged. (2 E. S. 290, sec. 20, 2d ed.) II. Personal property cannot be sold unless the same be present, and within the view of those attending the sale. (2 R. S. 291, sec. 23, 2d ed.) III. The Sheriff having the right to levy, has the right to do all that the law requires to enable him to sell. (Burrall vs. Acker, 23 Wend. 610 ; 14 J. R. 352 ; 15 J. R. 179.) IV. He had the right therefore to remove the property to a place of safe deposit, and he is not a trespasser for so doing. (Scrugham vs. Carter, 12 Wend. 134 ; Randall vs. Cook, 17 Wend. 58 ; Phillips vs. Cook, 24 Wend. 395 ; Waddell vs. Coolc, 2 Hill, 47, note.) RUQGLES, J. The decision of the question presented by the exception in this case, depends upon the construction of the 20th section of 2d Revised Statutes, page 366, taken in connexion with sections 18, 19, 21 and 23. " SEC. 18. Upon executions against the property of a de- fendant, the officer shall levy upon any current gold or silver coin belonging to the defendant, and shall pay and return the same as so much money collected without exposing the same for sale at auction. " SEC. 19. Upon executions the officer may levy upon and sell any bills or other evidences ,f debt issued by any monied corporation, or by the Government of the United States, and ALBANY, SEPTEMBER, 1847. 23 Stief v. Hart. circulated as money, which shall belong to the defendant in such execution. " SEC. 20. When goods or chattels shall be pledged for the payment of money or the performance of any contract or agreement, the right and interest in such goods, of the person making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defendant, and shall be entitled to the possession of such goods and chattels, on complying with the terms and condi- tions of the pledge. " SEC. 21. No sale of any goods and chattels shall be made by virtue of any execution unless previous notice of such sale shall have been given, six days successively, by fastening up written or printed notices thereof, in three public places of the town where such sale is to be had, specifying the time and place where the same is intended to be had. " SEC. 23. JSfo personal property shall be exposed for sale unless the same be present and within the view of those at- tending such sale : it shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price." It will be observed, on reference to the statute, that the 18th and 19th sections speak of a levy, and the 20th does not ; and from this difference in language it was inferred on the ar- gument that the officer might sell under the 20th section with- out making a previous levy. But it will be seen that the mode of sale is so regulated by the statute as to require the officer to have the custody and control of the property sold ; and the officer is therefore justified in making a levy, because a levy is necessary to a sale in the manner directed. Whenever the law requires an act to be done, it authorizes the agent to do what is necessary to accomplish it in the mode pointed out for its performance. The 23d section declares " that no personal property shall be exposed for sale by the Sheriff unless the same be present and within the view of those attending the sale." If this provision is applicable to cases arising under the 20th section, the Sheriff must have the power to take the goods into his 24 CASES IN THE COURT OF APPEALS. Stief v. Hart. custody ; because without it, he cannot produce the goods at the sale. It cannot "be seriously urged that the officer may discharge his duty without a levy, by advertising the goods to be sold on the premises of the pledgee for the purpose of having them within view of the bidders there, while the goods may be re- moved at the pleasure of the pledgee, beyond the reach of the Sheriff or purchaser ; and moreover, if the statute gives the Sheriff no authority to take the goods for the purpose of a sale, it gives him none to enter on the pledgee's premises for that purpose ; for the sale may as well be any where else as there unless it be in connection with the power to exhibit the goods to the persons attending the sale. In Bakewell vs. Cook, 6 Hill 484, the Supreme Court de- cided this question, holding that the 23d section applied to and regulated sales authorized by the 20th section, as well as other sales of personal property. Indeed it is impossible to give to the 23d section any other construction, unless it can be shewn that the right and interest of a pledger in goods pledged is not "personal property." These words are used in the 23d section, and have a well settled meaning. They embrace not only goods, chattels, coin, bills and evidences of debt, but in their strict and more appropriate legal definition signify the right and interest of the owner or owners in these articles. " Property" is defined by Jacob, in his Law Diction- ary, to be " the highest right a man can have to any thing ; being used for that right which one hath in lands or tene- ments, goods or chattels, which no way depends on another man's courtesy." In Morrison vs. Semplc, 6 Bin. 94, Chief Justice Tilghman said, "that property signified the right or interest which one has in lands or chattels, and that it was used in that sense by the learned and unlearned, by men of all ranks and conditions ;" and in Jackson vs. JIouscl, 17 Johns. Hep. 283, Chief Justice Tilghman's definition is cited and approved by the late Chief Justice Spencer. In that case and in the case of Wall vs. Langlands. 14 East 370, it was held that a devise by a testator of all his " property" ALBANY, SEPTEMBER, 1847. 25 Stiefv. Hart. passed his whole real and personal estate, and comprehended all he was worth. The words " general property r ," and " spe- cial property" are constantly used in the books to denote, not the chattel itself, but the different interests which several per- sons may have in it. Indeed the revisers could not have se- lected, and the language does not afford words better adapted to apply to and embrace every thing mentioned in the 19th and 20th sections of the statute as the subjects of sale than the words "personal property" used in the 23d section. If the words goods and chattels had been used in the 23d section, they would have afforded far more ground for doubt, because they are less comprehensive in their meaning. But even then a liberal construction would make them applicable to the sales mentioned in the 19th and 20th sections, because the things pledged are in fact sold subject to the redemption of the pledge. They are used in the 21st section, which directs a six day notice of sale ; and if the plaintiff in error can be supposed to have shewn that the officer may sell the defend- ant's interest in goods pledged without producing the goods at the sale, he has shewn by stronger reason that the sale may be made without notice ; because if the words " personal pro- perty" do not include the thing to be sold, the words "goods and chattels" certainly do not : and yet no one can doubt that the Legislature intended that sales under the 20th section should be regulated by the 21st. Before the 20th section was enacted, debtors had it in their power to place their goods beyond the reach of their creditors by pledging them for the payment of a debt not equal to their value. This was doubtless the fraud alluded to by the Revi- sers in their note to this section. (3 H. 8. 727.) " It is submitted," say they, "that the opportunity thus given to fraud and to the injury of creditors, should be avoided." Pub- lic sales of personal property not within view of the bidders at the sale were declared void by judicial decisions on the plainest grounds of public policy before the revised statutes were passed. (Linnendoll vs. Doe and TcrJiune, 14 Johns. 222 ; Sheldon vs. Sopcr id. 352 ; Crcsson vs. /Stout, 17 Johns. 20 CASES IN THE COURT OF APPEALS. Stief v. Hart. 116.) The first part of the 23d section is declaratory of the law as it was previously established in these cases. The sale of personal property without having it within the view of the bidders for the purpose of ascertaining and estimating its value, was an intolerable abuse of the process of the courts. They struck it down the moment it appeared, without waiting for a statute. The plaintiff's construction of the 20th section, would set it up again ; and not only so, but would render the statute ineffectual for the prevention of the frauds alluded to by the revisers. Where there is a collusive understanding be- tween the pledgor and the pledgee of property not having an uniform quality and value in the market, (such for instance as horses, books, pictures, &c.,) th3 execution creditor could have no hope of selling the goods for their value unless they were exhibited at the sale, or in some way submitted to the exami- nation of the purchasers ; and where there was no such collu- sion, the sale without viewing the goods would be oppressive and injurious both to the pledgor and the execution creditor. The removal or concealment of the goods by the pledgee would give him an advantage at the sale over all others, and would enable him to buy at the sale at a merely nominal price. It may be necessary in the case of goods pledged to have them produced at the sale for the purpose of selling, in lots or parcels, according to the latter branch of the 23d section ; for it may frequently happen that the sale of a part of the goods, if they are in view of the buyers, may be sufficient to satisfy the pledge ; and in such case the residue should be divided and sold in the ordinary way. The purchaser ought, moreover, to have the opportunity at the sale of complying with the terms and conditions of the pledge, and of taking possession of the property. This just advantage he loses, if the goods are not produced. It was urged on the argument that the terms " personal pro- perty," in the 23d section, could not have been used in the sense here ascribed to them ; first, because the removal of the goods by the officer interferes with the pledgee's right of pos- session ; and secondly, because the Sheriff in taking the ALBANY, SEPTEMBER, 1847. 27 Stief v. Hart. pledged goods exercises over them a greater power and con- trol than the pledger himself could lawfully exercise. The first answer to these suggestions has been already given. It is that the 23d section, by appropriate language, subjects the sale of pledged goods to the same regulations which prevail in other cases ; and we are not at liberty to diso- bey the statute. The Legislature has an undoubted right to confer the authority on the officer for the purpose of enabling him to execute the writ in such manner as to prevent fraud where it exists between the pledger and pledgee, and to pro- tect the rights of creditors. If the pledge in this case has been made before the law was enacted, a question might arise as to its retrospective operation. But whether the contract on which the execution issued was made before or after the goods were pledged, is of no importance, because the pledgee took the goods subject to a pre-existing regulation for the bene- fit of the creditors of the pledger, prior or subsequent, re- quiring the goods to be present at the sale. The control exercised by the officer over the property of the pledgee, in taking temporary possession of the pledged goods for the pur- pose of a sale, is not so great as that which is exercised by the officer in the case of partners and part owners, at common law, according to the modern decisions. In the case of part- ners, it is true, there is no exclusive right of possession in either one of them, as in the case of the pawnee of goods ; but where one partner has exclusive possession in fact, the other is not at liberty to use force to deprive him of the ad- vantage which that possession gives ; and if violence be used for that purpose by the partner out of possession, he is an- swerable, civilly and criminally, for all the injury which results from it. But under an execution against the property of the partner out of possession, the officer is armed with an authori- ty which that partner has not, namely, the authority to seize the partnership goods in the hands of the other partner, and to use force if necessary to take them into his custody ; and fchat not merely for the temporary purpose of effecting a sale and then restoring the possession, as in the case of goods 28 CASES IN THE COURT OF APPEALS. Sticf v. Hart. pledged ; but the Sheriff is authorized to deliver the posses- sion to the purchaser, thus putting it beyond the reach of him from whom he took it. (2 Hill 47, Waddell vs. Cook, 3 De- nio 125 ; Walsh vs. Adams.) So the Sheriff may enter the premises of a stranger against his will to take the goods of the debtor which happen to be there, although the debtor himself would be a trespasser in doing so. In these cases the Sheriff is justified, because he could not otherwise satisfy the exigency of the writ, to do which he is clothed with lawful authority, and bound by his duty. When the law authorizes an act, and nothing is done but what is necessary to accomplish it, those who perform it are not trespassers. (14 Mass. Rep. 27, Wil- liams vs. Amory.) The prevention of frauds, and the protection of the rights of the creditors of the pawner of goods, could not have been ef- fectually accomplished in any other way than by subjecting sales such as that in question, to the same regulations as exist in other cases of personal property. We are not to presume that the power of the officer will be oppressively exercised. The possession of the pledgee will seldom be actually disturbed; and if it be interrupted the interference will commonly lead to the satisfaction of the pledge. But if it should not, the pro- bable injury to the pawnee of the goods is not to be compared with the evil which is likely to result from a sacrifice of the value of goods by a sale at which the purchaser cannot know the quality or value of the article lie buys, or where to find it when bought. I am in favor of affirming the judgment of the Supremo Court. JEWETT, Ch. J. At common law goods pawned or pledged are not liable to be taken in execution in an action against the pawner or pledger. ( Wilkes vs. Ferris, 5. John Hep. 336; Marsh vs. Lawrence, 4 Cow. R, 461 ; Badlam vs. Tucker, 1 Pick. 389; Pomroy vs. Smith, 17, Pick. 85; Story on Bail. 353, and so the principle, was understood by the revisers, of our Revised Statutes, 3 11. 8. 727, note under 20. Scott vs. ALBANY, SEPTEMBER, 1847. 29 Stief v. Hart. ScJioley 8. East 467 ; Metcalf vs. Scholey 5. Bos. Pull. 461. Srodes vs. Oaven, 3. Watts, R. 258 ; TPafeo/i's Sheriff 181.) It is only by Statute that the right and interest of the pawner or pledger of goods and chattels, can be reached by execution against such person. 2. R. S. 366. 20., enacts that "when goods or chattels shall be pledged for the payment of money, or the performance of any contract or agreement, the right and interest in such goods, of the person making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defend- ant and shall be entitled to the possession of such goods and chattels, on complying with the terms and conditions of the pledge." The 23rd Sec. of this Statute declares that no personal property shall be exposed for sale, unless the same be present, and within the view of those attending such sale. If the case of Bakewell vs. Ellsworth (6 Hill 484) was correctly decided it is admitted, that it must govern the decision of the case at bar. It is, hoAvever, insisted here as it was there, that al- though the Sheriff was authorized by the 20th Sec. to sell the " right and interest" of the pledger on execution against him, yet the Statute has not conferred any authority on him to seize or take into his possession the property in the hands of the pledgee preparatory to such sale ; that the Sheriff should exercise the power to sell without taking possession of or removing the property from the possession of the pledgee ; that the term personal property in the 23rd Sec. did not apply to or include the " right and interest" mentioned in the 20th Sec., and that therefore a sale could legally and properly be made by the Sheriff of such right and interest, without the property being present and within the view of the persons attending the sale. It was admitted on the argument that if the sale of such right and interest is within the 23rd Sec., that the Sheriff could not sell unless the property was present and within the view of those attending such sale. If, therefore, the Sheriff 30 CASES IN THE COURT OF APPEALS. Stief v. Hart. has no right to take into his possession the property on making a levy, to hold until he makes a sale of such right and interest and a sale cannot take place unless the property he present at the time and place of sale, it is obvious that such sale must depend upon the mere volition of the pledgee to produce and exhibit it at the time and place of sale ; an absurdity which I think ought not to be ascribed to the legislature in framing the Statute. I agree with the Supreme Court in the con- struction of this Statute and the course of procedure which the Sheriff, under such circumstances, is authorized and re- quired to adopt, as stated in the case referred to. The right of the Sheriff to take and hold the goods prepara- tory to a sale of such right and interest arises by necessary implication from the provisions of the statute referred to. Whenever a power is given by statute, every thing necessary to making it effectual, or requisite to attain the end, is implied. (1. Kent's Com. 464., 5. Ed.] So where the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its commands. (Foliamb'a Case 5, Coke 116). I am of opinion that the judgment be affirmed with double costs. (2. R. 8. 618, 33). GARDINER, J. The 20th Section, 2 R. S. 367, declares that when goods or chattels shall be pledged for the payment of money, or for the performance of any contract or agreement, the right and interest in such goods of the person making such pledge, may be sold upon execution against him, and the pur- chaser shall acquire all the right and interest of the defendant, and shall be entitled to the possession of such goods and chattels, on complying with the terms and conditions of the pledge. The 23d Section provides, that no personal property shall be exposed for sale, unless the same be present and within the view of those attending such sale : it shall be offered for sale in such lots or parcels as shall be calculated to bring the highest price. In Bakewell vs. Ellsworth, 6 Hill 485, it was said by the ALBANY, SEPTEMBER, 1847. 31 Stief v. Hart. Supreme Court, "That the term personal property in the 23d section is synonymous with the words right and interest in the 20th section." Whether this is the true construction of the statute, is the sole question in this case as it was in the one cited. The im- port of the term personal property, and of the words right and interest in goods pledged, is certainly different. The first includes all things rnoveable which are the subject of property ; the other, a qualified right and interest in the things them- selves. The term personal property is used in this law in a restricted sense ; ic applies to goods and chattels, coin, bills of monied corporations, which partake to some extent of the character of coin, in a word to things which can be felt and handled. But goods and chattels and the right and interest of the pledger in "such goods," it seems to me, are far from being identical. It is difficult to account for the use of different terms in the 20th and 23d sections upon the hypothesis assumed by the Supreme Court. Few men possessed a more accurate knowledge of the force and effect of legal language, than the distinguished gentlemen who revised our laws : that they used terms the legal signifi- cation and common understanding of which were different, to convey the same idea, is not probable, nor should this language be so construed, unless such construction is necessary to give effect to the statute. The term personal property was intend- ed to include not merely goods and chattels, but the bills of monied corporations, which were of a mixed character ; these last being subjected to seizure like goods and chattels, were to be sold in the same manner, and both were consequently embraced under the general term personal property in the 23d section To this extent the 19th and 23d sections were declaratory of the law at the time of the revision. (12 J. JR. 220. Ib. 395. J. R. 116, 14 do. 352). The language of both is substan- tially copied from the decisions of our courts, introducing no new principle, and intended, as I apprehend, to be applicable 82 CASES IN THE COURT OF APPEALS. Stief v. Hart. to the same kind of property which was the acknowledged subject of seizure, of dir ision, and manual delivery at common law. The 20th section, however, establishes a new principle, and subjects an interest in goods to sale which could not be reached at common law. Its phraseology as we have seen is adapted to that purpose, and of course different from that of the other sections. The Sheriff is authorised to sell, (not the goods) but the right and interest of the pledger, and this inter- est is all that is acquired by the purchaser. The right to levy upon the bills of monied corporations expressly given in the preceding section, is omitted in the 20th, for the obvious rea- son, that a right is not the subject of a manual taking ; it is also indivisible, and consequently cannot be sold in parcels, as directed by the 23d section as to the personal property therein mentioned. Had the 20th section related to the sale of real estate, instead of a right and interest in personal property, effect might be given to its provisions without implying an authority in favor of the Sheriff to change the possession as a means of effecting a sale. As the law stood at the time of the revision, an Equity of redemption, the mortgagee being in possession, a reversion, and kindred interests in land might have been sold upon execution without any levy upon the land out of which those interests arose, and without interfering with the rightful possession of third persons. Wood vs. Colvin. (6 Rill 230). The Revisers in their note to the 20th section, after pre- mising that goods bailed or assigned could not be sold at the common law, remark " that no possible evil is apprehended from extending the same principle which prevails here in rela- tion to real estate to personal property," (3 li. S. 727.) By the principle adverted to, a lessor's interest in real estate might be sold, but a lessee could not be divested of his possession as a means of accomplishing such sale. So in the case of per- sonel property. No case has been cited, Avherc the manual taking of goods by an officer, has been justified by virtue of an execution against one having neither the possession in fact or ALBANY, SEPTEMBER, 1847. 33 Stiefv. Hart. the right of present possession. The case of partners, joint tenants and tenants in common, all proceed upon the right of the co-partner, and co-tenant, to the possession as well as an interest in the goods taken. (Phillips vs. Cook, 2 Hill 47 note.) The possession is itself a legal right which may be transferred by sale. (8 Wend. 239 ; 2 Cow. 253). The decision of the Supreme Court makes an exception in the case of a pledge under the statute to a rule otherwise uni- versal. In the second place the decision deprives the pledgee in all cases of the possession of goods which he has acquired by a valid contract made in good faith and for a valuable con- sideration with the debtor, and in many instances of the whole benefit of his agreement ; and this without reference to the fact, whether the debt Avhich is to be enforced by execution was incurred prior or subsequent to the bailment. Thirdly, in the absence of fraud, it gives the officer greater interest in and control over the property, than is possessed or could be exercised by the debtor through whom he makes title, legal- izing the manual taking and removal of goods, to which the former had neither the right of possession, or possession in fact. I cannot believe that an implication attended by such consequences is a necessary one. The law gives to the creditor the right and interest of the pledger, and when it grants to the Sheriff authority to transfer that interest without removing the property from the possession of the pledgee, it gives the means of obtaining it. A sale can be made of an interest in personal as well as in real estate without a prior change of possession, and if a right to levy is implied in behalf of the officer, it ought to be qualified by the right of sale in behalf of which it is invoked. The latter is limited to the right and interest of the pledgor ; let the Sheriff then seize what the law empowers him to sell, and there could be no just ground of complaint in any quarter. Again, the reasons upon which the authority of the Sheriff at common law rests, to take exclusive possession of the goods upon execution, apply but partially to the present case. Those reasons are, first, that it is necessary for their safe keeping ; 34 CASES IN THE COURT OF APPEALS. Stief v. Hart secondly, to enable him to divide and sell them in parcels, and lastly, to make delivery to the purchasers. But accord- ing to the 20th section of this law, the purchaser is not entitled to possession of the goods ; the officer cannot sell in parcels ; and the property after sale, remains with the pledgee, with whom the purchaser must adjust the lien and upon whose responsibility he must rely for a delivery. It is true the goods would not always be within view at the time of sale. But they could be described with reasonable certainty, which is all that would be necessary to pass the interest of the pledger. The same knowledge that would enable the officer to seize and remove the goods in the hands of the pledgee, would enable him to levy upon the interest to be sold, to make an inventory, and to execute a bill of sale, or give such a description that a fair estimate could be made of their value. A view would not determine the price to be paid, since the value of the pledger's interest would depend upon the lien to which they were liable. I admit this to be an inconvenience, but it is one which is inseparable from the nature of the interest sold : it is one to which the pledger is exposed in making a voluntary sale of his interest, and one to which those who claim under him must also submit. The argument from inconvenience will bear with equal force against the construction of the Supreme Court ; for that gives to the lowest executive officer that the law entrusts with its process, with a view to the sale of an inconsiderable interest in a valuable property, the right to override a valid contract between the debtor and pledgee, by removing the whole pro- perty from the possession of the latter, detaining it until the day of salo ; and for a reasonable time afterwards, to enable the purchaser to ascertain and pay the lien. Of what is a reasonable time the officer of course must be the judge, as there is no one to determine for him. It makes no difference in the case supposed, whether the judgment was fraudulent or not, whether it was for five dol- lars or five hundred. It seems to me that these evils are palpable ; and yet if ALBANY, SEPTEMBER, 1847. 35 Stief v. Hart. this be the true construction of the statute, they mustf have escaped the attention of the revisers, as they assure us they apprehended no possible evil from the adoption of the princi- ple they recommended. Upon the whole case, therefore, I am of opinion, that the judgment of the Supreme Court should be reversed. The rights of the pledgee are as important as those of the judgment creditor, they are also prior in point of time, both should be respected, and such a construction should be given to the statute, as will enable the creditor to reach the interest of the pledger, without essentially impairing the right of the pledgee under his contract. GRAY, J. The property m in question was delivered by Willmarth, the general owner, to the plaintiff, to secure the payment of a debt owing to the plaintiff. Besides the delivery of the goods to him as a security for his debt, the plaintiff was authorized, by express arrangement between him and the owner, to sell the goods, and to apply the avails to the extinguishment of the debt for which they were pledged. On the delivery of the goods, the price at which they were to be accounted for to the owner, was fixed, and it was part of the arrangement between the parties, moreover, that the proceeds of the goods above the price so fixed, should go to the plaintiff, and be retained by him as his profit exclusively. The plaintiff's right of possession in this case, was coupled with a right to sell, and an interest beyond the mere security for his debt ; which, I think, distinguishes this from the ordi- nary case of a pledge, and gives him the exclusive possession and precludes absolutely the removal of the goods by the Sheriff. But viewing this as the ordinary case of a pledge, it is entirely clear that the statute, which has changed the common law, and authorizes the sale of the interest of the pledger in the property pledged, does not authorize the remo- val of the property out of the possession of the pledgee. The statute, section 20, 2 R. S., page 366, which authorizes 86 CASES IN THE COURT OF APPEALS. Slief v. Hart. the safe on execution of the pledger's interest, qualifies the right which the purchaser acquires therein to the precise in- terest of the pledger, and expressly secures the possession of the goods to the pledgee, until a compliance by the purchaser with the conditions of the pledge. The provisions of the section, taken together, negative, by implication at least if not expressly, the right of the officer, or of any other person, to remove the pledge from the posses- sion of the pledgee. At all events it contains no authority for the officer having the execution to take the goods pledged into his own possession, or to do any other act in respect thereto than to dispose of the same by sale. The Sheriff, by the levy, acquires no other right in the goods pledged than that which, at the time, remained in the pledger, and as the pledgor clearly had not the right to the possession himself, and could not legally interfere with the possession of the pledgee, so the Sheriff, by his levy, acquired no such right. By the common law and the adjudications of our Courts, prior to the Revised Statutes, the interest of the pledgor in property pledged, was not the subject of seizure and sale on execution. (Story on Bailment, sec. 353 ; 14 Johns. 222 ; 17 Johns. 116 ; 5 Johns. 335 ; 4 Cow. 461 ; Revisers' Notes , 3 R. S., page 727, sec. 17.) Although in the cases cited on the argument, (4 Wend. 292, and 10 Wend. 318) property in the nature of a pledge was sold on execution, yet the question of the right to sell was not raised, nor passed upon by the Court in either case. An actual taking and removal of the pledge, is not a ne- cessary incident to a sale thereof by the Sheriff, or in other words, the right to sell does not imply a right to remove. The sale may be effected without an actual interference with the pledgee's possession. The Sheriff, by the 23d section of the same statute, which is an enactment declaratory of the rule as previously settled by judicial decision, requires the presence of the property at the time and place of the sale. This un- questionably gives the Sheriff authority to enter upon the premises where the property may be situated, and have the ALBANY, SEPTEMBER, 1847. 37 Stief v. Hart. inspection of the property, but does not authorize, either ex- pressly or by necessary implication, its actual taking or re- moval. The two sections together give him the right of seeing, levying upon and selling the property, but give him no right to take it out of the possession of the pledgee except upon the terms provided by the 20th section. Having the right, therefore, to visit the place where the goods may be de- posited for the purpose of making a levy, he has the same right, also, on the sale subsequently, with all such persons as may attend as bidders, to enter upon the same premises to accomplish the sale. The Sheriff, and all persons accompa nying him as bidders, will be protected, and are not liable as trespassers. In the case of the People vs. Hopson, (1 Denio 575) it is expressly settled that "where a levy under an exe- cution is made upon personal property which is left in the de- fendant's possession, the officer may sell on the defendant's premises, and third persons may rightfully attend there as bidders." Nor is the argument that the security of the She- riff renders an actual taking and removal necessary, well founded. It does not follow that he would be accountable to the judgment creditor for the value of the goods, should the same during the time intermediate the levy and sale be re- moved by the pledgee, or any other person, beyond the reach of the Sheriff. The statute not having clothed him with au- thority to remove the goods out of the possession of the pledgee, he will not be held accountable for their loss if that loss is not attributable to his own fault or procurement. Neither the statute, nor the security of the officer, or of the execution creditor, require that the property pledged shall be taken out of the possession of the pledgee. The statute, withholding from the officer the right to remove the property, imposes upon him no responsibility for its safe keeping, or accountability for any waste or loss not properly chargeable to his default. The statute, authorizing the sale of a pledge, is restrictive of common law right, and must be construed strictly. Noth- ing that is not expressly provided for, and given thereby, ca CASES IN THE COURT OF APPEALS. Stief v. Hart. be taken by intendment or implication. It is entirely clear, from the language of the statute and the note of the revisers accompanying it, that the authority to sell the interest of the pledgor in the property pledged, was not designed to interfere with the possessory right of the pledgee. (See Revisers' note, 3 R. S., page 727, section 117.) The cases (12 Wend. 134, Scruyhamvs. Carter; 23 Wend. 610, Burrallvs. Acker; 24 Wend. 395, Philips vs. Cook; 17 Wend. 58, Randall vs. Cook ; 2 Hill 47, Note, Waddell vs. Cook', and 4 Hill 161, Birdseye vs. Ray,) relied on as establishing the right of the Sheriff to levy and remove the property pledged from the custody of the pledgee, have no application in the case of a pledge. In the three first cases the property was copartnership property, taken and sold on execution against one of the partners, and the actions were prosecuted by the partners not parties to the execution. The fourth was the case of a sale of the mortgagor's interest in property in the possession of the mortgagor covered by a chattel mortgage, and the fifth and sixth were cases Avhere the property sold was held by several persons jointly, and as ten- ants in common, and the interest of all were seized and re- moved for the debt of one. In all these cases except the case of the chattel mortgage, the owners had severally the right to the possession of the entire property to the exclusion for the time being of the other owners, and the Sheriff had consequently the same pos- sessory right, by virtue of his execution, to which the indivi- dual who was the execution debtor was entitled. The case under consideration is entirely different. In this case there was no joint ownership, no partnership, nor any ownership in common in the property between the plaintiff, the pledgee, and Willmarth, the pledgor. It is true that in the case of Bakcwell vs. Ellsworth, (6 Hill 484,) the Supremo Court say that when the interest of the pledgor in property pledged is levied upon, the Sheriff may take the actual possession of the goods. But on looking into the case it will be seen that the question as to the She- ALBANY. SEPTEMBER, 1847. 39 Stief v. Hart. riff's right to the actual possession of the goods was not raised or at. all discussed, and what was said by the Court therefore in this respect, can be regarded only as an obiter dictum, and not as a deliberate adjudication of the point. The section which authorizes the sale of the pledger's interest, clearly does not authorize the taking of the goods out of the posses- sion of the pledgee, and the Sheriff in removing the goods in this case, acted without authority and became a tort-feasor, and judgment should have been given against him. I am of opinion, therefore, that the judgment of the Supreme Court should be reversed. WRIGHT, J. Possession is of the essence of the contract of pledge. If the pledgee voluntarily part with the possession lie loses the benefit of his security. The right of retainer until the debt is paid, or engagement fulfilled, enters into and forms an essential part of such contract. (Story on Bail- ments, 287 and cases cited ; 1 Atk. 165, 5 Bing. N. C. 140 : 1 Smith's Leading Cases 223.) The pledger may voluntarily dispose of his interest in the pledge, but the purchaser secures no right to the possession until the terms and conditions of such pledge are complied with. At common law goods pledged were not liable to be taken in execution in an action against the pledger, until an extin- guishment of the pledgee's title. (Story on Bailments 353 and cases cited,} Formerly, it seems to have been conceded by the courts of this State, where chattels were bona fide pledged or assigned in trust for the payment of debts or other specified purposes, the residuary interest of the pledger or assignor, after the purposes of the pledge or trust were satis- fied, was not a subject for sale on a fi. fa. Therefore, to enable the creditor of the pledger to reach his interest the Revised Statutes provided that such interest may be sold on execution. (2 Rev. Stat. 367 20 ; Revisers notes part 3d, Chap. 6, title 5, 17. 24.) The provision is as follows : " When goods or chattels shall be pledged for the payment of money, or the performance of any contract or agreement, 40 CASES IN THE COURT OF APPEALS. Stief v. Hart the right and interest in such goods, of the person making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right and interest of the defen- dant, and shall be entitled to the possession of such goods and chattels on complying ivith the terms and conditions of tht pledge." The intent of the provision is two-fold: 1st, To empower the officer to sell that which it was before conceded he had no authority for selling : 2d, To vest in the purchaser the precise interest of the pledger. The officer is to do what the pledger himself might have done and nothing more, to vest in the purchaser his right. The sole aim of the stat- ute is to remedy an existing and admitted evil, viz : the injury to creditors arising from an inability to reach by the process of the law the residuary interest of a pledger or assignor. I cannot think that it contemplates, in any way, even a tempo- rary disturbance of the pledgee's rights. The power is given to the officer to sell, not the goods and chattels themselves, but the pledger's "right and interest" therein. He is to sell something in itself incapable of manual seizure. The question presented in this case is, whether a Sheriff under the section of the statute above cited aided by the pro- visions of the 23d section following, is authorized to take corporal possession of the pledged property, and remove it from the hands and custody of the pledgee. In other words, whether the statute in securing a benefit to the creditor of the pledgor, contemplated the infringement and disturbance of the rights of the pledgee. For it is idle to assume that no injury can arise to the pledgee by compelling him, before an extin- guishment of his title by the payment of his debt or otherwise, to yield up even to an officer of the law the actual possession of his pledge. The undoubted effect, in many cases, would be to jeopard or impair his security. It is insisted, that as the 20th section authorizes the officer to sell, and the 23d section provides that "no personal pro- perty shall be exposed for sale unless the same be present and within the view of those attending such sale ;" that the power to take actual possession, and remove the property from ALBANY, SEPTEMBER, 1847. Sticf v. Hart. the custody of the pledgee is necessarily implied that the law having charged the officer with a performance of a duty, he is clothed by implication, with all the power necessary to its full discharge. In the abstract, the principle may be correct, whilst the species of power contended for, in this case, may not follow from it as a consequence. That it does not, it may be urged, 1st, That the power contended for is in derogation of a common law right, and should not be presumed ; 2nd, That effect may be given to the statute, and its object fully attained, without destroying the possession of the pledgee ; 3d, That the statute does not contemplate a change of the possession of the pledge until after its redemption by the pur- chaser. The officer is to sell, and the purchaser to acquire all the " right and interest" of the pledgor. The pledger's inter- est is transferred by the act of the officer, and the operation of the statute, to the purchaser, placing the latter in the pre- cise relation of the pledgor to the pledgee. But as a bona fide pledgee would be entitled to the possession of the pledge against the pledgor and all others, until the bailment was ter- minated by payment, or his title extinguished in some other way, it is provided that after the sale and legal transfer of the interest of the pledgor to the purchaser, the latter shall have possession " on complying with the terms and conditions of the pledge." The obvious meaning of the section is, that the officer may sell and the purchaser acquire the "interest" of the pledgor, but that the pledgee shall only be divested of his possession of the pledged property after a redemption by the purchaser ; 4th, That it is extremely doubtful whether the provisions of the 28d section apply to the sale contemplated by the 20th section, and indeed, if the whole section be read together, it is clear that they do not. In addition to having the property present and within the view of those attending the sale, the section provides that such property " shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price." The residuary interest in goods and chattels cannot be sold in " lots and parcels." But if the Sheriff must necessarily have the pledge in view when offered 6 42 CASES IN THE COURT OF APPEALS. Stief v. Hart. for sale, he may comply -with the statutory direction without removing the property from the possession of the pledgee. If he can enter upon the pledgee's premises to seize and re- move the goods, he can also enter to sell, and may sell with- out removal, thus leaving the right of the pledgee undisturb- ed. It is true, that hy leaving the property in the possession of the pledgee, the officer would encounter the risk of having it forthcoming at the sale, hut if he has no power to remove he would not be responsible, should he fail, by the act of the pledgee, to effect a sale. On the other hand, should he divest the pledgee of his possession, the effect might be to impair, if not wholly destroy, the security of the latter. I cannot bring my mind to the conclusion that the legisla- ture in giving to the officer the power of disposing of the pledger's interest for the benefit of his creditors intended, in any respect, to interfere with the common law right of the pledgee to exclusively hold the possession of the property until the bailment was terminated, by a compliance with its terms and conditions. Consequently I am of the opinion that the Circuit Judge erred in charging the jury, in this case, " that where property is pledged for debt and in the posses- sion of the pledgee, a Sheriff having an execution against the pledgor, may by virtue thereof, take the said property out of the hands of the pledgee into his own possession, and remove it, and sell the right and interest of the pledgor therein." I cannot resist the conviction, that, in this State, where vast amounts of property are held in pledge for advances made thereon, the adoption of the principle that a sheriff or consta- ble, having an execution against the pledgor, may arbitrarily divest the pledgee of his possession, would be fraught with the most injurious consequences to the interests of commerce : and I am unwilling, without the clearest expression of legis- lative intention, to lend my aid to its adoption. The judgment of the Supreme Court should be reversed, and a venire de novo awarded. BRONSON and JONES, Js., were in favor of affirming the judgment. JOHNSON, J., was for reversal. Judgment affirmed. ALBANY, SEPTEMBER, 1847. 43 Fort v. Bard. ABRAHAM I. FORT, Appellant, vs. WILLIAM BARD and others, Respondents. An appeal will not lie from a decision of the Court of Chancery upon a question of practice addressed to the discretion of that Court. Where a defendant in the Court of Chancery suffered the bill to be regularly taken as confessed by him, and then, upon affidavits and papers excusing his default, and shewing, as his counsel claimed, a good defence on the merits, moved that Court to set aside the default and for leave to answer, and the Chancellor de- nied the motion ; held, that no appeal would lie in such a case, and the appeal brought by the defendant from such a decision, was accordingly dismissed on motion. MOTION by the respondents to dismiss the appeal. The facts are sufficiently stated in the opinion of the Court. J. Rhoades and S. Stevens, for the motion. 0. Clark and N. Hill, Jr., opposed. By the Court, BRONSON, J. The appellant, who was one of the defendants in the Court of Chancery, suffered the bill to be regularly taken pro confesso against him ; and then, on affidavits and papers which, as his counsel insist, fully excused the default, and showed a good defence on the merits, moved the Court to set aside the default, and allow him to defend the suit. The Chancellor made an order denying the motion with costs ; and from that order the appeal is brought. The case of Rowley vs. Van Bentliuysen, (16 Wend. 369,) is a direct authority for saying, that an appeal will not lie in such a case. It was a question of mere practice, addressed to the discretion of the Chancellor ; and whether he decided right or wrong is not a question for review. Although the late Court of Errors was disposed to enlarge its jurisdiction, and did not always follow its own decisions, it has never held, so far as I can learn, that an appeal would lie from an order refusing to open a regular default. On the contrary, that Court has often re- 44 CASES IN THE COURT OF APPEALS Fort v. Bard. cognized the case of .Rowley vs. Van Benthuysen as laying down the rule by which it intended to be governed ; and has applied it in matters of more importance than the granting or refusing motions to open defaults. (Rogers vs. HosacJc, 18 Wend. 319 ; Rogers vs. Holley, id. 350.) It is true, that in Tripp vs. Cool:, (26 Wend. 143,) one. Senator expressed his disapprobation of the decision in Rowley vs. Van BentJiuysen ; but so far as appears, no other Senator agreed with him in opinion. And though the Chancellor took occasion to say, that appeals should be allowed in every case not manifestly frivolous, it will be seen that he spoke as the officer, and in view of consequences which might result to the Court of Chancery ; and not as a member of the Court of Errors. The Court of Errors has, on several other occasions, fol- lowed the case in the 16th Wendell ; but the decisions have not been reported, for the reason that the question was al- ready settled. In Jewett vs. The Farmers' Loan and Trust Company, the Chancellor, on motion of the complainants, ordered the defendant's answer to be taken off the files of the Court as irregular, and that the bill be taken pro confesso against him ; and from that order the defendant appealed. After hearing his counsel, the Court of Errors dismissed the appeal, on the ground that the point decided by the Chancel- lor was a question of practice, resting in discretion, and not subject to review in another Court. This was in September, 1843. Two other appeals Avere dismissed at the same time, and on substantially the same ground. I recollect that In another case, and on another occasion, the Court dismissed an appeal from an order resting in the discretion of tho Chancel- lor. The opinion of the Court was written by me ; but I have not been able to find it since this motion was argued, nor is the name of the case recollected. I have bec-n furnished by the State Reporter with a note of the case of Mum ford vs. Sprague and others, where the Court of Errors in December, 1846 its last sitting again held the same doctrine. I have been thus particular in referring to cases, because the appel- lant's counsel seemed to suppose that the decision in Rowley ALBANY, SEPTEMBER, 1847. 45 Fort v. Bard. vs. Van Benthuysen had been overruled by the Court which made it. The matter stands as strong, upon principle, as it does upon authority. Within certain prescribed periods, a party who has been sued, either at law or in equity, has a right to ap- pear and make his defence. It is a strict legal right, of which he cannot be deprived. But when that time has expired, and his default has been entered, the legal right is at an end ; and if he wishes to be heard, he must ask it as matter of grace and favor. The motion for leave to plead or answer is ad- dressed to the discretion of the Court, and may be granted or refused as the ends of justice seem to require. It should never be granted unless the party has a good defence on the merits, and the omission to plead or answer in due time was the result of accident or mistake, without any culpable negli- gence on his part. And whether the motion is granted or re- fused, the decision is final, so far as relates to a Court of review. But we have been told in this case, what I have often heard when sitting in the Supreme Court on motions for writs of mandamus and certiorari to inferior Courts and officers, that if a review is refused, those Courts and officers, under color of exercising their discretion, will make arbitrary, unjust and op- pressive decisions. To such arguments it was answered long ago by Van Ness, J., " we are not to presume that a public officer will corruptly exercise the power with which he is in- vested for the public good ; and much less ought we to found a decision upon odious and disreputable presumptions against the integrity of a judicial officer. A reasonable confidence in public officers is necessary to the very existence of civil government." And Kent, C. J., said in the same case, " a reasonable confidence must be entertained, that every Court will exercise its discretion soundly." (Trustees of Hunting- ton vs. Nicollj 3 Johns. 566.) Although a wise people should be careful not to go too far in that direction, they must of necessity confide some discretionary powers to all public func- tionaries, executive, legislative and judicial. This results from 46 CASES IN THE COURT OF APPEALS. Fort v. Bard. the very nature of representative governments. It is impos- sible to set down or specify in detail what shall be done under all possible circumstances. Something must be trusted to the good sense and honest purpose of the agent. Any one who will give himself the trouble to reflect on the subject, will find that there is scarcely a public officer in the State, from the highesi to the lowest, who does not exercise some powers which are beyond the reach of judicial review. And this is especially so in relation to Courts of justice. They dispose of many questions daily, where there is no appeal. And it must be so. The questions are for the most part such as cannot be fully and intelligibly presented to an appellate Court. And besides, no community could endure the army of Judges which would be necessary, and the endless litigation which would follow if every decision in relation to the mere practice and proceedings of the Court might be carried from Court to Court by appeal. The reason assigned by the Chancellor for denying the mo- tion was, that the defendant asked the favor of having the de- fault opened, for the purpose of setting up as a defence a violation of the restraining law by the corporation to which the mortgages had been given, and for the foreclosure of which the bill was filed, without repaying the money which he had actually received from the company. But it is not a matter for inquiry here what considerations governed the mind of the Chancellor in denying the motion. It is enough that it was a question addressed to his discretion. Appeal dismissed. NEW-YORK, NOVEMBER, 1847. 47 Corning t>. McCullough. CORNING AND HORNER vs. MCCULLOUGH. A suit against a stockholder of a corporation to charge him individually with ? debt contracted by it, pursuant to a provision in the act of incorporation, is no) an "act'tm upon a statute, for a forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved" and therefore is not barred by the three years limitation prescribed in the statute, (2 R, S. 298, 31,) for actions of that class The period of six years is the only limitation provided for suits of this description. Where the charter of an incorporated company provides that the stockholders shall be liable for its debts, and that a creditor may, after judgment obtained against th* corporation, and execution returned unsatisfied, sue any stockholder and recover his demand, such stockholders are liable in an orignal and primary sense, like partners or members of an unincorporated association, and their lia- bility is not created by the statute of incorporation. It seems that the short statute of limitations above referred to is intended only to embrace penalties and forfeitures, properly so called, and other causes of action penal in their nature, and where both the cause of action and the remedy are given by statute ; but does not extend to cases where the action is partly given by the common law and partly by statute. DEMURRER to plea. Corning and Horncr sued McCullough in assumpsit under the provisions of the act incorporating the Rossie Galena Company. (Stat. of 1837, p. 445.) The 9th section of that act provides, that the stockholders of the cor- poration shall be jointly and severally personally liable for the payment of all debts and demands contracted by the corpora- tion, and that any person having any demand against such corporation, may sue any stockholder or director in any Court having cognizance thereof, and recover the same with costs. The 10th section provides, that before any such suit shall be commenced judgment shall have been obtained against the corporation, and execution issued thereon, and returned un- satisfied, or that the corporation shall have been dissolved. The declaration contained the necessary averments to charge the defendant as a stockholder, personally, with a debt con- tracted for goods sold by the plaintiff's to the company. The defendant pleaded that the cause of action did not accrue within three years next before the commencement of the suit. To this plea the plaintiffs demurred, and the defendant joined 47 s HA 12i s49AD 287i 10 '45 25 '22 25 3 22. d35 41, 35 Ml, 46 '12' J62 3 21( 64 3 17( 64 2 17' 71 4 48 r 74 4 381 J77 3 31 h80 45 r 90 3 36J 98 '59E 103 4 47 131 "492 147 2 60S 168 S 2( 168 3 21 el 72 el 72 '586 8 586 48 CASKS IN THK COl'L r OF APPEALS. Corning: c. McCullough. in demurrer. The Supreme Court held the plea a good bar under 2 R. S. 298, 31, for the reasons assigned in the case of Freeland and others vs. McCullough, (1 Denio 414,) and gave judgment for the defendant. The plaintiffs bring error. N. Silly Jr. and D. Burwell, for plaintiffs in error. J. Van Buren, for defendant in error. Points for plaintiffs in error : I. The Supreme Court erred in assuming that the action in this case was founded upon the act incorporating the Ilossie Galena Company, and not upon a common law liability, and that it was therefore an action upon a statute, within the meaning of 2 R. S. 297, 8, 31. 1. Independently of the act of incorporation, the members of the company would be liable for its debts as partners, at common law. (Collyer on Partn. 614, 626, 635, 651, 653.) 2. The legislature, in incorporating the company, expressly refused to exempt them from their common law liability as partners. The charter virtually holds this language to the members : " You may have a corporate capacity for the convenience of transacting business, and the facility of transferring your respective interests in the joint con- cern ; but you shall remain liable to the creditors of the association in the same manner, substantially, as though you had not been incorporated." (Sess. Laws of 1837, 445, 6, 9, 10; 2 Denio, 119, 123, 4, Harger rs. McCullough ; 2 Hill, 268, 2G9, 270, Moss vs. Oakley ; 3 Hill, 188,' 190, Bailey vs. Baneker ; 26 Wend. 43, 51, 2, Van Hook vs. Whillock; 20 Wend. 614, 617, Ex partc Van Riper.} 4. Even conceding that the action is founded partly on the act of incorporation, and partly on the common law, which we deny, still the case would not be within 2 R. S. 298, 31. (7 Paige 380, 381, Van Hook vs. Whitlock, per Walworth, Chancellor.} NEW-YORK, NOVEMBER, 1847. 49 Corning v. McCullough. II. The Supreme Court have virtually decided in this casa that all statutory remedies by action, except those which are given to the people, or a common informer, are embraced by 2 R. 8. 298, 31. This construction will extend the provi- sion to various actions which were plainly not contemplated by the Legislature, and is therefore erroneous. III. The provision in 2 JR. S. 298, 31, was intended to em- brace only actions for penalties and forfeitures, properly so called, and other actions of the like nature. 1. The subject matter which the Legislature had in view, when they adopted the provisions in Art. 3d, of which the above section is a part, was actions for penalties and forfeitures. This they have expressly declared. (See 2 R. S. 291, 2, 1, Tit. 1 ; 2 R. 8. 295, caption of Art. 2 ; 2 JR. S. 297, caption of Art. 3.) 2. The section was introduced mainly to provide for the case of a penalty or forfeiture given to the party ag- grieved^ which was not embraced by the preceding sec- tions of Art. 3d. (See 2 Greenl. Laws of N. Y. 96 ; 4 Mod. 129 ; Cro. Eliz. 645 ; Noy 71 ; 3 Leon. 237.) 3. The word " cause' was substituted in this section for the word "penalty" used in the preceding ones, from a doubt whether a statute giving a sum of money or damages, both by way of remedy to the plaintiff, and punishment to the defendant, could rightly be called a " statute made, &c., for a penalty ;" learned Judges having differed upon the question. (Espinasse on Penal Actions, p. 6 to 8 ; SardivicTcs Rep. 390, 393, Merrick vs. The Hundred, c. ; 1 Wilson's Rep. 125, 6, Williams vs. Middleton; 2 Term Rep. 154 ; 8 Johns. Rep. 345 ; 14 Johns. Rep. 255 ; 3 Toml. Law Diet. 520.) 4. By using the word " cause" in the unlimited sense as- cribed to it by the Supreme Court, the word " forfeiture" is rendered entirely inoperative. But the Legislature, having expressly declared that the subject matter intend- ed to be provided for was actions for penalties and for- feitures, the word " cause," being general and of doubtful 50 Corning v. McCullough. import, is to be limited and applied accordingly. (1 Blackst. Comm. 60, 61 ; 1 Plowdcris Eep. 203 to 206.) 5. Again, the word "cause" being preceded by the word "forfeiture" is to be understood as meaning something of the like nature, according to the maxim -noscitur a sociis. Construed in this way the section will read : " All actions upon any statute made, or to be made, for any forfeiture or like cause" &c. (See Broom 8 Legal Max. 294, 5; 5 Barn. $ Aid. 164, Phillips vs. Barber; 4 Term Rep. 224, 227, Evans vs. Stevens ; 2 Moore 491, 495, Clark vs. G-askarth ; 8 Taunt. 431, S. C.) IV. The action is embraced by that part of the statute limiting the right of suing to six years. (2 R. S. 295, 18.) 1. It is within the express terms of the 4th subdivision of the above section ; being an action of " assumjysit, or on the case, founded on a contract or liability, express or im- plied." 2. None of the reasons which induced the Legislature to prescribe a short period of limitation for punitory or penal actions, apply to this case. It is an action upon a demand for goods sold, and is entitled to as much lavor as other actions of the same general character. (20 Wend. 614, ex parte Van Riper.] 3. If the Supreme Court are right, however, the action would be barred absolutely after three years, and the plaintiff would be entitled to none of the exceptions on account of disability, absence from the State, &c., which apply to other actions of assumpsit, and even of tort. (See 2 R. S. 296, 7, 24, 26, 27 ; 2 R. S. 298, 32.) V. If it be doubtful, upon a view of the whole scheme of legislation on this subject, whether the three years limitation, or the six, is applicable to actions like the present, that con- struction should be adopted which will preserve the remedy the longest. 1. By the common law, a suitor had an unlimited time within which to sue, the maxim being that " a right never dies/' (Wilkinson on Lim. 1, 2.) NEW-YORK, NOVEMBER, 1847. 51 Corning v McCullough. 2. The " statute of limitations, being in restraint of right, is to be construed strictly;" i. e. so as to continue and preserve the right, rather than to abridge or destroy it. (14 Johns. Rep. 480, per Van Ness J. ; 2 Bos. $ Pull. 546, 7, per Heath J.) 3. " The better construction of a statute is always to ex- pound it as near the rules of the common law as may be." (11 Mod. Rep. 150, Arthur vs. Bokenham; 1 Saund. Rep. 240 ; 10 Johns. Rep. 579, 580.) 4. " Statutes are not presumed to alter the common law further or otherwise than is clearly expressed." (6 Danes Air. 589, pi. 20 ; 11 Mod. Rep. 150, Arthur vs. Bokenham ; 10 Johns. Rep. 579, 580 ; Bac. Abr. tit. " Statute" (1) 4 ; Ram. on Leg. Judgm. 160.) Points for defendant in error : I. All actions upon any statute, for any cause, the benefit and suit whereof is limited to the party aggrieved, should be commenced within three years after the cause of action ac- crued. (2 Rev. Stat. p. 225, 31, new edition; 1 Rev. Laws, p. 186, 6.) II. This action is brought upon the statute incorporating the Rossie Galena Company. (Session Laws, 1837, p. 445 ; Bullard vs. Bell, 1 Mason s Rep. p. 243 ; Heacock vs. Sherman, 14 Wend. 58.) III. This action was not commenced within three years after the cause of action accrued. Therefore the plea of the statute of limitations of three years is good, and affords a bar to the recovery of the plaintiffs in this action. ( Van Hook vs. Whitloek, 2 Edw. 304 same case, 7 Paige, 373 ; same again, 26 Wendell, 43.) JONES, J. delivered the opinion of the Court : Corning and Homer, the plaintiffs in error, made a sale of merchandize to the Rossie Galena Company, wherein the de- fendant in error was a stockholder, and after obtaining a judg- ment against the Company for the amount thereof, and after 52 CASES IN THE COURT OF APPEALS. Corning v. McCullough. an execution, issued on the said judgment, had been returned unsatisfied, brought this action against the defendant in error as being a stockholder and member of the Company, and per- sonally liable for the debt. The defendant pleaded in bar of the action that the cause of action did not accrue to the plain- tiffs within three years next before the commencement of the suit. To this plea the plaintiffs demurred, and the Supreme Court gave judgment against them. That judgment is now before this Court for review. The question is, whether the statute limitation of three years for the commencement of ac- tions on statutes for a forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of the State applies to this case, and bars the plaintiffs' action. The Revised Statutes contain a general provision limiting the time to six years within which actions of account, assumpsit, or on the case, founded on any contract or liability, express or implied, are to be commenced, as ex- pressed in the 4th subdivision of section 18 of the 2d article of title 2d of the chapter entitled, " of actions and the times of commencing them," which the plaintiffs suppose to apply to this action. And those statutes also contain a special provi- sion declaring that all actions upon any statute, made or to be made, for any forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of this State, shall be commenced within three years after the offence committed, or the cause of action accrued, and not after, as expressed in section 31, in the 3d article of said title and chapter ; and within this provision the defend- ant claims the present suit to come. To which of these classes does this action properly belong ? It was the manifest intention of the Legislature in framing the provisions of the statute for limiting the times for the commencement of actions, to seperate and distinguish actions on contract^ and for causes founded on good and valuable con- siderations, from actions on statutes for forfeitures and causes in affinity with them, and to apply to the latter class shorter Derioda of limitation than to the former. In accordance with NEW-YORK, NOVEMBER, 1847. 53 Corning v. McCullough. this principle, and with intent to secure to all actions for causes on meritorious consideration, the benefit and privilege of the longest time of limitation, the 4th subdivision of the 18th sec- tion is conceived in the most comprehensive terms, extending to and embracing all actions on the case, founded on any con- tract or liability, express or implied ; and to it this action, be- ing on the case, for the price or value of merchandize sold and delivered by the plaintiffs to the Rossie Galena Company, of which the defendant was a stockholder, on the ground of his personal liability for the debt, must belong, unless the cause of action against the defendant was in fact created or accrued to the plaintiffs by the statutes for the incorporation of the Com- pany, or the action itself is necessarily upon the statute. Was the debt contracted to these plaintiffs by the purchase of the merchandize sold to the Company, the debt of the corporate body exclusively ? or is this suit against the defendant per- sonally, for it, strictly and technically an action on the statute of incorporation '? The ground of the action is the individual liability of the defendant to pay for merchandize sold and delivered to a com- pany of which he was at the time a member. If that Compa- ny had been a voluntary unincorporated association of individ- uals, using the name of the Rossie Galena Company in its operations, his liability for its engagements would have been clear, and his defence in point of form to an action against him solely for a debt of the Company, would have been the non- joinder of his associates with him in the action. How has the act of incorporation in this case shielded the stockholders from that responsibility for the debts of the company, which, acting without it, they would have incurred? It is not a general unqualified incorporation of the company imparting to the stockholders and members Composing it as a legal consequence an exemption from personal liability for the debts and engage- ments of the body corporate. It is a legislative grant of a special qualified corporate capacity, with adequate plenary powers for the purposes of its institution, but with the personal liability of the stockholders for the debts the company shall 54 CASES IN THE COURT OF APPEALS. Corning v. McCullough. contract, and the liabilities they shall incur. The statute, at the same time that it incorporates the company, and thereby enables them to contract debts in their corporate names, pro- vides that the stockholders who compose the company, and for whose use and benefit purchases are made and debts contracted, in their corporate name shall, notwithstanding their incorpo- ration, be jointly and severally personally liable for the pay- ment of all debts or demands contracted by the company, and that any person having any demand against the corporation, may sue any stockholder, director or directors, in any Court having cognizance thereof, and recover the same with costs. The Legislature thus concurrently with the creation of the body corporate, and in the same statute which creates it, en- acting and providing that it shall not possess the capacity nor have the legal effect and operation which an unqualified act of incorporation would possess and have of imparting to its stock- holders irresponsibility for its debts, or of contracting debts in its corporate name on the responsibility of the corporation, solely and so as to exempt its stockholders from personal lia- bility therefor. If then the incorporation of this company does not shield or exempt its corporators and members from in- dividual responsibility for the debts and engagements of the company, but leaves them, under the common law liability, as partners or joint debtors for those debts and engagements, must it not follow that the defendant, McCullough, he being a stockholder in the Rossie Galena Company at the time the debt of that company to these plaintiffs was contracted, became, on the consummation of the contract by the delivery of tho goods to the company, liable for the payment of the debt contracted thereby ? The act of incorporation affording him no protec- tion therefrom, and not only leaving him personally liable there- for, but in express terms recognizing and affirming such liability, what defence could he make to an action charging him as a partner or joint debtor on the contract of the com- pany ? The personal liability of the stockholders to creditors under this charter, for the debts of the company, is an ele- ment of the incorporation which wholly excludes all claim of NEW-YORK, NOVEMBER, 1847, 55 Corning 1 v. McCullough. any stockholder to treat those debts as debts of the corporate body solely, which he did not contract and is not bound to pay. The stockholders all stand under this act of incorporation on the same ground, and under the same responsibility as respects creditors, as they would if unincorporated have stood. This liability the stockholders voluntarily assumed, and it could not have been misunderstood by them. It is fully and clearly ex- pressed in the act of incorporation. The original stockhold- ers, by their acceptance of the charter, and subsequent pur- chasers in becoming members, assented and agreed to the terms and conditions of the act of incorporation. The defendant in this suit, in common with the other stockholders, by his ac- ceptance of the charter, agreed to its terms, and especially to that feature of it so strongly marked, of the individual liabili- ty of the stockholders equally with that of the corporate body for the debts of the company. It is a liability which every stockholder must be understood to assume and take upon him- self and to be under to those who deal with the company. Dealers contract with the corporation on the faith of that se- curity for the performance of the contract. The credit they give is given, and they trust, as well to the personal liability of the stockholders, as to the responsibility of the corporation, for the fulfilment of the engagement ; and each stockholder incurs that liability to the creditor the moment the contract of such creditor with the company is consummated. When, therefore, the plaintiffs sold and delivered their merchandize to the company whereof the defendant was a stockholder, they acquired a right, of which nothing could divest them, to the liability of the defendant for the payment of the price of the goods ; and the defendant incurred the obligation to answer and pay the debt thus contracted. The creditors were, it is true, required by the 10th section of the act of incorporation first to obtain judgment against the corporation (unless previ- ously dissolved) for their demand, and to cause execution to be issued thereon, which was to be returned unsatisfied, in whole or in part, before they commenced their suit therefor against the individual stockholder on his personal liability- 56 CASES IN THE COURT OF APPEALS. Corning v. McCullough. But this provision does not affect the right of the creditor to the personal liability of the stockholder for his debt, nor the obligation of the stockholder to pay the same ; nor does it pre- vent the liability of the stockholder to the creditor from at- taching and becoming perfect on the consummation of the contract of the creditor with the corporation. It simply de- fers the remedy by action upon that responsibility until the remedy at law against the corporation shall be exhausted, or the corporation shall have been dissolved. The intention of it is to secure the stockholder from an immediate recourse to him upon his personal liability when the corporation may be solvent and able to pay the debt, and the creditor may have an effectual remedy against the corporate body for his demand. The substance of the 9th section is, that the stockholders shall be jointly and severally personally liable for the payment of all debts contracted by the company, and that any person having a demand against the corporation may sue any stock- holder therefor, and recover the same with costs ; and the 10th section provides that before suit shall be commenced upon any such demand, judgment shall have been obtained against the corporation thereon, and execution issued and returned unsat- isfied, in whole or in part, or the corporation shall have been dissolved. Upon these two sections taken together, the per- sonal liability of the stockholder for the payment of the debt is immediate and absolute the moment the debt is contracted or incurred by the company ; but the recourse of the creditor by suit to the stockholder upon that personal liability, is de- ferred until he shall have first exhausted his remedy at law against the corporation, or the corporation shall be dissolved. The intention of the Legislature obviously was to incorpo- rate the company with a qualified corporate capacity, vesting general corporate powers in the company, but leaving the stock- holders personally liable for the debts of the corporation ; and to effectuate that intention it was necessary to qualify the grant of a corporate capacity to contract debts by a provision that the stockholders should be personally liable to creditors therefor. It was fully understood, that under a general unquali- NEW-YORK, NOVEMBER, 1847. 57 Corning v. McCullough. fied incorporation of the company, the debts contracted by it in its corporate capacity would be the debts of the corporation and not the debts of the individuals composing the company, and that the stockholders would not be personally answerable or liable therefor. To guard against this irresponsibility of the stockholders for the debts of the company consequent upon an unqualified act of incorporation, the provision was inserted in the charter for preserving the personal liability of the stock- holders ; but as that provision, if permitted to have its fall legal effect and operation, would expose them to the sui.tr- of creditors in the first instance, and without any previous appli- cation to the company or demand of payment therefrom, und would moreover subject the creditors themselves, when driven to their recourse tc suits against the stockholders, to grr/afc and oftentimes nearly insuperable difficulties and embarrassment in the pursuit of their remedy against a numerous av.d widely dispersed body of stockholders, it was deemed expedient to require of the creditor first to exhaust his reme^j at law for the recovery of his debt against the corporation before re- course should be had by him to the stockholders, ar,d to enable and authorize him, when such recourse should l/ecome neces- sary, to take his remedy and prosecute his suit against all or any of the stockholders of the company. The^e elementary provisions are incorporated in the act by separate sections from the enacting clause, whereby the company is in form in- vested with its corporate capacity ; and upon this separation of these several enactments it has been contended that the statute is to be understood and construed as intending first to incorporate the company without qualification, thereby vest- ing in the body corporate full powers to contract debts in its corporate name without the personal responsibility of the stockholders therefor, but exempting them therefrom, and then, by the subsequent section subjecting them to a new and qualified liability for the same ; and hence concluding that the remedy on such new liability must be by an action on the statute. To this exposition of the statute I cannot accede. It is, I believe, an established rule of construction, that the 58 CASES IN THE COURT OF APPEALS. Corning v. McCullough. different parts of the same act relating to the same subject, must, unless a different intent is so palpable as to admit of no question, be taken together and construed as if they were all in the same section. Upon that principle, these several sec- tions of this act, the first incorporating the company, and the ninth and tenth qualifying the grant of corporate powers and capacity, must receive the same construction as would be given to them if they had all been incorporated in the same section of the statute. We cannot impute to the Legislature the de- sign or intention to exempt the stockholders by the incorpora- tion of them, from personal liability for the debts of the com- pany, and then, by the same statute, render them personally liable for the same debts. We apprehend that the clear in- tent was to invest the company with a qualified corporate ca- pacity, and not to confer upon the stockholders, either directly or indirectly, as the consequence of such incorporation or otherwise, any exemption or immunity from personal liability for the debts of the company to be contracted in its corporate name and capacity. If this view of the act of incorporation be correct, and the personal liability of the stockholder for the debts of the com- pany results from his connection with the company as a mem- ber of it, participating in its benefits under an incorporation so qualified as not to exempt him from such liability for its debts or to protect him therefrom, how can the remedy of the creditor upon that liability be by an action on the statute ? or why must it not necessarily be by an action on the case at common law upon the liability of the stockholder for the debt of the company or copartnership, of which he is a member, and against which the incorporation of the company affords him no protection? The plaintiffs' claim is not for a forfeit- ure or penalty or any sura of money or thing taken from the defendant and given to them by a statute, nor upon any cause of action to which their whole and sole right or title rests upon a statutory provision entitling them thereto, but for a debt contracted by the sale by them of merchandize, whereof they were the owners, to a company of which the defendant was n NEW-YORK, NOVEMBER, 1847. 59 Corning v. McCullough. member, and wherein he had an interest as one of its stock- holders. But the sale, it is said, was to the company and not to the defendant, and the plaintiffs had full notice and well knew that they made the sale to a corporate body, and contracted the debt on its credit and responsibility. The sale, it is true, was to the company, but not on its credit exclusively, but on the faith and credit also of the personal liability of the stock- holders for the debts of the company. The liability of the defendant upon which the action is grounded, is for the pay- ment of a debt of the company incurred by the purchase of merchandize of the plaintiffs, for the use and benefit of the company, and wherein the defendant, as one of the members of the company, was interested, and for which he thereby and under the provisions of the charter of the company, became and was, concurrently with the company, from the inception of the debt, personally liable. It is virtually and in effect a lia- bility upon a contract, and the mutual agreement of the par- ties ; not indeed in form an express personal contract, but an agreement of equally binding obligation, consequent upon and resulting from the acts and admissions or implied assent of the parties. The company made the purchase of the goods of the plaintiffs on the terms and security authorized by the statute. The personal liability of the stockholders for the payment of the debts of the company, was one of the terms of purchase authorized by the statute. It was consequently one of the terms of the sale by the plaintiffs of their goods to the company, and constituted part of their security for the payment of the debt thereby incurred. To those terms and that security the defendant, by becoming and being at the time a stockholder of the company, gave his assent and made himself a party under and according to the provisions of the charter, and the plaintiffs, by the acceptance of the terms of sale and the delivery of the goods to the company, entitled themselves to the benefit of the personal liability of the de- fendant as a stockholder of the company for the payment of the debt contracted by the purchase. 60 CASES IN THE COURT OF APPEALS. Corning v. McCullongh. But it is objected that the personal liability of the stock- holders under the statute, differs from the common law liabili- ty of copartners ; the common law rule subjecting copartners to a joint r2sponsibility, and the statute making the stock- holders of the company jointly and severally liable for the debts. But that change of the common law rule of responsi- bility by the statute, as applied to this class of partners, can- not vary or affect the principle on which the liability rests. It is competent to the Legislature in all cases to amend, modify, and alter the rules of the common law, whenever amendments or alterations are deemed proper and expedient. Such action of the Legislature is of frequent occurrence, but such statutory amendments or modifications do not necessarily or usually abolish the rules they affect, or change the course of the common law in relation thereto ; and as a general rule the pursuit of the remedy, in such cases, where the amenda- tory statute is silent, will be by the appropriate common law action, and not by an action on the statute. Should the Legislature provide by statute that copartners shall be lia- ble, jointly and severally, to creditors on their contracts, and that any one or more of them might be sued upon their joint contract without joining the others in the suit, must the action for a debt accruing after the alteration of the rule of responsibility, if brought against one only of the co- partners, be brought upon the statute authorizing the action against him solely as being necessarily an action on the statute, or might it not be brought in the usual form of a common lawsuit on the contract or for the debt of the copart- icrship ? The cause of action in such case against the co- partnership, would exist at common law, arul the remedy against the one partner solely, though authorized and given by statute, would, I apprehend, be by suit at common law, in pursuance of the statute, and not upon the statute in the technical sense and meaning of those terms. And if the remedy against one of several copartners for a partnership debt, under a general statute providing for and authorizing the same, would be by a common law action, on the same NEW-YORK, NOVEMBER, 1847. 61 Corning v. McCullough. principle the recourse to the individual stockholder as a part- ner unprotected by the act of incorporation, and subjected to personal liability, might also be by a common law action on the contract of the company. Then how can this action, having for its object the recovery of a debt for goods sold to a company of which the defendant was a member, and per- sonally liable for the payment of its debts, and which action, in no just sense of the term, partakes of the character of eithe' forfeiture or penalty, be held an exception out of the class of actions of assumpsit and on the case to which it so na- turally belongs, and to come within the description and class of actions on statute ? I cannot resist the conclusion, that it is, in truth and in fact, a common law action on the case, for which the statute limitation of six years is provided, and not an action on statute subject to the shorter limitation of three years for its commencement. But suppose it can be regarded in any sense of the term as an action on statute, is it an action for a forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, and within the class of actions to which the limitation of three years is to be applied ? An action, to come within the 31st section of the chapter entitled " of actions and the times of commencing them," must be an action on a statute for a for- feiture or cause, the benefit and suit whereof is limited wholly or in part to the party aggrieved. The purport of this statu- tory provision, especially when considered in connection with those which immediately precede it, referring also to actions on statutes, and the language in which these provisions are all expressed, indicate clearly, I think, the intention of the Legislature to have been to apply them to forfeitures and penalties, arid causes of action of the like character, partaking of the nature of penal actions. The whole chapter "of ac- tions and the times of commencing them," and all its divisions and enactments touching actions on statutes, speak that lan- guage too plainly, I think, to be misunderstood. The first title of the chapter in the first section of it defines and de- clares the actions included within the provisions of the chap- 62 CASES IN THE COURT OF APPEALS. Corning v. McCullough. ter to be either: 1. Such as relate to real estate* 2. Those which may be brought for the recovery of any debt or demand, or for the recovery of damages only. 3. Those which may be brought for penalties or forfeitures. 4. Suits in equity. The 18th section of the chapter, being the first division of the second article of the second title, contains seven subdivi- sions. By the first of them all actions of debt founded upon any contract, obligation or liability, not under seal, nor upon a judgment or decree of a Court of Record, as therein ex- pressed, and by the fourth subdivision all actions of account assnmpsit or on the case, founded on any contract or liability, express or implied, are to be commenced within six years next after the cause of such action accrued, and not after. And I here notice the very comprehensive terms of the fourth sub- division of this section as showing it to have been purposely framed and intended to reach and comprehend all actions on the case, of every description, founded on any liability what- ever ; and that it must be held to extend to and embrace the action now before us, unless the same be shewn or plainly ap- pears to be excepted and otherwise provided for as more ap- propriately belonging to some other class of actions. The third article of the second title of the chapter, applies to ac- tions for penalties and forfeitures, and is entitled " of the time of commencing actions for penalties and forfeitures." It consists of three sections, being sections 29, 30 and 31 of the chapter. By the first (being section 29) all actions upon any statute for any forfeiture or penalty to the people of the State, are to be commenced within two years after the offence shall have been committed ; by the second (being the 30th section) all actions upon any statute for any forfeiture or penalty given in whole or in part to any person who will prosecute for the same, are to be commenced within one year after the offence shall have been committed, and if not commenced within that time by any private citizen, then to be commenced within two years after that year ended in behalf of the people of the State; and by the third (being the 31st section) all actions upon any statute for any forfeiture or cause, the benefit and suit where- NEW-YORK, NOVEMBER, 1847. 63 Corning v. McCulIough. of is limited to the party aggrieved, or to such party and the people of the State, shall be commenced within three years after the offence committed or the cause of action accrued, and not after. Thus it is seen that the statute arranges all actions at law not relating to real estate in two classes. 1. Actions for debtSj demands or damages only. 2. Actions for forfeit- ures and penalties. And that the 3d article of the 2d title of the chapter, which relates to the said second class of actions, namely, penalties and forfeitures, is entitled and professes to be of the time of commencing actions for penalties and for- feiture ; thus shewing the leading and general intent and pur- pose of the Legislature to have been to confine the actions coming within this second class, to penalties and forfeitures, and to apply the short limitation of three years to such ac- tions only. But it is contended that the addition of the word "cause" to that of "forfeiture," in the 31st section, extends the pro- visions of that section to all actions for any cause, and upon any statute, whether for a forfeiture or other cause, founded upon statute liability, and the benefit whereof is limited to the plaintiff or party aggrieved. To this broad meaning of the term is opposed the narrower acceptation of it as importing "causes" of the same nature as those indicated by the term " forfeiture" with which it is so closely associated in the sec- tion and this more restricted sense of the term strikes me as being the most rational exposition of it. That the use and application of that indefinite term in this connection, without any superadded words of restriction or explanation, has in- volved the section in some obscurity, the conflicting opinions of Jurists and learned Judges upon it sufficiently testify. But indefinite as it is in itself, it may, when used in connection with other terms, acquire distinctive features indicating the sense intended to be attached to it ; and as used and applied in this section it must, I think, from its juxta position to the term forfeiture, from the omission in the section of the term penalty from the relation of that section to the article and chapter to which it belongs, and from the general intention of 64 CASES IN THE COURT OF APPEALS. Corning v. McCulIough. the Legislature, as collected from the language used in de- scribing and designating the classes, and the character of the actions in their contemplation at the time, as those to which that article was to refer, be understood and held to apply to penalties and to such causes only as savour of forfeiture or penalty, and which, though not technically and in name pe- nalties, are yet in substance and effect penal in their nature, and calculated and operating to affect the party exposed to them in the same or a similar manner with forfeitures and pe- nalties. That exposition of the meaning of the term receives coun- tenance and support from the history of the section in which it occurs. That section was introduced into the statute of limi- tations of this State, on the first revision of the statute law of the State, by Jones & Varick, in 1788. On that revision the English statutes, then understood to be in force in this State, or properly applicable to us, were adapted to our system and en- acted by the Legislature into the statutes of this State ; and the provisions for the limitation of actions on statutes for forfeit- ures limited to the people, and to common informers contain- ed in the act for the limitation of criminal prosecutions and of actions and suits at law, then passed by the Legislature of this State, were taken from the English statute, entitled an act con- cerning informers of the 31st Elizabeth, ch. v, sec. 5. But that statute contained no clause or provision for the limitation of the time for the commencing of actions on statute for forfeitures or penalties, the benefit whereof was limited or given to the party aggrieved. Nor was there any statute then existing and in force in this State or in England, containing any pro- vision for the limitation of the time of the commencement of that class of actions on statute. It was to supply this omis- sion of the English statutes, that the clause of the 13th section of the act of 1788, providing that all actions, suits, bills or informations for any forfeiture or cause on any statute, the benefit or suit whereof, was given to the party aggrieved should be commenced within three years after the offence committed or cause of action accrued, was passed by the revisers, and NEW-YORK, NOVEMBER, 1847. 65 Corning 1 v. McCullough. inserted in the act which was then passed by the Legislature. It was a new provision, and was the same in substance and in nearly the same words when first created, as it now exists in the section to which we have so often had occasion to ad- vert. The provision as first adopted, has gone through the several subsequent revisions of the statute law of the State unchanged, and without any question having ever arisen upon its construction, but we believe with the generally received opinion, that the intention of it was to provide and apply a rule or time of limitation to actions on statute by the party aggrieved, for the same or similar causes with those for which actions were given to the people or to common informers, but that it was not the intention of the Legislature or the purpose of the new provision to limit the time for the commencement of actions on statutes by the party aggrieved to a shorter period than six years in other cases than those of forfeiture and pe- nalty, and causes of the same nature therewith, and analogous thereto. When the action of the party aggrieved is for a for- feiture or penalty, it is of course upon the statute, and when for a specific sum or definite measure of indemnity or recom- pense, which is the form the statute sometimes gives to the remedy it provides, the action may still be upon the statute ; but if such remedy be given for a wrong or injury which is actionable at common law, and the party has his election be- tween the common law action and the statute remedy, and chooses to betake himself to his statute remedy, instead of bringing his action at common law, for the recovery of damages generally upon his proof before a jury at the trial, the short limitation of three years may be applied to him, though if he had been content with his remedy by the common law action, it would not have been applicable. But there is a class of actions and causes of action which involves statutory provi- sions in a greater or less degree, but which though the statute is a necessary link in the chain of title to the remedy, and they may to some intents be said to be under the statute, are not in the legal acceptation of the terms, actions upon the statute within the meaning of the limitation acts. I under- y 66 CASES IN THE COURT OF APPEALS. Corning v. McCuIlough. stand the rule to be, that to bring a case within any class of actions on statute to which the short limitation time of com- mencing them is applicable, the cause of action must be created or given by the statute, or the action must be upon the statute solely ; that if the cause of action or remedy be partly at common law and partly by statutory provisions, the short limitations prescribed for the times of commencing action on statutes do not apply unless the cause of action be penal in its nature, or there be no other limitation provided by law adapted to the case. To this class of actions partly at common law and partly on statutory provisions, the present action, if in any sense or degree, upon statutes would belong. The liability of this defendant to these plaintiffs is neither for a penalty inflicted upon him for any offence committed by him nor for any forfeiture incurred by him, nor does it possess any element or feature of a penal character assimilating it to either forfeiture or penalty. It cannot therefore be brought within the provisions of the 31st section, and the short limitation of three years be applied to it, unless the use of the statute showing the qualified corporation it creates as evidence to connect the defendant as a stockholder, with the plaintiff's sale and delivery of the goods to the company can be held to characterize it as an action upon the statute. But we are referred to the difference in the phraseology of this 31st section, from that of the two sections immediately preceding it, as conflicting with our exposition of the mean- in^ of them. We are reminded that in each of the two that O precede, the word penalty is added to that of forfeiture, but that in this, the word penalty is omitted, and the term "cause" left to stand in its place, whence we are asked to infer that the Legislature on the last revision intended, in accordance with the spirit of the act of 1788, as they understood it, to confine the limitation in the two sections that precede the 31st strictly to forfeitures and penalties, but to extend that of the 31st section beyond both forfeitures and penalties to other causes, and necessarily in the absence of all restriction to action on statute for any cause whatsoever. And as a further NEW-YORK, NOVEMBER, 1847. 67 Corning v. McCullough. ground for the conclusion that such was the understanding and intention of the Legislature in the introduction and in the continuance of the new provision, it is suggested and urged, that as the Legislature on both occasions, as well in framing a general statute for the limitation of times of commencing action, as on the renewal and continuance of the same, have made use of terms in reference to this particular class of actions sufficiently broad to embrace the whole of the class, they are to be presumed to have intended to apply the rule prescribed to the whole of that class rather then to be presumed to have meant to confine it to a part only of the class. This reason- ing has force when applied to a case where no reason exists for fixing a different limitation of time to some actions of that class from that which is applied to others. But is this such a case ? The 3 1st section is one of three sections of an article entitled " of the time of commencing actions for penalties and forfeitures," and the general intention of the Legislature, as indicated by this designation of the purpose of the article, might be taken to have been to apply the rules of limitations its sections prescribe to actions for forfeitures and penalties only, and the last sections of the article relating to actions by the party aggrieved, to conform it to that general intent would in strictness be confined to the same causes of action as the two sections that precede it ; but as the party aggrieved may have causes of action upon the statute against aggressors com- ing within the spirit, though not within the letter of the article, the word "cause" used instead of "penalty," may well be un- derstood as being substituted for that term with intent to ex- tend the provision to cases penal in their nature, though not in strictness and technically either penalties or forfeitures. But between these actions on statutes for the benefit of the party aggrieved, and the class to which I have before adverted as being partly on statutory provisions and partly at common law, for causes not in the nature of a forfeiture, but for the recovery of a debt or damages, and actions also for rights or remedies of a civil nature which statutes may originate or authorize, but which enable and entitle the prosecutor to re- 68 CASES IN THE COURT OF APPEALS. Corning v. McCullough. cover the common law measure of damages, and not a fixed statutory recompense for the wrong or injury of the aggressor, there is a wide and marked distinction, and for this distinc- tion there is abundant reason. It is the policy of the statute to limit the commencement of actions for forfeitures and pe- nalties to shorter periods of time than actions on contracts and for vested rights and legislative enactments, subjecting the aggressor to a specific measure of damages or a specific com- pensation, for the injury he causes may be in their nature penal, and come properly within the provisions of this 31st section, but rights and remedies of a purely civil nature which may be vested by statute in individuals, or which parties may acquire under statutory provisions partake in no degree of for- feiture or penalty, but are equally meritorious, and entitled to the same favor as rights upon contracts or other acquisi- tions, and actions upon them are equally within the reason and policy of the six years' rule of limitation, as actions upon contract, and cannot justly be confined to the narrower rule of three years limitation prescribed for penal actions. I can- not reconcile with the views I take of the general policy and principles of the article entitled "of the time of commencing actions for penalties and forfeitures," and the special provi- sions of the different sections of that article, the supposition or belief that the framers of it could intend to apply the short bar of three years limitation to all actions upon statute, or under statutory provisions by parties suing for their own benefit, without discrimination or exception. I must believe that the intention was to confine the three year limitation to actions by tho party aggrieved, for penalties and forfeitures and analogous causes of action of a penal nature, and not to extend that bar to civil actions for rights and on remedies resulting from, or accruing under statutory provisions, not imposing upon aggressors or offenders any specific amount or rate of compensation or recompense, but leaving them to this common law liability and the common law measure of damages consequent thereon. Under these views of our system of limitation of suits and actions, the use and importance NEW-YORK, NOVEMBER, 1847. 69 Corning v. McCulIough. of the term "cause" superadded by the first revisers to the term "forfeiture" in the new section introduced by them, is manifest. The provision might have been imperfect, or open to misconstruction without it. The term "forfeiture" might suffice to describe the actions to which the two preceding sec- tions were to apply, but might not be held to embrace all the causes of action to which the new section was to extend, and the addition of the term penalty might not sufficiently enlarge its range, but the term "cause" was sure to be effectual, and rightly understood and applied, would extend the limitation prescribed by the section to penalties and all analogous causes partaking of the nature of forfeitures, but would carry it no further. In this connection it may be noted, that the indefinite term "cause" being immediately preceded in the sentence by the term forfeiture, may, if the intention of the Legislature, and the adaptation of the particular provision to the general character and purpose of the article and chapter of which it is parcel should require it, be understood and construed ac- cording to the maxim, noscitur a sociis, as meaning something of the same or like nature with forfeiture and analogous thereto. The section so construed provides, that " all actions upon any statute for any forfeiture or cause of the same or like nature, the benefit and suit whereof shall be limited to the party aggrieved, &c., shall be commenced within three years next after the offence committed or the cause of action accrued." That construction reconciles the section to the heading or title of the article to which it belongs, and con- forms it to the classification that heading imports of the ac- tions to which the times of limitation the article prescribes are to apply as being actions for penalties and forfeitures, and harmonizes moreover with the ordinary acceptation of the terms, " party aggrieved," so emphatically applicable to those who suffer from the aggressions of others, but so inappropri- ate and rarely applies to plaintiffs and parties who prosecute on contracts and liabilities for debts and damages. If the causes of action to which this section is intended to 70 CASES IN THE COURT OF APPEALS. Corning v. McCullough. apply cannot be by the settled rules of construction confined to causes of a penal nature, what bounds can be set to the section ? If it is held to apply to all actions on any statute remedial or penal for any cause involving any statutory pro- vision, and being for the benefit of the plaintiff or party ag- grieved, will it not be made to comprehend large classes of actions which have never yet been understood or supposed to come within it ? May not liabilities clearly within the reason and the very letter of the 4th subdivision of the 18th section, and always regarded and treated as being unquestionably en- titled to the benefit of the full term of six years for the com- mencing of actions upon them, be brought within the range of the narrower rule of this thirty-first section and restricted to the shorter term of its three years limitation ? The in- stances adduced by the counsel for the plaintiffs in error, to exhibit and illustrate the practical effect and operation of such an exposition of this section of the statute, are so appropriate and so striking that I deem it superfluous to extend them or to dwell upon them. Among them I notice the remedy given by statute to the endorsee against the maker and endorser of a promissory note, which was an innovation upon the common law system, and purely by statutory authority. It not only gave a new remedy on the note, but changed essentially its charac- ter and its properties, and altered materially the rights and liabilities of the parties to it. When first introduced, a re- ference to the statute authorizing it was deemed necessary in actions under the statute upon the note ; but the suit or ac- tion itself was from the first and always has been, and not- withstanding the introduction into our statutes of limitation of the new and additional provision contained in this thirty- first section, has continued to be, and now is with us as in England the common law action of assumpsit or trespass on the case, upon the contract which the note, in the statutory sense and effect of it imports, and the statute limitation of six years held to apply to it. So too the other cases cited, of actions by and in the name of the assignee of a chose in action where the assignor is dead, and there is no executor or NEW-YORK, NOVEMBER, 1847. 71 Corning v. McCullough. administrator ; actions by and in the name of the purchaser of a chose in action at a receiver's sale ; actions by and in the name of an assignee of a bond to the Sheriff; by and in the name of the assignee of a lessor against the lessee upon covenants in the lease ; against the maker and endorser of a promissory note jointly ; by the creditors of a deceased per- son against the heirs, devisees, legatees, and next of kin ; by purchasers of real estate sold on execution against the owner of the judgment on the failure of title ; by mechanics against the owner of a building to enforce a statutory lien for a debt due from the contractor ; and actions against the owner of a carriage for the malicious act of the driver, are prominent in- stances of remedies, and some of them of rights created or given, improved or varied, by statute, but for and upon which common law actions are in familiar use, and the six years term of limitation constantly applied. For aught that I can see, the action in the case now before us is as far removed as any of these from the legitimate range of the short limita- tion ; for it is substantially and in effect an action for the price or value of merchandize sold and delivered by the plaintiffs to a company of which the defendant was a member, and for the debts of which he is by law adapted by statutory provi- sions to the case, personally and individually liable. And if this action must be held to come within the 31st section, and not within the 4th subdivision of the 18th section, and the short bar of the three years limitation must be applied to it, I am yet to learn why it is that the same principle, if fairly and fully carried out, would not embrace those cases also, and all others of a similar character. The results of such an expan- sive application of the terms of this section, and the wide range of the short statute bar consequent upon it, must, I think, be decisive against that exposition of it, if the language of the statute admits of any other construction. But we are told that the short bar of three years has been formerly decided to apply to a case similar in its leading fea- tures to this ; and we are referred to the case of Van Hook vs. Whitlock as establishing the rule. In that case the credi- 72 CASES IN THE COURT OF APPEALS. Corning v. McCullough. tors of the Commercial Insurance Company of New York filed a bill in the Court of Chancery against stockholders of the company, to charge them with debts of the company, on the ground of a personal liability under a special clause in the act of incorporation. The defendants took two grounds of defence to this suit, the statute of limitations, and a discharge from the liability under an act of the Legislature, authorizing the discharge of insolvent insurance companies and their stock- holders from the debts of the company upon making an as- signment of the corporate estate and effects for the benefit of the creditors, they, the defendants, averring that such assign- ment had been made and that the complainants had accepted and received dividends under it. The Vice Chancellor of the First Circuit, before whom the question first came, sustained the defence of the statute of limitation. He held that the clause establishing the short bar of three years limitation was not con- fined to penal action, or such as might be brought for a forfeit- ure, but applied to actions for any cause and upon any statute whatever, for a forfeiture or other cause founded upon statute liability and given or limited to the party aggrieved. That the action before him fell directly within the letter and spirit of that clause, and it not having been brought within three years next after the cause of action accrued, he, on those grounds, without passing upon the other questions in the cause, dismiss- ed the complainant's bill. The Chancellor on an appeal to him inclined to the same opinion and confirmed the Vice Chan- cellor's decision. From the Chancellor's decree, the plaintiffs appealed to the Court for the Correction of Errors, and the appeal came on to be heard by that Court in 1841, when the decree of the Chancellor was affirmed, not on the ground taken by the Vice Chancellor and approved by the Chancellor, but upon the other branch of the defence. The affirmance was upon the ground that the creditors who were prosecuting the suit, had affirmed the validity of the assignment by receiving dividends under it. That although the statute under which the assignment was made was unconstitutional and void, as to creditors whose demands existed previous to the passage of the NEW-YORK, NOVEMBER, 1847. 73 Corning v. McCullough. act, still, that the creditors having come in and accepted dividends under the assignment, had assented thereto and affirmed it, and that they could not afterwards avail them- selves of the personal responsibility of the stockholders under the charter for the payment of the debts of the company. Upon the point which is alledged to have involved the ques- tion now before us, on the application of the statute of limi- tation to the case, no decision was made, and no opinion was expressed by the court. But Chief Justice Nelson, then of the Supreme Court of this State, now one of the Judges of the Supreme Court of the United States, who delivered the opin- ion of the Court for the Correction of Errors on that occasion, adverting to the question of the statute of limitations, observed that he did not intend to discuss that question, not deeming it material to the view he had taken of the case, but that he felt bound to present it for the purpose of entering his dissent to the construction attempted to be given to the clause. " If it really possesses the sweeping effect claimed," observed the learned Judge, "for ought I see it would present a short bar of three years to any action and cause of action arising out of, and founded upon any statutory regulation." He instanced the case of suits against the the President of Associations un- der the general banking law, as being as completely founded upon statute and the creditor as much aggrieved by the non- payment of his debt as could be predicated of the case then under consideration, and if the three years' bar was applicable to the one, he did not see, he said, how it could be consistently denied to the other. This was the only opinion given, and from its decisive tone, and the clear and very decided opinion it expressed with the manner of announcing it, and the silence of the other members of the Court, it may be fairly taken if not to express the views of the Court on the subject, at least to indicate the absence of all intention of that Court to affirm the opinion of the Courts that preceded it on this point. The decision therefore of the Court of Chancery in that case on the point, though entitled to our respectful consideration, is not binding upon us, and my own reflections on the subject 74 CASES IN THE COURT OF APPEALS. Corning v. McCullougb. upon the fullest consideration I have been able to give it, have led me to a different conclusion. To this conclusion, and the views taken by this Court of the provision now under review, the learned Chancellor himself would appear, from his opinion on the point, when the question was before him, not to be irreconcilably adverse or very strongly opposed. He concur- red, it is true, in the decision of the Vice Chancellor, and sug- gested considerations certainly not without weight, in favor of the Vice Chancellor's exposition of the clause in question ; but he at the same time conceded that it is very doubtful whether the Legislature by that provision, intended to include any of that class of actions which are founded partly upon the common law and partly upou statutory provisions, and which are not in the nature of a forfeiture, and which class of actions was already provided for in the previous sections of the act. From these intimations we may, I think, fairly infer that the exposition of the statute which this significant doubt suggests, would not be regarded by him as wholly inadmis- sible, and that exposition would effectually except and exclude the case now under consideration from the rule to which the Supreme Court adheres ; for the personal liability imputed to this defendant is, at most, but partly founded on statutory provisions, is not in the nature of a forfeiture, and is amply provided for in the previous 18th section of the chapter. The construction of this 31st section, and the term "cause" as used therein, suggested by the strongly expressed doubt of the Chancellor, certainly approaches very near, if it does not come fully up to the standard of the exposition herein given of them. But if our construction of the clause should confine it to still narrower limits, I am satisfied that the sense and meaning we attach to it is not too restrictive. It is an exposition of it, which, in my judgment, gives it all the efficacy and extension required to fill up the space in the system of limitation of the times of commencing actions on statutes left by the statute of Elizabeth, and which it was the purpose of the new provision of the act of 1788 to supply. It reconciles the 31st section NEW YORK, NOVEMBER, 1847. 75 Corning v. McCullough. with the 4th subdivision of the 18th section of the chapter of the revised statutes providing for the limitation of the times of commencing actions, gives distinct but appropriate and suf- ficiently full effect to both, and it vindicates the statute from the reproach of subjecting actions for rights and interests founded on good and valuable considerations acquired under or rendered more effectual by statutory provisions to the same short bar of limitation with actions for penalties. The ac- tion of these plaintiffs is for the value of merchandize, sold and delivered by them to a company of which the defendant was a member, and which, though possessing a corporate capacity by the fundamental law of its corporate existence, operated and contracted on the personal liability of its stockholders as well as the corporate responsibility of the company for the payment of its debts. The contract being with the company, a reference to the statute became necessary in order to show the connection of the stockholder therewith, and with the liability it created, but the liability thus shown not being for any penalty or forfeiture incurred by the stockholders, nor any cause in any wise penal in its nature, but for the debt contracted by the purchase of the goods, comes clearly within the letter and spirit of the 4th subdivision of the 18th section, and the provision of the 31st section does not extend to, or em- brace it. The action, therefore, not being upon the statute for a cause within the 31st section of the chapter, the short bar of three years limitation prescribed by that section is not ap- plicable to it, and the demurrer to the defendant's special plea was well taken and ought to have been allowed. The judg- ment of the Supreme Court must be reversed. BRONSON, J. I concur fully in the opinion which has just been delivered by my brother Jones, and will add only a few words by way of explanation. This case was only brought be- fore the Supreme Court pro forma, as the question had been previously decided in Freeland v. McCullough, 1 Denio, 414. That case was not fully argued ; and when it was decided, one of the principles which had been settled in relation to this 76 CASES IN THE COURT OF APPEALS. Corning v. McCullough. class of cases was entirely absent from my mind. Had it been mentioned or thought of, I could not have concurred, as I did, in the judgment which was rendered by the Supreme Court. It had been several times held, that the stockholders of thia and other like companies, stood substantially upon the same footing as to liability as though they had been partners, or an unincorporated association ; that they were answerable to the creditors of the company as original and principal debtors, though the creditors were first to exhaust their remedy against the corporation. (Allen vs. Sewall, 2 Wend. 338 ; JExparte Van Eiper, 20 id. 614 ; Moss vs. Oakley, 2 Hill 265, 269 ; Bailey vs. Banker, 3 id. 188; Harger vs. McCullough, 2 Denio, 119, 123.) In this view of the matter it is entirely clear, that the three years statute of limitations is not ap- plicable to the case. I am therefore of opinion that the judgment of the Supreme Court should be reversed, and that judgment should be rendered for the plaintiffs on the demurrer. Ordered accordingly. JBWETT, Ch. J. dissented. NEW-YORK, NOVEMBER, 1847. 77 Wood v. Weiant. 77 WOOD vs. WEIANT and others. s HA 172 The act of 1833, (laws of 1833, ch. 271, 9) in relation to the proof and acknow- ledgement of written instruments, has not changed the provision of the Revised Statutes which requires a certificate of the County Clerk in order to entitle a conveyance of real estate, proved or acknowledged before a Commissioner of Deeds or County Judge not of the degree of counsellor, to be read in evi- dence or recorded in any other county than that in which the Commissioner or Judge resides . Accordingly held, that a conveyance of real estate, acknowledged before a Com- missioner in and for the county of Orange, in 1836, could not be read in evidence at the Circuit in Rockland County, without the certificate of the Clerk of Orange county. ERROR to the Supreme Court, where the action was tres- pass for cutting and carrying away timber from certain lands in Haverstraw, Rockland County, tried at the Rockland Cir- cuit, before RUGGLES, Circuit Judge. The question was main- ly one of boundary between the premises owned by the plaintiff and Weiant respectively ; and on the trial it became material to the plaintiff's case to introduce in evidence a deed of the premises in question, or of adjoining lands, executed in 1836, and acknowledged before a Commissioner of Deeds for the County of Orange. The Judge rejected the evidence because there was no certificate of the Clerk of Orange County pursuant to 1 R. S. 759, 18. The plaintiff insisted that the deed might be read under the act of 1833, (Stat. 1833, p. 396, 9) and excepted to the opinion of the Judge. A verdict having passed for the defendant, the plaintiff, on a bill of exceptions presenting this and other questions, moved for a new trial in the first instance before the Circuit Judge, who, on denying the motion, delivered a written opinion, which so far as it relates to this point is subjoined. RUGGLES, CIK. J. " The counsel for the plaintiff contends, that the act of 1833, ch. 271, sec. 19, (2 R. 'S. 325, sec. 74,) has altered the law in relation to the reading of deeds in evi- dence, and made the Clerk's certificate unnecessary. But I 78 CASES IN THE COURT OF APPEALS. Wood v. Weiant think the law in relation to receiving deeds in evidence is not altered. This section was not intended to apply to deeds of real estate ; they were already provided for, and when that section provides that the instruments embraced within its scope shall be received in evidence in the same manner as if they were deeds, it recognizes the existing law in relation to deeds as still in force, and puts other instruments on the same footing as deeds, not only with respect to the certificate of acknowledgment or proof, but with respect to the authentica- tion of the certificate by the County Clerk." The Supreme Court, on appeal from the Circuit Judge, also refused a new trial, and rendered judgment for the defendant. H. S. Dodge, for plaintiff in error. A. Taber, for defendant in error. After deliberation, all the Judges were of opinion that the question in regard to the admissibility of the deed in evidence was properly decided at the Circuit. JEWETT, CH. J., and GARDINER, WRIGHT, and GRAY, Js., were for reversing the judgment on another ground. BRONSON, RUGQLES, JONES, and JOHNSON, Js., were for af- firmance. Judgment affirmed. NEW-YORK, NOVEMBER, 1847. 79 Doughty v. Hope. 79 s HA 209 2 69 11 2 571 DOUGHTY vs. HOPE. 47 7459 Where property is taken under a statute authority, without the consent of the 47 A owner, the power must be strictly followed ; and if any material link is wanting, 47 1451 the whole proceeding is void. Gl * 65 Where three persons were authorized to estimate the expense of a public im- ^ provement in the city of New York, and to assess the same upon the owners -,,* ,,. and occupants benefitted, and one of the three persons was not consulted and 3 j ggg did not act in making such estimate and assessment: lield, that the proceeding 3 Tr 138 was void, and that no title could be deduced through a sale made for the non-payment of such assessment. Where an assessment is signed by two of the persons so authorized, it seems the legal presumption is, that the third was present and acted in the business ; but it may nevertheless be shewn that he was not consulted and did not act. One of the assessors who signed the certificate, is a competent witness to prove that the third assessor was not eonsulted. The ratification by the Common Council of the cily of New York, of a void assessment, does not aid the proceeding. To make out a title there must be a valid assessment duly ratified. A request for instruction to a jury should rest upon undisputed facts or a hypo thetical case ; and if the proposition which the party submits be not right in all its parts, both as to fact and law, the Judge may refuse to give the instruction asked for, and need not qualify such refusal by pointing out the good and the bad parts of the proposition. The publication of the redemption notice required by Slot. 1816, p. 114, 2, as amended by Slot. 1840, p. 274, 10, after a sale for a tax or assessment, must be fully completed before the commencement of the last six months of the two years succeeding the sale, and an omission in this respect will invalidate the purchaser's title. Where the redemption notice is not published according to law, a regular notice served after the execution of the lease given upon the sale, pursuant to Stat. 1841, p. 211, 3, and the certificate by the Street Commissioner, required by 7 of the same act, do not confirm the title. The statute which declares that the lease given upon a sale for taxes or assess- ments in the city of New York, " shall be conclusive evidence that the sale was regular," &c. (Stat. 1816, p. 115, 2,) refers only to the notice of sale and the proceedings at (lie auction. On error from the Supreme Court. Doughty brought eject- ment against Hope to recover possession of a house and lot, situated in the 12th ward of the city of New York. The cause was first tried before Edmonds, Circuit Judge in May, 1 845, when a verdict was had for the defendant. The Supreme 80 CASES IN THE COURT OF APPEALS. Doughty v. Hope. Court, on bill of exceptions, set aside the verdict and granted a new trial. (See 3 Denio, 249.) The cause was tried again before the same Circuit Judge, at the New York Circuit, in October, 1846, and on this trial the case was as follows : The plaintiff claimed to recover under a lease from the cor- poration of the city of New York, conveying to him a term of 800 years, on a sale for the non-payment of an assessment for setting the curb and gutter stones in 125th street, between the 3rd and 4th avenues. The defendant claimed under the owner in fee, against whom the assessment was made. The ordinance for setting the curb and gutter stones was passed in April 1836, and by the same ordinance Messrs. Warner, Gaines, and Secor, were appointed to make an estimate of the expense of carrying into effect the ordinance, and a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefitted thereby. The three persons thus appointed took the oath required by law. The estimate and assessment were made and returned in September 1837, but the return was signed by only two of the assessors, Warner and Gaines. Warner who was called by the plaintiff as a witness to prove the assessment, on his cross examination gave some evidence tending to show that Secor, the other assessor did not act, and was not consulted in regard to it. The assessment was confirmed by the Com- mon Council on the 4th of April 1838, and such further pro- ceedings were had, that the premises in question were sold for the non-payment of the assessment on the 20th of June, 1840, and the plaintiff became the purchaser for the term of 800 years. In pursuance of this sale, the grant or lease under which the plaintiff claimed, was executed on the 20th of June, 1842. The lease was introduced in evidence by the plaintiff, which recited the proceedings prior to the sale, and that no redemption had been made within two years from the time of the sale. The plaintiff also proved that the notice to redeem the premises required by law, (Stat. of 1816, p. 114, as amended, by the act of 1840, p. 271, 10,) was published in the Evening NEW-YORK, NOVEMBER, 1847. 81 Doughty v. Hope. Post twice a week for six weeks successively, commencing on the 18th of December, 1841, and ending January 21, 1842. He further proved that after the execution of the lease the further notice required by the act of 1841, (Laws of 1841, p. 211, 3,) in order to render the sale absolute, was duly served ; and that on the 31st of July, 1843, the Street Com- missioner gave to him a certificate in due form pursuant to the 7th section of the statute last cited, stating that the pre- mises had not been redeemed, and that such notice had been duly served. The evidence being closed, the plaintiff's counsel insisted, 1st, that the confirmation of the assessment by the Common Council was binding and conclusive, whatever irregularity might have occurred in making such assessment. The Circuit Judge held otherwise, and the plaintiff excepted. 2. That it appearing in the evidence (as the counsel claimed) that all the assessors had taken the oath, and adopted the principle of making the assessment, and were all in the Street Commis- sioner's office when it was made, it was to be presumed that Secor, who did not sign the report, met and consulted with those who did sign it, and that such presumption could not be rebutted by any impression or non-recollection of the witness Warner ; also that Secor alone could prove that he did not act with the others, and as his absence was unaccounted for, no secondary evidence could go to the jury. The Judge ruled that the legal presumption was, as claimed, that all the asses- sors acted, although only two signed the report, but he refused to charge any thing else contained in this proposition, and left it to the jury to find, upon the evidence of Warner, whether all the assessors were consulted and acted ; and in case the jury should find that one of them had nothing to do with making the assessment, then he charged that such assessment was invalid. The plaintiff excepted. 3. That the redemp- tion notice was sufficiently published provided such publication ended at any time before the expiration of two years from the time of sale, or if not so, that the statutes on this subject were directory merely. The Judge declined so to hold, and 11 82 CASES IN THE COURT OF APPEALS. Doughty v. Hope. charged that such publication must end and be complete be- fore tho commencement of the last six months of the two years succeeding the sale, and that if the notice was not so published, it was a fatal defect in the plaintiff's title. The plaintiff excepted. 4. That the Street Commissioner's certifi- cate, given pursuant to tho act of 1841, was conclusive, and therefore that the defendant could not avail himself of any defect in the publication of the redemption notice. The Judge refused so to charge, and the plaintiff excepted. 5. That the lease was, by the act of 1816, conclusive evidence of the regularity of the sale, and therefore the defendant could not avail himself of any defect in the publication of the redemp- tion notice. The Judge refused so to charge, and the plain- tiff excepted. The jury found a verdict for the defendant. The plaintiff moved the Supreme Court for a new trial upon a bill of exceptions, presenting the above questions. The motion was denied, and judgment rendered for the defendant. A. Thompson, for plaintiff in error. JR. Mbtt for defendant in error. After deliberation, the Court (GARDINER, J. dissenting) af- firmed the judgment of the Supreme Court, for the same rea- sons, substantially, which were assigned by that Court in ren- dering its judgment. (See 3 Denio 598.) NEW-YORK, NOVEMBER, 1847. 88 Henry v. Salina Bank. HENRY impleaded with PIERCE vs. THE BANK OF SALINA. 83 s HA 173 A. plaintiff on the record, or plaintiff in interest, when called upon to testify under 1 Z 285 the usury act of 1837, cannot be compelled to disclose facts tending to shew '117 that the promissory note, to recover which the suit is brought, was discounted j, , '186 by him in violation of the statute (1 R. S, 595, 28) concerning the discounting of notes, &c., by officers and agents of banking corporations. A note discounted by the Teller of a Bank, for his own benefit, in violation of the statute above cited, is void; and where the note alleged to have been so discounted was in suit for his benefit, and in opening the defence to the jury, this was stated as one ground of defence, and usury as another ground, such Teller, although ostensibly called as a witness to prove the usury, cannot be required to disclose the transaction for the reason that his testimony might subject him to a loss of the note upon aground distinct from the defence of usury. A witness, or party called as a witness, may not only object to testifying to the main fact which would subject him to a penalty or forfeiture, but may also refuse to disclose any one of a series of facts which together would expose him to such penalty or forfeiture. Where a witness objected to testifying on the ground that his testimony might subject him to an indictment, or prosecution for a penalty, it is not, in a Court of Review, an answer to the claim of privilege, that the statute of limitations has run against the offence, unless it appear that such answer was suggested on the trial. Per BRONSON, J. On error from the Supreme Court. The Bank of Salina Bued Henry and Pierce in the Court below upon a promissory note signed by Pierce as principal, and Henry as surety, paya- ble to the bank and not negotiable. Henry pleaded the gen- eral issue and gave notice of the defence of usury, verifying the notice according to the usury act of 1837. On the trial at the Circuit in April, 1844, after the plaintiffs had rested, the defendant's counsel opened the defence to the jury, and stated, among other things, that the note was made to be dis- counted at the plaintiffs' bank, and was in the first instance presented by Pierce to the bank for discount ; that the bank refused to discount it ; that this fact was known to ElisJia Chapman, who was the teller of the bank ; that the note was afterwards presented to Chapman, who, with full knowledge that the note had been presented to the bank for discount and refused, discounted the same, and in so doing deducted 84 CASES IN THE COURT OF APPEALS. Henry v. Salina Bank. from the face of the note, under a corrupt and usurious agree- ment between him and Pierce. The note was payable in sixty-three days from its date. To prove this defence the defendant called the said Chapman and had him sworn as a witness, and in the first instance pro- posed to prove by him, under the plea of the general issue, that the note was usurious and void. Chapman objected to answering on the ground that his testimony would form a link in the chain of evidence to convict him of a misdemeanor, or would expose him to a penalty or forfeiture. In support of the objection it was insisted that when called as a mere wit- ness, and not as a party under the usury act of 1837, he could not be compelled to testify under the provisions of that act. It was also insisted that he was protected from answer- ing under 1 R. S. 595, 28, which declares that " no presi- dent, director, cashier, clerk or agent, of any corporation having banking powers, and no person in any way interested or concerned in the management of any such corporation, shall discount or directly or indirectly make any loan upon any note which he shall know to have been offered for dis- count to the directors, or to any officer of such corporation, and to have been refused, and that every person violating the provisions of that section shall for each offence forfeit twice the amount of the loan which he shall have made." The Circuit Judge sustained the objection of the witness, and the defendant excepted. The defendant then offered to prove the usury by the same witness under the notice of the defence of usury served ivith the plea, on the ground that he was the plaintiff in interest. The witness again objected on the grounds, first, that the act of 1837 did not require him to testify, unless it should first appear that he was the plaintiff in interest and the owner of the note, and second, that he could not answer and shew him- self to be the owner of the note, without subjecting himself to a penalty or forfeiture under the statute which is above set forth, or without establishing a link in the chain of evidence which might subject him to a penalty or forfeiture, under that statute. Objection sustained and defendant excepted. NEW-YORK, NOVEMBER, 1847. 85 Henry v. Salina Bank. The defendant then offered to prove by the witness that he was the party in interest. This was objected to by the wit- ness, and the objection sustained on the same grounds, and an exception taken. A verdict was had for the plaintiffs, and the defendant moved the Supreme Court for a new trial on a bill of exceptions. That motion was denied and judgment rendered for the plaintiffs. (See 2 Denio 155.) Wm. J. Hough, for plaintiff" in error. 1. Chapman was bound to testify as a witness under the general issue. The case, as disclosed in opening the defence to the jury, did not shew that he had actually received usury so as to expose him to an indictment for a misdemeanor, or if it did, the statute of limitations had run so as to be a bar to any such indict- ment. 2. The defendant should have been permitted to prove by the witness, under the notice annexed to the plea, that he was the plaintiff in interest, and also the usurious agreement. The usury act of 1837 would protect him against the use of his testimony to subject him to any criminal prosecution or penalty or forfeiture ; or at all events the statutes of limita- tion would be a perfect protection. (Henry vs. Bank of Sa- lina, 5 Hill 523, 525-6-7; Stephens vs. White, id. 548; Close vs. Olney, 1 Denio 319; 1 Phil. ev. 223, note (a); 1 Cow and Hill's notes 739 ; The People vs. Mather, 5 Wend. 229. 250. 257.) N. Hill, Jun., and Creo. F. ComstocTc, for defendants in error, in addition to the grounds upon which the judgment of the Supreme Court was placed, insisted, that if the note was discounted in violation of the statute above referred to concerning banking corporations, it was void and could not be recovered in this action, (Chitty on Cont. 6 Am. ed. 656, 657 ; Story on Cont. 218, c. ; Collins vs. Blantern, 1 Smith's leading cases 169 ; Nellis vs. Clark, 20 Wend. 32,) and re- garding Chapman as plaintiff in interest, (as he was claimed to be on the trial) his testimony, if he should disclose the transaction or any part of it, might be used on the trial to 86 CASES IN THE COURT OF APPEALS. Henry v. Salina Bank. defeat a recovery upon this ground, even if the defence of usury should fail, and thus subject him to a loss of the money he had loaned. This would be such a forfeiture as would bring him within the rule of protection ; and against this for- feiture no statute of limitations had commenced to run. (Livingston vs. Harris, 11 Wend. 330, 331; 8. C. 3 Paige 533, 538 ; Story's eq. pi 579, 580, 2, 3, 4 ; 1 Oreenl. ev. 452, and notes, 2 R. S. 405, 71.) BRONSON, J. There is another ground, besides those men- tioned by the Supreme Court, on which Chapman was privi- leged from answering the questions put to him. It was one branch of the defence that the witness, being the teller of the bank, discounted the note after it had, with his knowledge, been offered for discount to the directors, and been refused by them. If this fact could be established, Chapman would not only forfeit twice the amount of the loan which he made, (1 E. S. 596, 28,) but he would forfeit the debt itself. As the discounting of the note was expressly forbidden by the statute, there can be no doubt that the security would be void. A witness must speak, though the answer may establish that he owes a debt, or is otherwise subject to a civil suit ; but he is not bound to speak where the answer may subject him to a forfeiture, or any thing in the nature of a forfeiture of his estate or interest. (2 R. S. 405, 71 ; 1 Phil. ev. 278 ; Mitf. Plead. 197, ed. of '33 ; Livingston vs. TompJcins, 4 John. Chan. 432 ; Livingston vs. Harris, 3 Paige 533, and 11 Wendell 329, S. C. in error.} As the answer of the wit- ness might tend to establish facts which would work a for- feiture of the debt, he was not obliged to testify. This ground is of itself sufficient to establish the privilege of the witness ; and as to this, the statute of limitations has no application. The grounds on which the privilege of the witness was put by the Supreme Court are equally conclusive, unless a prose- cution under the usury law, and a suit under the bank law for twice the amount of the loan, had been barred by the statute of limitations ; and there is nothing in the case to show that NEW-YORK, NOVEMBER, 1847. 87 Henry v. Salina Bank. a prosecution, or a suit, or both of them, had not been com- menced in due time. In all the cases where it has been held that the running of the statute took away the privilege of the witness, it expressly appeared, not only that the time for sueing or prosecuting had elapsed, but that no suit or prose- cution had been commenced, or if one had been commenced, that it had been discontinued. Here the statute was not even mentioned on the trial. It may not have been necessary for the defendant to prove the negative fact that no suit or prose- cution had been commenced. But if he intended to rely on the statute, he was at least bound to say so ; and then the wit- ness might have answered, that proceedings against him had already been commenced. The witness claimed his privilege, and there was a prima facie case for allowing it. If there was any answer to that case, the defendant should have mentioned it, for the double purpose of allowing the truth of the supposed answer to be examined at the proper time, and of dealing fairly with his adversary and the Circuit Judge. A party is not at liberty to start a question, on a motion for a new trial, or in a Court of Review, which, had it been mentioned on the trial, might have received a satisfactory answer. This is a principle of every-day application, and there is nothing in this case which should induce a departure from it. WEIGHT, J. A president, director, cashier, clerk, agent, or any person in any way interested or concerned in the manage- ment of the concerns of any banking corporation, is prohi- bited by statute from discounting, or directly or indirectly making any loan upon any note, bill, or other evidence of debt, which shall have been offered to the directors of such bank- ing corporation for discount ; and every note, bill, or other evidence of debt, so discounted, or upon which any loan shall have been made by any of the persons aforesaid, knowing that such note has been so offered and refused, shall be utterly void. (1 E. S. 604, 10.) The statute declaring the act of discount or loan unlawful, the note or bill would also be 88 CASES IN THE COURT OF APPEALS. Ileury v. Salina Bank. void upon general principles. It is a settled doctrine that a contract prohibited by statute is void. The defendants' counsel, among other things, stated to the jury, in opening the defence, that the note in question had been presented in the first instance to the Bank of Salina for discount ; that the bank refused to discount it ; that this was known to Elisha Chapman, who was at that time the teller of the bank ; that the note was subsequently presented to the said Elisha Chapman, who, with full knowledge that the same had been presented at the bank and refused, discounted the note, and in so doing, deducted 10 from the face thereof un- der a corrupt and usurious agreement between him and the defendant, Pierce. Chapman was then called as a witness, and both under the plea of the general issue, as a mere wit- ness, and under the notice annexed to and served with the plea, as plaintiff in interest, refused to answer any of the several questions put to him, urging, amongst other grounds, that such answers might form a link in the chain of testimo- ny tending to expose him to a penalty or forfeiture. Without discussing the questions whether Chapman, when called as a mere witness, and not as plaintiff under the usury law of 1837, was protected by that statute, or whether when called under the notice annexed to the plea of the general issue, as plaintiff in interest, before he can be compelled to answer and criminate himself, it must first appear that he is the plaintiff in interest ; or whether for the reason that the statute of limitations had run both against the criminal of- fence of usury, and the forfeiture of twice the amount of the loan, under 1 R. S. 595, 28, he was protected against the consequences of his testimony, I am of the opinion that the witness was privileged from testifying. Any one of the ques- tions propounded might have formed one link in a chain of testimony tending to bring him within the statutory prohibi- tion as to the discounting of notes by bank officers, and show- ing him guilty of an unlawful act, one of the consequences of which was an utter forfeiture and loss of the note. And this was a consequence from which the statute of limitations could NEW-YORK, NOVEMBER, 1847. 89 Henry v. Salina Bank. not save him. The rule is well settled that a witness is not required to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture ; or when, by answering, a link may be added to a chain of testimony tending to such a re- sult. The defendants proposed to shew a state of facts, in which Chapman was the guilty actor, rendering the note ut- terly void. They were therefore called upon to shew it with- out his aid. The act of 1837, authorizes the calling and ex- amination of the plaintiff for the purpose of proving the usury, and excuses him from criminal prosecution ; but I cannot agree to the doctrine advanced by the counsel for the defend- ants, that when called under that act, whether the interroga- tions propounded tend to subject him to a penalty or forfeiture, distinct from the question of usury or not, he is bound to answer. The judgment of the Supreme Court should be affirmed. GRAY, J. delivered a written opinion in favor of reversing the judgment. All the other Judges were for affirming the judgment upon the ground taken in the opinion of WEIGHT, J., and first con- sidered in the opinion of BRONSON, J., but without consider- ing or passing upon the other questions presented. 12 Judgment affirmed. 90 CASES IN THE COURT OF APPEALS. Jencks v. Smith. U 9 . . JENCKS vs. SMITH. 8 HA 150 *206 Where A occupied land under H, and by the terms of their agreement the gnus belonged to A ; held, that A might transfer such grass, while yet growing, by a 118 =178 P ersol al mortgage. Where upon a trial there is opportunity for objection, and the party whose duty it is to object, remains silent, all reasonable intendments will be made, in a Court of Review, to uphold the judgment. The defendant, in a Justices' Court, claimed the property by virtue of a personal mortgage, which was read in evidence without objection. It also appeared that the mortgage had been filed ; but the return of the Justice did not shew that there was any evidence that such filing was in the town where the mortgagor resided, or where the property was situated, as required by the statute, (Laws of 1S33, cJiap. 279 ;) nor did it appear, from the return, that the plaintiff, who claimed the property as purchaser under an execution against the mortgagor, made any objection on the ground of such defect in the evi- dence ; held, that such an objection could not be taken in the Court of Common Pleas on certiorari. On error from the Supreme Court. Smith sued Jencks be- fore a Justice of the Peace of the County of Madison, and declared in trespass for taking a quantity of hay. The de- fendant pleaded the general issue, and gave notice that he would prove the hay belonged to him by virtue of a chattel mortgage, executed upon the same by one Philip Arnold. On the trial the plaintiff claimed the hay by virtue of a sale to him under an execution, issued from a Justices' Court, against the said Philip Arnold. Arnold cut the hay upon land which he occupied under one Hunt. The hay was cut and stacked on Saturday, and on the Monday following the above execu- tion was levied upon it, and the plaintiff bought it at the constable's sale. Shortly before the hay was cut, Arnold had executed to the defendant a personal mortgage upon it, which, as Arnold tes- tified, was given for a book account which he owed the de- fendant. He also testified that it was a bona fide transaction. The mortgage was read in evidence, and the return of the Justice does not shew that any objection was made to this evidence. A witness also testified that he saw the mortgage NEW-YORK, NOVEMBER, 1847. 91 Jencks v. Smith. filed, but the return does not shew that the mortgagor resided, nor that the property was situated in the town where the mortgage was filed, nor does it shew that any objection waa made on that ground. It appeared that when the hay was levied upon, it had not been actually delivered to the defend- ant. After the levy, and before the sale, Arnold stated, in presence of the agent by whom the plaintiff bid off the hay, that he had given a mortgage upon it to the defendant. The defendant removed the hay by virtue of his mortgage, and for that the suit was brought. The return, after setting out the above and some other facts, states, " The testimony was here closed." The jury gave a verdict for the defendant, on which the Justice entered judgment in his favor. This judgment was affirmed by the Court of Common Pleas upon certiorari, but was reversed in the Supreme Court, on writ of error. (see 1 Denio 580.) H. Cr. Wheaton, for plaintiff in error. Win. J. Sough, for defendant in error. WRIGHT, J. Two points were made on the argument of this cause : 1. That the mortgage gave the defendant (in the Justices' Court) no subsisting lien upon the grass, as it is not the subject of conveyance or pledge, as security, by chattel mortgage. 2d. That there was no proof on the trial before the Justice of the residence of the mortgagor, at the time of the execution of the mortgage ; or that, when executed, the property was in the town in which the mortgage was filed. With regard to the first point, I concur with the reasoning of the Supreme Court. (1 Denio 580.) It was assumed by both parties, on the trial, that by an agreement between Hunt the owner of the land, and Arnold the mortgagor, the grass, at the time the mortgage was given, was the pro- perty of Arnold. Both claimed through him. Hunt made no claim, nor was he a party to the controversy. The undis- puted ownership of the grass being in Arnold, I see no objec- 92 CASES IN THE COURT OF APPEALS. Jencks r. Smith tion to his passing his title by a sale, or mortgaging his inter- est in it. At all events, the transfer to the mortgagee became perfect on its severance from the freehold. The act of 1833, chap. 279, provides that every mortgage, or conveyance intended to operate as a mortgage of goods and chattels, thereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void, as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed in the town or city where the mortgagor, if a resident of this State, shall reside at the time of the execution there- of; and if not a resident, then in the city or town where the property so mortgaged shall be at the time of the execution of such instrument. It is now insisted, that there was no proof on the trial of the residence of the mortgagor, nor did it appear that the mortgage was filed in the town where the property was at the time of its execution. If the return of the Justice showed affirmatively that this proof was wanting, and that objection was raised, before the Justice, on account of the absence of it, the defect would be fatal. But the re- turn is merely silent on the point, and no objection appears to have been taken before the Justice. Where opportunity is given for objections, and none are made, but the party, whoso duty it is to object, remains silent, all reasonable intendments will be made by a Court of Error to uphold the judgment. This doctrine, founded in good sense, has been promulgated. in a series of decisions, by the Courts of this State. In the case of Baldwin vs. Calkins, (10 Wend. li. 367) on certiorari, the Supreme Court held that an omission to object will even authorize the inference of a fact necessary to coufer jurisdic- tion. In Mendcrback vs. Hopkins, (8 John. R. 436) a con- stable, having an execution, paid the amount to the plaintiff, without any demand of, or request by the defendant, and afterwards sued the defendant for the money so paid. There was no evidence on the trial that the constable had made a NEW-YORK, NOVEMBER, 1847. 93 Jencks v. Smith. demand on the defendant, or that he had been requested by him to make the payment. The Court said, " a demand and request may have been presumed. It was to be inferred as admitted, when nothing was said to the contrary. Indeed, as no objection was made to any of the testimony,, but it was submitted to the jury, every inference that could be drawn from the evidence, is to be presumed to have been drawn, and the verdict, by reasonable intendment, is good." In Fort vs. Monroe, (20 Wend. R. 210) case was brought for negligence of a servant of the defendant in driving a gig, by which a son of the plaintiff was run over and killed. There was no evidence to shew that the servant was acting in the business of the master, or within the scope of his authority, nor was that point made upon the trial, either on a motion for a non- suit, or after the testimony had closed. On a motion for a new trial, the Supreme Court remarked : " The case seems to have been tried and defended upon the assumption of the ex- istence of the relation of master and servant between the de- fendant and the person driving the carriage. It would, there- fore, be unreasonable to disturb the verdict upon the ground now urged, as the counsel did not choose to avail himself of it when it could have been removed, by his adversary, by the production of proof." In Oakley vs. Van Iforn, (21 Wend. R. 305) the collector of a school district was sued, in a Jus- tices' Court, in trespass, for levying upon and selling a saddle for a school tax. In the return of the Justice it did not ap- pear that any evidence was given to shew that before the levy the collector demanded the payment of the tax, nor on the other hand did it appear that the absence of such proof was objected to or in any way noticed on the trial. The collector had judgment, and the Supreme Court, in affirming it, say : " If we are authorized to hold, from the return, that no de- mand was made of the tax in question, previous to the levy, and that the point was duly raised in the Justices' Court, there was error. But in the case at bar, the return is merely silent as to the proof of demand. No objection appears to have been made on that account, nor does it appear, affirmatively, 94 CASES IN THE COURT OF APPEALS. Jencks v. Smith. that the proof was wanting. We must intend, therefore, that it was given. Had the objection now raised come before us on a bill of exceptions, it must have been shewn affirmatively, that the collector failed to justify by proving a demand be- fore he levied ; and beside, that the defect was mentioned as an objection, for it is one that may be supplied, and we would intend that had the objection been raised it would have been obviated by proof of the fact. Here the parties were present with every opportunity to raise the point." In Holbrook et. al. vs. Wight, (24 Wend. It. 169) it was necessary for the plaintiffs to sustain their action, to prove that they had ac- cepted or paid certain drafts. There was no direct evidence in the case as to the acceptance or payment, nor was there any objection on that ground raised on the trial. On a mo- tion for a new trial, Cowen, Justice, who delivered the opin- ion of the Court, held the following language : " It is said there is no evidence in the case, that the plaintiffs had either accepted or paid the drafts. There is not, indeed, any direct evidence, but the fact of acceptance was assumed throughout the trial. The Judge referred to it in his charge to the jury. It is strange, if such a material fact were out of the case, that it was not mentioned as an objection and made a point." In the present case the fact seems to have been assumed throughout the trial that Arnold was a resident of the town of De Ruyter at the execution of the mortgage ; and no ob- jections appearing upon the return, I think we should intend that it was proved or admitted. Clearly upon principle, aside from direct authority, it ought not to be tolerated, that par- ties should go to trial in a Justices' Court, raising no objec- tions in its progress, or at its close, when any defect in the proof, if pointed out, might be obviated, and afterwards, be- ing dissatisfied with the verdict, an Appellate Court should be urged to reverse the judgment of the Justice on an allega- tion of such defect. The judgment of the Supreme Court should be reversed, and that of the Common Pleas and Justice affirmed NEW-YORK, NOVEMBER, 184?. Jencks v. Smith. BEONSON, J. On a more careful examination than I gave to the case when it was before the Supreme Court, I am satis- fied that the judgment of that Court is erroneous. The mortgage was filed in the town of De Ruyter, where the Justice and the Jurors lived, and where the trial was had ; and it does not appear that any objection was made on the trial that the mortgage had not been filed in the proper town, or that there was any defect of proof on that point. It was evidently assumed throughout the trial that De Ruyter was the town where the Mortgagor resided ; and the case was liti- gated upon other grounds. I am of opinion, therefore, that the judgment of the Supreme Court should be reversed ; and that the judgment of the Common Pleas should be affirmed. GARDINER, RUGGLES, and JONES, Js., concurred. JEWETT, CH. J. and GRAY, J. delivered opinions for affirm- ance, with whom JOHNSON, J. concurred. Judgment of the Supreme Court reversed, and that of the Justice and Common Pleas affirmed. 96 CASES IN THE COURT OF APPEALS. 96 HA 4 10 12 52 14 54 (6 37 45 45 60 61 61 62 65 73 81 186 97 97 97 97 118 L22 127 160 3K French r. Carhart. 40 '273 '211 3 703 '705 '100 T 109 '127 S 115l 8 418 =604 '433 =561 "619 532 '305 =339 '563 =253 =256 S 369 =554 S 557 =219 '258 =174 =556 =439 3 AbD 266 3 Tr 209 4 Tr 108 ABEL FEENCH, JR., vs. ROBERT D. CARHART. Where a deed givea in 1829 contained a clause by which it was made subject to a reservation contained in a conveyance of the same premises given in 1793, between other parties, and the question was upon the construction ol the deed of 1829 ; held, that it was to be construed in the same manner, as though the language of the reservation as contained in the original deed were incorpora. ted into and formed a part of the one in question. In the construction of deeds and other instruments the intention of the parties is to govern, and where the language used is susceptible of more than one inter- pretation, courts will look at the surrounding circumstances existing when the contract is entered into, such as the situation of the parties, and of the subject matter of the contract. A conveyance of real estate contained a clause referring to and adopting the reservations and conditions in a former conveyance of the same premises, and the reservation in such former conveyance was in these words : " Saving and always excepting to the said parties of the first part, their heirs and assigns out of this present grant and release, all mines and minerals, that are now, or may be found within the premises hereby granted and released, and all tfa sretis. bills, runs and streams of water, and so much ground within the same premises, as they, the said parties of the first part, their heirs and assigns may think requisite and appropriate at any time hereaAer, for the erection of the works and buildings whatsoever, for the convenient working of the said mines and also all such wood, fire wood and timber as they may think proper to use in building, repairing, accommodating, and working the said mines, with liberty to them, their heirs and assigns, and their and each of their servants to dig through and use the ground, for either of the said purposes, and to pass and repass through the premises, with their and each of their horses and cattle, car- riages and servants, and to lay out roads therefor," and the habendum clause, contained a condition that the grantee, his heirs, &c., should not erect, or permit to be erected, any mill or mill dam upon the stream of water on the premises granted ; held, that the reservation of the stream was for all purposes and not for mining purposes merely. And in aid of this contruction; held also, that it was proper to consider the evidence, which shewed that when the deed in question was given, the grantor owned the premises immediately below, on which were situated and used a a mill and dam, which set the water back on to the land conveyed, and that the grantee knew ol the existence of such mill and dam, and of the manner in which the stream was affected by their use. Held also, that the reservation was not merely of the natural bed of the stream, but of a right to use the stream in the same manner, and to set back the water to the same extent, as when the grant was made. Whatever is necessary to the fair and reasonable use of the thing cxccpted, is is also reserved as incident to the exception. A reservation in a deed of a right or privilege should be construed in the sjime NEW- YORK, NOVEMBER, 1847. 97 French v. Carhart. way as a grant by the owner of the soil, of a similar right or privilege. Per JEWETT, CH. J. If the language of a deed is ambiguous, the Court, in order to arrive at the inten- tion of the parties, may look at their subsequent acts, and the manner in which the thing granted has been used, and enjoyed under the grant. Per JEWETT, CH. J. Error from the Supreme Court. Carhart sued French for overflowing his land, situated upon a creek, called the Nor- manskill in Guilderland, Albany County, by means of a dam erected upon the stream below the premises overflowed. On the trial at the Albany Circuit before Cushman, Circuit Judge, in October, 1843, the evidence tended to shew that in 1793, Abraham TenBroeck and Wife gave a perpetual lease of the premises claimed by the plaintiff below, to John Bullock, which contained a reservation in these words : " Saving and always excepting to the said parties of the first part, their heirs and assigns, out of this present grant and release, all mines and minerals, that are now or may be found within the premises hereby granted and released, and all the creeks, kills, runs, and streams of water, and so much ground within the same premises, as they the said parties of the first part, their heirs and assigns may think requisite and appropriate at any time hereafter, for the erection of the works and build- ings whatsoever, for the convenient working of the said mines, and also all such wood, fire-wood and timber, as they may think proper to use in building, repairing, accommodating, and working the said mines, with liberty to them, their heirs and assigns, and their and each of their servants to dig through and use the ground, for either of the said purposes, and to pass and re-pass through the premises, with their and each of their horses and cattle, carriages and servants, and to lay out roads therefor." In the habendum clause of the same lease, was a condition in these words : " And upon this condition, that neither the said John Bullock, nor his heirs, nor assigns do at any time hereafter erect or permit, or cause to be erec- ted, any mill or milldam upon any creek, kill, river, or stream of water, within the premises hereby granted, nor give, nor cause to be given, any manner of let or obstruction whatso- ever to the said parties of the first part, their heirs or assigns, 13 98 CASES IN THE COURT OF APPEALS. French v. Carhart. to their and each of their prejudice in the full enjdyment of the rights, titles, and privileges saved to him or them by the saving and exception, before in these presents above men- tioned." Then followed a clause giving a right to re-enter on failure in performance of the conditions. In 1805, Ten Broeck and Wife conveyed to James McKoun and Abel French, Sen., the premises claimed t>y the defend- ant, and on which the dam in question is erected. This con- veyance contained in the granting part the following clause : " Together with the privilege of erecting a dam at the fall above mentioned," (referring to the location where the dam in question is erected) not " exceeding five feet in height." As early as 1817, Abel French, Sen. erected a dam at the place indicated by this deed, and this dam (having been one or more times washed away and re-built) was continued down to the time of the trial, and during that period the water raised by such dam was used to supply a flouring mill upon the same premises. The defendant below rebuilt the dam in question in 1839. On the 17th of February, 1829, Abel French, Sen. had be- come owner, under the titles from Ten Broeck, of the premi- ses claimed by the plaintiff and defendant respectively, and on that day he conveyed the plaintiff s premises, (the same described in the declaration) to Jeremiah Van Auken, "sub- ject, among other things, to such covenants, reservations, and conditions, as are mentioned in the original deed or lease formerly given by Abraham Ten Broeck, deceased, to John Bullock." Van Auken went into possession and occupied until April, 1837, when he conveyed the same premises to the plaintiff, with the same reservations, and the like reference to the lease from Ten Broeck. The premises are bounded in these deeds, " on the South by the Normanskill." The defen- dant also derived his title from Abel French, Sen., to the premises on which the dum complained of was built. The evidence also tended to shew, that Van Auken during the time that ho owned and occupied the plaintiff's premises, made no objection to the continuance of the dam, and that the NEW-YORK, NOVEMBER, 1847. 99 French t. Carhart. plaintijQT at the time he purchased, was acquainted with the premises, and knew of the existence of the dam, and the manner in which it affected the stream. The weight of tes- timony also went to shew, that the dam as rebuilt by the de- fendant raised the water no higher than the dam which pre- ceeded it had done, and no higher than it was raised when Van Auken and the plaintiff purchased respectively. The water was set back over a mile, and covered some three or four acres of the land claimed by the plaintiff. It did not appear that any mines or minerals had ever been found on the premises. The Circuit Judge charged the jury that the only question for them to pass upon was as to the amount of the plaintiff's damages, that the plaintiff had shewn a perfect title to all the land covered by his deed to the middle of the Normanskill, subject only to the reservation of the stream for mining purpo- ses. The defendant's counsel insisted and requested the Cir- cuit Judge to charge, l.That the conveyance of French to Van Auken, bounded Van Auken on the edge of the stream as it then was, and gave him no title to the land then under water. 2. That the reservation of all creeks, kills, streams and runs of water, was absolute for any and every purpose. 3. That the location of French's deed was a question of fact for the jury. 4. That the reservation in question was ambig- uous, and its construction should be left to the jury upon the instruments themselves, and the surrounding circumstan- ces which had been given in evidence. The Circuit Judge refused so to charge, and the defendant excepted to his charge and refusal to charge as requested. The jury found for the plaintiff. The Supreme Court on bill of exceptions refused to grant a new trial and gave judgment for the plaintiff. J. Van Buren, (Atty. Gen'l.) for plaintiff in error. I. The Judge erred in charging the jury that the reservation of " all creeks, kills, streams and runs of water" in French's deed was a reservation only for mining purposes. 100 CASES IN THE COURT OF APPEALS. Trench v. Carhart. 1. The "covenants, reservations and conditions" in the lease from Ten Broeck, are a part of the deed from Abel French, Sen., to Jeremiah Van Auken, under which plaintiff claimed title. 2. The reservation of " all creeks, kills, streams and runs of water" is absolute. (Oakley vs. Stanley, 5 Wend, 523 ; Provost v. Colder, 2 Wend. 517.) 3. The construction thus given by the Court to the deed from Abel French, Sen., in 1829, destroys the valuable prescriptive right the defendant has acquired by twenty- five years adverse possession. II. The conveyance from French to Van Auken, with the reservation contained therein, bounded the said Van Auken on the edge of the stream as it then was, and gave him no title to the land then under water. (Child* v. Starr, 4 Hill, 369.) III. The Judge erred in refusing to submit to the jury as a question of fact, the true location of French's deed to Van Auken. (Frier v. Van Alen, 8. J. R. 495 ; Livingston v. Ten Broeck, 16 J. R. 94 ; Rockwell v. Adams, 7 Cow., 761 ; Dibble v. Rogers, 13 Wend. 536.) M. T. Reynolds, for defendant in error. 1. The convey- ance from French to Van Auken being absolute, and without reserving any right to flow any part of the lands conveyed, except such right as is reserved in the lease from Ten Broeck, divested the grantor of a right to flow the land conveyed. 2. The reservation in the lease referred to is in terms confined to the use of the stream for mining purposes only. 3. The grant containing an express reservation, thereby more strongly excludes all implied reservations. JEWETT, Gil. J. Taking into consideration the words of the exception and condition annexed, it appears plain to my mind that the reservation of the creeks, kills, runs and streams of water, was intended by the parties to the conveyance to be absolute and unqualified. There is an obvious distinction be- tween the reservation, as it relates to mines and minerals, and NEW-YORK, NOVEMBER, 1847. 1Q1 French v. Carhart the creeks, kills, runs and streams of -water, and as it relates to the ground and wood, fire-wood and timber. In respect to the two first objects of the reservation, it applies, by its terms, to all of the mines and minerals, and to all of the creeks, kills, runs and streams of water. In regard to the latter two, the language is changed and qualified to so much ground, and all such wood, fire-wood and timber, as should be necessary for mining purposes, and excluding such part of the ground, and so much of the wood, &c., as should not be necessary for those purposes. But conceding that the language is ambiguous, so as to cast a doubt upon the construction, there are extraneous facts in the case which deserve an attentive consideration. The lan- guage of the reservation we are considering, is found in the original perpetual lease from Ten Broeck to Bullock, given in 1793, but it is referred to and adopted in the deed from French to Van Auken in 1829* and is therefore to be con- strued precisely as though it were incorporated into and formed a part of that deed. Now the time when, and the circumstances under which that conveyance was made, are, as it seems to me, of great importance in the construction of the conveyance itself. The same dam now complained of was then in existence, and had existed for a long period. It was then, and had for many years been used to supply a head of water to operate the mills of the grantor a few rods below the premises granted. Those mills would be rendered useless and valueless without a continuance of the same right. No mines or minerals had ever been discovered, nor does it appear that either of the parties believed, or had any reason to believe, that any would ever be discovered, so as to render the reser- vation, under the construction claimed by the plaintiff below, of the least possible utility. These circumstances were in the view and contemplation of the parties at the time this reser- vation was incorporated into the deed of 1829, and they de- monstrate, to my mind, that the intention was to reserve the waters of the Normanskill, for the same uses to which they were then, and had for a long time been applied. The con- 102 CASES IN THE COURT OF APPEALS. French t>. Carliart. trary supposition involves an absurdity which ought not to be imputed to either of the parties. Upon the construction which I place upon the reservation, the reason and object of it are plain and obvious. Upon the construction claimed by the plaintiff, it seems, to say the least, without any adequate ob- ject or aim. It is a cardinal rule in the construction of contracts, that the intention of the parties is to be enquired into, and if not forbidden by law, is to be effectuated. Too much regard is not to be had to the proper and exact signification of words and sentences, so as to prevent the simple intention of the parties from taking effect. And whenever the language used is susceptible of more than one interpretation, the Courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and of the subject matter of the instrument. To this ex- tent, at least, the well settled rule is, that extraneous evi- dence is admissible to aid in the construction of written con- tracts. ( Wilson vs. Troup, 2 Cow. 195, 228 ; Parkhurst vs. Smith, Willes. Rep. 332 ; Bradley vs. The Washington, Alex. Geo. S. P. (70., 13 Peters 89 ; Gibson vs. Tyson, 5 Watts. 34.) Applying this sound and rational principle to the lan- guage of the reservation in question, and to the extraneous circumstances just noticed, and it would seem impossible to err in the construction. Another rule of construction is, that when the words of a grant are ambiguous, the Courts will call in aid the acts done under it, as a clue to the intention of the parties. (Living- ston vs. Ten Broeck, 16 Johns. 22 ; Atty. Genl. vs. Parker, 3 Atk. 576 ; Atty. Genl. vs. Foster, 10 Ves. Jr. 338 ; Weld vs. Hornby, 7 East. 199 ; Rex vs. Osborn, 4 East 327 ; Doe vs. Ries, 8 Bing. 181 per Tindal, C. J.} Upon this principle we are permitted also to look at the undisturbed use of the right contested, on the one side, and the unqualified acquies- cence, on the other, down to the time of the plaintiff's pur- chase of the premises in 1837 ; and these circumstances are also justly entitled to weight in the construction of this reser- vation. NEW-YORK, NOVEMBER, 1847. 103 French v. Carhart. I therefore come to the conclusion that the unqualified right to use the water of the Normanskill for milling purposes upon the premises of the defendant, was reserved in the deed of 1829. And that being so, it followed, that the right to flow so much of the land conveyed by that deed as was necessary for the reasonable and full enjoyment of the reservation, was also reserved. This reservation should be construed in the same way as a grant by the owner of the soil of a like privi- lege ; for the rule is, that what will pass by words in a grant will be excepted by the same words in an exception. (Shep- hard's Touchstone, 100, 1 Saunders, 326, n. 6; Doud vs. Kingseote, 6 Mees. and Wels. 197 ; Hinchliffe vs. Kennard, 5 Bing. N. 0.} Now if Abel French, Sen., who owned the premises of both parties when the deed of 1829 was executed, had then conveyed the premises of the defendant below with "all the creeks, kills, runs and streams of water," the right to the beneficial enjoyment of the dam, mills and privileges, situated on those premises would have passed by such convey- ance, as a necessary incident to the subject matter actually granted,although not specifically named. (Shephard's Touch. 89,Bac.Abr. Title Grant, 1.4. ; Price vs. Braham, Vaugh- aris Rep. 109.) Upon this principle if a man having a close to which there is no access except over his other lands, sell that close, the grantee shall have a right of way to it, for without it he cannot derive any benefit from the grant. So if the grantor should reserve that close to himself, and sell his other lands, the law will presume a right of way reserved. {Howton vs. Frecusson, 8 Term Rep. 50 ; Holmes vs. G-oring, 2 Bing. 56 ; Clark vs. Cogge, Cro. Jac. 170 ; Jorden vs. At- wood, Owen Rep. 121 ; Nichols vs. Luce, 24 Pick. 102, 1 Saund. 323, n. 6 ; Collins vs. Prentice, 15 Conn. R. 39, 3 Kent. Comm. 421, 422, 5th Ed.} The way in the one case is granted by the deed, and in the other case reserved. And although it is called a way of necessity, yet in strictness the necessity does not create the way, but merely furnishes evi- dence of the intention of the parties. For the law will not presume an intent that one of the parties should convey land 104 CASES IN THE COURT OF APPEALS. French v. Carhart to the other in such a manner, that the grantee can derive no benefit from the conveyance, nor that he should so convey a portion as to deprive himself of the enjoyment of the remain- der. Under such circumstances the law will give effect accord- ing to the presumed intent of the parties. / The sound and reasonable rule is, that whatever is necessary to the fair en- joyment of the thing granted or excepted, is incidentally granted or excepted. (Lifords Case 11, Coke. 52 ; Doud vs. Kingscote, 6 Mees. and Wels. 174 ; Hodgson vs. Field, 7 East. 613.) In the case before us, French, the grantor in the deed of 1829, when he conveyed the premises overflowed, to Van Auken, the plaintiffs grantor, retained to himself the premi- ses below on the same stream, and he expressly reserved the stream itself, by the phrase " all creeks, kills, runs, and streams of water." On the premises not granted he possessed mills, which would become worthless, if the reservation is to be con- strued so as to apply only to the stream in its natural course. Under these circumstances I cannot doubt that the phraseology employed by the parties was intended to indicate the stream in the condition it then was, and to reserve it for the uses to which it was then, and had been applied. And in adopting this construction, I do not think we do any violence to the language in which the parties chose to express themselves. I am of opinion that the judgment of the Supreme Court should be reversed, and a venire de novo issued by that Court. GARDINER, J. The main question in the cause, is as to the true meaning and effect of the conveyance from Van Auken to the plaintiff, or which is equivalent thereto, the effect of the deed from Abel French, Sen., to Van Auken. The reservations, conditions, and covenants contained in the lease from Ten Broeck to Bullock, are made parts of the deed from A. French, Sen., to Van Auken, and of the latter to the plaintiff, and must be construed as I apprehend in the same manner as if the language of the lease in these particulars had been incorporated into those deeds respectively. NEW-YORK, NOVEMBER, 1847. 1Q5 French v. Carhart. Such is the legal inference from the reference in those deeds to the lease in question, (4 Wend, 374.) and the obvious im- port of the terms adopted by the parties. The premises are conveyed to Van Auken, " subjeqt to a reni of five bushels of wheat, one third part of a load of wood, and to such other covenants, reservations, and conditions, as are mentioned in the deed to Ten Broeck." The reservations as to the rent and wood are placed upon the same footing with the covenants, conditions, and reservations in the lease, and are all adopted by the parties in present^ as parts of the contract then made. The exception in the lease above mentioned is in the fol- lowing words : " Saving and always excepting to the said parties of the first part, out of the present grant and release, all mines and minerals that now are or may be found within the premises hereby granted and released, and all the creeks, kills, runs and streams of water." If the exception had stopped here, there probably would be no difference of opin- ion as to its construction. Two distinct subjects, mines and water are referred to, and both are excepted by the same general terms from the operation of the grant. The excep- tion then proceeds to a new subject, " and so much ground within the same premises, as the grantor may think requisite and appropriate at any time hereafter, for the erection of works and buildings for the working of said mines ; also such wood and timber, as they may think proper for the working said mines, with liberty to dig through and use the ground for either of said purposes, to pass and repass with horses, &c., through the premises and lay out roads therefor." The latter clause of the exception above quoted, unquestionably refers to mines as the principle subject with which they are connect- ed, and to which they are limited. The language is, so much ground, also such wood, as may be thought necessary for mining purposes." But it is not perceived how this in the slightest degree qualifies or restricts the previous general ex- ception as to the creeks, streams, &c. The language of the exception in reference to the latter, is not " so much of the 14 106 CASES IN THE COURT OF APPEALS French v. Carhart, creeks, kills, runs and streams of water," are excepted as the grantor or his assigns may think requisite and appropri- ate for mining purposes, or any other special object ; but all creeks, &c., without limitation of any kind, are reserved ab- solutely. In confirmation of this view, we find another clause of the deed by which it is made a condition of the grant, that neither the grantee nor his assigns " do at any time hereafter erect or permit or cause to be erected, any mill, or mill dam upon any creek, kill, or river, or stream of water, within the said premises." The condition it will be perceived is as broad as the right reserved, if that extended to all the creeks, streams, &c., but it is not in harmony with the construction of the Supreme Court, which limits that right to such use of the water as may be deemed requisite for mining purposes. We may ask why prohibit the grantee from the use of the water not reserved to the grantor, and therefore, of no value to him ? The answer given by the learned Judge, who delivered the opinion of the Supreme Court is, that the lessors or their friends might have claimed a monopoly of the milling busi- ness. This is certainly a substantial reason why the grantor should reserve all the water, but not a very satisfactory ex- planation why the condition should be more extensive than the exception. I feel great confidence, therefore, in the opinion, that the construction given to this part of the grant by the defendant below, is the correct one, and that the Circuit Judge erred in refusing to charge as requested, " that the reservation in said deed of " all creeks, kills, streams and runs of water," was an absolute reservation of the same for any and every purpose." It was argued that the conveyance from French to Van Auken, reserved no right to flow any part of the lands con- veyed, and must, therefore, be deemed absolute, and the grantor was thereby divested of all right to flow the premises in question. We have attempted to show that the reservation in the lease from Ten Broeck to Bullock, of " all creeks, kills, runs and NEW-YORK, NOVEMBER, 1847. 107 French v. Carhart. streams of water," was unqualified. To what did the parties suppose these terms to relate in 1829, when the deed from French to Van Auken was executed ? To the state of the stream as it was at the time of the conveyance ? or as it had been in 1793, the date of the lease to Bullock ? Their in- tention is to be collected from the conveyance itself, and the attending circumstances. And first, none of the words of the reservation above quoted have any definite legal meaning. A creek, according to "Webster, sometimes signifies a small bay, inlet, or cove, and more generally in this country, a small river. Kill, is a Dutch word, signifying a channel or bed of the river, and hence the river or stream itself. A stream, means a river, brook, or rivulet, any thing in fact that is liquid and flows in a line or course. It is presumed that a creek or stream does not cease to be such, merely because its course may be opposed by some obstruction whether natural or artificial. They do not cease to be streams, because in consequence of such obstruction their water may be deepened or flow with a diminished veloci- ty. They would still flow, and the same quantity would pass any given point in its channel in the same time, and they would continue in common parlance to be designated by their former names. The language of the reservation is therefore equally appli- cable to the condition of the stream as it was in 1829, or in 1793. In the second place, the circumstances attending the con- veyance point to the former period exclusively. The legal presumption is that the parties were upon the land when the conveyance was executed to Van Auken. (2 Phillips Ev. 8 Lond. ed., 731; Cowen and Hill's notes, 2 part, 1399.) Let us assume therefore, what is substantially proved, that prior to the sale in 1829, to Van Auken, French had taken the former to the premises, and pointed out to him the dam, and its effect upon the stream, that it caused the water to set back one mile or more ; to overflow a part of the premises he 108 CASES IN THE COURT OF APPEALS. French v. Carhart. was about to purchase, and the use to which the water was applied ; and had then said to him in the language of the deed, I " except and reserve all this creek, kill, stream, or run of water, and you are prohibited from erecting or per- mitting or causing to be erected any mill or mill dam thereon, and you agree that you will not give or cause to be given any manner of let or obstruction whatsoever to my prejudice in the full enjoyment of the rights, titles, and privileges saved to me by the saving and exception aforesaid." I do not say that the grantee was bound so to understand, but it seems to me that he might naturally infer, that the reservation of the grantor, applied to the stream as it then was, and not as it would be if the dam was removed. The phrase " full enjoyment" for which the grantee cove- nants, is to be taken distributively, and applied as well to creeks and streams as to mines. This follows necessarily, if it be admitted that the reservation of the former was absolute, and if this be granted, it is difficult to explain how the grant- or, having reserved the stream, was to enjoy the privilege saved to him without the use of the water. Of course the proper exercise of the privilege was a question of fact for the jury. In Provost vs. Calder, (2 Wend. 517.) the exception in the deed was as follows: "Excepting and reserving to myself, &c., the sole and only right of the stream of water running through the land demised, and the party of the second part is not to erect or build any kind of water works on said stream or creek, but the same I hereby reserve to myself as aforesaid." It will be seen that the exception and prohibition are almost in the terms of the one under considera- tion. In the last clause, " the same I hereby reserve to my- self as aforesaid," the immediate antecedent of "same" is, creek or stream, and the reservation to which the word "aforesaid" applies, was of the water, not of the right to build water works, a right not in terms reserved to the grantor, but which the grantee was prohibited from exercising. The Court, however, looking to the intention of the parties very properly determined that the right to erect water works on NEW YORK. NOVEMBER, 1847. 109 French v. Carhart. the lands granted was reserved. If we substitute the cove- nant of Van Auken in this case, for the last clause of the exception in the case cited, the sentence would read thus : " Excepting, &c., and the party of the second part is not to erect or build any kind of water works on said creek, but he hereby agrees not to give or cause to be given any manner of let or obstruction to said grantor in the full enjoyment of the right and privilege saved to him by the saving and exception aforesaid." If the exception in Provost vs. Calder, was pro- perly adjudged to reserve the land, the covenant above refer- red to taken in connection with the prohibition and reservation, must be sufficient to reserve a mere easement. It is true, i lease was taken in that case, and the circumstance is adverted to as evidence of the understanding of the parties. In this also, we have the fact that Van Auken occupied the land for ten years, without objecting to the dam or the flowing of his premises. The evidence of a practical construction is as strong in the one case as the other. Upon the ground therefore first, that the reservation of all creeks, streams, &c., in the lease of 1793, was absolute, and second, that by the true construction of the conveyance from French to Van Auken, the right to flow the premises for milling purposes, to the extent that they had been previously, and were, at the time of the conveyance, overflowed, was reserved by the grantor, the judgment of the Supreme Court should be reversed, and venire de novo issue. JOHNSON, J. The deed from French to Van Auken, exe- cuted in 1829, is to be read and construed as though the reservations and conditions of the original lease were inserted in it, and were part and parcel of the language of the instru- ment. We are then to look at the whole instrument and give it such a construction as shall give full force and effect as far as possible to the grant and reservations according to the sense in which it was mutually understood and relied upon by the parties at the time. The question to be determined is, whether the Normanskill was intended by the parties to be 110 CASFS IN THE COURT OF APPEALS. French v. Carhart reserved for the working of mines merely, as assumed by the Supreme Court ? It is to be observed that the phrase " mining purposes" used throughout by the Circuit Judge, the Supreme Court, and Counsel for the plaintiff below, is not to be found in the deed. The language there employed is "working mines." By referring to the reservations it will be seen that there is a reservation of " so much ground within the same premises," as the grantor, his heirs and assigns might think necessary " for the erection of the works and buildings, for the convenient working of the said mines." Wood, firewood, and timber are also reserved " to use in building, repairing, accommodating and working said mines." But it nowhere appears that the grantor contemplated using the water-power in working the mines whenever or wherever they might be found, or putting it to any other use than he was making at the time of the grant and reservation. Indeed it is quite as difficult to perceive how the stream could be used to the least advantage for working mines," as it is to believe that French intended to grant to Van Auken the right to destroy his mill and dam immediately below, and only to reserve its use for this visionary and utterly impracticable service. Working mines consists mainly in excavating, draining, and raising ore ; a service per- formed by miners, and entirely distinct and separate from the business of smelting ores and forging metals, where water or steam-power is necessarily employed. Again, look at the condition. If the grantor intended only to reserve the streams, &c., for mining purposes, why not prohibit the grantee from erecting works to work mines ? Why confine the prohi- bition to mills and mill dams ? and that too under a penalty so stringent and sweeping as the forfeiture of the whole estate, unless he supposed he had by the reservation secured the use of the water for such purposes to himself. The learned Justice who delivered the opinion of the Su- preme Court, adverting to this condition in the deed or lease, says : " The lessors or their friends might have claimed a monopoly of the milling business for the neighborhood, and the condition might have been inserted to secure that." I NEW-YORK, NOVEMBER, 1847. HI French v. Carhart. think it quite obvious that such was the object of inserting this condition. But how was that object to be secured ? Surely not by reserving the water merely for working mines ! The construction of the Supreme Court shuts up the stream forever for milling purposes, unless these conflicting titles shall again chance to unite in the same person ; and whatever may be its capacity for useful employment, or the wants and necessities of the public, it can only be brought into requisition on the discovery of a mine, in some location where hydraulic power may be " conveniently" tasked in excavating, and raising ore or other mineral substance to the surface. This construction seems to me as much at war with all sound legal rules of interpretation as it is with a judicious public policy. I think we shall best give effect to the spirit, and intent of the instrument and the intentions of the parties by holding that in judgment of law, the grantor reserved the right to use the water as he was then using it, and as it had been used long antecedent to the reservation ; and that we are bound to presume such to have been the intentions, unless it is limited and conferred to some other or different use by express and unequivocal terms. But it is said that if the reservation of the stream is abso- lute and not limited to working mines merely, still the defendant below has no right to maintain his dam or flow the land of the plaintiff below beyond the ancient and natural bed of the stream. This would be so, if at the time of the grant the stream flowed in its ancient and natural channel, and there was nothing in the reservation to show the purpose for which it was reserved. Here, however, it was different. At the date of this grant, and for a long time prior to that, the defendant's mill-dam had been established, and if we are to believe the testimony of the witnesses, French and Van Auken flowed the water upon the premises in question, as high as it was at the commencement of this suit, and so continued without objection up to the time of the plaintiff's purchase, in 1837. As far back as 1793, as appears by Ten Broeck's deed, the stream was used for a saw-mill, and it might be a 112 CASES IN THE COURT OF APPEALS. French v. Carhart task of no little difficulty at this day to discover the ancient bed of the stream upon the premises in question. I think there cannot be a reasonable doubt that the reser- vation in Van Aukin's deed, was a reservation of the use of the stream, as its use and flow were then established, and that it was so understood, and intended by the parties. The reservation and the condition, taken together, fully justify such a conclusion. In Provost vs. Calder, (2 Wend. 517.) the reservation was " the sole and only right of the stream of water running through the above demised piece of land, and the party of the second part is not to erect or build any kind of water-works whatsoever, on said stream of water or creek, but the same I hereby reserve to myself as aforesaid," and this the Court held to be a reservation of the right to use the water power upon the land. In that case, as in the one before us, it will be seen that there was only a reservation of the stream coupled with a provision that the other party should erect no water-works upon it. The cases of Burr vs. Mills, (21 Wend. 290, and 6 Connecticut, 289,) relied upon by the plaintiff's counsel, are cases of a conveyance without any re- servation, and are not in point. Here there is a reservation of a stream which the party was then using, coupled with an absolute prohibition of the same use to the other party, and the only question is, as to the nature, purpose, and extent of the reservation. I am of opinion that the Judge erred in the construction of the reservation in the deed, and that the judgment should be reversed. JONES, J. and WRIGHT, J., concurred in the result of the preceding opinions. BRONSON, J., delivered an opinion in favor of affirming the judgment, with whom RUGGLES, and GRAY, Js., concurred. 113 HA 203 AD NEW-YORK, NOVEMBER, 1847. 113 Coggill v. The American Exchange Bank. COQGILL vs. THE AMERICAN EXCHANGE BANK. One of two partners drew, in the name of his firm, a bill upon the plaintiff, payable to the order of B, and having forged the name of B as endorser upon the bill, ... 5 ,, presented it to the Bank of Central New York, had it discounted in the regular ^Q 5 ^gQ course of business, and applied the proceeds to his private use. The Cashier 159 5 436 of the Bank endorsed the bill and transmitted it to the defendants for collection, 159 "459 and the plaintiff accepted and paid it to the defendants. After discovering that the payee's endorsement was forged, he sued to recover back the money so paid. Held, that the action could not be maintained. B, the payee, being a stranger to the transaction, and having no interest in the draft, his endorsement was not necessary in order to transfer a good title to the party discounting the paper, or to entitle such party to receive the money upon it. The plaintiff, having accepted and paid the bill under these circumstances, would have a right to charge the amount against the funds of the drawers in his hands, or, if there were none, to maintain an action against them for money paid to their use. The case of The Canal Sank vs. The Bank of Albany, (1 Hill 287,) commented upon and approved ; but distinguished from this case, inasmuch as there, the endorser whose name was forged, was the owner of the draft, and the only person entitled to receive the money upon it. Per BRONSON, J. It seems that the drawers, after having passed the draft with the payee's name endorsed upon it, and received the avails of it in an action against them, would be estopped from controverting the genuineness of the endorsement. Where a bill is put in circulation by the drawer, with the endorsement of the payee forged upon it, a bona fide holder may treat it as a bill payable to bearer. Per BRONSON, J. ERROR to the Supreme Court, where Coggill sued the American Exchange Bank in assumpsit, to recover back the money which he, as the drawee and acceptor, had paid to the bank as the holders of a bill of exchange, upon which the name of the payee had been forged. The case was this; Shapley and Billings were partners in business at Earlville, Madison county, and the plaintiff resided and did business in the city of New York. On the 28th of July, 1843, Charles S. Billings, one of the partners, drew a bill in the name of the firm, on the plaintiff, for $1,500, payable to the order of Truman Billings, ten days after sight. Charles S. Bil- lings forged the name of Truman Billings, as endorser on the 15 114 CASES IN THE COURT OF APPEALS. Oofgill v. The American Exchange Bank. draft, and also the name of Truman Billings, Junior ; and with those names upon the bill, presented it to the bank of Central New York, at Utica, for discount, on the 29th of July ; and the bank discounted the bill and paid the money to Charles S. Billings. The discount was made in the usual course of business, the bank having no knowledge of the for- gery, nor any reason to suppose that Billings was not acting, as he professed to do, for his firm, though in point of fact he applied the money to his own private use. The bank endorsed the draft, and sent it to the defendants for collection. The plaintiff accepted the bill, and paid the same at maturity, on the 12th of August, to the defendants. The plaintiff had no funds of the drawers in his hands, but accepted and paid the bill for their accommodation, in pursuance of an agreement made with Charles S. Billings to do so. Charles S. Billings absconded, about the 7th of August, on account of this and other forgeries. On learning that the names of the endorsers had been forged, the plaintiff, on the 18th of August, called on the defendants to refund the money, and then brought this action to recover it back. On the trial, the Circuit Judge charged the jury that the plaintiff was not entitled to recover, and the plaintiff excepted to his opinion. The jury found a verdict for the defendants, which the Supreme Court refused to set aside, and rendered judgment for the defendants. The plaintiff brings error. B. D. Noxon and J. Van Buren, (Atty. Genl.) for plaintiff in error. J. A. Spencer, for defendants in error, Points for plaintiff in error : I. The endorsement of the name of the payee being forged, the defendant had no title to the bill, and the payment was therefore made without consideration, and under a mistake of fact. (Canal Bank vs. Bank of Albany, 1 Hill 289 ; Talboi vs. Bank of Rochester, ib. 295 ; 6 Barn, and Cress. G71 ; 9 NEW-YORK, NOVEMBER, 1847. H5 Coggill v. The American Exchange Bank. i&. 902 ; 9 D. R. 731 ; 5 ib. 403 ; Oh. on Sills, 430, 198, 265; 4 T. R. 28; 1 E. Bl. 607; 1 Car. $ Payne 297; Doug. 633.) II. The plaintiff, by his acceptance of the draft, contracted to pay to the order of Truman Billings, and being an accom- modation acceptor, he may insist on the letter of his contract. III. Had the plaintiff refused to pay the bill, the defend- ant could not have compelled him, inasmuch as he could not make title through a forgery. IY. The acceptance of the bill was no admission of the genuineness of the endorsements. The Central Bank, on the other hand, by endorsing the bill before it was accepted, guaranteed the genuineness of the previous endorsements, and thus gave them credit with the plaintiff, and it should not now be permitted to take advantage of its own wrong. V, The plaintiff has no remedy over against the .firm of Shapley and Billings, the drawers. Points for defendant, in error : I. Truman Billings, the payee, never had any interest in the draft, and therefore his endorsement was not necessary to pass the title to the Bank of Central New York. The bank, by receiving it from Shapley and Billings, the drawers, became the owner, and had the right to receive the money upon it. (Oh. on Bills 220, 9th Am. from the 8th London ed; ib. 178; 2 Bailey Rep. 547; 5 Greenl. Rep. 282; 13 Mass. 304.) II. As between the drawers and acceptor, the bill is to be regarded as payable to the drawer's order, or to the order of a fictitious person, or to the order of the Cashier of the Cen- tral Bank. (Pletts vs. Johnson, 1 Hill 112.) III. The plaintiff, as acceptor, had no interest in the en- dorsements, and no remedy upon them. He stands as the maker of a note, and the bank alone was interested in having genuine endorsers. (Ch. on bills 267, same ed. as above; 116 CASES IN THE COURT OF APPEALS. Coggill v. The American Exchange Bank. Griffin vs. Rudd, 21 Wend. 502, 504 ; Suydam vs. Westfall, 4 Hill 211, 217.) IV. The plaintiff is not liable to Truman Billings, the payee, for the money upon this draft. Truman Billings having no interest in the draft, has no claim to recover upon it. The case, therefore, does not come within the reason of the rule -which allows an acceptor, who has paid the draft upon the faith of a forged endorsement, to recover it back. BRONSON, J. In an action against the drawee of a bill, it is not enough for the holder to prove that it has been accept- ed, without also establishing his title to the bill. And if the acceptor, under a mistake as to the fact of ownership, has paid the bill to one who had no title, the money may be re- covered back, although it was paid to a bona fide holder. (Canal Bank vs. Bank of Albany, 1 Hill 287.) The plaintiff relies upon this case as not being distinguishable from he own ; but he is under a great mistake. It is not expressly stated in the report of that case, that Bentley, the payee named in the draft, was the owner of it ; nor was it necessary that the fact should be stated, for where nothing appears to the contrary, the payee must be taken to be the owner. It may, however, be proper to mention, that it did expressly ap- pear that Bentley was the owner of the draft. My recollec- tion on the subject has been confirmed by inquiries made since the argument. In the case now before us, the fact is fully established, that Billings, the payee named in the bill, never was the owner of it ; nor was it drawn with the intent that he should either endorse it, or have any interest in, or con- cern with it. In the one case, the payee owned the bill, and could have maintained actions upon it, both against the ac ccptors and the drawers ; while in the other, the payee has no interest in the bill, and cannot maintain an action upon it, for his own benefit, against any one. In the one case, payment to the holder of the bill would be no protection against an action by the payee, because he was the true owner ; while in the other, the payee, having no title, could in no event have a NEW-YORK, NOVEMBER, 1847. H7 Coggill v. The American Exchange Bank. legal claim to the money. The distinction between the two cases, is very material and is quite too obvitms to be mistaken by any one. Although the payee, Billings, had no interest in the bill, the question still remains whether the Bank of Central New York, in whose place the defendants stand, acquired a good title to it. We think they did. Shapley and Billings drew the bill, and passed it to the bank, with the name of the payee endorsed upon it. By that act they plainly affirmed that the endorsement was genuine, so that the bill might be negotiated by delivery. By means of this representation they induced the bank to discount the bill ; and if the bank had brought an action upon it against them, counting in the usual form, as upon a bill payable to Truman Billings, and endorsed by him, the drawers would, upon the plainest principles for maintaining honesty and fair dealing, have been estopped from controverting the genuineness of the endorsement. If an authority is needed in support of this doctrine, MeacJier vs. Fort (3 Hill So. Oar. 227, and Miley's Law Oas. 248,) is a case directly in point. There is another form of declaring in which the bank might have recovered on the bill. As the payee had no interest, and it was not intended that he should ever become a party to the transaction, he may be regarded, in relation to this matter, as a nonentity ; and it is fully settled that when a man draws and puts into circulation a bill which is payable to a fictitious person, the holder may declare and recover upon it as a bill payable to bearer. ( Vere vs. Lewis, 3 T. R. 182 ; Minet vs. Gibson, id. 481, and 1 H. Slack, 569, S. C. in the House of Lords ; Collins vs. Emett, 1 H. Black, 313 ; Plets vs. Johnson, 3 Hill 112.) In legal effect, though not in form, the bill is payable to bearer ; and it is always good pleading to state the legal effect of the contract. It is said in some of the cases, (and see Bennett vs. Farnell, 1 Camp. 130, and 180, b. note,) that when the action is against the accept- or of such a bill, it must appear, that he knew the payee was a fictitious person. But I can see no sufficient reason for 118 CASES IN THE COURT OF APPEALS. Coggill v. The American Exchange Bank. laying down such a rule. It is enough that the holder has a a good title to the bill, so that the acceptor on paying it, can properly charge the amount against the funds of the drawer in his hands, if there be any ; and if there be none, that ho may have an action against the drawer for money paid to his use. As the acceptor can never resort to the payee or endor- ser, he has no interest in knowing through whose hands the bill has passed, except for the purpose of ascertaining that the holder has a good title. It may be well enough, by way of discouraging such transac- tions, to hold, that one who discounts a bill for the benefit of the drawer, with knowledge of the fact that the payee is a fiictitious person, cannot recover against the acceptor. (Hun- ter vs. Jcfferey, Peake. Add. (7a., 146.) But that doctrine has nothing to do with this case ; for the bank had no know- ledge or suspicion at the time tli2 bill was discounted, that the name of the payee had been forged. The point has been adjudged, that when the maker of a promissory note puts it into circulation, with a forged endorse- ment of the name of the payee upon it, a bona fide holder may sue and recover against the maker as upon a note paya- ble to bearer ; (Fort vs. Meacher, Supra.} and the same rule has been applied where the payee had no interest in the note, and it was not intended that he should become a party to the transaction. (Foster TS. Shattuck, 2 N. Hamp. 446.) Not- withstanding what was said in Dana vs. Underwood, (19 Pick. 99.) I think this sound doctrine ; and it is applicable to the case, of a bill put into circulation by the drawer with a forged endorsement upon it. A bona fide holder may treat it as a bill payable to bearer. The bank had a good title to the bill as against the drawers, and the payee ; and that was a good title against all the world. No one is injured by this doctrine. The bill has answered the end for which it was drawn. The plaintiff has paid money for the drawers in pursuance of their request ; and he has the same remedy against them that he would have had if the endorsement had .been genuine. NEW-YORK, NOVEMBER, 1847. H0 Coggill v. The American Exchange Bank. I have spoken of the drawing and negotiating the bill as the act of both of the partners, although only one of them was present at the time, because such was the legal effect of the transaction. It is said that Charles S. Billings was not the agent of his partner Shapley for the purpose of commit- ting a forgery ; and that is very true ; but his right to draw and negotiate bills in the name of the firm has not been questioned ; and that is all that is material to the present in- quiry. Is it not important to know who put the name of Truman Billings as endorser upon the bill. It is enough that Truman Billings was not the owner of the bill, and that it was passed to the bank with his name upon it. As the bank discounted the bill for the firm of Shapley and Billings, it is of no importance that Billings applied the money to his own private use, instead of carrying it into the affairs of the partnership. And in relation to the estoppel^ it is quite clear that the declarations and acts of one of the partners, made and done while transacting the partnership business, and relating to it, are equally conclusive upon both of them. We have not been referred to any book which holds a different doctrine. The plaintiff probably accepted and paid the bill under the mistaken assumption that the endorsement was genuine. But he was not mistaken about the main fact which he was con- cerned to know, which was, that the holder was the owner of the bill. Having paid the money to the proper person, the plaintiff has all the rights against the drapers which he would have had if the endorsement had been made by Truman Bil- lings ; and there is no principle upon which this action can be maintained. Judgment affirmed. 120 CASES IN THE COURT OF APPEALS. Hoes and others v. Van Hoesen. 120 a 1 HA 271 2 '507* h 4i 513 HOES, and MARY, his wife, and EAGER, and ANNA, his wife, '437J Appellants, vs. JOHN M. VAN HOSEN, Respondent. The general rule is that the personal estate of a testator is the primary fund fbf the payment of legacies, and a testator is presumed to act upon this legal doc- trine, unless a contrary intent is distinctly manifested by the terms and provi- sions of the will. Where the personal estate is not in terms exonerated, and is not specifically given away by the will, it will be deemed the primary fund for the payment of legacies notwithstanding such legacies, by the terms of the will, are expressly charged upon the persons to whom the real estate is devised. The charge upon the devisees in such a case will be deemed in aid, and not in exoneration of the primary fund. A testator gave to his wife the use of his real and personal estate during her widowhood ; to two of his sons he devised the reversionary interest in his real estate, and directed them to pay legacies to his other son and to his daughters ; but made no disposition of the reversionary interest in the personal estate ; held, that such reversionary interest in the personal estate was the primary fund for the payment of the legacies. This was an appeal by the complainants from a decree of the Chancellor, reversing that of the Vice Chancellor of the third Circuit, and directing the complainants bill to be dis- missed with costs. The facts are sufficiently stated in the opinion of Chief Justice Jewett. (See also, 1 Barbour, Ch, Rep. 380.) H. Hogeboom, for appellants. A. L. Jordan, for respondent. JEWETT, CH. J. The testator, on the 17th day of September, 1817, duly made his last will and testament, and on the same day died, leaving a widow and six children. At the time of his death, his property consisted of a farm of about 190 acres, worth about $9,500, of farming utensils and stock thereon, worth about 848 06, of choses in action and other personal estate, worth about $5,827 65. At the time of his death, NEW-YORK, NOVEMBER. 1847. 121 Hoes and others v. Van Hoesen. his debts owing by him amounted to about $144 55, and hia funeral charges to $59 33. To his two sons John and George, he devised and bequeath- ed all of his farm of land, with all thereto belonging, with his Louse, barn, &c., their heirs and assigns forever, share and share alike, with all of his farming utensils, and also, all his stock of whatever nature then on his farm ; to his son Lam- bert he bequeathed, three thousand dollars, to be paid within one year after his decease, by his two sons, John and George ; to each of his three daughters, Mary, (called Dorothe,) Anna and Jane, he bequeathed the sum of seven hundred dollars, also to be paid by his said two sons, John and George, as th,ey ' severally should become of age. To his wife Dorothe, he gave the use and income of all hia estate during Tier widowhood. He appointed his wife executrix, his son John and his brother Geprge executors, and made no other disposition of his personal estate. The two executors proved the will and took out letters tes- tamentary. The executrix did not qualify as such ; George, one of the executors, died in 1822, leaving the son John sole executor, who soon after the testator's death made an agree- ment with the widow, by which he took the possession of the entire estate and used and occupied the same, for his own benefit and that of his brother George, until the year 1825, when he purchased his brother's interest in said estate. The debts and legacies were paid by John out of the testa- tor's personal estate. The widow died in 1834. The complainants now claim an account of the reversionary interest in that part of the personal estate not specifically bequeathed to the two sons John and George, and payment of their shares therein as next of kin of the testator. This claim is resisted upon two grounds, first, on the ground, that such reversionary interest was the primary fund for the payment of the legacies, after the debts were paid and by which it was exhausted. Second, on the ground that Maria be- fore her marriage and Hager after his marriage with Anna, respectively released their claims to the defendant. 16 122 CASES IN THE COURT OF APPEALS. Hoes and others t>. Van Hoesen. As to the first ground : It is a rule in the construction of wills that the intention of the testator should govern in all cases, except where the rule of law overrules the intention ; and this intention, it is well settled, must be collected from the whole of the will or writing itself. (Bradley vs. Leppingwell, 3 Burr. 1541; Evans vs. Astley, SBurr. 1581.) The personal estate of the testator is deemed the natural and primary fund to be first applied in discharge of his personal debts and gen- eral legacies, (Toller L. of Ex. 417.) and the testator is pre- sumed to act upon this legal doctrine, until he shows some other distinct and unequivocal intention. (1 Story's. Eq. 573.) It is a rule also that, in the event of a deficiency of assets to pay the debts of the testator, payable out of the personal assets, and discharge the specific and general lega- cies, the latter must abate in proportion to the deficiency, or be lost altogether, unless the real estate is charged with their payment. The old law was, that the personal estate could not be ex- empted from the payment of debts and legacies without express words ; but this is now admitted not to be necessary ; and it is sufficient, if there appears upon the will an " evident demonstration," a "plain intention," or a "necessary impli- cation." (Gittinsva. Steek, ISwanst. 25; Watsonvs. Brick- wood, 9 Vesey, Jr., 447 ; Booth vs. Blundell, 1 Meriv. 192, S. C. 19 Vesey, Jr., 517 ; Rehey vs. Deyo, 3 Cow. 133 ; Tole vs. Hardy, 6 Cow. 333 ; Glen vs. Fisher, 6 John, Ch. 33 ; Livingston vs. Neivkirk, 3 John, Ch. 319.) What shall con- stitute proof of such an intended exemption by the testator is not in many cases ascertainable upon abstract principles ; but must depend upon circumstances and different Judges have held different opinions. Lord Thurlow thought it was a point so slender and fine that he could not collect any certainty upon the question. (Ancaster vs. Mayer, 1 Brown's Ch. R. 462.) And Lord Eldon, (in Booth vs. Blundell, Supra.} remarks, " it is scarcely possible to find any two cases, in which the Court altogether agrees with itself ; there being hardly a single circumstance, regarded in one, as a ground of infer- NEW-YORK, NOVEMBER, 1847. 13 Hoes and others v. Van Hoesen. ence in favor of the intention suggested as belonging to that particular will, that is not in some others treated as a ground against that intention." What then was the intention of the testator, plainly collec- lected from the whole will in respect to the fund out of which the legacies were expected or required to be paid? Was it, that these legacies should be paid by his sons, John and George personally, in consideration of the devise of the real estate and bequest of the farming utensils and stock on his farm in remainder after the death or re-marriage of his widow to them, in exoneration of the reversionary interest in the personal estate undisposed of by his will ? Or was it that such devise and bequest to the two sons with directions to them to pay, should be in aid of the reversionary interest in that personal estate, and that that interest should be the primary fund for the payment of the legacies ? There is no express charge of the legacies upon the estate given to John and George in exoneration of the reversionary interest in the personal estate not specifically bequeathed ; nor can any such charge be implied, if the testator is presumed to have acted upon the doctrine that his personal estate was the primary fund for the payment of his legacies : yet it is clear that the testator intended that the legacies should in no event fail or abate, and therefore, by his direction that John and George should pay such legacies, evidently in consideration of his bounty to them, he not only created a charge upon them personally, but in equity, a charge upon the estate bequeathed and devised to them. The mere making of a provision for the payment of debts or legacies out of the real estate, does not discharge the per- sonalty. There must be an intention not only to charge the realty, but to exonerate the personalty ; not merely to supply another fund, but to substitute that fund for the property an- tecedently liable. Thus in numerous cases, it has been held that neither a charge of debts on the testator's lands gene~ rally, or on a specific portion of them, nor a devise upon trust for sale, however formally or anxiously framed, nor the crea- 124 CASES IN THE COURT OF APPEALS. Hoes and others v. Van Hoesen. tion of a term of years for the purpose of such charge, exonerate the personalty. ( White vs. White, 1 Vernon 43 ; Bridgman vs. Dove, 1 Atk. 103 ; Lord Inchiquin vs. French, 1 Cox. 1; Haneox vs. Abbey, 11 Fesey, 186; Tower VB. Lord Rom, 18 Fea. 132; Ancaster vs. Mayer, 1 Brown, Oh. R. 454, .Saw. on Aasete, C%. 3, 5 ; 2 William 8 Exrs. 2 -Aaw. J?d. 1215.) Nor is it material that the charge is imposed on the devisee in the terms of a condition, as where real estate is devised to A. he paying the debts and legacies or the like. (Bridgman vs. Dove, 3 Atk. 203 ; Mead vs. Hide, 2 Vernon, 120 ; Wat- son vs. Brickwood, 9 Vesey, Jr., 447, Roper on Leg. 163.) In all these cases, the charge upon the realty, or the con- dition that the devisee shall pay as directed, is deemed and taken to have been made in aid of the primary fund, and not in exoneration of it, unless there is an absolute disposition of all the personal estate of the testator ; in such case, the in- tent of the testator to charge the realty in exoneration of the personalty, is sufficiently manifested. In this case there was no disposition of the reversionary interest in more than $5,000 value of the personal estate. I am satisfied, therefore, upon this branch of the defence, that the Chancellor came to a correct conclusion. It is however insisted, that assuming that the legacies were to be paid out of the reversionary interest in the personal estate not bequeathed to the devisees, the Chancellor, instead of dismissing the bill, should have directed an account of this property to be taken to ascertain whether the debts and lega- cies would exhaust it in the event that it should beheld that the releases were inoperative beyond the amount of the lega- cies of the releasors. If the case was such that it could not be seen, without a reference, that they would exhaust it, an account in the event mentioned should be taken. But there is no room for any doubt upon that question. The widow died in June, 1834. Until then she was entitled to the use and income of the personal estate. The reversionary interest of that portion not specifically bequeathed to John and George, NEW-YORK, NOVEMBER, 1847. 125 Schermerhorn v. The Mohawk Bank. amounted to $5,827,65. The legacy to Lambert alone, with interest after the expiration of one year from the death of the testator, to which the defendant would be entitled to be allowed, without any account of the three legacies to the daughters, of $2,100 in the aggregate, and without the debts and the in- terest on each from the time the same were payable, greatly exceeds the value of that personal estate. There is not the least ground appearing in the case rendering it proper or ne- cessary for such reference. Being entirely satisfied of the soundness of the defence upon the first ground, I do not deem it necessary to examine the other. I am of opinion that the decree of the Chancellor should be affirmed. Decree affirmed. SCHERMERHORN, Appellant, vs. THE MOHAWK BANK Resp'ts. Where a bill was regularly taken, as confessed in the Court of Chancery, and the Chancellor, on motion before him, refused to open the default, on the ground that the answer which the defendant sought to put in was not a good defence to the suit on the merits ; held, that the decision of the Chancellor was not the subject of appeal. J. Rlwades and S. W. Jones, for the respondents, moved to dismiss the appeal. The Mohawk Bank filed a bill against Schermerhorn and others to set aside certain assignments as being a fraud upon creditors. After the bill had been taken as confessed, the defendant, Schermerhorn, moved to open the default, and for leave to defend. The Chancellor denied the motion ; and from that order the defendant has appealed. The case of Fort vs. Sard, decided in September last, is in point to show that an appeal will not lie. A. Tdber and E. Sandford, for the appellant, said there was a distinction between this case and the one cited. In Fort vs. Sard, the Chancellor denied the motion to open the 126 CASES IN THE COURT OF APPEALS. Brady v. Donnelly. default, on the ground that the defendant wished to set up an inequitable defence. But it was not so in this case. And this was not a mere question of practice. The Chancellor did not put his decision on the ground that the default had not been sufficiently excused ; but he examined the case on the merits, and denied the motion on the ground that the facts on which we relied did not constitute a good defence. On that question we think the Chancellor erred ; and in such a case an appeal should be entertained. By the Court, BRONSON, J. There is no difference in prin- ciple between this case and the one cited at the bar. The motion to open a regular default is always a question of prac- tice, addressed to the discretion of the Court in which the Buit is pending ; and it is not, in its nature, a proper matter for review in an Appellate Court. This is so, whatever may be the ground on which the motion was decided. Appeal dismissed. 126 BRADY, Appellant, vs. DONNELLY, Executor, &c., Respondent. 75 127 The defendant to a bill in equity, put in a demurrer thereto, which was overruled by the Vice Chancellor. On appeal to the Chancellor, the order was affirmed. The defendant then appealed to this Court, and afterwards answered the bill. Heltl. that by answering, the appeal was waived. Motion to dismiss appeal. The case was this : The bill was filed before the Vice Chancellor of the First Circuit, and the defendant Brady put in a demurrer thereto, which was over- ruled by the Vice Chancellor, with leave to file a second de- murrer. The defendant appealed to the Chancellor, who, on the 26th of May, 1846, made an order affirming the decision of the Vice Chancellor, and from that order tho appeal to this Court now in question was taken. In pursuance of the leave given, as above mentioned, the defendant, before the 26th of May, 1846, put in a second demurrer, which was also over- NEW-YORK, NOVEMBER, 1847. 127 Brady v. Donnelly. ruled by the Vice Chancellor in September, 1846. From this decision another appeal was taken by the defendant to the Chancellor, but the order so appealed from was affirmed by default in January, 1847. The appeal last mentioned not being made in such a manner as to stay proceedings, the com- plainant, on the 14th of December, 1846, had an order en- tered taking the bill as confessed. This order was opened by consent, and the defendant, in the same month of December, put in his answer fully denying the equity of the bill. A re- plication thereto was filed, and the cause proceeded upon the merits under the issue so joined. It appeared that after the answer was put in, the above appeal to this Court was noticed on both sides for hearing at two or more successive terms of the Court. The solicitor for the respondent, in his affidavit for the motion, stated, that until within a week he had not been advised of the impropriety of prosecuting the appeal after the defendant had answered the bill as aforesaid. Charles O'Connor, for the respondent, insisted that by answering the bill the defendant had waived his appeal. J. T. Brady, for the appellant. After advisement, the Court (JONES and GRAY, Js., dissent- ing) held that the appeal was waived, and ordered the same to be dismissed. CASES ARGUED AND DETERMINED IN THE OF THE STATE OF NEW. YORK, IN JANUARY TERM, 1848 129 s HA 325 ell 285 65 305 DANES vs. QUACKENBUSH. The judgment of the Supreme Court in this case, determining that the act to extend the exemption of personal property from sale under execution, passed April 11, 1812, is unconstitutional and void as to debts contracted before its passage, affirmed. On error from the Supreme Court. Danks sued Quacken- bush in the Common Pleas of Onondaga County, in reple- vin for taking a horse and harness. The case was this : In January, 1837, one Fitch recovered judgment against Danks in the Supreme Court, in an action upon contract, for $83 85. In January, 1843, an alias fieri facias was issued on the judgment, and delivered to Quackenbush, who was a Deputy Sheriff, and who took the property in question by virtue of the execution ; and for that taking the suit was brought. On the trial Danks claimed that the property was exempt from execution .by the act of 1842, which enacts that, "in addition to the articles now exempt by law from distress for rent or levy and sale under execution, there shall be exempted from such distress and levy and sale, necessary household furniture, and working tools, and team owned by any person being a householder, or having a family for whom he provides, 130 CASES IN THE COURT OF APPEALS. Danks v. Quackenbush. to the value of not exceeding one hundred and fifty dollars." (Laws of 1842, p. 193.) The necessary facts were shewn on the trial to bring the property in question within the exemp- tion declared by this statute, provided the statute was to be so construed as to apply to debts contracted before its passage, and if such was the construction, then provided it was a con- stitutional and valid statute as to debts of that description. The defendant insisted that it did not apply to pre-existing contracts, and if it did, that it was so far unconstitutional and void. The Court charged the jury that the property was ex- empt, and the jury accordingly found a verdict for the plain- tiff, on which judgment was rendered in his favor in the Common Pleas. Quackenbush having made a bill of excep- tion embracing the above questions, removed the judgment by writ of error into the Supreme Court, where the the judg- ment was reversed upon the ground that the act in question was unconstitutional and void as to antecedent contracts. (See 1 Denio, 128, where the opinion of the Supreme Court is given at length.} A record of reversal being made up, Danks now brings error to this Court. A. Taber, for plaintiff in error. I. The statute in question makes no exception of executions for debts which had been previously contracted, and was evi- dently intended by the Legislature to apply to all executions levied after it went into effect. (Sackett vs. Andross 5 Hill. 334.) II. Before the Court will declare an Act of the Legislature unconstitutional, a case must be presented in which there is no rational doubt. (Dartmouth College vs. Woodward, 4 Wlieatoris Rep., 625 ; Exparte, MeCollum, I Cow. Rep. 550.) III. The statute in question is not a "Law impairing the obligation of contracts," within the meaning of the Constitu- tion of the United States. (Bronson vs. Kinzie, I Howard ALBANY, JANUARY, 1848. Danks v. Quackenbush. 311 ; McOracken vs. Hay ward, 2 Do. 608 ; Sturges vs. Crown*- ing shield, 4 Wheat, 122.) Cf-eo. F. Comstock, for defendant in error. I. The Act of 1842, extending the exemption of property from execution, cannot, consistently with settled rules, be so construed and applied as to affect pre-existing contracts. (G-illmore vs. Shuter, 1 Freeman 466. S. C. 2 Mod. 310; Couch vs. Jeffries, 4 Burr. 2460; 6 Bac. Abr. 370 ; 2 Aik. 36 ; 1 Vesey, Sen. 225 ; 2 Ld. Raymond 1350 ; Osborn vs. Huger, 1 -## .Sep. 179 ; Sam. vs. Claws, ib. 93 ; vs. Fan Kleeek, 7 Johns 477; Sackett vs. .Awdross, 5 334, 7 and 362, 5.) II. The Act in question under a retrospective construction, is in violation of that provision of the Constitution of the United States which prohibits the State Legislatures from passing laws impairing the obligation of contracts and is therefore void. (Sturges vs. Or owning shield, 4 WJieat. 122 ; Green vs. Biddle, 8 do. 1 ; Mason vs. Haille, 12 do. 370, 318, 337 ; Bronson vs. Kinzie, 1 Howard 311; MeCracken vs. Hayward, 2 do. 608 ; 1 Car. Law Repos. 385 ; 2 do. 428 ; 7 -3fowr. 11 ; do. 544 ; do. 588 ; 4 iitf. 34 ; do. 53 ; 5 Monr. 98.) After advisement, JEWETT, CH. J. and BRONSON, RUGGLES and GRAY, Js., were for affirming the judgment of the Su- preme Court, upon the ground stated in the opinion of that Court. GARDINER, J. (dissenting). The decision of the Supreme Court will be affirmed, (upon an equal division of the members of this Court) as I understand, upon the ground exclusively, that the exemption act of 1842, under a retrospective con- struction, is in violation of that provision of the Constitution of the United States, which prohibits the States from passing any law impairing the obligation of contracts. The law in question is as follows : "In addition to the ar tides now exempt, there shall be exempted from distress and 132 CASES IN THE COURT OF APPEALS Danks v. Quackenbush. levy and sale, necessary household furniture, and working tools, and team owned by any person being a householder, or having a family for which he provides, to the value of not ex- ceeding one hundred and fifty dollars ; provided that such exemption shall not extend to any execution issued on any demand for the purchase money of such furniture, or tools, or team, or articles enumerated by law." The jury have found that the property levied upon was ne- cessary for the support of the plaintiff's family, and exempt from execution, if the statute is obligatory upon the defendant. This is the only question I shall consider. The principle involved is both delicate and important. It has received the deliberate attention of the Supreme Court who have vindi- cated their judgment in an opinion of unusual ability ; and it would seem to be required of those who cannot acquiesce in a decision which will be adopted by this Court, to state the grounds of their dissent. According to the decisions of the Supreme Court of the United States, the several States may impair the obligation of contracts, First, by laws which annul, modify, or alter the contract itself. (Story Comm. 1379 Ogden vs. Saun- ders 12 Wheat. 284; 4 Wheat. 197-8.) Secondly, by those which change the effect given by the existing law to the terms of the contract, which by some Judges is denominated the law of the contract. (Story Comm, 1378 page 249 ; 4 Wheat. 341-2 ; 1st Howard 375 ; 1 Hoivard 319.) An example of this kind will be found in Kinzie vs. Bronson, and would be furnished in this State, by a mortgage of real property, which should contain only a description of the premises, the sum secured, time of payment, and names of the parties. It is obvious that in the instance supposed the right and interest of the mortgagor and mortgagee in the premises, would have to be gathered from the existing law, in reference to which this contract was made, and which in these respects, it would tacitly adopt. Bills of exchange, furnish another example. Although the day of payment may be fixed by the instrument, ALBANY, JANUARY, 1848. 133 Danks v. Quackenbush. the payee is entitled to the days of grace allowed, which thus becomes the law of the contract. The law of the contract, must not be confounded with the remedy to enforce it. The first, says Judge Washington in Ogden vs. Saunders, " remains the same every where and will " be the same in every tribunal. But the remedy necessarily " varies ; and with it the effect of the constitutional pledge, "which can only have relation to the laws of each State " severally." Indeed, the distinction betweeen the contract, and the law of the contract is rather formal than substantial. The first, according to the spirit of the authorities, applies where the parties have defined their obligations and duties in express terms. The second, to those cases where the agreement is incomplete, and frequently unintelligible in these respects without the aid of the law, which in the language of Judge Story, "performs the office only of expressing what is tacitly admitted by the parties to be a part of their intention." (8tory Com. Chap. 34, 1378.) In the third place, the obligation of a contract may be im- paired by a law " denying a remedy altogether, or may be " seriously impaired by burdening the proceedings with new " conditions and restrictions, so as to make the remedy hardly " worth pursuing." This is somewhat indefinite ; but it is the language of Chief Justice Taney, and as precise probably as the nature of the subject will permit. These are the only modes in which, the obligations of a contract can be assailed by State legislation. The law must act upon the contract, or upon the remedy. There is, however, a broad and well defined distinction, between the authority of the State in the two cases. A State can pass no law the effect of which will be to vary the con- tract. No benefit to the people, no supposed advantage to the parties will authorize it. The manner and degree in which the change is effected, can in no respect ' influence the conclusion. (Story Com. 3 Vol. 1379.) The power is want- 384 CASES IN THE COURT OF APPEALS. Danks v. Quackenbush. ing, for the prohibition of the constitution is absolute and universal. It is just as firmly settled by authority, that the states re- tain their power over the remedy ; they may change or modify that at pleasure. "No one," says Judge Story, "will doubt " that the Legislature may vary the nature and extent of reme- " dies, so always that some substantial remedy exists." (Story Com. 1379.) In Kinzie vs. Bronson, (3 Howard 315,) the Court remark, "that undoubtedly a State may regulate at "pleasure the mode of proceeding in its Courts, in relation to " past contracts as well as future. And although a new reme- " dy may be deemed less convenient, and render the recovery " of debts more tardy and difficult, yet it does not follow that " the law is unconstitutional. Whatever belongs to the reme- " dy may be altered according to the will of the State, pro- " vided the alteration does not impair the obligation of the " contract." And what the legislation must be to procure this result, he has told us in the language I have already quoted. In McCracken vs. Hayward, Judge Baldwin remarks, that it must not be understood by that or any other decision of the Court, that all State legislation upon existing contracts is re- pugnant to the constitution. And he instances the recording acts, by which an elder is postponed to a younger grantee, the statute of limitations, and he might have added, the laws abolishing imprisonment for debt, a remedy coeval with, and the most stringent known to, the common law. Sufficient has been said upon this distinction between the contract and the remedy, a distinction which, according to Judge Marshall, (Sturyes vs. Crowning shield, 4 Wheat. 200,) exists in the nature of things, and is recognized in every decision in the United States Courts upon this clause in the constitution. In tho light of these principles, I proceed to examine the law of the State of New York. And in the first place, it is not repugnant to the constitu- tion because it changes or acts upon the contract between tho parties ; or the law of the contract. It does not inter- ALBANY, JANUARY, 1848. 136 Banks v. Quackenbush. fere with the terms of their agreement, whatever they might be, or the effect which the law existing at the time when it was made gave to them. Indeed, a conclusive answer to any such pretence is, that we know nothing of the terms of this contract. The record states that the judgment was rendered upon a contract. Of its provisions, whether it was made here, or in a foreign coun- try, we have no information whatever. We know indeed that the judgment record was before the Court ; that the Judge was required to charge that the law was unconstitutional, and refused. We might perhaps in- dulge a presumption in order to sustain the decision, we can- not infer any fact not stated, in order to reverse it. I assume it therefore as unquestionable, that if the law of this State is obnoxious to the constitutional objection, it is because it impairs the obligation of the contract by striking at the remedy. " That it presents a case within the undoubted " power of State legislation, but that its provisions are so un- " reasonable as to amount to the denial of a right, and to call " for the interposition of the Court." (Baldwin J. 2 Howard 613.) So that we can say with C. J. Taney, (1 Howard 317) that " it has burdened the remedy with new conditions and re- strictions, so as to render it hardly worth pursuing." Or Avith Justice Story, " that it leaves to creditors no substantial remedy whatever." In short the enquiry is not as to the ex- istence, but the abuse of legislative power. If this view of the question is correct, it is believed that the decision of the Supreme Court ought not to be sustained. No reliance is placed by that Court upon the fact that the plain- tiff's judgment was recovered prior to the Law of 1842. Nor is the circumstance of any importance ; since it has always been held, that the obligation to perform a contract is coeval with the undertaking to perform it. It originates with the contract itself : operates anterior to the time of performance. (Story Com. 1379.) "The remedy, however," says the game author, " acts upon the broken contract, and enforces a pre-existing obligation." (12 Wheat. 349-50.) 136 CASES IN THE COURT OF APPEALS. Danks v. Quackenbush. The judgment of the Supreme Court is placed upon the broad ground, that "such property as was subject to execu- tion when the debt was contracted, must remain subject to the execution until the debt is paid. This decision therefore, as to the past contracts in fact annihilates the distinction between the contract and the re- medy, and applies to the latter the stringent rules which the United States Courts have confined to the former. By this law, one hundred and fifty dollars of property under certain circumstances, is withdrawn from execution, but if the family bible had been for the first time exempted, the decision would have been the same. No degrees are tolerated. The ques- tion is not whether the power of the State has been discreetly exercised. The authority to legislate at all is denied, and in truth the decision must be sustained upon this ground. It is believed that no Court would assume the responsibility of declaring, that in a community where almost every house- holder sustains the double relation of debtor and creditor, a statute which should withdraw from the mass of six or seven hundred millions of property, the amount limited by this law, for the purposes therein specified, was either impolitic or un- just towards creditors as a class, their interest being alone regarded. An individual deriving any benefit from this law would generally be indebted to more than one creditor. And if the question was submitted to them collectively, whether one of their number should be paid, by a sale of the imple- ments by means of which the debtor was enabled to support himself and family, or whether they should all rely upon his future earnings for the satisfaction of their debts, they, as reasonable men, would be likely to determine it in the spirit of this law. Regulations of this description, says C. J. Taney, have always been considered in every civilized community as properly belonging to the remedy, to be exercised or not by every sovereignty according to its own views of policy and humanity. It seems to have been overlooked, that this law in its re- trospective operation affects the interest of debtors as well as ALBANY, JANUARY, 1848. 137 Banks v. Quackenbush. creditors ; and is in fact a modified repeal of all the former exemption acts. And according to the decision of the Su- preme Court in Mathewson vs. Weller, (3 Denio 52.) all the property of the debtor, is now liable to be sold upon an exe- cution, upon a judgment for the purchase money of any article exempted by former laws, as well as the statute in question. According to this decision, it would be difficult to deter- mine whether in 1842 the amount of property absolutely withdrawn from execution was increased or diminished. It may be the decisions in Mathewson vs. Weller, and in the present case are consistent with each other. But it seems to me, that unless these constructive obligations are implied only in behalf of the creditor, and if the principle be sound, that property not exempt at the making of the contract, must remain liable until it is satisfied, the converse of the proposi- tion, that property then exempt should remain so would also be true. It is obvious that the effect of the two decisions is, to strip the debtor of an old privilege, in place of conferring a new one upon him. I have abstained from adverting to the higher considera- tions which may be presumed to have had their influence with the Legislature in procuring the enactment of the statute. The interest for example, which every well regulated State has in the malntainance of the family ; in the education of those who are to succeed to the rights and duties of citizens ; and in preserving the means for maintaining the decencies of life, which are so intimately associated with the moral and re- ligious culture of a people. Such motives it is granted can- not confer authority, however important in determining its fair and legitimate exercise. But looking to the effect of this law upon creditors, enlarging their privileges in some respects and restricting them in others, leaving as it does unimpaired all existing remedies in their favor, many of which are in ad- dition to those of the common law, and far more searching and efficacious, and it cannot be said that it leaves to them no substantial remedy. Still less in the language of C. J. 18 188 CASES IN THE COURT OF APPEALS. Dunks v. Quackenbush. Taney, are the restrictions of such a character as to make the remedy hardly worth pursuing. I allude of course to the effect of the law as a whole, not to its operation in especial cases. It is said that in this case it saves all to the debtor, and it might have been added, that it is equally obvious that the debtor acquired all that was saved, after the return of the first execution upon this judgment, and for ought we know, of a vendor who may have parted with his property upon the security afforded by the act. These creditors may not gain, but they certainly lose nothing by the law. But if it were otherwise, it would make no dif- ference. Every law acting upon the remedy will be produc- tive of some evil. The objection is not so much to this law, as to any legislation whatever. The Supreme Court, as I understand them, do not deny that this act relates to the remedy, but that the remedy is one over which the State has no power in reference to past contracts. We are told " that there is no well defined mid- dle ground, between holding that none, or admitting that all a debtor's property may by a subsequent law be exempt from execution." This argument proves too much, for it applies to all retro- spective legislation which may by possibility operate upon the contract through the remedy. The instance of a law regulat- ing the practice of the Courts is not an exception. Such a law, may direct all actions upon contract to be commenced by capias to be returned within sixty days after the time of service, or any shorter period, and be valid ; but if it pre- scribed ten years it would be held unconstitutional. ' But in cither case, the law would be obnoxious to the objection, that if a State could prescribe sixty days, it might ten years or a longer period, and thus impair the obligation of the contract through the remedy. There is no well defined middle ground in either case. The same may be said of statutes of limita- tions, recording acts, acts abolishing impoisonment for debt, and those giving time to executors, &c., before suit. The answer to all such objections is to be found in the established ALBANY, JANUARY, 1848. 139 Danks v. Quackenbush, distinction, between the power of the states over the contract, and over the remedy, between the exercise of a power denied to them by the constitution, and the wrongful exercise of one which they unquestionably possess. The States may legislate upon all remedies ; they must do it, for they have the exclu- sive power so far as they relate to their own Courts, but they may not abuse that power, in reference to any remedy, so far as to destroy the beneficial effects of the contract. They may therefore exempt the bed of the debtor, but it does not follow that they may a farm worth $20,000. The first would be a fair exercise of authority, the last an abuse of it. If between these extremes, there is no well defined middle ground, it is because our National Court has claimed the right to supervise State legislation upon the subject, not merely by entertaining the question, whether any remedy was afforded, but whether a substantial one was provided for the creditor- What is their right and duty is ours, and that of every other Court from the lowest to the highest. We must enter this terra incognita, explore it by the aid of those lights which experience and the knowledge of the state of society among us will afford, and determine for ourselves primarily, whether the particular law transcends the limits of fair legislation, and is in effect, whatever may have been the motives of its framers, a fraud upon the constitution. We ought not to purchase judicial certainty, by an unqualified surrender of State power. It is however insisted, that the question is virtually deci- ded by the cases of Bronson vs. Kinzie, (1 How. 311,) and McCrackenvs.Hayward, (2 Id. 608.) The first was the case of a mortgage executed by Kinzie to .Bronson, in which among other things, the former covenants, that if default should be made in the payment of the principal sum and interest secured, it should be lawful for Bronson to enter upon and sell the mortgaged premises at auction, and as attorney for Kinzie convey the same to a purchaser, and out of the monies retain, the amount due him, &c. Subsequent to the execution of the mortgage, the State of Illinois passed a law, in substance pro- 140 CASES IN THE COURT OF APPEALS. Danks v. Quackenbush. viding, that the mortgaged premises should not be sold except at a sum equal to two thirds of their appraised value, and when sold, that the mortgagor should have twelve months with- in which to redeem ; and in his default, his judgment credi- tors might redeem in three months thereafter. The law was held to be unconstitutional, upon the ground that it deprived the mortgagee of the right to sell the whole premises, which was given by the express terms of the mortgage, and second, because it created after sale, a new estate to his prejudice in favor of the mortgagor and judgment creditors. There was therefore a double violation of the contract itself. The case has therefore no application to the present ; and as if for the purpose of excluding any such inference, the Chief Justice in his opinion remarks : " That if that law had done nothing more than change the remedy upon contracts of that descrip- tion, it would have been liable to no constitutional objection. For undoubtedly, a State may regulate at pleasure the modes of proceeding in its Courts, in reference to past as well as future contracts." He then instances the statute of limita- tions, and adds : "that it (a State) may if it thinks proper, direct that the necessary implements of agriculture, the tools of a mechanic, and articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judg- ments." We could almost imagine that the learned judge had our statute before him, while preparing his opinion. The case of McCracken vs. Hayward, arose under the same law which was passed in February, 1841, and under a section, " that when any execution should be levied on real or personal property, or both, the property should be valued according to its cash value, by three householders on oath, one to be chosen by each of the parties, the other by the Sheriff, who must agree in their valuation, which was to be endorsed on the execution ; and when such property should be offered for sale, if capable of division, no greater quantity should be of- fered, or sold, than would be sufficient to pay the amount of the execution, at two-thirds of the valuation thereof, reserv ALBANY, JANUARY, 1848. 141 Danks v. Quackenbush. ing to the defendant, in all cases, the amount and quantity of property then exempt from execution by the laws of the State." The property of the defendant was offered for sale by the marshall, but was not sold, as no one bid two-thirds of its value. The plaintiff sued out a new execution, and applied to the Court for an order to sell, regardless of the State law. The question of the constitutionality of the law did not necessarily arise, as the Circuit Court Lad not adopted the law of Illinois, which was necessary in order to effect process of execution from that Court. The plaintiff was therefore entitled to the order asked for, and a sale under the former law, which was the law of the Court. But the question was raised, and as I infer, decided that the law was unconstitu- tional. I acquiesce in that decision. It remains to be seen whether it controls the present case. In the first place, the act was in effect wholly retrospective ; it was passed on the 27th of February, 1841, and applied only to judgments rendered, or judgments that might be rendered, on any contract or cause of action arising prior to the first of May in the same year. Its future operation was limited to two months, and the old law afforded the remedy as to all contracts made after that period. In the second place, as we have seen, it applied to a par- ticular class of contracts and creditors. The act upon its face, therefore, furnished the strongest evidence, that it was adopted as a mere stop law, intended to answer a temporary purpose, and was not, in the estimation of the Legislature who enacted it, in the language of the Court, in Ogden vs. Saunders, " a full, fair, and candid exercise of State power, to the ends of justice, according to its ordinary administra- tion." The judgment of the plaintiff was obtained in 1840. In , August, 1842, when his execution was levied, there was one remedy for him, and a more favorable one for a citizen, who contracted with the same debtor, subsequent to May, 1841, and this in reference to the same property. Nor was this all. The property must be appraised at two- 142 CASES IN THE COURT OF APPEALS. Banks v. Quackenbush. thirds its value, by all the appraisers, of which the debtor selected one. Of course his valuation must be adopted or none. But supposing him not to incline in favor of his neighbor, and the property honestly appraised at two-thirds of what would be deemed its value, if taken upon a cash debt. Who that knows any thing of forced sales of property, can suppose that, as a general rule, it would command two-thirds of the real value. If the debt is considerable, the number who have money, in an agricultural community especially, are very few, and in all cases the sale is made without reference to the wants of the purchaser. The sales of securities under the banking law of this State, have not averaged seventy per cent, of their nominal value, and yet the mortgages are se- cured on lands valued by sworn appraisers at double the amount secured by the mortgage, in addition to the personal security of the mortgagor. What is true with us, would be so in a State possessing far less capital. The plaintiff's execution, in the case cited, was returned unsatisfied, because no one would bid to the valuation. It would be very extraordinary if it had been otherwise. A dif- ferent result, under such a law, would have been an exception to a rule nearly universal. It furnishes, in fact, an effectual shield to the whole of the debtor's property. In a word, whether we consider the extraordinary provisions of the law, or its inevitable practical operation, as tested by all experi- ence, it must be condemned as a gross and flagrant abuse of legislative power. If the law of 1842 is obnoxious to the same objection, let it receive the same condemnation. But it is incumbent upon those who hold the affirmative, to establish that the statute of Illinois, which legalized all prior exemption acts, and then withdrew the residue of the debtor's property, including his future acquisitions from executions, which was limited mostly to past contracts, and merely sus- pended the law existing at its passage, for two months after that period, compelling creditors to pursue distinct and une- ALBANY, JANUARY, 1848. 143 Danks v. Quackenbush. qual remedies, according to the date of their contracts, is identical in principle with the law of this State, which deprives the debtor of privileges secured by former laws, and then (when fully paid for) exempts household furniture, tools, &c., of those having families to support, to a limited amount, if adjudged to be necessary by a competent tribunal, which sub- jects the future earnings of the debtor to the claims of credi- tors, and compels him, by summary process provided by another law, to apply them in discharge of those claims, and which, above all, instead of being partial and temporary in its operation, was adopted as the settled and permanent policy of a great commercial State, in reference to all contracts, and all persons without distinction. Until this is done, we may avail ourselves of the rule de- clared by one of the ablest Judges that ever had a seat in the Court of the United States, " that the positive authority of a decision is co-extensive only with the facts upon which it is made." (12 Wheat. 333.) JONES, JOHNSON, and WRIGHT, Js., concurred with GARDI- NER, J. Judgment affirmed. 144 CASES IN THE COURT OF APPEALS. Spear v. WardelL SPEAR and RIPLEY, Appellants, vs. CHARLES WARDELL and others, Respondents. The assignment which a debtor proceeded against under the non-imprisonment act, executes pursuant to the provisions of that act, (Stat. 1831, 10, 17) is for the benefit of the creditor who institutes the proceeding, and not of the credit- ors generally. And a voluntary assignment, executed by such debtor, while the proceeding is pending against him, of all his property for the benefit of all his creditors without preference, is a fraud upon the act and the rights of the prosecuting creditor. Where a judgment creditor instituted a regular and valid proceeding under the non-imprisonment act, and the debtor, while the proceeding was pending, exe- cuted a voluntary assignment of all his property for the benefit of his creditors generally without preference, so that no property passed into the hands of the statutory assignee under the statutory assignment subsequently made ; held, upon a bill filed by the creditor against the debtor and the voluntary assignee, that the voluntary assignment should bo allowed to stand, but the assignee should be decreed to hold the property assigned, as a trustee for such creditor to the extent of his demand. Held also, that the title to the property having passed to the voluntary assignee, the statutory assignee had no interest, which made it necessary to join him as a party to the bill. Appeal from the Court of Chancery. This case was brought to hearing, before the Chancellor, upon the bill filed by the appellants, and the joint and several answers of the respon- dents. The material facts were these : The appellants, on the 2d November, 1846, recovered judgment in the Supreme Court against Charles Wardell and Charles E. Wardell, two of the defendants, for $1,376,97 upon contract. The said Charles Wardell and Charles E. Wardell were partners in trade, and the judgment was for a partnership demand. On the 5th of November they were possessed of notes and ac- counts to an amount more than sufficient to pay the judgment, and on that day they were requested to apply some of such notes and accounts to that purpose. This they refused to do upon the ground (and so were the facts,) that they were in- solvent to a large amount, that a committee of their creditors had recommended that the creditors accept, as a compromise ALBANY, JANUARY, 1848. 145 Spear v. Wardell. of their claims, a per centage upon the amount due them, and in case they did not all agree to do so, then that they intended in good faith to assign all their property to pay their debts without preference. After this refusal, and on the same day, the complainants procured, from EDMONDS, Circuit Judge, a warrant against the said Charles Wardell and Charles E. Wardell, and had them arrested pursuant to the 4th section of the act to abolish imprisonment for debt and to punish fraudulent debtors. (Laws of 1831, p. 396.) After their arrest, but before the decision of the officer, to wit : on the 21st day of November, 1846, they made a voluntary assignment of all their estate, real and personal, to Henry B. Wardell, the other defendant. On the 28th of November, the Circuit Judge decided that the al- legations of the complainants were substantiated, and that the said Charles Wardell and Charles E. Wardell had unjustly refused to apply their choses in action to the payment of the judgment. A commitment was accordingly ordered pursuant to the 9th section of the act ; to prevent which, they several- ly made and delivered to the officer an inventory of their re- spective estates, and an account of their creditors, pursuant to the 3d subdivision of the 10th section of the act. These inventories contained none of the choses in action which had belonged to them as partners, nor any other partnership ef- fects. Such further proceedings were had, that an assign- ment was directed by the officer pursuant to the 16th section, which they accordingly made to Stephen P. Nasli, who was appointed assignee by the officer. On the 22.d of December, 1846, they were discharged, according to the 17th section. No property passed into the hands of the assignee so appoint- ed, except $30 in money, the residue of their effects, except such as were by law exempt from execution, having previous- ly passed into the hands of Henry B. Wardell, under the voluntary assignment to him above mentioned. The com- plainants opposed the discharge of the debtors, on the ground that their proceedings were not just and fair, insisting that 19 146 CASES IN THE COURT OF APPEALS. Spear v. Wardell. the said voluntary assignment was a fraud upon the act. But the objection was overruled by the Circuit Judge. After these proceedings were closed, the complainants ap- plied to Henry B. Wardell, the voluntary assignee, to have their judgment paid, in preference to other creditors, out of the notes and accounts which went into his hands under the assignment to him. He refused to make such payment, or to give any preference over other creditors. The bill insisted, that by the proceedings under the act aforesaid, the complain- ants had acquired a lien upon, or right to priority of pay- ment out of the choses in action of the said Charles Wardell and Charles E. Wardell, that such lien or right attached as of the time they were arrested, that the voluntary assignment made to Henry B. Wardell was a fraud upon the act, and therefore void ; or if not so, that he took the choses in action assigned to him subject to such lien or right. The answer controverted these positions. The prayer of the bill was, that the assignment to Henry B. Wardell might be set aside as a fraud upon the act and upon the rights which the complain- ants had acquired by their proceedings ; or, if allowed to stand, that the complainants might be paid the amount of their judgment out of the choses in action so assigned, or the proceeds thereof, in preference to other creditors, and for an injunction, receiver, &c. The Chancellor made a decree dismissing the bill with costs. S. P. Nash, for appellants. 1. The creditor who has ob- tained the commitment of a debtor, under the non-imprison- ment act, is entitled to a preference over creditors at large in the distribution of the debtor's property under the act. (People vs. Abel, 3 Hill 109 ; Berthelon vs. Setts, 4 Hill 577 ; Moak vs. De Forest, 5 JIUIG05 ; practical directions under the non- imp, act, (pamph.} p. 15.) 2. It follows that any voluntary disposition by the debtor, pending the proceedings, in order to defeat such preference, is a fraud upon the statute, and a Court of Equity has jurisdiction to protect the creditor's rights, and set aside the fraudulent act. 3. This jurisdiction ALBANY, JANUARY, 1848. 147 Spear v. Wardell. can only be exercised on behalf of the creditor whose priority has been overreached. He is therefore the proper party com- plainant. 4. The decree of the Chancellor should be reversed, and the defendant, Henry B. Wardell, be directed to pay the complainant's judgment with interest and costs. J. tS. Bosworth, for respondents. WRIGHT, J. The important question in this case is, whether a voluntary assignment of property for the benefit of creditors generally, made by a defendant after his arrest and during the pendency of proceedings under the act "to abolish imprisonment for debt and to punish fraudulent debtors" is a fraud upon such act, and upon the rights of the prosecuting creditor thereunder. An examination of the objects and aims of the statute of 1831, and its peculiar, and, generally admitted, quite imperfect provisions, is involved in the inquiry. Its professed objects are, to abolish imprisonment for debt and to punish fraudulent debtors. But it goes further ; aim- ing to provide to the prosecuting creditor of such fraudulent debtor a remedy for enforcing the payment of his demand. Whilst as a civil remedy (and only as such I shall consider it) it takes from a certain class of creditors the power of coerc- ing from all debtors satisfaction of their demands by impri- sonment, it gives, with a single exception, to the creditors of such class, who may prosecute, and who shall pursue its pro- visions, as against a fraudulent debtor, a new remedy, which, in its operation, continues the power of coercion by imprison- ment in a severer form, unless the debt shall be paid, or all the debtor's property, legal and equitable, be set apart, in the form prescribed, for its payment. In the exception alluded to, where the particular fraudulent design established against the debtor is, that he is about to remove any of his property out of the jurisdiction of the Court in which the suit of the prosecuting creditor is brought, it continues such coercion by imprisonment, unless the debtor shall, in effect, indemnify the creditor against the commission (until the demand of the pro- 148 CASES IN THE COURT OF APPEALS. Spear v. WardelL secuting creditor, with costs, shall be satisfied, or until the expiration of three months after a final judgment shall be rendered in the suit brought for the recovery of such demand) of certain fraudulent acts, tending to impair or destroy the creditor's remedy against the property held by the debtor at the date of such indemnity. The new remedy is not given to all who may have demands against the debtor arising upon contract, but only to those who shall have commenced a suit against the debtor, or shall have obtained a judgment or de- cree against him in a Court of Record ; and considering that a leading purpose of the act was to abolish imprisonment on demands ex contractu, there was a fitness and propriety in confining the new remedy to the two classes enumerated, for they were the only persons who could arrest and imprison on the demand itself, or could bo immediately affected by the abo- lition of the old remedy. As against the honest debtor the act absolutely abolishes imprisonment ; but against the dishonest one, it' provides that imprisonment, as a remedy or means of coercion shall still exist ; to be avoided by the payment of the debt or demand by the debtor, or by his giving satisfactory se- curity for its payment, or by justly and fairly setting apart his property, legal and equitable, for that purpose ; and in one class of frauds, by indemnifying the prosecuting creditor against the commission of certain fraudulent acts, whilst such credi- tor is prosecuting his demands against him to judgment, and until three months afterwards. Imprisonment is to follow the fraudulent debtor's conviction, unless in the mode prescribed, the demand of the prosecuting creditor shall be paid, or pay- ment secured, or the debtor's property delivered up to satisfy such demand ; or the debtor indemnify the prosecuting credi- tor against a fraudulent disposition, within a specified period, of the property he may then have. And if such debtor be committed to prison, he shall remain in custody in the same manner as prisoners on criminal process, " until a final judg- ment shall have been rendered in his favor in the suit prose- cuted by the creditor, at whose instance such debtor shall have been committed, or until he shall have assigned his pro- ALBANY, JANUARY, 1848. 149 Spear v. "Wardell. perty and obtained his discharge," but he may be discharge 1 at once, without assignment of his property, by payment of the debt or demand, or giving security for the payment thereof. As against a fraudulent debtor, the provisions of the act, are, in the language of Justice Cowen in the case of Bertlielon vs. Betts (4 Hill 577), " in effect, a statute execu- tion against choses in action and other effects not tangible by the ordinary fi. fa. The statute gives the creditor or creditors certain process by which he or they may coerce the payment of a debt or debts for which the debtor has been prosecuted." After a careful examination of its provisions, this is the con- struction that I place upon the objects and intent of the act as a civil remedy. For if the object be not to coerce from the fraudulent debtor the payment of the debt or demand of the creditor or creditors who are permitted to institute pro- ceedings, but, as is contended, only an assignment of the debtor's property for the benefit of creditors at large, then is it worthless as a remedial statute, and the aim of the legisla- ture in providing a punishment for fraud, or a severer remedy to coerce the payment of demands ex contractu against s fraudulent debtor, is entirely frustrated; for what creditoi with the object only in view of coercing an assignment of an insolvent or fraudulent debtor's estate, which should enure to the benefit of all creditors, would institute proceedings under the act ? In construing remedial statutes, Courts should en- deavor, in consistency with established rules of construction, to impart to them the force and efficacy contemplated by the Legislature. I propose briefly to examine in detail those sections of the act having a bearing on the question involved in this case. Such examination, unless I am clearly mistaken, will serve to fortify the views I have taken of the act as a civil remedy. The third section points out only two classes of persons that may institute proceedings ; and they, as has been remarked, are the only ones immediately affected by the operation of the first section. Unless a creditor falls within one or the other of these classes, he cannot institute a prosecution. There is 150 CASES IN THE COURT OF APPEALS. Spear v. Wardell. no provision for the coming in of other creditors under the proceedings instituted by either class, nor a joinder of several creditors of the specified classes. At the outset the proceed- ing is an individual one, contemplating an individual benefit, and looking ultimately to the furtherance of two ends, viz : punishment of fraud, and individual interest. The warrant issues to arrest the defendant in the suit which the prosecuting creditor has commenced against him in a Court of Record, or in which he has obtained a judgment or decree ; this peculiar statutory arrest being given, in such suit, against a fraudulent debtor, in lieu of the remedy taken away of arrest in the one case on mesne, and in the other on final process. The causes specified in the fourth section for granting the warrant to arrest the debtors, are such as may apply to indi- vidual creditors, but some of them such as would not ordinarily apply to all creditors. Indeed, those specified in the first and fourth subdivisions of the section, have no application to any other creditor than the one prosecuting, nor any relation to any other suit than the one in which such creditor is prosecuting the debt or demand due to him from the defendant, or in which he has obtained a judgment or decree. Consequently, if the con- struction of the act be correct that the prosecuting creditor ob- taines no preference, but that the assignment which follows is for the benefit of the creditors at large, the anomaly is present- ed of a result flowing from a cause with which it has no possible connection, and without which, the officer granting the warrant would have no jurisdiction to entertain the proceeding, or order the assignment. So, also, it seems to me very apparent that the causes specified in the second subdivision of the section have no application to creditors generally. The causes are, " that the defendant has property or rights in action which he fraudu- lently conceals, (that is, the defendant in the judgment or decree of the prosecuting creditor) or that he has rights in action, or some interest in any public or corporate stock, money or evi- dences of debt, which he unjustly refuses to apply to the pay- ment of any judgment or decree which shall have been rendered against him, belonging to the complainant." The subdivision ALBANY, JANUARY, 1848. 151 Spear v . Wardell. applies exclusively to a case wherein the prosecuting creditor has obtained a judgment or decree against his debtor, and he has " property or rights in action which he fraudulently conceals," or on application by such creditor, such debtor unjustly re- fuses to apply his equitable assets to the payment of such judgment or decree. There must, therefore, be an unjust re- fusal, on the part of the debtor to apply his property that an ordinary fi. fa, cannot reach, to the payment of the judgment or decree of the prosecuting creditor ; without which, for want of jurisdiction in the officer the proceeding would be void. It contemplates a charge that none but the prosecuting creditor, either at the initiation of the proceeding, or at any other time, can make, and has reference to the payment of his debt, and no other. If, by substantiating the charge, and arresting the debtor and thus compelling an assignment of his property, the prosecuting creditor acquires no right of priority under such assignment, or no right attaches in his favor on the debtor's property, but the same is to be distributed pro rata amongst his creditors, it seems to be a very absurd mode of accomplishing the result. The remaining sections aim especially at securing the rights of the prosecuting creditor. By the seventh section the debtor may controvert any of the facts and circumstances on which the prosecuting creditor's warrant issued. The latter alone may examine the defendant touching facts material to the inquiry ; the debtor and such creditor are the only parties that may offer proofs ; and if the debtor obtains an adjournment of the proceedings, the bond shall be given to such creditor, and its penalty shall be in double the amount of the debt that he claims. The proceedings prescribed in the tenth section for averting a commitment, respect only the prosecuting cre- ditor, and his debt or demand. If such debt or demand, with costs, be paid by the debtor, or security be given for such payment within sixty days, no commitment is to be granted, and the proceedings are at an end. No other creditor can continue them for his own benefit, or with the view of coerc- ing an assignment. The debt or demand claimed in the pend- 152 CASES IN THE COURT OF APPEALS. Spear v. Wardell. ing suit, or by the judgment of the prosecuting creditor, being paid, the operation of the new remedy, in lieu of the old one of imprisonment, consequently ceases. So, also, the bonds prescribed by such section are to be given to the prosecuting creditor, and in penalties twice the amount of his debt, show- ing that the entire section has relation to the satisfaction or security of his interests alone. By the eleventh section, the debtor being committed to prison, can only be discharged by the performance of acts, or the happening of a contingency, having relation exclusively to his connection with, or a right gained by the prosecuting creditor. Such debtor is to be dis- charged in case final judgment shall be rendered in his favor in the suit of the prosecuting creditor, as he would have been if imprisoned under the abolished remedy on mesne process. So also if he pays the debt or demand of the prosecuting creditor, or gives security for its payment, or executes to him either of the bonds mentioned in the tenth section, or justly and fairly assigns all his property by which payment of the prosecuting creditor's debt may be secured or enforced. By the fourteenth section the prosecuting creditor is the only person who is to have notice of the time and place of the debtor's presenting a petition for an assignment of his property, and for a discharge, and on whom copies of such petition, and the account and inventory thereto annexed, are to be served. By the twenty-fourth section, whenever a bond to avert a commitment, given under the tenth section, shall become forfeited by the non-performance of the condition thereof, it may be sued by the prosecuting creditor only, and he may recover on it the amount of his claim ; and there is no provision for the recovery on such bond of the claims of other creditors. By the act, as amended in 1845, the debtor, instead of assigning his property, may be discharged from im- prisonment upon his putting in and perfecting special bail in any suit which shall have been commenced against him by the prosecuting creditor, whether a judgment or decree shall have been obtained thereon or not ; and having thus put in and perfected bail, and obtained his discharge, he may be impri- ALBANY, JANUARY, 18-18 153 Spear v. Wardell. soned upon any execution issued against his body, in such suit in the same manner, as though the act of 1831 had not been passed. Thus is kept constantly in view a right attaching to or ac- quired by the creditor who initiates the proceeding and pur- sues the debtor. The provisions of the act, step by step, aim at the satisfaction of his debt or demand. He alone is to have notice of the various steps the debtor may take to avert commitment, or in obtaining his discharge ; and he alone is to be charged with the costs and expenses which the debtor shall have incurred in the event of a dismissal of the com- plaint. But it is insisted, that, notwithstanding the debtor be ar- rested in the suit of the prosecuting creditor only, that up to the conviction, no person but such creditor can take any part in the proceedings, and that all the means pointed out by the act for the debtor to avert commitment, enure exclusively to the benefit of such creditor ; yet, that when the debtor shall be discharged by petition and assignment, such assignment shall be for the benefit of all his creditors rateably. This construction is certainly in opposition to the general tenor of the act. Without the clearest light, therefore, to be drawn from its provisions relating to the petition and assignment, I should hesitate long to adopt a construction that would totally destroy its efficacy as a remedial statute, and leave men to make fraudulent dispositions of their property, and to con- tract debts without the least means of coercing their pay- ment. I see nothing, however, in those sections, relating to the petition, assignment and discharge, which imperatively calls for such a construction. The twelfth section provides that the debtor who may be committed to prison at the suit of the prosecuting creditor, or who shall have given a bond to avert commitment on the complaint of such creditor, condi- tioned that he will, within thirty days from conviction, apply for an assignment of all his property and for a discharge, or against whom any suit shall have been commenced in a Court of Record, in which such debtor, by the provisions of the act, 20 154 CASES IN THE COURT OF APPEALS. Spear v. Wardell. cannot be arrested or imprisoned, may petition that his pro- perty may be assigned, and that he may have the benefit of the provisions of the act. The only benefit that the act con- fers, and for which he may pray, is to be exonerated from being proceeded against under those sections which relate to his arrest and conviction for any fraud committed or intended before his discharge, by any creditor entitled to a dividend of his estate. The only creditors in a situation to proceed against him under the act, at the time of the debtor's application, are those enumerated in this section, and they are consequently the only persons whose rights are to be immediately affected. Their relation to the debtor assimilates to that formerly sus- tained by creditors who had charged in execution the person of their debtor. The petition is not that he may have a dis- charge that shall exonerate him from being proceeded against by all creditors ; for if this were so, the debtor would receive a discharge as against all not in a situation to pursue the pro- ceedings under the act, without notice to them. By the thirteenth section, the debtor, on presenting his petition, is to deliver an account of his creditors, and an inventory of his estate, similar, in all respects, to the account and inventory required of a debtor by the sixth article, of title first, of chapter five, of the second part of the Revised Statutes ; and shall annex to such petition, account and inventory, an affida- vit similar, in all respects, to the oath required by the fifth section of such article. Now, this sixth article provides for a proceeding on the part of the debtor which shall enure to the benefit of the prosecuting creditor or creditors alone, and the inventory is unlike that to be made when such debtor as- signs, under the third and fifth articles of the same chapter, for the benefit of all his creditors. But the Chancellor thinks " that the person who drew the act, probably by inadvertence substituted the sixth for the fifth article, as the thirteenth section of the act of 1831 provides that the debtor shall de- Uver an account of his creditors, and an inventory of his estate similar, in all respects, to the account and inventory required by the sixth article, and by the sixth article no ac- ALBANY, JANUARY, 1848. 155 Spear v. WardelL count of creditors is required to be annexed to his petition." I should certainly be unwilling to rest a construction of this section, and as a consequence possibly the act itself, on a sup- posed " inadvertence" of the framer of the law, or of the Le- gislature that passed it. By the sixth article, the debtor must set forth in his petition "the cause of his imprisonment," which, of course, would embrace the name or names of, and the sum or sums due to, the creditor or creditors at whose suit he is imprisoned, and who only are interested, and this would be informally " an account of his creditors." I understand the requirement of the thirteenth section of the act to be, that the debtor shall deliver an account, not of all his credi- tors, but of those mentioned in the twelfth section who have pursued or may pursue him to a conviction under the ninth section. If the reference to the sixth article be incorrect, then either no affidavit would be required, or one varying es- sentially from that prescribed in such article. By the third and fifth articles of the chapter of the Revised Statutes re- ferred to, the debtor is to make oath, substantially, that he has not preferred any of his creditors with a view to obtain the prayer of his petition, or " with the view that they should abstain or desist from opposing his discharge ;" but such is not the nature of the oath required by the sixth article, where the question of preference as to creditors generally does not arise, and where the debtor's discharge, as in the third and fifth articles, cannot be denied for giving such preference. Instead of the thirteenth section incorrectly referring to the sixth article, I think such reference is in harmony with the objects and aim of the act as developed in the preceding sec- tions ; and instead of having, as the Chancellor concludes, " no particular bearing upon the question as to who is to take the beneficial interest in the assigned property under the as- signment provided for in the sixteenth section," it furnishes a strong foundation for the opinion that the Legislature did not intend that such assignment should enure to the benefit of all the assignor's creditors rateably. For had such been the intention, the inventory and oath would doubtless have 156 CASES IN THE COURT OF APPEALS. Spear v. Wardell. been assimilated to those, in cases under our insolvent laws, which contemplate such a result, and which look, in such in- ventory and oath, and in all other proceedings, to securing equality of distribution amongst creditors. The discharge, by the seventeenth section, only operating against a particu- lar class of creditors, there was a propriety in assimilating the proceedings to a branch of the existing insolvent laws, whose operationfwas of a similar character. The fifteenth and sixteenth sections of the act, regulate the proceedings on the debtors petition ; and direct that if at the hearing the opposing creditor shall fail to satisfy the officer that such proceedings are not just and fair, or that he has concealed, removed or disposed of any of his property with intent to defraud his creditors, such officer shall order an assignment of all the property of the debtor in the same manner as provided in the fifth article, of the first title, of the fifth chapter of the Revised Statutes, except such as is therein exempt ; which assignment shall be executed with the like effect as declared in such article, and shall be recorded in the same manner. By an examination of the fifth article it will be found that the only effect declared therein is " to vest (by the assignment) in the assignees all the interest of such insolvent at the time of executing the same, in any estate or property, real or personal, whether such interest be legal or equitable." It no where declares who are to be the distributees under the assignment. It would seem that the reference to the article is simply for the purpose of ascertaining what pro- perty the assignment passes, and the period from which it re- lates. I cannot avoid the conviction, that if the intention had been to determine who were to be the distributees, the Legislature would have referred to those sections of the insol- vent laws specifically regulating that subject ; and I am not disposed, with the view of establishing a particular theory of distribution, to argumcntatively incorporate into the article referred to, a provision of another article, which, in accord- ance with my view of the general object and intent of the act of 1831, the Legislature designedly omitted. ALBANY, JANUARY, 1848. 157 Spear v Wardell. The eighteenth section provides that the assignees to whom the assignment shall be made, shall be vested with all the rights and powers over the property so assigned which are specified in the eighth article, of the first title, of chapter five, of the second part of the Revised Statutes, and shall be sub- ject to the same duties, obligations and control in all respects, and shall make dividends. The only section in the eighth article which directs as to distribution, provides a different mode in proceedings under each of the articles of the title. Under the third and fifth articles, the distribution is to be among all who were creditors at the time of the execution of the assignment ; under the sixth article, among those at whose suit the debtor was imprisoned on execution at the time of his discharge. So that the eighth article throws no light on the question of distribution. It is apparent that if the Chancellor's construction of the 16th, 17th and 18th sections of the act of 1881, be the only "sensible" one, viz : that the assignee takes the property of the debtor as a trustee for the benefit of all the creditors of the assignor rateably, then the discharge should exempt the debtor from arrest or imprisonment generally ; but such cer- tainly is not the intent of the act. The seventeenth section specifically declares the effect of the discharge. It is, that for any fraud committed or intended before such discharge, the debtor shall be exonerated from being proceeded against under those sections which authorize his arrest and conviction by any creditor entitled to a dividend of his estate ; not that he shall be exonerated from arrest and imprisonment by all creditors, but clearly, by reasonable construction of language, by those creditors only, who, before such discharge, were entitled to proceed against them under the act. No creditor unless he had commenced a suit or obtained a judgment or decree could proceed ; and it is against the proceedings of such creditors alone that the discharge operates. Its operation cannot be against all creditors. The Legislature could not have intended to conclude creditors by proceedings of their debtor, of which proceedings they were not to have notice. If this were so, a 158 CASES IN THE COURT OF APPEALS. Spear v. Wardell. debtor in collusion with a friendly prosecuting creditor might fraudulent pursue the provisions of the act to an assignment and discharge, and other creditors, without notice, be bound by his proceedings. If, therefore, the discharge, which is the fruit of the assignment, is only to operate against those credi- tors who may pursue the provisions of the act, that would seem to follow, which is but equity, that the distribution of the debtor's property should be among those affected by it. This is a principle always heretofore acted upon in the distri- bution of the estates of insolvents, and on no other principle can equity be done. In a case under this act, if the principle of equality of distribution amongst all creditors should gov- ern, the effect would be that a certain class of creditors whose remedy, by coercion was gone, would but receive rateably with others to whom it was continued ; and whilst the right of the particular creditors specified in the second section of the act to imprison the debtor remained, they would also, under a remedy not given to them, become distributees rateably of his property. This, in respect to the means provided for enforc- ing payment from a fraudulent debtor, would not be that " equality among creditors" which, under other circumstan- ces, is declared to be equity. An attentive consideration of its provisions has led me to the conclusion, that the intent of the act of 1831, was, after abolishing imprisonment for debt in suits arising upon contract to provide a remedy for those immediately effected by such abolition, through which they might reach the fraudulent debtor's property, to satisfy their demands ; that the proceed- ings taken under such act enure to the benefit of the prose- cuting creditors exclusively ; that by initiating and pursuing the remedy prescribed by it, they acquire a right of priority or preference in the distribution of the debtor's estate ; and that neither expressly or by implication is there any authority for such distribution amongst creditors generally, but the whole scope and tenor of the act is in opposition to it. I am, therefore, of the opinion that a voluntary assignment by the debtor of all his property for the benefit of his creditors gen- ALBANY, JANUARY, 1848. 159 Spear v. Wardell. erally, pending the proceedings against him, and in order to defeat the prosecuting creditor's preference of payment out of such property, is a fraud upon the act of 1881, and upon the rights of such prosecuting creditor. In the present case, after the arrest on the complaint of the appellants, and pending the proceedings against them, the respondents, Charles Wardell and Charles E. "Wardell, executed an assignment to Henry B. Wardell, of all their co-partnership property and effects to pay all their creditors rateably, and Charles Wardell, also, at the same time, assign- ed to Henry B. Wardell all his individual property, in trust, to pay his individual creditors rateably, and then to apply the surplus to the payment pro rata of the creditors of the firm. The whole of the property at the date of the assignment was delivered to the assignee, who now holds and refuses to make any disposition of it, or the proceeds thereof, otherwise than upon the terms expressed in assignment to him. The res- pondents, in their answer admit that the assigned property is much more than sufficient to pay the demand of the appellants. These assignments were made in fraud of the act, and of the rights of the appellants acquired thereunder ; and it is plainly to be perceived, were so intended by the respondents them- selves. For if, as they now contend, the statutory assignee would take for the benefit of all creditors, why, pending the proceedings, voluntarily make assignments having the like effect? Nothing can be more undoubted than that the res- pondents contemplated a fraudulent interference with the statu- tory assignment. On the main question, therefore, I am of the opinion that that the decree of the Chancellor is erroneous, and should be reversed. With regard to the mode in which relief shall be granted to the appellants under the circumstances of this case, my views fully accord with those expressed by my brother Bronson. BRONSON, J. The first question is, whether the assign- ment which a debtor executes under the non-imprisonment 160 CASES IN THE COURT OF APPEALS. Spear v. Wardell. law, (Stat. 1831, p. 400, 16-17) is for the benefit of all hia creditors ; or whether the assigned property goes exclusively to the creditor who instituted the proceedings. The Chan- cellor had considered this as an open question ; but as I understand the authorities, it had been settled, so far as the Supreme Court could settle it, that the property goes to the particular creditor who compelled the assignment, to the exclusion of all others, until his debt is paid. The proceed- ing is nothing more than a statute execution which reaches property not subject to seizure by fieri facias, and such as, through the fraud of the debtor, either has been, or is in danger of being placed beyond the reach of ordinary process. The question was considered in The People vs. Abel, (3 Hill 109,) and though not then decided, I well recollect that there was no diversity of opinion among the Judges on the subject. And in Bartholomew vs. Setts, (4 Sill 577,) the point was necessarily decided ; for if the act of 1831 is an insolvent law, its operation was suspended by the bankrupt act at the time the creditor in that case instituted proceedings to compel an assignment ; and it clearly is an insolvent law, if an assign- ment under it is made for the benefit of all the creditors. It was therefore necessary to decide the question ; and the Court held, that the act of 1831 was not an insolvent law, but only a new remedy in favor of a creditor who had commenced a suit, or recovered a judgment against the debtor. Moak vs. De Forrest, (5 Hill 605,) holds the same doctrine. And so far as I have been able to learn, the non-imprisonment law lias uniformly received this construction among those who have administered it, from the time of its enactment in 1831, down to the time this case was decided in August last. I do not think it necessary to add any thing on this branch of the case further than to say, that the high respect which I always feel for the opinions of the Chancellor has induced a care- ful re-consideration of the question, which has resulted in confirming my former opinion. The defendants, in the judgment were arrested on the war- rant and taken before the Circuit Judge on the fifth of No- ALBANY, JANUARY, 1848. 161 Spear v. Wardell. vember ; and after several adjournments, the Judge, on the 28th day of that month, decided that the allegations of the complainants were substantiated ; that the defendant had rights in action and evidences of debt which they had unjustly re- fused to apply to the payment of the judgment, and that a commitment must issue in pursuance of the 9th section of the act. Pending the proceedings, and on the 2Ist day of the month, the defendants in the judgment made a voluntary assignment of all their property to the defendant Henry B. Wardell, the son of the defendant Charles "Wardell, in trust, to apply the avails of the property, after satisfying the ex- penses of executing the trust, for the benefit of all the credi- tors, without any preference. The value of the property thus assigned greatly exceeded the debt of the complainants ; but was not enough to pay all the creditors : and in consequence of this assignment the defendants in the judgment had no estate to insert in their inventory when they afterwards ap- plied to the Judge for a discharge under the act, for the pur- pose of preventing the commitment which had previously been ordered. Now although the complainants acquired no lien upon the property by commencing proceedings under the act, they acquired the right to a preference over the other credi- tors, which could not be defeated by a voluntary assignment ; and the transfer of the property to Henry B. Wardell was a fraud upon the law, and the complainants, which a Court of equity should not permit to succeed. (Wood vs. Bolard, 8 Paige 556, matter of Hurst, 7 Wend. 239; Sadden vs. Spa- der, 20 John. 554 ; McDermutt vs. Strong, 4 John Oh. 687.) The Chancellor would, I presume, have felt no difficulty in granting relief, if he had not come to the conclusion that the assignment under the statute was for the benefit of all the creditors. If the complainants had obtained a lien on the property by commencing proceedings under the statute and the title had vested in Nash the statute assignee, he would then have been a necessary party to the bill. But as their was no lien, the legal title to the property passed to the defendant Henry B. 21 162 CASES IN THE COURT OF APPEALS. Spear v. Warded. Wardell under the voluntary assignment ; and so long as that assignment stands, Nash has no interest which can make it necessary for him to join with the complainants in a bill for the assertion of their rights. If we should set aside the volun- tary assignment, and thus subject the property to the opera- tion of the statute assignment, then Nash might be a neces- sary party. But there is no occasion for setting aside the voluntary assignment. It covers a large amount of property beyond what is necessary to pay the debt of the complainants, and they are the only creditors who are entitled to a prefer- ence. The proper course, having regard to the rights and interests of all the creditors, will be, to declare that Henry B. Wardell holds the assigned property as a trustee for the complainants to the extent of their debt, and make a decree that he pay the same. In this view of the case Nash has no interest, and the objection that he should have been made a party must be overruled. I am of opinion that the decree of the Court of Chancery shonld be reversed ; and that a decree should be entered in favor of the complainants, as above suggested. They should also have costs in the Court of Chancery. Decree accordingly. ALBANY, JANUARY, 1848. 163 Burkle v. Luce. 163 s HA 330 s 1 239 BURKLE and GEBBARD, Executors, &c.. vs. LUCE. e3( > '624 36 2 628 After a Sheriff had levied upon property which belonged to the defendant in the d97 J 157 execution, another person brought replevin, and had the same property deliv- 2 Tr 78 ered to him upon the writ, and died pending the action; field, that the Sheriff might retake the property and sell it to satisfy the execution. On the dea.th of a plaintiff in replevin the action abates and cannot be revived by scire facias. In such a case the defendant has no remedy upon the replevin bond. Where the original Execution upon which a levy had been made was lost, and the Supreme Court from which it issued, ordered, on motion, that a new one like the original be issued as a substitute therefor, that the Sheriff's certificate of the levy be endorsed thereon, and that such substituted execution and cer. tificate have the same force and effect as the original would have; and a new execution was issued and endorsed accordingly ; held, that the same was admissible as primary evidence to prove and justify the levy without showing the loss of the original. On error from the Supreme Court. Burkle and Gebbard, as executors of the will of Charlotte Seitz, sued Luce in re- plevin. The cause was first tried at the Oswego Circuit in June, 1843, when a verdict was had for the plaintiffs. The Supreme Court on hill of exceptions granted a new trial. (See 6 Hill 558.) The cause was again tried before GRID- LEY, Circuit Judge, at the Oswego Circuit, in June, 1845. The case was this: The defendant was a deputy of the Sheriff of Oswego county, and on the 8th of January, 1840, a fieri facias was delivered to him against Christian J. Bur- kle, and on the same day he levied it upon the property in controversy. Charlotte Seitz claiming the property under a previous sale to her from Burkle, brought replevin against the defendant and had the goods delivered to her by virtue of the writ. That action was tried and a verdict found for the defendant, which was set aside, and a new trial ordered. Afterwards on the llth of February, 1842, Mrs. Seitz, the plaintiff in that action died, having made her will, and ap- pointed the plaintiffs in this suit her executors. In July or August following, the defendant repossessed himself of the goods, and claimed to hold them by virtue of his levy above 164 CASES IN THE COURT OF APPEALS. Burkle r. Luce. mentioned ; and thereupon the plaintiffs as executors brought this second action of replevin and retook the property. Burkle, the defendant in the execution, was the owner of the property on the 26th of December, 1839, and on that day executed a bill of sale of it to Mrs. Seitz, which sale was claimed by the defendant to be fraudulent and void as against the creditors of Burkle, and evidence was given tending to show that such was the fact. The question of fraud was submitted by the Circuit Judge to the Jury. The plaintiffs' counsel requested the Judge to charge, that although the sale by Burkle to Mrs. Seitz might be fraudu- lent, yet that the execution of the writ of replevin brought by Mrs. Seitz, destroyed the lien of the fieri facias, and that the defendant had no right to retake the property. The Cir- cuit Judge refused so to charge, and the plaintiff excepted. Evidence was given tending to show that the original fieri facias was lost after the levy was made under it. It also ap- peared that after the supposed loss, the plaintiff in the fieri facias made a motion in the Supreme Court for relief, and on that motion, after hearing counsel on both sides, the Su- preme Court made an order, that a new execution be issued under the seal of the Court, similar to the original one, that the directions to the Sheriff and the Sheriff's certificate of levy, which were endorsed on the original, be endorsed on the new one to be issued, and that such new execution and the endorsements thereon be of the same validity arid effect for all purposes as would have been the original, had not the same been lost. In pursuance of this order a new execution was issued, which was a copy of the original, and on which the defendant as deputy sheriff made the same endorsement of levy as he had made on the original. This substituted execution was offered in evidence on the trial. This was ob- jected to by the plaintiffs, on the ground that the loss of the original was not sufficiently proved. The Judge admitted the execution in evidence, and the plaintiff excepted. The jury found a verdict for the defendant; and the plain- tiffs moved in the Supreme Court for a new trial upon bill of ALBANY, JANUARY, 1848. 165 Burkle v. Luce. exceptions, which motion was denied, and judgment rendered for the defendant. W. Duer, for plaintiff in error. .2V. Sill jr. and E. B. Talcott for defendant in error. JEWETT, CH. J., delivered the opinion of the Court. I am of opinion that the action brought by Mrs. Seitz, abated by her death, and could not be revived by scire facias. (2 R. S. 576, 2; ib. 386-7, 2, 3; Webber vs. Underhill, 19 Wend. 447 ; Outfield vs. Corney, 2 Wils. R. 83.) The plaintiffs, however, insist that the delivery of the goods to Mrs. Seitz, by virtue of her writ of replevin, put an end to the lien acquired by the levy under the execution made by the defendant, and consequently he had no right to retake the property, although the suit was at an end. If this position be correct, it would seem plain that the plaintiff in the exe- cution, might lose all remedy under it to collect his debt, al- though there was enough property of the defendant in the exe- cution levied upon, to satisfy it, and still have no remedy upon the bond given by the plaintiff, in the replevin suit, to the Sheriff on his executing the writ ; the condition of the bond being, that the plaintiff will prosecute the suit to effect, and without delay, and that if the defendant recover judgment against the plaintiff in the action, he will return the same property, if return thereof be adjudged, and will pay to the defendant all such sums of money as may be recovered against him, by such defendant in the said action, for any cause what- ever. To comply with the conditions of the bond, the plain- tiff was required, 1st, to prosecute her suit to effect without de- lay, and 2d, in case the defendant recovered judgment against her in the suit, to return the same property, &c. Having died during the due prosecution and pendency of the suit, the law holds that the prosecution was to effect, " because there was neither a non-suit or verdict against her." (2 R. S. 523, 7 ; Badlam vs. Tucker, ~L Pick. 284 ; Duke of Ormand vs. 166 CASES IN THE COURT OF APPEALS. Burkle r. Luce. Btesly, Carthew 519,) and therefore no breach of the condi- tion of the bond occurred, and the defendant has no remedy upon it, although the suit was at an end and the plaintiffs representatives were in quiet possession and use of the proper- ty replevied. The condition of the bond does not cover the case. (Cowdin vs. Stanton, 12 Wend. 120.) The plaintiff's counsel has cited, in support of his proposi- tion, (Bradyll vs. Ball, 1 Brown Ch. R. 427 ; Woglam vs. Oowperthwaite, 2 Doll. 68 ; Frey vs. Leeper, 2 Dall. 131 ; and Acker vs. White, 25 Wend. 614.) In the first case, the goods of one Bradbury, a tenant, were distrained by his landlord for rent ; the tenant brought re- plevin, and pending the suit became bankrupt, as also his sure- ties in the replevin bond, and his goods, including those dis- trained, passed into the hands of the defendants, Jones and Ball, his assignees who sold them. Afterwards the defendant obtained judgment in the cause in replevin, and sued out a writ, de retorno habendo, and filed his bill in Chancery, insist- ing that he had an equitable lien upon the goods taken in dis- tress for a return of the goods, or payment of the value of them by the assignees. It was urged by the defendants that the landlord had no title to the goods, but only a right to call on the Sheriff to take them into his possession. That the writ carried the idea of the right of the tenant to sell the goods, that the landlord had no interest or property in them and could not prevent the replevin ; that the sale by the Commis- sioners took away all the right of the landlord ; that the as- signees sold the goods before the landlord was entitled to the retorno Jiabendo ; and if Bradbury himself had sold the goods after the replevin, the result must have been the same, his other goods would have been liable, and if he had none, the pledges would be. That the replevin bond was not forfeited before the bankruptcy, so that Bradbury was not discharged ; he and his sureties might bo sued, for, till the return awarded, there was no forfeiture of the bond. Lord Loughborough, Lord Commissioner, said that when the goods were replevied, thev are delivered over to abide the ALBANY, JANUARY, 1848. 167 Burkle v. Luce. event of the suit. If they came afterwards into the hands of persons in privity with the tenant, they would be liable upon the return, &c. If sold, an action for money had and received, would lie for the money, and concluded by saying : " If the assignees were liable in equity, the value being set- tled, they must be so at law, and therefore ordered that the bill be retained, and that an action at law be brought for money had and received to the plaintiff's use, against the as- signees." Such action was brought, and the Court held that the plaintiff had no lien upon the goods, and afterwards the bill was dismissed, and the defendant left to his remedy on the replevin bond, which, in that case, was complete ; and during the pendency of the replevin suit, the property had passed into the hands of the assignees in bankruptcy, who had sold the same, and thereby third persons had acquired rights under the plaintiff in replevin. The case of "Woglam vs. Cowperthwaite, was this : Emlen distrained the goods of Hamilton, his tenant, for rent. The tenant brought replevin and gave security to the Sheriff, and afterwards moved the goods into the house of Woglam, who, after rent had accrued to him, distrained the same goods. The next day after this distress was made, Hamilton removed the goods from off the premises. The officer who made the last distress followed them and had them appraised in the house to which Hamilton had removed them. Shortly after this, and while the goods remained where they were appraised, the defendant, in the first replevin suit, obtained judgment for his rent, and issued a retorno habendo, by virtue of which the Sheriff took the goods and delivered them to Emlen's officer Who sold them. The action was against the Sheriff for taking the goods under the retorno habendo, and the question sub mitted to the Court was, whether the goods were liable to be taken under that writ so as to exclude Woglam's distress ? or whether, by the removal of the goods by Hamilton, the lien on the property acquired by Woglam's distress Avas not de- feated as against Emlen ? The Court, on the authority of the case of Bradyll vs. Ball, held that no lien remained 168 CASES IN THE COURT OF APPEALS. Burkle v. Luce. in Emlen ; that by the replevin the securities in the bond were substituted in the place of the goods, which were re- stored to the tenant, as his sole property ; that he might sell them, that they might be taken in execution, and that they became liable to any future lien or incumbrance. Upon the retorno habendo, if the identical goods distrained were found in the hands of the tenant undisposed of and unincumbered, they might be taken by the Sheriff ; if not, after an elongata returned, a wtthernam might go against the general goods of the tenant. The same principle was repeated in Frey vs. Leeper ; that the lien on the goods was discharged by the security given to the Sheriff, and as soon as they were delivered back to the plaintiff in replevin, they were open to execution or a new dis- tress. That was also a cause where the goods had been taken as a distress for rent. In Acker rs. White it was said on the authority of the first two cases, that the bond given to the Sheriff is a substitute for the goods, and that a replevin of the goods put an end to the lien of an execution which had been previously levied. But in that case the replevin suit was still pending. Neither of the cases referred to, decide the precise point involved in this case. In the first three cases, the plaintiff in replevin was the general owner of the goods, and as such had an unquestionable legal right to sell or dispose of them without a replevin, subject to the lien acquired by the defendant in replevin by his distress for rent ; therefore, in those cases there is some and perhaps an entire propriety, in saying, that the lien by the distress was extinguished by the replevin and that the bond was a substitute for it, especially as the goods had been sold or disposed of by the general owner during the pendency of the suit and third persons had acquir- ed rights in them. In the other case, White the plaintiff had purchased the property in question of Jessup, the general owner, and left it in his possession. But a few days prior thereto, Hillyer as Sheriff, under an execution against Jessup, had levied upon it ALBANY, JANUARY, 1848. Burkle v. Luce. and soon after WJiite's purchase took possession of it, for which, White brought replevin against him, to whom, under it, the property was delivered, and who again left it in the pos- session of Jessup ; the replevin suit was tried and a verdict for Hilly er found, instead of taking judgment for a return, he elected to take an assessment for the value of the goods ; White made a motion for a new trial which was undecided, when Acker subsequently as Sheriff under an execution against Jessup upon another judgment, levied on the same property still in his possession ; for which, White brought replevin against him and obtained a verdict and judgment in the Superior Court of New York; on error, the Supreme Court held, 1st, that White independent of his purchase of Jessup, should be regarded as having all the interest in the goods which belonged to Sheriff Hillyer under his fi. fa. and if that was sufficient to defeat the levy of Acker on his H. fia. it equally enured to the benefit of White. That the bond was substituted for the goods, and was conditioned among other things, to return the property if adjudged against him and although the lien of the execution was gone according to the cases cited, it was because it was regarded as an equiva- lent security for the satisfaction of the judgment to the extent of the value of " the goods. That it would seem, there- fore, but just and equitable that the interest to the extent of the lien should pass to the party thus giving the security and asking a deliverance according to law. And 2nd, the goods being in the custody of the law under a valid levy by Hillyer, who was entitled to the exclusive possession of the same, the defendant Acker could not acquire any new right to the pos- session while that claim existed, in full force, to be satisfied either out of the property by a return, or the security given therefor. The case of Lockwood vs. Perry, (9 Metcalf, 440) in prin- ciple, bears a nearer resemblance to this case, than the cases above referred to. There Lockwood was the owner of two colts, one Barnes claimed them as his property, and by a writ of replevin issued out of the Common Pleas in Columbia 22 170 CASES IN THE COURT OF APPEALS. Burkle v. Luce. County in this State, the Sheriff took the colts from Lock- wood and delivered them to Barnes. The action was tried, and the plaintiff Barnes recovered a judgment, in that Court ; the defendant brought error to the Supreme Court where the judgment was reversed and a venire de novo was awarded, before a trial was had, Barnes died insolvent while the suit was thus pending, having previously sold the colts to the defendant Perry ; after the death of Barnes, and before Lockwood brought the suit, he demanded the colts of Perry, which he refused to deliver. He then brought replevin for the colts. The colts were never the property of Barnes, nor had he any right to the possession of them, unless he acquired a property in them by virtue of his action of replevin. It was held that Perry acquired no title to the colts by purchas- ing them of Barnes. The Court in that case, said, that the position taken by the defendant, that the object and purpose of the writ of replevin were to transfer the possession of the article replevied to the plaintiff in replevin, was certainly well maintained, if by pos- session, be understood, a possession for the time being. That the further position that the plaintiff in replevin, after the service of the writ, has a right to sell the property thus re- plevied, and may give to the purchaser a good indefeasible title, which would not be affected by a judgment in favor of the defendant in replevin, was one more difficult to be sustain- ed. That if it were limited to replevin in cases of wrongful distress of personal chattels for rent, or of cattle damage fcasant, it might be more readily assented to, as in such cases the property is held by the defendant in replevin for a par- ticular purpose, arid he does not claim to be the owner of it ; and where the plaintiff in replevin, who in such case is the ac- tual owner, has given the requisite security, by a bond, to pay such rent, or such damages, if the property is not returned, it might be all that was requisite to do perfect justice between such parties. That a plaintiff in replevin, who was the real owner of the property, might deal with the goods as his own, and make a legal transfer. But that did not sanction the ALBANY, JANUARY, 1848. Burkle v. Luce. broad doctrine, that by reason of the mere fact that he had acquired his possession through writ of replevin, his vendee acquired thereby an indefeasible title as against every body. That by the writ of replevin the plaintiff acquired the right of possession pending the action of replevin, and that the real owner could not lawfully disturb that right during the pen- dency of the action, nor institute an action against a third person who might become possessed of the goods ; and that was the extent of the right exercised by force of a writ of replevin. It was further held that the abatement of the replevin suit, by the death of the plaintiff, operated to defeat a right of pos- session of a chattel acquired under a writ of replevin, having no other foundation besides that which results from such writ ; and that the defendant, under such circumstances, may avail himself of his antecedent title, as the lawful owner, to regain the possession, although he may not have a judgment for are- turn of the property, provided he was content to resort to the property itself, and forego his remedy upon the bond. In the case at bar, it has been shown that this property on which the defendant levied belonged to Burckle ; and as such the defendant had an unqualified right to it for the satisfac- tion of the creditor's judgment. Mrs. Seitz, without any right to the property as against the creditor, availed herself of the action of replevin to obtain possession of it. The suit having abated by her death, and she not having sold the property, but dying possessed of it, the plaintiffs as her executors succeeded to her rights and nothing more. In my opinion the proceedings upon the writ of replevin confer- red upon her a mere temporary right of possession, which expired with the abatement of the suit by her death, and that, when that event occurred, the lien of the execution revived. Especially as the rights of no third person had intervened. under her, and that the defendant was at liberty to retake the property by virtue of his former levy. I concur with the opinion expressed in this case (6 Hill 558) "by the Supreme 172 CASES IN THE COURT OF APPEALS. Burlcle r. Luce. Court that if he could not regain possession peaceably, he might after a demand, bring trover or replevin against the executors, or against any one else who had acquired no rights under Mrs. Seitz while the action was pending, or under her representation afterwards. Upon the operation of these prin- ciples no one is exposed to sustain any injury, for if the de- fendant retakes the goods, a remedy is open to the plaintiffs representatives to test the right by suit, but the principle for which the plaintiffs contend, would without any remedy work a wrong. The defendant as Sheriff is justly entitled to the goods for the satisfaction of the execution in his hands under which he first seized them, and has no remedy either by judg- ment, or upon the replevin bond. If his lien did not thereby revive, by which he could retake or sue for the goods in case they were withheld from him by the representatives of the plaintiff, he would, although he had an indisputable right to the goods, be without any remedy. It is objected by the plaintiffs, that the Circuit Judge erred in refusing to charge the jury in respect to the question of fraud as requested; I am unable to see any ground for the objection ; he left the whole question to them with proper in- structions as to the law of the case, not indeed in the language of the request, but in a manner as I think better calculated to enable the jury rightly to comprehend the question and their duty and province. The execution in favor of Rathbun against Burkle was properly received in evidence. It was a substitute for the original ordered to be issued by the Supreme Court. There was no necessity of proving the loss of the original execution upon the trial in order to give in evidence its substitute. This substitute was admissible as primary evidence, and therefore it is unnecessary to decide whether a proper foundation was laid for its admission as secondary evidence. (Jackson vs. Jlam- mon, 1 Cairn. 11. 496 ; White vs. Lovejoy, 3 Johns. R. 448 ; Love vs. Little, 17 Johns. R. 34G ; Chichester vs. Cande, 3 Cow. Rep 39.) ALBANY, JANUARY, 1848. Adams v. The People. 173 There is no error in the judgment of the Supreme Court and it should be affirmed. Judgment affirmed. ADAMS vs. THE PEOPLE. A. was indicted in the city of New York for obtaining money from a firm of Com- mission Merchants, in that city, by exhibiting to them a fictitious receipt signed by a forwarder in Ohio, falsely acknowledging the delivery to him of a quantity of produce for the use of and subject to the order of the firm. The defendant pleaded that he was a natural bora citizen of Ohio, had always resided there, and had never been within the State of New York ; that the receipt was drawn and signed in Ohio, and the offence was committed by the receipt being present- ed to the firm in New York, by an innocent agent of the defendant, employed by him while he was a resident of and actually within the State of Ohio ; held, that the plea was bad, and that the defendant was properly indicted in the city of New York. Where an offence is committed within this State by means of an innocent agent, the employer is guilty as a principal, though he did no act in this State, and was at the time the offence was committed, in another State. In such case the Courts of this State have jurisdiction of the offence, and if the offender comes within the limits of the State, they have also jurisdiction of his person, and he may be arrested and brought to trial. Where an offence is committed within this State, whether the offender be at the time within the State, or be without the State and perpetrates the crime by means of an innocent agent, it is no answer to an indictment that the offender owes allegiance to another State or sovereignty. ERROR from the Supreme Court. Adams and one Seymour were indicted in the New York General Sessions for obtaining money, by false pretences, of Suydam, Sage & Co., Commis- sion Merchants in the city of New York. The pretence used to effect the fraud, was, as the indictment alledged, a false re- ceipt signed by Seymour, dated at Chillicothe, Ohio, ac- knowledging that he (Seymour) had received from Adams a large quantity of pork and lard, irrevocably subject to the order of Suydam, Sage & Co., which, by the same receipt, he agreed to forward to them in New York, and which they were O to receive for sale on commission, and to have a lien upon for 173 s HA 365 2 1 15 83 '453 d!72 Mftf 174 CASES IN THE COURT OF APPEALS. Adams r. The People. the amount Df certain drafts drawn upon them by Adams against the property. The indictment alledged that the re- ceipt was untrue, that Seymour had received no such proper- ty, and that the defendants knew it ; also that Suydam, Sage & Co., upon the faith of the receipt, and the representations accompanying the same, accepted and paid the drafts. Adams pleaded to the indictment, in substance, that he was born in Ohio, that he had always resided in that State, and had never been within the territorial limits of the State of New York ; that the false receipt and the drafts mentioned in the indictment, were made and signed in the State of Ohio, and were presented to Suydam, Sage & Co., in New York, by an innocent agent of him, the said Adams, whereby they were dece'^ed and defrauded, as alledge-1 in the indictment, and therefore the plea insisted that he the said Adams, ought not to be criminally questioned or proceeded against in the State of New York. On demurrer to this pica, the Sessions gave judgment in favor of the defendant, and the people removed the cause, by writ of error, into the Supreme Court, where the judgment was reversed, and the defendant ordered to further answer the indictment. Sec 3 Denio 190, where the pleadings are stated more in detail, and the arguments of counsel given at length. G-eo. Wood, for plaintiff in error. Ogden Hoffman, and John MeKeon, for the people. GARDINER, J. No attempt was made upon the argument to controvert the reasoning of the learned Judge who deliv- ered the opinion of the Supreme Court upon the premises assumed by him. It was however insisted, that the authority to punish on account of crimes committed within the jurisdic- tion of this State, depended upon the right of the State to the obedience of the criminal, and that the authority upon the one hand and the duty upon the other, was founded upon ALBANY, JANUARY, 1848. 175 Adams v. The People. the allegiance permanent or temporary, which the offender owed to the country within which the crime was committed. It was therefore admitted that a crime had been committed within this State and through the instrumentality of the de- fendant, and the authority of the numerous cases cited to establish the position, the actual presence of the offender at the place where the crime was consummated was not neces- sary to make him amenable to the law, was also conceded ; but it was urged that they were adjudications in cases between sovereign and subject in reference to the municipal law of the country in which they arose, and that they did not touch the great question of allegiance which was anterior and para- mount to any municipal regulation. No direct authority was referred to establishing this doctrine. We must therefore consider it as it was argued, as a question depending upon general principles. Allegiance binds the citizen to the observance of all laws which are promulgated by his own sovereign, not inconsistent with the laws of nature. The laws of nature as they are de- nominated also rightfully require obedience, not by reason of allegiance, but because they emanate from a higher authority than any human government. They are written upon the hearts of all men ; exist before governments are organized ; anterior of course to allegiance, " and are binding all over the globe, in all countries and at all times." To these laws all men owe obedience, not because they are subjects, but because they are men. Allegiance itself is modified and controlled by them. Every political and civil power has its legal limits, no man is bound to do any act contrary to the law of nature at the bidding of his sovereign. ( Vattel. B., 1 Oh. 4 53-4.) The positive regulations of particular communities, such as their revenue and usury laws, indeed the whole class of regu- lations which render acts in themselves indifferent, criminal by prohibition, may to some extent derive their obligation from the doctrine of allegiance and may therefore be bind- ing only upon the citizens and residents of that community. 176 CASES IN THE COURT OF APPEALS. Adams v. The People. But this is not so in reference to the higher laws to which I have adverted. The duty of obedience does not depend upon the allegiance of the subject, or the laws of his sover- eign, bnt is assumed as pre-existing. The citizen of Massachusetts who should murder an inhabi- tant of this State by the discharge of a loaded pistol or by striking with a deadly weapon across the invisible line which separates the territory of the two States, would transgress a law universally binding and recognised as such by the citizens of both States. If it be admitted as contended for by the counsel for the prisoner that the offender would not violate his allegiance to his own State, he would not be the less guilty on that account. He would, notwithstanding, infringe a law he was under an obligation to obey, at all times and in all places, in New York as well as in Massachusetts. In a word, where the law of nature prohibits an act as riminal, it is the province of the municipal law of each State to prescribe the means by which the crime is to be ascertain- ed and the punishment to be inflicted upon the offender. This right is indispensable to enable a State to discharge the duty of protecting its own citizens. It is also exclusive : * The jurisdiction of a nation within its own territory," says Chief Justice Marshall, " is necessarily exclusive and absolute n nd the jurisdiction of its Courts is a branch of that sover- eignty." If a citizen is injured in his person or property by a for- eign government or their avowed agents, redress may be .-ought through his own sovereign, and if refused it would be a cause for war. But when tho injury arises from the fraud or malice of a private citizen, with whom or his acts his gov- ernment has no connection, and the offence is consummated in the State of which the aggrieved party is a subject, no pro- tection can be afforded except by the punishment of tho offender if found within its limits. The aggrieved person eannot make reprisals, and the government of the offender is no more responsible for the tortious act of a private citizen than fur his contracts. Protection therefore the " return" or ALBANY, JANUARY, 1848. 177 Adams v. The People. consideration upon the part of the State for the obedience of the subject, cannot be secured at all upon the assumption that allegiance is the only ground of jurisdiction over the criminal. The right to punish therefore it is believed, obtains in all cases where a law has been violated to which the offender owes obedience ; and secondly, where the offence is committed within the territory of the State claiming jurisdiction. Piracy which is sometimes claimed as an exception, only confirms the general rule. Piracy is an offence against the law of nature, which is in this respect the law of nations. (Story's Comm. 3 Vol. Chap. 22 1153.) A pirate who is one by the law of nations may be punished in any country where he may be found. Why ? Because he has transgressed a law which he was bound to obey ; and secondly, because the offence was committed in a place in which all nations have a common right, but over which no one has exclusive jurisdic- tion. Each nation therefore must have the right to punish or none ; and the right is conferred upon each to prevent the escape of the offender. Allegiance to a particular power, so far from drawing after it the exclusive jurisdiction to try and punish, is not even one of the elements necessary to confer it. A Pirate born in England where the crime is recognized and punished by the common law, (4 Black. Comm. 72) may be convicted and sentenced in the Courts of the United States or those of any other nation. If a State may punish a foreigner who owes it no allegi- ance for acts committed on the highway of nations, there would seem to be no doubt of its jurisdiction when the offence was committed by any means within its own territory. Kob- bery upon land is as much opposed to the law of nature, aa robbery upon the high seas. In each case the individual for- feits the protection of hia government, and the difference of jurisdiction in the two cases is attributable to the right of do- main, and not to the doctrine of allegiance. Vattel says that " the sovereign who is injured by the subjects of another na- tion, takes satisfaction for the offence himself when he meets 23 178 CASES IN THE COURT OF APPEALS. Adams v. The People. with the delinquents in his own territory, or in a free place aa the open sea." (Book 4, Ch. 4, 52.) And again, after re- marking that it would be unjust to impute to the sovereign every fault committed by a subject against a citizen of another country, he says, "if the offended State has in her power the individual who has done the injury, she may, without scruple, bring him to justice and punishment." (Boole 2, Ch. 6, 75.) In this case the prisoner admits that by means of false pre- tences, and with an intent feloniously to cheat and defraud, he obtained, from citizens of this State, the sum of $28,000 through the instrumentality of innocent agents. And it ap- pears that afterwards he voluntarily came within the territory of the State where the crime was committed. I think he may be rightfully punished. He has violated a law to which he owed obedience, for it was written upon his own conscience, and obligatory everywhere. To that law the< statute of this State has affixed a penalty, to be enforced in her own tribunals for the protection of her own citizens. The immunity he enjoyed at home from arrest and punish- ment, was not due to him as a criminal, or as a citizen of Ohio, but because he had injured no one whom that State was bound to protect, and because the inviolability of its territory was an essential to its sovereignty and independence. The prisoner knew that through his agent he was defrauding those who were entitled to the protection of our laws, and he cannot be permitted to say that he did not know that it was unlawful to cheat in New York as well as in Ohio. BRONSON, J. As I have not found time to write out an opinion, I shall content myself with stating the conclusions at which I have arrived. That a crime has been committed within this State, and by the defendant is not denied by his counsel. But they insist that he cannot be punished here, because he was a citizen of Ohio, and owned no allegiance to this State. I am of opin- ion that it is not a matter of any importance whether the de- fendant owed allegiance to this State or not. It does not ALBANY, JANUARY, 1848. 179 Adams v. The People. occur to me that there are more than two cases where the question of allegiance can have anything to do with a crim- inal prosecution. First, where the accused is charged with a breach of the duty of allegiance, as in cases of treason ; and second, where the government proposes to punish offences committed by its own citizens beyond the territorial limits of the State. When the offence, not being treason, is committed within this State, the question of allegiance has nothing to do with the matter. It is not necessary to notice the peculiar relation which a citizen of one of the United States sustains to the other States ; for if a subject to the British Crown, while standing on Bri- tish soil in Canada, should kill a man in this State, by shoot- ing or other means, I entertain no doubt that he would be subject to punishment here, whenever our courts could get jurisdiction over his person. This leads me to say, that it is not necessary to inquire how the criminal can be arrested or whether he can be arrest- ed at all. If our courts cannot get jurisdiction over his per- son, they cannot try him. But that is no more than happens when a citizen, who has committed an offence within the State, escapes, and cannot be found. Jurisdiction of the offence, or subject matter, and jurisdiction to try the offender, are very different things. The first exists whenever the of- ence was committed within this State ; and the second, when the offender is brought into Court, and not before. And this is so, whether he be a citizen or not. I am of opinion that the judgment of the Supreme Court should be affirmed. Judgment affirmed. 180 CASES IN THE COURT OF APPEALS. Charles v. The People. 180 8 HA 359 27 '333 73 '476 e82 '448 87 '435 94 '143 CHARLES impleaded with MC!NTYRE vs. THE PEOPLE. Under the Revised Statutes (1 R. S. 665, 28) it is a misdemeanor to publish IB this State an account of a lottery to be drawn in another State or Territory, although such lottery be authorized by the laws of the place where it is to be drawn. Accordingly field that a demurrer to an indictment which charged the defendant with publishing, in the city of New York, an account of a lottery to be drawn in the District of Columbia, was not well taken. Where the indictment charged the defendant with publishing an account of an illegal lottery, and set forth in Jiaec verba the lottery scheme, which shewed th.it the prizes consisted of sums of money ; held good, although it was not other- wise averred that the lottery was set on foot for the purpose of disposing of money, land, &c. Charles and Mclntyre were indicted at the New York Ge- neral Sessions for publishing an account of an illegal lottery. The indictment charged that the defendants on, &c., at the fourth ward of that city, in a newspaper called the " Wall Street Reporter," published an account of a certain illegal lottery, stating when the same was to be drawn, and where tickets were to be had, together with the prizes therein. It then set forth the account so published, in Jiaec verba, from which it appeared that the prizes were of various sums of money, and were to be decided by the numbers drawn from the wheel of the Alexandria Lottery, to be drawn at Alexan- dria, in the District of Columbia. The indictment did not \ shew, otherwise tban by setting forth the published account, that the lottery was set on foot for any of the purposes for- bidden by the statute. (1 1L & CG5, 27.) The defendant Charles put in a demurrer, which was overruled by the Ses- sions, and judgment given for the people. The Supreme Court, upon writ of error, affirmed the judgment, and tbe de- fendant brings error to this Court. C. C. Egan, for plaintiff in error. 1. The statute only prohibits the publication of a lottery scheme which is set on foot within this State, and therefore the facts charged in the ALBANY, JANUARY, 1848. 181 Charles v. The People. indictment constitute no offence. 2. The statute requires that the lottery shall be established for " the purpose of ex- posing, setting to sale, or disposing of houses, lands, money, or goods, or things in action," and the indictment is defective in not alleging that the lottery was set on foot for these purposes. John McKeon, for the people. WRIGHT, J. By the 26th section of article four, title eight, and chapter twenty, of the first part of the Revised Statutes, every lottery, game or device of chance in the nature of a lottery, other than such as have been authorized by law, is declared to be "unlawful and a common and public nuisance." The 27th section of the same article, makes it a misdemeanor for any person, unauthorized by special laws for that pur- pose," within this state, to open, set on foot, carry on, pro- mote or draw, publicly or privately, any lottery, game or device of chance of any nature or kind, or by whatever name it may be called, for the purpose of exposing, setting to sale, or disposing of any houses, lands, tenements, or real estate, or any money, goods or things in action." The 28th section is as follows : " No person shall by printing, writing, or in any other way, publish an account of any such illegal lottery stating when or where the same is to be drawn, or the prizes therein, or any of them, or the price of a ticket or share therein, or where any ticket may be obtained therein, or in any way aiding or assisting in the same. Whoever offends against this provision shall be deemed guilty of a misde- meanor," &c. In 1830, when the Revised Statutes went into operation, there were special laws in existence authorizing within the State, certain lotteries. This fact explains the reason for the exceptions in the 26th and 27th sections above cited. But in 1833, the legislature provided that after the close of that year, "it should not be lawful to continue or draw any lottery within this State, but all and every lottery before granted or 182 CASES IN THE COURT OF APPEALS. Charles v. The People. authorized should absolutely cease and determine." (Laws of 1833, p. 484.) Therefore, since the end of the year 1833, all lotteries have been unauthorized and contrary to law, and the sections of the Revised Statutes referred to above should be read as though the words, " other than such as have been authorized by law," in the 26th section, and the words " un- authorized by special laws for that purpose," in the 27th sec- tion, were stricken therefrom. It is insisted by the plaintiff in error : First, That the facts charged in the indictment do not constitute an offence against the laws of this State, because the publication charged was of a foreign lottery, and the statute does not make such publi- cation an offence. Second, That the indictment is defective in not averring that the lottery was one " for the purpose of exposing, setting to sale, or disposing of" property or money according to the description contained in the 27th section. Both of these points will be met in a decision of the question, whether the words, "any such illegal lottery," in the 28th section, refer to and point out only the particular kind of lotte- ry or lotteries described in the 27th section, or whether they properly refer both to the 26th and 27th sections which in- clude all lotteries ; for if the "illegal lottery" spoken of in the 28th section be only that described in the 27th, and it is conceded that the publication was of a foreign lottery, there is no offence charged against the laws of this State, as the 27th section describes a lottery to be opened, set on foot, car- ried on, promoted or drawn, within this State, for specified purposes ; and had the publication been of a lottery of this State, the indictment would have been defective in not aver- ring the purpose for which the lottery was set on foot, &c. So, also, by the 26th and 27th sections, all lotteries being "unlawful and common and public nuisances," as far as there may be attempts to carry them on in the State, if the term "such illegal lottery," is meant to embrace all lotteries, made so by both sections, then the facts charged in the indictment do constitute an offence against our laws, and no special aver- ment of the purpose of the lottery is necessary, but the general ALBANY, JANUARY, 1848. 183 Charles v. The People. averment of publication would be sufficient ; for tlie 28th sec- tion, under which the indictment is framed, then makes it a mis- demeanor to publish an account of any lottery, game or device of chance in the nature of a lottery for any purpose whatever. It is contended that the offence prescribed by the 28th sec- tion is only that described in the 27th, of "printing, writing or publishing an account" of a lottery set on foot, within this /State, for the purpose of "exposing, setting to sale or dispos- ing of" property or money. If this be so, though the giving notice of a lottery set on foot and to be drawn in the District of Columbia is within the mischief and against the policy in- dicated by the 27th section, yet not being an act malum in se nor in contravention of positive law, it is not criminally pun- ishable. But I am of a different opinion. I think that the words, " such illegal lottery," relate not solely to the particular kind described in the 27th section, but to all lotteries ; as all are by the 26th section declared to be " unlawful and common and public nuisances." Such is the relation given by the Su- preme Court to similar words in the 29th section respecting the sale of tickets. (People vs. Sturdevant, 23 Wend. R. 418.) If the phrase, "such illegal lottery" in the 28th section were necessarily qualified by the description in the 27th section, and by no reasonable construction of language could relate to the 26th, I should not feel justified in an attempt to give it such relation. Though the mischief be as great to publish an account of a foreign as of a domestic lottery, it is for the legislature to determine whether one or both acts shall be a misdemeanor ; and it is not for courts by a strained con- struction of language, or by an adoption of a false relation of words to each other or to the preceding sentences, to create a criminal offence not obviously within the letter or meaning of the statute. But for ought that I can discover, the phrase " such illegal lottery," in the 28th section may as aptly relate to all lotteries, which by the 26th section are declared to be unlawful, as to the particular description of lottery which the 27th section makes specially an offence to open, set on foot, carry on, promote or draw ; and if the impediment I have 184 CASES IN THE COURT OF APPEALS. Charles v. The People. suggested to such construction does not really exist, and the words may as well relate to the descriptions in the 26th sec- tion which embraces all lotteries, as to the 27th which includes only a particular kind, it would certainly be erroneous, in view of the fact that the mischief which the law intended to pre- vent is the same by the publication of an account of a foreign as of a domestic lottery, to narrow or limit the offence pre- scribed in the 28th section, to the publication of an account of a lottery set on foot, within this State, for specified purposes. I think that by printing, writing, or in any other way to publish an account of any lottery, "stating when or where the same is to be drawn, or the prizes therein, or any of them, or the price of a ticket or shares therein, or where any ticket may be obtained therein, or in any way aiding or assisting in the same," is an offence under the 28th section of the statute, and that consequently a general averment in the indictment of publication is sufficient. The judgment of the Supreme Court should therefore be affirmed. BnoNSON, J. The defendant insists that our lottery act does not forbid the publishing an account of any lottery, ex- cept such as are opened, set on foot, or drawn within this State. (1 R. S. G65, 28.) He makes the word "such," in the 28th section, refer, among other things, to the words " within this State," in the 27th section. But the words " within this State," as there used, neither add nor take away any thing from the force of the section. Our Legislature has no extra-territorial jurisdiction ; and when it forbids, in un- qualified terms, the doing of an act, it must always be under- stood that the thing is only forbidden within this State. The Legislature has in this instance only expressed \vliat is usually left to implication. The words " such illegal lottery," in the 28th section, refer to lotteries for disposing of money or pro- perty, which had not been authorized by tlic laws of this State ; and all other gaming lotteries are illegal here, though they may have been authorized by the laws of other States. ALBANY, JANUARY, 1818 185 Charles v. The People. This point was decided in The People vs. Sturdevant, (23 Wend. 418 ;) and I see no reason for questioning the authori- ty of that case. (See also, Commonwealth vs. Dana, 2 Mete. 329, 338.) The indictment does not directly and expressly allege that the lottery, of which the defendants published an account, was opened or set on foot for the purpose of disposing of money or other property. (The People vs. Payne, 3 Denio 88.) But that fact appears from the advertisement itself, which is set out at large in the indictment : and according to the decision in The People vs. Rynders, (12 Wend. 425,) this is good pleading, even in a criminal case. Although, as an original question, I should probably have come to a different conclusion, I am content to follow the authority of that case. I am of opinion that the judgment of the Supreme Court should be affirmed. 24 Judgment affirmed. 186 CASES IN THE COURT OF APPEALS Coddington v. Davis. g 186 HA 376 3 7 9 10 12 34 47 d8S 134 3K 3 AbD ITr 343 '574 '291 2 446 '554 '100 '575 ' 40 '210 278 14 73 CODDINGTON vs. DAVIS and others. Ii a strict and technical sense, the term protest when used in reference to com mercial paper, means only the formal declaration drawn up and signed by a Notary, but in a popular sense und as used among men of business, it includes all the steps necessary to charge an endorser. Therefore, where an endorser of a note, before its maturity, wrote to the holder, saying: "Please not protest T. B. C.'s note due, dec. &c., and I will waive the necessity of the protest thereof," held, that this dispensed with a demand of the maker and notice to the endorser. A demand of payment from the maker of a note, and notice to the endorser, are gutficient to charge the endorser, without a technical and formal protest. Where two instruments are executed on different days, relating to the same sub- ject matter, and the one last executed refers to and is based upon the former one, in arriving at the intention of the parties in the latter instrument, both should be read and construed together ; and the general words, used in the last, should be restricted so as to conform to the intention of the parties as derived from an examination of both instruments. Accordingly, where the maker of a note made an assignment to one of the holders for the benefit of his creditors, in which the endorser, was named and preferred as a creditor to the amount of the note, and the holders were named and prefer- red as creditors on another account, but were no where set down as creditors in respect to the note, and the holders in conjunction with other creditors after- wards executed to the maker an instrument referring to the assignment, and agree- ing in consideration thereof, and of one dollar, to discharge the maker from nil claims ami demand.'! existing in their favor respectively against him. over and above what they might realize under the assignment, on his agreeing nl the same time to pay the balance of their debts in seven years, and the maker at the same time gave to the holders his written promise to pay such balance in seven years : hfltl, that the claim of the holders to recover the note of the maker was not discharged or suspended, the instrument being regarded as only applicable to their other demand against the maker; and therefore further hell, that their right to recover against the endorser was not aflectcd by such instrument. On error from the Supreme Court. Davis, Brooks & Co. sued Samuel Coddington in the Superior Court of the city of New York as the endorser of a promissory note for $10,000, made by Thomas B. Coddington, which bore date Dec. 31, 183'.), and became due Feb. 2, 1840. On the trial it was proved that on the 28th of January, 1840, the defendant wrote to the plaintiffs as follows : ALBANY. JANUARY, 1848. 187 Coddington v. Davis. " Messrs. DAVIS, BROOKS & Co. GENTS.: Please not pro- test T. B. Coddington's note due 2d February, 1840, for ten thousand dollars, and I will waive the necessity of the protest thereof; and oblige, Yours, SAM'L CODDINGTON." The plaintiffs having rested, the defendant moved for a non- suit on the ground that no demand of the maker and notice of non-payment to the endorser had been proved. The Court held that the above letter dispensed with the necessity of making such proof, and denied the motion. The defendant excepted. It was then proved on the part of the defendant, that on the 23d day of January, 1840, the maker of the note assign- ed his property to one Charles Davis, one of the plaintiffs, in trust to pay his debts, preferring certain creditors named in schedule A, annexed to the assignment. The assignment and schedules were read in evidence, from which it appeared that the defendant was named as a creditor in schedule A in the sum of $10,000, the amount of the note in question, and in two other sums of smaller amount. The plaintiffs were named in the same schedule as creditors in the sum of $1000, and in schedule B in two other sums of 1100 and $900 ; but they were no where named as creditors in respect to the note in question. On the day after the assignment was executed (January 24th) the defendant drew an order upon the assignee, in favor of the plaintiffs, directing him to pay over to them all monies which he might realize out of the fund assigned on account of the defendant, to the amount of $10,000. This order was accepted by the assignee, and in pursuance thereof he had paid over - : to the plaintiffs previous to the trial about $2,800, which they had applied to the note. On the 8th of February 1840, the plaintiffs and other credi- tors of Thomas B. Cloddington executed to him an instru- ment without seal in these words: "Whereas. Thomas B. Coddington. of the city of New York, is indebted or liable to us for certain debts or liabilities heretofore incurred by said Coddington, and said Coddington has made an assignment -.-.{' 188 CASES IN THE COURT OF APPEALS. Coddinglon r. Davis. his property to Charles Davis, Esq. for the benefit of us and other creditors of said Coddington ; Now in consideration of one dollar paid to us by said Coddington, the receipt of which is hereby acknowledged, and in consideration of said assignment and a promise on the part of said Coddington hereinafter mentioned, We, the creditors, whose names are hereunto subscribed, do hereby release, discharge and forever acquit said Coddington, his executors, &c., from all claims, demands, liabilities, engagements, judgments, and other re- sponsibilities now existing against said Coddington, beyond what we shall respectively realize of said claims, &c., from said assignment to Charles Davis, dated the 23d of January, 1840 ; we receiving or assenting to the conditions of said as- signment, and coming under the same for a full and perfect discharge of said claims, &c., said Thomas B. Coddington, in consideration of the above, giving us severally a written pro- mise to pay us at the expiration of seven years from the date of this instrument, whatever balance of said claims should re- main unpaid, out of the assets of said assignment. Witness our hands, this eighth day of February, 1840. Signed by Davis, Brooks & Co., and by other creditors. Simultaneously with the execution of the above instrument Thomas B. Coddington executed to the plaintiffs the written promise therein referred to, in these words : "I hereby pro- mise to pay Messrs. Davis, Brooks & Co. whatever they may not realize from my assignment to Mr. Charles Davis, on ac- count of my indebtedness to them, in notes, books, accounts, endorsements, or otherwise at the expiration of seven years from the date hereof. THOMAS B. CODDINGTON." "New York Feb. 8, 1840." The above matters being given in evidence, the defendant's counsel insisted, that the written instrument of the 8th of Feb- ruary, was a valid release and discharge of the maker of the note, and that thereby the defendant, the endorser, was dis- charged from his liability. Also that said written instrument in connection with the maker's promise to pay any balance, &c., in seven years, was a valid extension of time to the ALBANY, JANUARY, 1848. 189 Coddington v. Davis. maker of the note, which discharged the endorser. Also that the plaintiffs having by said instrument agreed to come in un- der said assignment for a full and perfect discharge of all their claims against said Thomas B. Coddington, could not sue on the note or endorsement until the assignment was closed. The Superior Court overruled these positions, and the jury found a verdict for the plaintiffs. The defendant excepted and had a hill of exceptions duly signed and sealed. The Supreme Court on writ of error affirmed the judgment of the Superior Court. (See 3 Denio 16.) S. Stevens and L. Livingston for plaintiff in error. Charles 0' Connor for defendants in error. GARDINER, J. The Plaintiff in error, the defendant below, was the endorser of a note made by Thomas Coddington for $10,000. Thomas Coddington failed, and on the 23d January, 1840, made an assignment to Davis, one of the firm of Davis, Brooks & Co., the endorsees and holders of the note and the plaintiffs below. On the 28th of January, and prior to the maturity of the note, the defendant with full knowledge of the above facts, wrote the following letter : " Messrs. DAVIS, BROOKS & Co. GENTS : Please not pro- test T. B. Coddington's note due 2d February, for ten thou- sand dollars, and I will waive the necessity of the protest thereof ; and oblige respect'ly, &c., SAMUEL CODDINGTON." The construction of this letter is the first important ques- tion presented in the cause. The term protest in a strict technical sense is not applica- ble to promissory notes. The word, however, as I apprehend, has by general usage acquired a more extensive signification, and in a case like the present includes all those acts which by law are necessary to charge an endorser. When among men of business a note is said to be protested, something more is un- derstood than an official declaration of a notary. The expres- 190 CASES IN THE COURT OF APPEALS. Cuddington v. Davis. sion would be used indifferently to indicate a series of acts necessary to convert a conditional into an absolute liability, whether those acts were performed by a mere clerk or a pub- lic officer. It is obvious that the word was used in its popular acceptation by the defendant below. He requests the endor- sees " not to protest the note, and that he would waive the necessity of the protest thereof." The protest to which the endorser alluded was something u necessary" to be done, something also for the benefit of the endorser, for he assumed to waive it. It could not therefore be a memorandum, or declaration made by a notary, because neither of them were required. Nor could he have intended to waive that which whether performed or omitted, his right would in no manner be affected. The only things necessary on the part of the endorsees was a demand of payment of the maker, and notice to the endorser. By waiving the necessity of protest the defendant dispensed with both, or his commu- nication is destitute of all meaning. It was argued indeed that the defendant might have refer- red to the notarial certificate authorised by statute. But this certificate is made prima facie evidence of a demand and notice in favor of the endorsees. It is for their benefit. The defendant in making such reference must have supposed that the certificate was necessary evidence, because he waives the necessity of a protest, which according to the argument is equivalent to dispensing with the necessity of a notarial certi- ficate. Now to every fair mind, waiver of proof necessary to establish a particular fact, is equivalent to an agreement to admit it. Whether therefore the defendant by waiving the necessity of a protest, intended to dispense with demand and notice, or with the evidence of them the result would be (he same, and in either case he is concluded by his own stipulation from raising the objection taken upon the trial. I agree with the learned Judge who delivered the opinion of the Supreme Court, that the circumstances attending the written stipula- tion of the defendant confirm this view ; but I prefer to rest my opinion upon the letter alone, as furnishing prima facie ALBANY, JANUARY, 1848. 191 Coddington v. Davis. evidence of an intent by the endorser to waive demand of payment and notice to which he was otherwise entitled. Another important point is made by the defendant, that the written statement signed by the plaintiffs and others, dated 8th February, 1840, was a valid discharge by the plain- tiff of Thomas Coddington the maker of the note from all liability thereon, and consequently of the endorser. On the 23d of January, 1840, Thomas Coddington executed his assignment to Davis, and directed his assignee to pay and dis- charge the debts owing by the assignor contained in the schedule marked A. in equal proportions. In this schedule we find : SAMUEL CODDINGTON, for endorsement, $10,000 " " " 1,854 " . " Balance of account, 2,178 Taking the schedule in connection with the assignment, it will be perceived, that the debts to the defendant for endorse- ments and for private account, are placed upon the same foot- ing as debts owing by the assignor to the defendant, and both are directed to be paid absolutely. It is obvious therefore that the $10,000 endorsement, which is admitted to be the note in question, was understood by the parties to the assign- ment to be the debt of the defendant and treated accordingly. This was on the 23d January : on the 24th, the defendant in writing, directed Davis as assignee to pay to the order of Davis, Brooks & Co., all monies that should be received by him as assignee on his account, to the extent of $10,000 value received. By this act the defendant not only assented to the assign- ment, but as it appears to me, distinctly recognised the rela- tion in which he was placed by that instrument as creditor to the assignor to the amount of the $10,000 unconditionally, and of course liable for the same amount to the plaintiffs. He directed the payment of a sum equal to the note, not only out of the fund set apart in the assignment for that purpose, but out of the proceeds of the property exclusively applicable to the discharge of a debt due to him individually, for a bal 192 CASES IN THE COURT OF APPEALS. Coddington v. Davis. ance of account. In a word, he recognized this as a debt due from Thomas Coddington to himself, by claiming tinder the assignment by which it was so declared, and as a debt due from him to the plaintiffs by a voluntary application of his private funds to its payment. In conformity with this view of his rights and liability, we find him on the 28th day of January, the date of his letter to Brooks, Davis & Co.. waiv- ing the necessity of protest, and thus converting a conditional into an absolute liability upon his part, for the payment of this note to the plaintiff. Cinder these circumstances the discharge of February 8, 1840, was executed by Davis in behalf of Davis, Brooks & Co., and by some others of the creditors of T. Coddington. This instrument, which is without seal, recites in substance, that T. Coddington was indebted or liable to the subscribers, and that he had made an assignment to Davis for the benefit of the subscribers and other creditors, and in consideration of one dollar, of said assignment, and of a promise to pay any balance that might not be received under the same, in seven years the subscribers did release and discharge and forever acquit the said T. Coddington, from all claims, de- mands, liabilities, engagements, judgments, and other respon- sibilities then existing against him, beyond what they might realize on said claims, &c., from said assignment; "We," the instrument proceeds, "receiving and assenting to the condition* of said assignment, and coming in under the same, for a full and perfect discharge of our said claims. The said Codding- ton, in consideration of the above, giving to us his written engagement to pay the balance," &c. It is apparent that this discharge refers to and absolutely adopts the assignment, with all its conditions, and provisions as its basis. One of these conditions was, that the defendant should be paid out of the fund, as a preferred creditor, the amount of this note as a debt due to him. To this the par- ties to the discharge expressly assented. When, therefore, it was recited in that instrument that Thomas Coddington was indebted or liable to Davis, Brooks & Co., for certain debts, ALBANY, JANUARY, 1848. 193 Coddington v. Davis. and that the former had made an assignment for the benefit of the latter as creditors, the parties could not have referred to this demand which they had agreed to describe and had actually inventoried as the debt of another. It may be granted that independent of the assignment, the plaintiffs as to this note were the principal creditors of Thomas Coddington. But we must seek the intention of the parties in their writings, not in the relation previously existing. When therefore the assignment, as we have a right to infer, purposely omits Brooks, Davis & Co., and substitutes the de- fendant as the creditor to whom this debt was owing ; the dis- charge upon authority as well as the plainest principles of justice should be restricted to the relations established by the instrument to which it refers and expressly adopts. ( Tayler vs. ffomersham, 4 Maule 1 Selwyn 422 ; 23 Com. Law R. 50, 7 Com. Law 205, 1 Cowen 123, 126.) The engagement entered into by Thomas Coddington at the time of the execution of the release confirms this view. By that he promised to pay Brooks, Davis & Co., whatever they might not realize from his assignment, on account of his indebtedness to them. This debt of $10,000 had been inven- toried as due to S. Coddington. To suffer Brooks, Davis & Co. to share equally with the creditors of the second class, upon the ground that this debt was due to them also, would be virtually a fraud upon those creditors, upon the assignor, and those who executed the discharge with Brooks, Davis & Co. These creditors with justice could say to the plaintiffs, that with their concurrence the assignor had appropriated property for the payment of this debt to the defendant. You have elect- ed to claim through him, to which he has assented, and you are bound by your election. It is unnecessary therefore to consider the objection of a want of consideration, &c., raised to this discharge. Viewing it as legally binding upon the parties, it does not extend to this demand, and cannot have the effect either to discharge or extend the time of payment of the note in quest***? judgment of the Supreme Court should be 25 194 CASES IN THE COURT OF APPEALS. Coddington v. Davis. BRONSON, J. also delivered an opinion in favor of affirmance ; and JEWETT, Ch. J., JONES and WRIGHT, Js., concurred. RuoaLES, J., dissenting. If the instrument called the dis- charge, dated on the 8th of February, 1840, signed by Davis, Brooks $ Co., did not absolutely and entirely discharge Tho- mas B. Coddington from all liability on the ten thousand dollar note as maker, it operated, beyond a doubt, as it appears to me, to extend the time for the payment of that debt until the expiration of seven years from the date of the instrument. So far as respects the right of Davis, Brooks Co. to recover against Samuel Coddington the endorser, it is immaterial whether it is an entire discharge or an extension of time. In either case the action against the endorser is barred, and un- less the suit on the note could have been maintained by Davis, Brooks $ Co. against Thomas B. Coddington, the maker, then action against Samuel Coddington, the endorser, must fail. Want of consideration furnishes no good ground of objec- tion to the validity of the discharge. The pecuniary conside- ration expressed in it, is alone sufficient, although nominal in amount, it was inserted doubtless for the purpose of giving va- lidity to the instrument, and is as effectual for that purpose as if it had been a larger sum. If the instrument had been un- der seal, the parties would have been estopped from denying it. Not being under seal that rule may not apply. But the recital in the instrument is evidence of payment until proof be given to the contrary, and no such proof was offered. The sum of one dollar, expressed as the consideration, is not a part of the debt to be paid, but a separate and independent sum ; and the creditors cannot now avoid this agreement on the ground of want of consideration, without committing a mani- fest fraud upon Thomas B. Coddington. The assignment is also a sufficient consideration to support the agreement. If it should be answered that this was a past consideration, not ap- pearing on the face of the instrument to have been made at the request of the creditors, the answer is, that if the objec- tion had been made at the trial, no jury would have hesitated ALBANY, JANUARY, 1848. 195 Coddington v. Davis. a moment, from the beneficial nature of the transaction, to liave inferred a request. Let us then look at the discharge with a view to ascertain whether Davis, Brooks Co. could, after having executed it, and within the seven years mentioned in it, have sued Thomas B. Coddington, the maker, upon the note in question. First. It was admitted on the argument by the counsel for the defendants in error, that the words in the body of the in- strument, if considered alone, were abundantly sufficient to comprehend and include the note in question, and to acquit the maker of any liability at least during the period of seven years. It purports " to release, discharge, and forever acquit him from all claims, demands, liabilities, judgments, and other responsibilities now existing against said Coddington." But these comprehensive words were supposed to be limited and restrained in their effect by something in the recital. Let us refer to it. The recital is, " that Thomas B. Coddington is indebted to us for certain debts and liabilities heretofore in- curred." This certainly embraced the $10,000 note. The recital then proceeds, as follows : " And said Coddington has made an assignment of his property to Charles Davis, Esq., for the benefit of us and other creditors of said Coddington," &c. Now the question arises whether the assignment was made for the benefit of Davis, Brooks , 1 Jarmin on Wills, chap. 19.) Mary Elizabeth, one of the daughters of the testator, who ALBANY. JANUARY. 1S48. 213 Stagg v. Jackson. is the wife of Jackson, is a legatee of one ninth of the whole estate, real and personal, including the rents, profits, and income thereof received by the appellant, subject to the pay- ment of the debts and funeral charges of the testator and expenses of the administration, and the directions contained in the will. I agree with the Chancellor that the Surrogate was right in the sentence and decree which he made directing the appellant to account for the rents and profits and pro- ceeds of the sales of the real estate as well as the personal effects of the testator. 2 R. S. 618, 35, authorises the Court of Chancery, upon affirming any decree, upon appeal from a Surrogate's Court, to that Court, in its discretion to award damages to the re- spondent for the delay and vexation caused by such appeal. That discretion was exercised by the Court of Chancery on the affirmance of the decree of the Surrogate in this case, and upon correct principles as I think. I am therefore of opinion that the decree of the Court of Chancery should be affirmed, and, under the circumstances, with costs to be paid by the appellant personally. Ordered accordingly. 214 CASES IN THE COURT OF APPEALS. Brady v. McCosker. 214 B HA 480 2 '500 dll2 108 dl!2 '110 166 '371 BRADY, Appellant, vs. McCosKER, Respondent. A Court of Equity will not entertain jurisdiction to set aside a will of real estate for fraud, or on the ground of the testator's incompelency, where there is a per- fect remedy at law, and the objection to the jurisdiction is, taken in due season. But where the party claiming in hostility to the will is not in possession, and an impediment exists which would prevent a recovery at law of the whole or any part of the estate devised, a bill in equity will be entertained to have the will declared void and delivered up to be cancelled. Accordingly, where a bill was filed for the purpose of setting aside a will on the ground of fraud and undue influence, and it appeared that at the filing of the bill the complainant was not in the actual possession of the estate, and that a trust term in such estate, which vested the legal title in trustees, was yet unex- pired, so that no recovery could be had in ejectment ; field, that a demurrer to the bill for \vaut of jurisdiction was properly overruled. So also it is a good answer to an objection for want of jurisdiction, that a part cf the estate devised is subject to an unexpired lease, under which the lessee or his assignee is in possession. And where the bill distinctly shewed the existence of an unexpired trust term, and that a part of the estate was occupied by the assignee of an unexpired lease, and the other parts were occupied by persons under an agent, who had assumed the control and management of the property for the benefit of such party as should be entitled thereto, when the question upon the validity of the will should be settled ; held, that an objection for want of jurisdiction would not lie, although the bill in another place alleged that the complainant was entitled to the whole estate by inheritance in fee simple, and that he "held and was in lawful poiwsioii tlirreof? this allegation being regarded as a formal legal con- clusion from the facts specifically set forth in the other parts of the bill. The complainant claimed half of I he estate by inheritance from his father, and the other half by inheritance from his brother, and alleged that the will of his brother \vas void for fraud, &c. ; but in case the will should be adjudged vald, then he still claimed one-half of the estate, and insisted that he was entitled to a partition ; and the prayer of the bill was, that the will might be declared void, or that a partition might be had; luhi, that the bill did not make a case for par- tition, and therefore that it was not liable to objection fjrmultifariousness. Where a party, claiming an estate by inheritance, files a bill for the purpose of set- ting aside a will, and dies pending the suit, his devisee may file an original bill in the nature of a bill of revivor and supplement, ami if his right as devisee be admitted or established, he will be entitled to the benefit of the proceedings in the original suit. A person, who is charged with fraudulently procuring the execution of a will in favor of an infant, is a proper party to a bill filed for the purpose of selling uMtie such will, although he has no interest. lie may be charged wilh the co>ls. ALBANY, JANUARY, 1848. 215 Brady v. McCosker. Appeal from the decree of the Chancellor affirming that of the Vice Chancellor of the First Circuit. The case was this : John McCosker, the elder, died on the 26th of March, 1839, seized of certain real estate in the city of New York, leaving his sons, John and Thomas, his only children and heirs. By his will, (among other things) he directed his executors to take possession of his real and personal estate, and to receive the rents and profits of the real estate for the term of five yearsj and apply the same to the payment of his debts, also to pay to John an annuity of $200, during the five years, and a like annuity to Thomas, and to pay the balance over to John at the expiration of the five years. He then devised the real estate, after the expiration of the five years, to John during his natural life, and the remainder to his issue in fee, and di- rected that John and his heirs, after the expiration of the five years, should continue the annuity to Thomas during his na- tural life. One of the executors named in the will died be- fore the testator, and the other two declined to accept the trust. John died in 1843 without issue and unmarried. In March, 1844, Thomas, the surviving son of the testator, filed his bill against his son, John Andrew McCosker, the com- plainant in this suit, and against Maria L. Brady, J. R,. Bra- dy, and J. T. Brady, the defendants in this suit, setting forth the above facts, and claiming that on the death of John, he (Thomas) was entitled to one-half of the said real estate as heir of his father, and to the other half as heir to his brother John. That bill also stated that soon after the death of John, the younger, the defendant, J. T. Brady, propounded to the Surrogate of New York, for proof, a paper purporting to be his will, whereby he gave one or two legacies and annuities, and all the rest and residue of his estate to the defendants, Maria L. and J. R. Brady. That bill also charged, that the execution of such will was fraudulently and improperly pro- cured by the defendant, J. T. Brady, and that the same was null and void, so that the said John died intestate ; that he (Thomas) opposed the proof of the will before the Surrogate, and the question of its validity was still pending in the Sur- 216 CASES IN THE COURT OF APPEALS. Brady r. McCosker. rogate's Court ; that the will was a cloud upon his title, and should bo declared void by a decree of the Court of Chance- ry. It appeared also from that bill that in the absence of the complainant therein, and without his knowledge or consent, his friends had entered into an arrangement with J. T. Brady, who assumed to act for Maria L. and J. R. Brady, whereby R. Martin was to take the control and management of the property, and receive the rents and profits as agent for who- ever might be entitled thereto ; that the said real estate, which consisted of houses and lots, was in the hands of numerous occupants as tenants, and that one lot was yet under an un- expired lease given by John, the younger, in his life time, to C. Maas. whose assignee (Piper) was in possession under that lease. That bill contained an allegation, that the complainant therein was entitled by inheritance as aforesaid, to all of the said real estate in fee simple, and he " then held and was in lawful possession thereof." In case the will of John, the younger, should be held valid, that bill insisted that he (Tho- mas) was still seized of an undivided half of the said real estate by descent from his father, and that he was therefore entitled to a partition of the same. The prayer of the bill was, that the will of John McCosker, the younger, might be declared void ; or in case it should be held valid, that a par- tition might be made, and for general relief. The several defendants in that bill appeared thereto. John Andrew McCosker and Maria L. Brady, being infants, put in general answers by their respective guardians. J. R. Brady also answered the bill, and J. T. Brady demurred. A repli- cation to the answer of J. R. Brady was filed, and then Tho- mas McCosker, the complainant in that suit, died. In October, 1844, John Andrew McCosker filed the bill in this cause by his next friend, in which he set forth the filing of the said bill by his father Thomas, the allegations therein contained, the proceedings in that suit, and the death of his father, averring also that the matters stated in the said bill of Thomas were true. The bill in this suit further states, that ALBANY, JANUARY, 1848. 217 Brady v. McCosker. the said Thomas McCosker devised all his real estate to the present complainant, including the lands in question ; that the former suit had abated by the death of Thomas, and it insists that the present complainant is entitled to the benefit and ad- vantage of the said original suit, and it prays the relief claimed in that bill. The defendants, J. T. Brady and J. R. Brady, put in separate demurrers to the bill, assigning several special causes of demurrer. Their demurrers were overruled by the Vice Chancellor, and on appeal his decision was affirmed by the Chancellor. J. T. Brady appeals to this Court. E iSanford, for appellant. Charles O'Connor) for respondent. GARDINER, J. It is the established doctrine of a Court of Equity, that it will not assume jurisdiction to set aside a will for fraud, or on the ground of the testator's incompetency, where there is a perfect remedy at law, and where the objec- tion to the jurisdiction is taken in proper season. (2 Paige 399 ; 3 Br. P. C. 358 ; 7 Price 663 ; Jacob R. 466 ; 1 Mad. Oh. 85.) As the jurisdiction of the Court of Chancery, according to the rule above mentioned, depends upon the inadequacy of the legal remedy, the bill must state the impediment to relief in a Court of law. (Pemberton vs. Pemberton, 13 Ves. ; Jones vs. Jones, 3 Meriv. 166 and note.) If the impediment relates only to a part of the real estate embraced in the will, it would seem to be sufficient to confer jurisdiction. As to the part thus incumbered, the complainant would have an undoubted right to the aid of a Court of Equity, (Story's Eq. Jurisdio. 33,) and the jurisdiction thus acquired would upon general principles be retained, in order to prevent a multiplicity of suits, and to afford complete relief to the parties. (2 John-. Cas. 424; 10 J. R. 587; 17 do. 384; 1 WJieaton 197.) In the second place, the form of the negative plea to the jurisdiction of the Court, and of the order for an injunction 218 CASES IN THE COURT OF APPE.. LS. Brady v. McCmlcer. in those CUDM where an issue of devisavit vel non is proper to be awarded, leads to the same conclusion. The allegation of the plea is general, that the obstruction to the legal remedy charged in the bill, applies to " none of the real estates which are subjects of controversy. (Armitage vs. Wadsworth) 1 Mad. 111.) And the usual order for in- junction, restraias the defendant from setting up any lease, outstanding term, &c., to defeat the plaintiff's claim, in any issue or action dh ected by the Court for the recovery of any of the real estate, pr the rents and profits thereof. (3 Meri- vale 172.) The complainant alleges that at the time of filing the ori- ginal bill by Thomas McCosker, the whole premises were sub- ject to the unexpired trust term created by the will of John McCosker, the elder, and part of them to an unexpired lease executed by John McCosker, the younger, on the 28th of February, 1842, to Carston Maas, for three years from the first day of May following, which lease had been duly assign- ed to Julius Piper, one of the defendants. The trust estab- lished by the will of John McCosker, the elder, for the pay- ment of an annuity of $200 to Thomas McCosker during his natural life, was a valid trust under the third subdivision of the 55th section R. S., 1 vol., page 729. The language of which is that " express trusts may be created to receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term." By the 60th section, the whole estate in law and equi- ty is vested in the trustees. If the trust was invalid, then the lease passed the interest of John McCosker, the younger, to Casston Maas, who was in actual possession at the filing of the bill, paying rent according to said demise to Robert Mar- tin, as agent for the parties who might be entitled to the same. These facts are distinctly alledged in the bill, and admitted by the demurrer, and jwima facie they present an insupera- ble obstacle to a recovery at law. If the trust was within the statute, ejectment would not lie for any part of the premise .- ; if it was not, then it could not be maintained against the as ALBANY, JANUARY, 1848. 219 Brady v. McCosker. slgnee of Maas by the complainant, who claims as to all the interest in controversy, through John McCosker, the lessor. No suit could be sustained against Martin because he received the rents as a receiver, constituted with the assent of both parties, for whoever might ultimately be entitled to it. He was a mere stake-holder, and if sued, could compel the parties to interplead and settle the right by the decree of a compe- tent tribunal. Assuming that the impediments to the legal remedy were such as to entitle Thomas McCosker to relief in equity, when he filed the original bill, it cannot be seriously .questioned that the complainant succeeded to his rights in this respect, and is entitled to continue the suit, if it was properly com- menced. (Barbour, Ch. P. 82.) The complainant claims as devisee through his father. Not succeeding to the rights of the decedent by mere operation of law, he could not file a bill of revivor, but could only have the benefit of the original proceedings, and avail himself of the new facts necessary to be stated by an original bill, in the nature of a bill of reviver and supplement. ( Welford, Oh. Pr. 220, 222 ; Barbour Ch. Pr. 64 and 82.) This has been done, but it is alleged that the complainant being a defendant in the original suit, could not revive it until after a decree giving him an interest in its continuance. (1 Barbour 41.) This would be true if tue complainant sought to revive as a defendant, or as the representative of a defendant. But he has succeeded to the right of his father the plaintiff in the original suit, and claims the benefit of that suit by virtue of such succession. This distinction is sufficiently obvious, and is recognised in Soullard vs. Dias, 9 Paige 394, to which we have been referred by the counsel of the defendant. The main question is whether the present and former com- plainants, have not precluded themselves by their own alle- gations from any relief whatever in Chancery. Thomas McCosker by the original bill, "claimed to be and charged that he was (JFol 72) entitled by inheritance as aforesaid, to 220 CASES IN THE COURT OF APP \LS. Brady v. McCosker. all the lands, tenements, and hereditaments, and every part and parcel thereof, in fee simple, and that he then held and was in lawful possession thereof." I thought upon the argu- ment that this statement was an insuperable obstacle to any relief in Chancery, unless indeed the aid of that Court could be invoked in order to remove a cloud from the title of the complainant. But upon a more particular examination of the bill, I am satisfied that my first impressions were erroneous. The bill alleges that the premises in question consisted of two lots of land, with several dwelling houses thereon, in which before, and at the time of the death of John McCosker the younger, and at all times since, there were, and at the time of filing the said original bill still were, numerous occupants in humble condition, &c., from whom little or nothing could be obtained, unless some one with the right and powers of a landlord, and standing in that relation should collect the rents, &c. ; that Julius Piper was in possession of the pro- perty devised to Maas at the filing of the bill, paying rent to Martin, &c. It is further stated, that in consideration of the importance of securing some immediate control over said pro- perty, in order to prevent waste, and secure the collection of rents, some friends of the complainant without his knowledge or consent, united with J. T. Brady, acting in behalf of those claiming under the will of John McCosker the younger, in a request to Martin to assume the control of the property and receive the rents as agent for whoever might be entitled to them, that Martin did so, that the uncertain nature of his power, produced great embarrassment. It is further alleged that the complainant Thomas McCosker was destitute of any means, or property, except what he might be entitled to from the estates of his father and brother. That no part of his annuity had been paid to him since his brother's death, although he had received an equal sum from Martin. The bill then denies that the defendants are in the receipt of the rents and profits of said premises or any part thereof (Fol. 71) or are in the occupation thereof ; but that the same arc in tlio occupation of persons residing thereon. Now these allcga- ALBANY, JANUARY, 1848. 221 Brady v. McCosker. tions are utterly inconsistent with the statement that the complainant " then held and was in the lawful possession of said premises," if by that we are to understand any thing more than a legal seizure. The bill informs us that the whole legal and equitable estate was vested in trustees, or in the Court of Chancery, that the assignee of Maas was in posses- sion of the house demised to him, and who were the actual occupants of other parts of the real estate ; the person that was actually in the receipt of the rents and profits, and the nature of his authority, which was to receive them as agent for whoever might be entitled to them. The effect of the averment under consideration, read in connection with what has been quoted from other parts of the bill, is only that the complainant Thomas McCosker was then entitled by inherit- ance as aforesaid, to all the lands, tenements, and heredita- ments, in fee simple, and that he therefore held and was in lawful possession thereof. In other words it is a formal legal conclusion from the facts previously stated. It is also objected that the bill is multifarious. Multifari- ousness, as the term is generally understood, applies to bills in which there is a misjoinder of distinct and independent causes of action. Or secondly, where the party has no inter- est in the subject in litigation ; and lastly, where one or a part of the defendants, is able to say that he is brought as a party upon a record, with a large portion of which, and the case made thereby, he has no connection whatever. (1st Mylne & Craig, 603.) The two first propositions refer to cases of misjoinder. The last to multifariousness, strictly so called. (Mylne vs. Craig, 603, Jac. R. 141; Harrison vs. Hogg, 2 Vtsey 323, Story's Eq. 271, 279, 280.) There is no misjoinder of actions in this case ; for the bill is not properly framed for partition. The plaintiff alleges, that he is entitled to all the real estate by inheritance from his father, and John McCosker the younger, and that the will through which alone the defendants claim title to any part of the property is null and void. 222 CASES IN THE COURT OF APPEALS. Brady v. McCosker. Partition implies an interest in different persons in the pro- perty to be divided. When a complainant not only claims the whole, but negatives the title of the defendant to any part, the bill may be defective, but is certainly not obnoxious to the objection, that a case for partition as a distinct and independent cause of action is thereby established. Whatever therefore may have been the intention of the pleader, the bill must be treated as single. (Story Eq. 288, 1 Sign, and Stuart 61.) There is no misjoinder of parties. James T. Brady was a proper party to the bill, for the reason suggested by the Chan- cellor. In Boule vs. Stewart, 1 Schoale and Lefroy 227, a Solicitor was made a party for assisting his client in obtain- ing a release. He had no interest in the matters in contro- versy. It was insisted, that he acted merely in his capacity as Solicitor. Lord Redesdale said he was properly made a party, and ought to be chargeable with costs so far as they reloted to the release, in case they could not be recovered of his client. (Story Eq. 232.) Assuming the truth of the facts charged in the bill, as we must for the purpose of this decision, the infant defendant Maria L. Brady ought not to be charged with costs in any event. She had no agency in procuring the Will, and is incapable of ratifying or confirming the acts of others. The demurrer of the defendant Brady, is to the whole bill, and can only be sustained by establishing a misjoinder of actions, or parties, to which species of multifariousness it is alone adapted. ( Story Eq. PL 284, 1 Mylne and Craig, 603; ZAnstr. 469.) If the bill is defective in praying for a partition, or con- tains irrelevant matter unconnected with the case properly presented, the demurrer should be confined to the parts really objectionable and not extended to the whole bill. It was therefore properly overruled by the Chancellor, and the decree should be affirmed. RUOOLES, JONES, JOHNSON and WKIGIIT, Js., concurred. ALBANY, JANUARY, 1848. 223 Cornes v Harris. BRONSON, J. and GKAY, J., delivered opinions in favor reversing the decree, with whom JEWETT, C. J., concurred. Decree affirmed. CORNES vs. HARRIS. In the Common Law action by writ of nuisance, as retained and regulated by the Revised Statutes, it seems that the declaration must shew that the plaintiff has a freehold estate in the premises affected by the nuisance. This is a real action. But in an action on the case for damages merely, sustained in consequence of the erection of a nuisance, it is enough that the plaintiff is in possession of the pre- mises affected thereby. The form of an action is determined by the matter set forth in the declaration, and not by the name which the plaintiff may give it. If, therefore, the pleader, in the commencement of a declaration, gives the action a wrong name, it will do no harm. The plaintiff commenced his action by writ of nuisance pursuant to the statute. (2 R, S. 332.) The formal commencement of the declaration was appropriate to that action and referred to the writ; but the declaration contained no aver- ment that the plaintiff had a freehold estate in the premises affected by the nuisance. It shewed, however, a good cause of action on the case, and conclu- ded thus, "to the nuisance of said dwelling house and premises of the plaintiff and to his damage of five thousand dollars",' helcl,lhal it was a good declaration in an action on the case, although it shewed no ground of recovery in the action of nuisance proper ; and therefore, that the Supreme Court was right in deny- ing a motion made after verdict in arrest of the judgment. Harris commenced an action against Cornes in the Supreme Court by writ of nuisance in the form prescribed by ^2 R. S. 332, 3. The declaration afterwards put in commenced thus : " Oneida County, ss. George Cornes was summoned by writ according to the form of the statute in such case provided, to answer Oliver Harris in a plea of nuisance, wherefore he hath raised a certain slaughter house, and divers cattle pens, hog pens, &c. ; and thereupon the said Oliver Harris by, &c., com- plains of the said George Cornes : For that," &c. The de- claration then went on to state that the plaintiff was possessed of a certain dwelling house and premises at Sangersfied, Onei- 223 s HA 595 3 155 224 CASES IN THE COURT OF APPEALS. Cornea v. Harris. da county, which he inhabited with his family ; that the de- fendant was also possessed of certain premises contiguous to those of the plaintiff, and contriving, &c., on &c., and on divers other days erected on his premises a slaughter house, and cattle pens, hog pens, &c., and kept therein and slaugh- tered large numbers of cattle, hogs, &c., thereby causing nox- ious and offensive smells, and loud and offensive noises, and tainting and corrupting the atmosphere, so as to render the dwel- ling house and premises of the plaintiff unfit for habitation. There was no averment in either of the counts that the plain- tiff was seized in fee of the premises occupied by him, or that he had a freehold estate therein. The conclusion was in these words : " to the nuisance of the said dwelling house and pre- mises of the said plaintiff, and to his damage of five thousand dollars, and therefore he brings suit, &c." The defendant pleaded not guilty, and on trial at the Cir- cuit a verdict was had for the plaintiff for two hundred and fifty dollars damages. The defendant moved in the Supremo Court to arrest the judgment, which motion was denied and judgment rendered for the plaintiff for the above sum as dama- ges, and the costs of suit. There was no judgment that the nui- sance be removed. The defendant removed the record to this court by writ of error, and upon an allegation of diminution in the record and writ of certiorari, caused the writ of nui- sance by which the suit was commenced, and the rule of the Supreme Court denying the motion in arrest to be certified to this court. W. Tracy, for plaintiff in error insisted : (1.) The action is the Common Law assize of nuisance as modified by the pro- visions of the Revised Statutes, but not modified by any other statute, or rules of pleading or practice. (2.) The writ of nuisance could only be maintained by the owner of the free- hold affected by the nuisance, and the Revised Statutes have made no change in the action in this respect. (35/. Comm. 220, 221, 222 ; 1 Com. Dig. Assize, J5. 4 . 5 ; 1 Eollc 271.) (3.) The declaration is bad therefore in substance, for not averring that the plaintiff OAvned the premises affected by tho ALBANY, JANUARY, 1848. 225 Comes v. Harris. nuisance as his freehold, and that the defendant erected the nuisance to its injury ; and the defect is not cured by the ver- dict. (2 Cowper 825; Graham Pr. 2d Ed. 657 and the cases there cited; 1 Term. Rep. 470 ; 5 Barn $ Adol 27 ; 1 Johns. 380 ; 10 Do. 369.) (4.) Each of the counts in the declaration being defective in substance, and showing no title to recover, the Supreme Court erred in denying the motion, in arrest. (G-raham Pr. 641, and the cases there cited.} (5.) Our conclusion cannot be avoided by calling the action any thing else than a writ of nuisance. It is that or nothing. It is commenced by the writ provided by the statute. The de- claration recites the original as a declaration in that action should, and it concludes as well as commences in nuisance. The difficulty is that if the declaration be true in every par- ticular it does not authorize a recovery in that action. It is not an action on the case for a nuisance, which could only be commenced by capias or by declaration. It is a real action, as such known to the Common Law and expressly retained by the Revised Statutes, and being so regarded, the fatal defect is, that the plaintiff in his declaration shows no interest in the premises, which authorizes him to maintain it. (6.) The plea of the defendant taking issue upon the declaration did not cure its defects. If the declaration be bad in substance, the plea cannot make it good. C. P. Kirkland, for defendant in error insisted : (1.) The declaration in this cause is in case for nuisance, a mere per- sonal action. (2 Chit, pi 769 to 776, Phil. Ed. 1828.) (2.) It can not be in the real action of nuisance, as it omits the dis- tinguishing and vital feature of that action, viz : the averment of freehold or seizin in fee in plaintiff and defendant. (Hast. Ent. 441 ; Yates PL 520, 521 ; 2 R. S. 257. 3 ; 3 Christ Bl. 220 ; 16 Vin. Ab. 22, Nuisance D ; Fitz : N. B. 183, 4, 5 ; 2 Saund PI and Ev. 229, (686 ;) 1 Com. Dig. 306, (D. 1 ;) 3 Ch. BL 222 ; 16 Vin. 33, Nuisance, (K. 2 ;) 2 R. S. 256,7, 7). (3.) The plea is the proper plea in the personal action, not in the real. (Jacks. Tr. Real Prop. : app. 360 362.) (4.) The statement in the prefatory part of the decla- 29 226 CASKS IN THE COURT OF APPEALS. Curnes v. Harris. ration, as to the manner in which the defendant below was brought into court, is perfectly immaterial. It may have been good ground of special demurrer, but nothing more. (5.) The only mode of taking advantage of a variance between the writ and declaration, as not being in the same action, was by motion to set aside the declaration for irregularity. (1 Wend 305 ; 4 J, R. 484 ; 12 Wend. 271.) (6.) It is not pretended that in this action, as stated in the declaration, the plaintiff is or pos- sibly could be entitled to the judgment of removal given by the statute in the real action of nuisance. No such judgment has been asked for or rendered : but the plaintiff was entitled to his judgment on the verdict for his damages with costs as in any other personal action : and this is the judgment and the only judgment that has been rendered. (7.) The plaintiff in error neither has nor pretends to any merits his ground is purely and merely technical ; and he could have availed him- self of it only as a matter of practice by motion to set aside the declaration for a technical variance. (2 R. S. 344, & 7, sub. 4, (2d ed.) BRONSON, J. If this is the old assise of nuisance, there fe no doubt but that the declaration is insufficient and the judg- ment erroneous. But if it is an action on the case, it is equally clear that the declaration is sufficient and the judg- ment right. On the motion in arrest of judgment the Supreme Court held, and we think very properly, that it was an action on the case. The defendant insists that it is a writ of nui- sance because the plaintiff has given the action that name in the commencement of the declaration ; and because a writ of nuisance seems to have been issued to bring the defendant into court. It is not necessary to mention the form of the action in the commencement of the declaration ; arid if the pleader gives it a wrong name it will do no harm. The form of the action is determined by the matter set forth in the declaration, and not by the name which the plaintiff may give it. (Seneca Road Comp. vs. Auburn 11. It. Comp. 5 JliUVll ; Andcr- ALBANY, JANUARY, 1848. 227 Comes v. Harris. son vs. Thomas, 9 Bing. 678; Lord vs. Houston, 11 62 ; 2 CA#. JFV. 12 wote (e.) Ed. of '37 #raA. Prac. 202.) Disregarding, as we must, the misnomer, this is a very good declaration in an action on the case. Now as to the writ. It is not a matter of any importance how the defendant came into court whether he was served with a writ, capias, or declaration ; or whether he appeared voluntarily without process of any kind. It is enough that he appeared and pleaded to the declaration in an action of which the court had jurisdiction. He cannot afterwards ob- ject, not even by motion, that he was not regularly brought into court, or that the declaration varies from the process. The principle is a familiar one. If the defendant had moved, before pleading, to set aside the declaration for variance from the original, the motion would probably have been denied. (Me Farland vs. Townsend, 17 Wend. 440.) And clearly the Supreme Court had nothing to do after verdict, when the motion in arrest was made, with the manner in which the de- fendant was brought into court, or with any supposed vari- ance between the writ and the declaration. We are all of opinion that the judgment should be affirmed. Judgment affirmed. 228 CASES IN THE COURT OF APPEALS. Grade v. Freeland. - 228 GRACIE, Appellant, vs. FREELAND and others Respondents. 1 '424 j_o. An appeal will not lie to the Court of Appeals from a decision made in the Su el 2 '409 preme Court by one Justice at a special term. 88 *115 A party complaining of any order made at a special term, has a right to have the 3 AbD 498; matter re-heard and passed upon by the Supreme Court, at a general term. The appellant, Gracie, who was complainant in the Supreme Court, appealed to this Court from an order in an equity cause, made by one of the Justices of the Supreme Court while hold- ing a special term. No re-hearing of the matter had been had or applied for at a general term of the Supreme Court. A. L. Jordan, Attorney General, for the respondents, moved to dismiss the appeal on the ground, among others, that an appeal to this Court would only lie from a decree or order made by the Supreme Court at a general term. R. W. PeckJiam, for the appellant. BRONSON, J. This is an appeal from an order in an equity cause, made by one of the Justices of the Supreme Court while holding a special term ; and there has been no re-hearing and order upon the matter by the Supreme Court in general term. A motion is made to dismiss the appeal, on the ground that an appeal will only lie from the decrees and orders of the Su- preme Court, in equity causes, made at the general term. It is difficult to suppose that the Legislature, if it has the constitutional power to do so, has provided that all equity causes shall be first heard at a special term before a single Judge ; and has then given an appeal to this Court, before the matter has been heard and determined by the Supreme Court in general term, where there must be three Judges. It is not to be presumed that the Legislature intended the par- ties should go to the Court of last resort, before they had ob- tained the judgment of the full bench in the Court where the ALBANY, JANUARY, 1848. 229 Gracie v. Freeland. proceedings were instituted. We ought to find unequivocal words to that effect, before we give such a construction to the statute. But so far from finding such words, I think the Le- gislature evidently intended there should be a re-hearing at the general terra, before there could be an appeal to this Court. The judiciary act authorizes appeals to this Court from the orders and decrees of the Supreme Court " organized by this act," without expressly specifying either branch of that Court. (Stat. 184T, p. 321, 10, 11.) But the 20th section pre- scribes the manner in which the causes shall be disposed of in the Supreme Court, which is as follows : " All suits and pro- ceedings in equity, in said Supreme Court, shall be first heard and determined at a special term of said Court, unless the Justice, holding such special term, shall direct the same to be heard at a general term ;" and when "heard and determined at a special term, either party may apply at a general term for a re-hearing." It will be seen that two things are here mentioned ; first, a hearing and determination at a special term, and then an application for a re-hearing at a general term. Both of these things must be done before the Supremo Court has got through with the cause, and put it in a condi- tion to be carried to an Appellate Court. If this be not so; if the cause may go by appeal from the special term directly to the Court of Appeals, then there may be an application to the Supreme Court, at general term, for a re-hearing, after the cause has gone to the Court of Appeals ; and, indeed, after that Court has heard and decided the case. No one can suppose that such was the intention of the Legislature. Although the statute only says, the party " may apply at a general term for a re-hearing," I think he has the right to have his causa heard and decided there ; and that he cannot be turned away by simply denying the motion, nor by order- ing a re-hearing at the special term. The application for a re-hearing for which the statute pro- vides, is not precisely the same thing in tlio attending circum- stances as a motion for a re-hearing in Chancery. In that 230 CASES IN THE COURT OF APPEALS. Oracle r. Freeland. Court, the motion is almost invariably addressed to the sa;ne officer who made the decree, and who is consequently prepa- red to decide at once, and without any extended discussion or examination upon the propriety of granting the application. But under the present judiciary system, the motion is not to be heard at the special term, where the decree was made, but at the general term, where a majority, at the least, of the Judges, will be strangers to the cause, and consequently can- not be prepared to make a proper disposition of the motion, without hearing and examining the matter about as fully as they would for the purpose of making a decree. From this consideration it may be inferred, that the re-hearing for which the statute provides, is a hearing of the cause by the full bench, at the general term. If the Legislature had contem- plated a re-hearing at the special term, they would have di- rected the application to be made there ; or rather, they would have said nothing about it. The officer who has power to hear and determine equity causes, has power to grant a re-hearing. It is a part of the general common law jurisdiction of a Court of Equity, Avhich need not be conferred by statute. And be- sides, it is almost absurd to suppose that the Legislature in- tended the cause should be heard by three Judges, for the purpose of enabling them to decide whether it should be re- ferred back to one of their number, or to some other single Judge, for a re-hearing. If sent back to the special term on the ground that the decree was erroneous, the special term Judge might be of a different opinion ; and then the original decree would stand, although a majority of the Judges deemed it erroneous. If it be said that the special term Judge should follow the opinion of the full bench, then clearly it would be but an idle ceremony to send the cause back to the special term. The full bench should enter the proper decree at once, instead of sending the cause away, to have its judgment re- gistered in another place, with the loss of both time and expense. The statute does not command the Court to hear the appli- cation. But I need not cite authorities to prove, that when ALBANY, JANUARY, 1848. 31 Gracie v. Freeland. an individual has the right to apply to a Court for anything in the course of the administration of justice, it is the duty of the Court to hear and decide. It is said, however, that the applicant must make out a case before the Court is bound to hear him ; and that is very true. But what kind of a case ? He must shew himself a party to a decree or order made at a special term. The statute requires nothing more ; and when such a case is presented, it is the duty of the Court to hear and decide. And as the full bench cannot be prepared to de- termine the motion which it is required to hear, without some- thing like a full discussion and examination of the whole mat- ter, I think that bench should decide the cause. It should do so, either by ordering a re-hearing as a matter of course, and then hearing the cause ; or by hearing the matter at large in the first instance. The case should not be disposed of by simply denying the motion, nor by sending the cause back to the special term for a re-hearing ; but it should be decided, by making what the full bench may deem the proper decree or order in the premises. When the statute is read with reference to the nature of the case for which it provides, I cannot entertain a doubt on the subject. I think the Legis- lature intended that every party who should be dissatisfied with a decision made at the special term, should be entitled to have his case heard and determined by the full bench. If the party has the right to a hearing at the general term, then of course he should go there from the special term, in- stead of taking an appeal. The Legislature could not have intended that there should be an appeal to this Court before the matter had been finally disposed of in the Court of original jurisdiction. The appeal must be from the decision at the general term. The amendatory act passed by the same Legislature, (Stat. 1847, p. 641, 21, 22, 23.) goes to confirm the construction which I have given to the original statute. I am of opinion that the appeal should be dismissed. GARDINER, J. The constitution has provided a Supreme 232 CASES IN THE COURT OF APPEALS. Gracie v. Freeland. Court, having general jurisdiction in law and equity, with eight branches, one in each judicial district. (Art. 6, Sections 3, 4, 16.) The fourth section of article 6, declares, that there shall be four Justices of the Supreme Court in each district. The sixth section, that the general terms of said Court for each district, may be holden by any three or more of said Justices, of whom a presiding Judge to be designated by law shall be one. And that special terms and Circuit Courts may be holden by any one or more of said Justices, and that any one of them might preside in Courts of Oyer and Terminer. The constitution distinguishes between the general and special terms. This distinction does not consist in the number of Judges by which the terms may be holden respectively ; although that circumstance may have been, and probably was, the occasion of the distinction. The constitutional au- thority of a decision of a special term, like that of a Circuit Court, would be the same whether made by one or four judges. In the second place all concede that the entire jurisdiction in law and equity, secured by the constitution to the Supreme Court, can be exercised at a general term by three or more Judges. It follows that an authority subordinate in some re- spect, must be administered at a special term, or there is no difference between them. The words general and special im- port this distinction. The meaning of "general" is that which comprehends all, the whole. ( Web. Diet.) "Special," something designed for a particular purpose. Applied to jurisdiction, they indicate the difference between a legal authority extending to the whole of a particular subject, :ind one limited to :i part, and when applied to the terms of Court, the occasions upon which these powers c:in l>e respectively exercised. Such I appre- hend was the legal import of the words, " general and special' when applied to the terms of the * ; Supreme Court," as settled bv the Courtu and the Legislature; ami the understanding oi' the legal profession at the formation of the present consti- . Imi. i 1 :5 WenJ. 07:2, i.V> ; 1 '2 W.'uJ. 2:50 ; 2 R. S. 259 ; : 0. :, 10. 11, 51 ; "../ // because the deed-poll is only the deed of the lessor, whereas the indenture is the deed of both parties, and both are as it were put in and shut up by the indenture, that is where both seal and execute it, as they may and ought." (Co. Lift. 47, b. Bacon s Abrg. " Leases" (0) ). It is not law now, that a lessee even by deed-poll, who retains possession under his lease, may dispute the title of his lessor, but it was in the time of Lord Coke, and hence the illustration is pertinent and conclusive in limiting and defining the extent of the authority cited. Again, it has been repeatedly held that it may be shewn that a less estate passed than the estate mentioned in the deed, although it be an indenture : which could not be, if the rule was universal that a grantee is concluded by an acceptance of the conveyance. (3 Wms. Saundera 418, note, a ; 2 Smith's Leading Cases, 457; 4 Kent's Com. 98.) No proposition can be more undoubted, than that the grantee in a deed-poll is never estopped by the terms of the grant, for it is not his deed, not having sealed and executed it ; and it seems a sheer absurdity to say that he is concluded by acceptance of a con veyancc, by which no estate actually passed to him, for the reason that the grantor had none to convey. Such a doc- trine is entirely irreconcilable with the system of modern NEW-YOKK, APRIL, 1848. 253 Sparrow v. Eingman. conveyancing and transfer of lands, and if carried out would lead to innumerable and perplexing difficulties. Actions on covenants of seizin, or warranty, or for quiet enjoyment are of daily occurrence, but how would it be possible ever to maintain them, if a grantee by an acceptance of the deed of his grantor, is barred from showing a paramount title, or a defect in the estate of the latter? If this rule prevailed, these covenants in our modern conveyances might be inserted as ornaments, but would be of little practical utility. Chief Justice Nelson, in the case of the Wetland Canal Company vs. Hathaway, (8 Wend. 483,) defined the doc- trine of an estoppel in pais as follows : " As a general rule, a party will be concluded from denying his own acts or admis- sions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter." He adds that the party will be concluded " when in good conscience and honest deal- ing he ought not to be permitted to giansay" his acts or ad- missions. Bronson, J., in Dezell vs. Odell, (3 Hill 225) adopts this definition with approbation, and adds, " A party is only concluded against shewing the truth, or asserting his legal right, when that would have the effect of doing a wrong through his means to some third person." Under such cir- cumstances, Justice Cowen remarks, in the latter case, " for the prevention of fraud, the law holds the act or admission to be conclusive." It must, however, have been acted upon by the other party. The party who accepts the deed in fee of a grantor having no title or a less estate than he conveys, per- forms no act expressly designed to influence and influencing the conduct of the latter to his injury ; nor does ho make any admission which, " in good conscience and honest dealing, he ought not to be permitted to gainsay." The fraud, if any there be, is on the part of the grantor, and the injury will fall solely upon the grantee, unless he be permitted to shew the truth. There is no relation existing between the grantee in fee and his grantor, as will raise even an implied obligation on the part of the former against a denial of the title and estate 254 CASES IN THE COURT OF APPEALS. Sparrow r. Kinguiau. of the latter. In Osterhout vs. Shoemaker, (3 Sill 518) the Court undoubtedly lays down the true rule. Bronson, T., in delivering th3 opinion of the Court, says : " Although a te- nant cannot question the right of his landlord, a grantee in fee may hold adversely to the grantor, and there can be no good reason why he should not be at liberty to deny that the grantor had any title. There is no estoppel where the occu- pant is not under an obligation, express or implied, that he will at some time or in some event, surrender the possession The grantee in fee is under no such obligation. He does not receive the possession under any contract, express or implied, that he will ever give it up. He takes the land to hold for himself, and to dispose of it at his pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title." (See also 15 Mass. R. 499.) The reason of the rule is readily seen why a tenant in possession may not question his landlord's title, or a vendee, under an agreement to purchase, that of the vendor. He has obtained the possession which he would not otherwise have had, " under an obligation, express or im- plied, that he will, at some time or in some event, surrender it." The law will hold him to his obligation. But even in the case of a tenant or vendee, should he first restore the pos- session, there would be no obstacle in the way of controvert- ing the landlord or vendor's title. Originally, at common law, as we have seen, the lessee by deed poll might always dispute the estate of the lessor ; and he is now permitted to shew that the landlord had a less interest than he demised. In Doe vs. Barton, (11 Adol. and Ellis 315,) it was held that in eject- ment the tenant may protect his possession against his land- lord by shewing that the title of the latter was defeasible un- der a prior mortgage, at the time the lease was made, and that he has since been compelled to pay rent to the mortgagee, and put him in constructive possession of the premises. Thus, even in the case of a lessee where there has been a construc- tive eviction, as in Doe vs. Barton, he may shew a state of facts in the protection of his possession, inconsistent with the NEW-YORK, APRIL, 1848. 255 Sparrow u. Kingman. claim or title of his lessor. Where there has been an actual eviction by title paramount, this right has never been doubted. It would, therefore, be strange indeed, if a grantee in fee, who is never under any obligation to restore the possession, and who may have been compelled to purchase in for his pro- tection an outstanding valid title, should be concluded from shewing that no title passed by the deed of his grantor, or that the estate or interest which passed was less than that mentioned in the deed. I am of the opinion that the judgment of the Supreme Court should be reversed, and am content to place my vote for reversal on the distinct ground, that in an action for dower the grantee in fee of the husband is not concluded from affir- matively controverting the seizin of the latter. This is the law of England and of Massachusetts, and if an opposite rule has heretofore prevailed in this State, it is not too late to cor- rect the error. Where property has been acquired, or rights matured, and exist, under an erroneous decision of the Courts, insomuch that irreparable mischief and injury must necessarily result from its overthrow, the maxim of stare decisis should prevail. But this is not one of those errors, from the correc- tion of which injurious consequences may follow. JEWETT, CH. J. The question to be decided in this case is, whether it was competent for the defendant to show, that Kingman never had any estate of inheritance in the premises. The Judge decided that as Kingman, when in possession had by his deed to Holley, assumed to convey in fee, and as the defendant held under that deed, he was bound by it, and was estopped from setting up that Kingman had not an estate of which his wife was dowablc. It cannot be denied, but that the decision of the Judge on the trial is in conformity with the principles settled by a series of cases determined by the Supreme Court, from Ban- croft vs. White, (1 Caines 185) to Sherwood vs. Vandenburgh. (2 Hill 303.) In the latter case, however, the late Mr. Justice Cowen put his opinion upon the ground of the authorities , 256 CASES IN THE COURT OF APPEALS. Sparrow v. Kingnian. and not upon the ground, that the doctrine of es:oppel had been in those cases correctly applied, and distinctly suggested that the question was a very fit one for review in the Court for the correction of errors. And Mr. Justice Bronson in Osterhout vs. Shoemaker, (3 Hill 513) remarked in reference to the cases which hold, that in dower the grantee of the husband is estopped to deny the grantor's title, that they were to be followed because the rule had been so settled, and not because it rested on any sound principle. As defined in the books, " an estoppel is when a man ia concluded by his own act or acceptance, to say the truth," of which there are three kinds. By matter of record, by deed, and by matter of pais. The estoppel which the plaintiff claims in this case arises by matter in pais, if at all ; that species arises, by livery, by entry, by acceptance of rent, by partition, and by acceptance of an estate. (Co. Lift. 666, 667.) The principle in respect to that, which arises by an accept- ance of an estate, is, that a man shall not be permitted, dur- ing his possession of premises, to dispute the title of the landlord under whom he entered, and applies only in cases where the party accepting the estate is under some obligation, express or implied, that he will at some time or in some event surrender the possession. " The grantee in fee, is under no such obligation. He docs not receive the possession under any contract express or implied that he will ever give it up. He takes the land to hold for himself, and to dispose of it at pleasure. He owes no faith or allegiance to the grantor, and docs him no wrong when he treats him as an utter stranger to the title." The deed from Kingman to Ilollcy was a mere quit claim, deed-poll, of one part, signed by Kingman only. Thcrefoie, no one at common law, would be bound by it, but he, and it would not work an estoppel against the grantee, and I think not as against the grantor. (Co. Lift. 47, 61, Shcp. Touch. 1 Am. Ed. 53, Right vs. Bucknell, 2 Barn and Adol. 278.) At the common law, all the parts of a deed indented in judg- ment of law made but one deed, and every part was of as NEW-YORK, APRIL, 1848. 257 Sparrow v. Kingman. great force as all the parts together, and were esteemed the mutual deeds of either party, and either party might be bound by either part of the same, and the words of the inden- ture were the words of either party. It was stronger than a deed-poll, for it worked an estoppel against either party to say or except any thing against any thing contained in it. (1 Sheph. Touch. 53 Plow. 434.) The argument on the side of the plaintiff is that Kingman assumed to convey a fee ; and that as the defendant held under that deed, he was bound by that assumption. This, I think is founded upon a mistake of fact as well as of law. I have already remarked that the deed is merely a quit claim deed-poll ; and therefore, upon its face and by its terms, it only purports to convey whatever interest in the premises the grantor then had. It does not affirm that he had any. How then can the grantor be supposed conclusively to admit that he had ? If the admission should be co-extensive with the grant, it would be but conditional ; that is, that if the grantor had any right or interest, which passed by his deed it vested in Holley the grantee. And now, by 1 R. S. 739, 143, it is enacted that no greater estate or interest shall be construed to pass by any grant or conveyance, thereafter executed, than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant should be conclusive as against the grantor and his heirs claiming from him by de- scent ; and by 145, it is declared that a conveyance made by a tenant for life or years, of a greater estate than he pos- sessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantor all the title, estate, or interest, which such tenant could lawfully convey. And again, by 1 R. S. 748, 1, it is declared that every grant or devise in real estate, or any interest therein, there- after to be executed, shall pass all the estate, or interest of the grantor or testator; unless the intent to pass a less estate or interest shall appear, by express terms, or be neces- sarily implied in the terms of such grant ; and 2 provides 33 258 CASES IN THE COURT OF APPEALS. Sparrow c. Kingnian. that in the construction of every instrument creiting or con- veying, or authorizing the creation or conveyance of, any estate or interest in lands, it shall be the duty of Courts of Justice, to carry into effect the intent of the parties, so far as it can be collected from the whole instrument, and is con- sistent with the rules of law. Now, I do not think that we are authorized to say that Kingman assumed by his deed to convey a fee ; the clear intent, as well as expression of his deed, is to convey only what interest or estate he then had in the premises. But again. Co. Litt. 352 a, shows, that every estoppel must be reciprocal, that is to bind both par- ties, and that is the reason that, regularly, a stranger shall neither take advantage of, nor be bound by, the estoppel ; but privies in blood, as the heir, and privies in estate, as the feoffee, lessee, &c. ; privies in law. as the lord by escheat, ten- ant by the courtesy, tenant in dower, the incumbent of a benifice, and others that come in under by act of law, or in the post, shall be bound by, and take advantage of estoppels ; and Coke, in his twenty-first reading on fines, says " estoppel is re- ciprocal on both sides ; for he that shall not be concluded by a record or other matter of estoppel, shall not conclude another by it." (Doe vs. Martin, 8. Barn, and Cress. 497.) Now Kinginan himself would not have been estopped by his deed to Holley from showing that no title passed by it, on the ground that it contains no covenant of warranty ; an after ac- quired estate by a grantor passes to his previous grantee by the rule of estoppel, only when there are such covenants of warranty, and then to avoid circuity of action. (Jackson vs. ffubbell, 1 Cowen 616 ; Jackson vs. Bradford, 4 Wend. 622 ; Jackson vs. Waldron, 13 Wend. 178.) The plaintiff could not claim any thing by the rule cf estop- pel, in respect to the deed executed by her husband to Ilolley. She is a stranger to it ; her right to dower rests upon the title or estate which her husband acquired prior to his deed to Ilol- ley, and is derivable under his grantor. This would be a suf- ficient reason why she could not estop the grantee of her hus- NEW-YORK, APRIL, 1848. 259 Sparrow v. Kingman. band. There would be no mutuality, as she would not be bound by it. (Jewell vs. Harrington, 19 Wend. 471.) The plaintiff' is not entitled to dower in any other lands than in which her husband, during the marriage, was seized of an estate of inheritance : and I think it clear that when she claims dower, the defendant is at liberty to show in his defence that her husband was not, during the marriage, seized of such an estate. (Craunt vs. Wainman, 3 Sing. N. C. 69.) I am therefore of opinion that the judgment should be re- versed, and that a venire de novo should be awarded by the Supreme Court, with costs, to abide the event. \ RUGGLES, JONES, JOIJV O ON and GRAY, Js. ? concurred in the result of the preceding opinions. BRONSON, J., dissenting. As to one-half of the Erie Mills, the defendant derived his title and possession from George G. Kingman, the plaintiff's husband ; and still holds under that title. So long as he thus holds, he is estopped from denying the seizin of the husband, in an action brought by the widow to recover her dower. (Hitchcock v. Harrington, 6 John. 290 ; Collins v. Torry, 7 John. 278 ; Hitchcock v. Carpen- ter, 9 John. 344 ; Davis v. Darroiv, 12 Wend. 65 ; Boivne v. Potter, 17 Wend. 164 ; Sherwood v. Vandenburgh, 2 Hill 303.) Questionable as I think this doctrine was at the first, (2 Hill 308, 3 Hill 518, 519,) it has prevailed too long in this State to be now overturned by a judicial decision. If there is any good reason for changing the rule, the change should be made by the Legislature, and not by the Courts. In Maine and New Jersey the rule is the same as it is with us. (Kimball v. Kimball, 2 G-reenl. 226 ; Nason v. Allen, 6 id. 243 ; Hains v. G-ardner, 1 Fairf. 383 ; Hamblin v. Bank of Cumberland, 19 Maine, (1 Appleton) 66 ; English v. Wright, Coxe (N. J.) Rep. 437.) In Massachusetts it is the other way. (Small -v. Procter, 15 Mass. 495.) So long as those claiming under the husband have not been disturbed in the enjoyment of the property, there is no very 260 CASES IN THE COURT OF APPEALS. Sparrow v. Kinsman. good reason for allowing them to defeat the widow's claim to dower, by setting up an outstanding title, which may never be asserted ; and the current of adjudication in this State has not carried the estoppel beyond cases of that description. There is, I admit, no principle upon which the estoppel can be carried another step, and applied to a case where the hus- band's grantee has been obliged to purchase in a good out- standing title for the purpose of protecting his possession ; and if the case of Bowne v. Potter, (17 Wend. 164,) must be considered as going that length, I agree that it cannot be supported. But there is no such question in this case. This writ of error has, I presume, been brought in conse- quence of the opinion which had been expressed by Mr. Jus- tice Cowen and myself, and which opinion I still entertain, that originally the doctrine of estoppel was improperly ap- plied to this class of cases. (Sherwood vs. Vandenburgh, 2 Hill 303-9 ; Osterhout v. Shoemaker, 3 id. 518-19.) But it will be seen that neither of us felt at liberty to depart from the rule as it had been settled, nor do I feel so now. After an erroneous decision touching rights of property has been followed thirty or forty years, or even a much less time, the Courts cannot retrace their steps without committing a new error nearly as great as the one at the first. The defendant's counsel places great reliance upon a remark of Mr. Justice Cowen, to the effect, that although the point was too firmly established to be revised by the Supreme Court, it might still be a fit question for review in the Court of Errors. There was, I think, a good deal of irony in that remark. Surely the learned Judge did not intend to be understood that what was settled law in one Court, was not also good law in all the other Courts of the State ; that a Justice of the Su- preme Court, when sitting in his own Court, was bound to dc cide one way, and when sitting in the Court of Errors, was at liberty to decide the other way. The thing is preposterous. The remark in question was made concerning a Court which not only corrected erroneous decisions, but sometimes took the liberty of reforming the law itself, whore it was supposed to NEW-YORK, APRIL, 1848. 261 Shindler v Houston. need improvement. I claim no such prerogative. I am of Opinion that the judgment of the Supreme Court should be affirmed. GARDINER, J., having been engaged professionally in the Cause, gave no opinion. Judgment reversed, and venire de novo awarded. . A ,' Fit SHINDLER vs. HOUSTON. PUintifi'ond defendant bargained respecting the sale, by the former to the latter, of t quantity of lumber, piled apart from other lumber, on a dock and in view of the parties at the time of the bargain, and which had before that time been measured and inspected. The parties having agreed as to the price, the plain- lid' said to the defendant, ''tlm lumber is yours? The defendant then told the plaintiff to jrct the Inspector's bill, and take it to one House, who would pay the amount. This was done the next day, but payment was refused. The price was over fifty dollars, lldd. in an action to recover the price, that there was no delivery and acceptance of the lumber, within the meaning of the statute of frauds, and that the sale was therefore void. It seems that to constitute a delivery and acceptance of goods, sucn as the statute requires, something more than mere words is necessary. Supcradded to the language of the contract, there must be some act of the parties, amounting to a transfer of the possession, and an acceptance thereof by the buyer. The case of cumbrous articles is not an exception to this rule. On error from the Supreme Court. Houston sued Shindler in the Justices' Court, of the city of Troy, in assumpsit, for the price of a quantity of lumber. The plaintiff having recovered, the defendant appealed to the Mayor's Court of that city, and on the trial in that Court, the case was this : The plaintiff was the owner of about 2070 feet of curled maple plank and scantling, which he had brought to Troy in a boat, and which, after being inspected and measured, was piled on the dock apart from any other lumber. Soon after this, the plaintiff and defendant met at the place where the 261 s HA 680 ;s49 AD 316n 10 10 38 40 40 40 44 51 51 65 65 65 71 3K =291 =292 2 227 2 524 2 525 2 531 2 647 2 214 2 215 2 26 2 27 2 374 2 295 2 410 1 AbD 187 1 AbD 188 2 Tr 358 7Tr 3 7Tr 5 262 CASES IN THE COURT OF APPEALS. Shindler v. Houston. lumber lay. The plaintiff said to the defendant, " what will you give for the plank ?" The defendant said he would give three cents a foot. The plaintiff then asked, " what will yoa give for the scantling?" The defendant replied, one and a half cents a foot. The plaintiff then said, " the lumber is yours." The defendant then told the plaintiff to get the In- spector's bill of it, and carry it to Mr. House, who would pay it. The next day the plaintiff, having procured the Inspec< tor's bill, presented it to House, who refused to pay it, on the ground that the instructions he had received from the defendant did not correspond with the plaintiff's statement of the contract. There was no note or memorandum of the contract in writing, nor was there any evidence of a delivery or acceptance of the lumber, except as above stated. At the prices agreed on, the lumber came to $52 51, no part of which was ever paid. The Mayor's Court instructed the jury that if they were satisfied that it was the intention of the parties to consider the lumber delivered at the time of the bargain, and that nothing further was agreed or contemplated to be done, in order to change the title in, or possession of the lumber, the plaintiff was entitled to recover ; that the sale was not within the statute of frauds, and did not require any note or memorandum in writing, provided they should find from the evidence, that there was a delivery anri acceptance of the lumber at the time of the bargiuu. The defendant excepted and the jury found a verdict for the plaintiff, on which judgment was rendered in his favor. The Supremo Court, on writ of error to the Mayor's Court, affirmed the judgment, (See 1 Denio, 48) and the defendant brings error to this Court. N. Hill, jr., for plaintiff in error, insisted, that the sale waa within the statute of frauds requiring a note in writing. There was no acceptance or receipt of the lumber by the ^endee within the intent and meaning of the statute. To take the case out of the statute there must be something raoro than would be sufficient to change the property at common NEW YORK, APRIL ; 1848. 263 Sbmdler v. Houston. law something more than would be sufficient to constitute a delivery at common law. There should be, (1) a bargain intended to change the right of property. This is the act of both parties. (2) a delivery of the property and the actual possession to the vendee, discharged of all lien for the pur- chase money, This is the act of the seller. (3) An accept- ance and receipt of the entire property, and actual posses- sion of some part of the goods, as absolute owner, discharged of all lien. These are the acts of the buyer. There was nothing proved in this case but the bargain. (3 Bos. and Puller, 233 ; 6 Barn, and Cress. 351 ; Oh. on Cont. 389, 390 ; 3 Dowl and Ryl. 220, 822 ; 2 Barn, and Cress. 37 ; 3 Johns. 399 ; 10 Bing. 101, 376 ; 5 Barn, and Cress. 857, 5 ; 3 Barn, and Aid., 321, 680 ; 5 Do., 559 ; 4 Mees. and W., 155 ; 1 Dowl. and Ryl. 128 ; 22 Wend. 659 ; 1 Carr. and Payne, 272 ; 3 Barn, and Cress. 1 ; 2 Carr. and Payne, 532 ; 4 Maule and Sel. 262 ; 9 Barn, and Cress. 591 ; 7 T. Rep, 15, 17 ; 1 C. and M., 333 ; 6 Wend., 400 ; 11 Johns., 284.) J. A. Spencer and D. Willard, for defendant in error, cited, Bates v. ConJclin, 10 Wend. 389 ; Chaplain v. Rogers, 1 East, 192 ; Jewett v, Warren, 12 Mass. 300 ; 2 Kent. Comm. 500, 501, 4th Ed. GARDINER, J. As no part of the purchase money was paid by the vendee, the contract above stated was void by the statute of Frauds, (2 R. S. 136, 3, subd. 3) unless the buyer "accepted and received" the whole or a part of the property sold. The object of the statute was not only to guard against the dishonesty of parties and the perjury of witnesses, but against the misunderstanding and mistakes of honest men. If the contract is reduced to writing, and " subscribed by the parties to be charged thereby,'' this object is effectually at- tained. The writing becomes its own interpreter. Where this is omitted but the vendee has paid part of the price, or the vendor has delivered and the buyer has accepted a portion 264 CASES IN THE COURT OF APPEALS. Shindler v. Houston. or all of the property, upon the strength of the agreement. These acts not only indicate deliberation and confidence upon the part of the contractors, but they furnished unequivocal evidence of the existence of a contract of some sort betweec them, although its terms and provisions must after all depend upon the recollection of "witnesses. The case before us is destitute of all such collateral evi- dence. No acts of the party sought to be charged are proved. We are presented with a naked verbal agreement. The de- clarations relied upon as evidence, of a delivery and acceptance constitute a part of the contract, and of course are obnoxious to all the evils and every objection against which it was the policy of the law to provide. The acts of part payment, of delivery and acceptance men- tioned in the statute are something over and beyond the agree- ment of which they are a part performance, and which they assume as already existing. The entire absence of such evi- dence distinguishes the present case from all those that have been cited by the counsel for the plaintiff in support of this action. (Chaplain vs. Rogers, 1 East, 193 ; Jewett vs. War- ren, 12 Mass. 311 ; Riddle vs. Varnum, 20 Pick, 280 ; 10 Wend., 391; Kent Com., 4th Ed. 500, 501.) The strong ase, from the Pandects of the Column of Granite is not an exception ; for it is fairly to be inferred that the consent of the vendor that the purchaser should take possession was sub- sequent to the sale. 1 am aware that there are cases in which it has been ad- judged, that where the articles sold are ponderous, a symboli- cal or constructive delivery will be equivalent in its legal effect to an actual delivery. The delivery of a key of a warehouse in which goods sold are deposited, furnishes an example of this kind. But to aid the plaintiff, an authority must be shown that a stipulation in the contract of the sale, for the delivery of the key or other indicia of possession will constitute a delivery and acceptance within the statute. No such case can be found. The entire contract being void by the statute, the stipulation in reference to a constructive delivery would NEW YORK, APRIL. 18-18. Shindler v Houston. fall with the other provisions. In Philips vs. Bristol, (2 B. and C. 511,) the property was sold by an auctioneer and delivered to the purchaser, who after detaining it three or four minutes handed it back saying he was mistaken as to the price. The vendor refused to receive the property, and the jury found that the excuse was false in fact. The verdict was set aside : The Court saying that to satisfy the statute there must be a delivery by the vendor, with an intention of vest- ing the right of possession in the vendee, and there must be an actual acceptance by the latter with the intent of taking possession as owner. This, I apprehend, is the correct rule and it is obvious, that it can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intentions of the parties. Mere words are not sufficient. (3 Johns. 421.) Declarations accompanying an act and explanatory of it are undoubtedly admissible evidence, as a part of the res gestat. This is all that is established by the modern authorities. (12 Mm., 301 ; 1 Dallas, 171 ; 2 Barn, and Cress. 44 ; 3 J R. 421). In a word the statute of fraudulent conveyances and con tracts, pronounced this agreement when made, void, unless the buyer should " accept and receive some part of the goods." The language is unequivocal and demands the action of both parties, for acceptance implies delivery, and there can be no complete delivery without acceptance. The defendant, however, said nothing and did nothing subsequent to the agree- ment except through his agent to repudiate the contract. There was consequently no evidence of a delivery. I think, therefore, the learned Recorder erred in submit- ting that question to the jury, and that the judgment of the Supreme Court should be reversed. The Statute of Frauds has been pronounced by high au- thority, (Kent's Oomm. - V., 494) to be, in many respects, the most comprehensive, salutary, and important legislative regulation on record, affecting the security of private rights. Its benefits it is believed will be most effectually secured, by 34 2 GO CASES IN THE COURT OF A .'PEALS . Houston. rejecting refined distinctions, overlooking the supposed equity of particular cases, and adhering steadily to its language as the best exponent of the intention of the Legislature. BRONSON, J. On a review, and a more full consideration of the case, I am satisfied that I was in an error in assenting to the judgment which was rendered by the Supreme Court. If we assume that the sale was in all other respects complete, the difficulty still remains that there was no delivery of the goods. Nothing was done. As was very justly remarked by the defendant's counsel, there was nothing but mere words ; anil the statute plainly requires something more ; it calls for acts. (Per Cowen, VILAS & BACON, Appellants, vs. JONES & PIERCY, Respondents. The complainants were sureties for C. upon a note given to J. for a usurious loan of money. An action at law was brought upon the note against the complain- ants, and C. in the name of P., as endorsee. The complainants pleaded the general issue, and gave notice of the defence of usury, but did not verify the notice as required by the usury act of 1837, so as to entitle them to examine the plaintiff a* a witness. On the trial, they called as a witness, J., the payee of the note, who stated, on his voire dire, that he was the owner of the note and the plaintiff in interest, and objected to testifying in the cause, and his objection was sustained by the Court. A verdict was taken for the amount equitably due on the note, and judgment was perfected against the complainants and C.; Jield. that a bill filed by the complainants, after judgment at law, for the purpose of obtaining the testimony of C., and for relief against the judgment on the ground of usury, could not be sustained. Held farther, that aAer judgment at law, the bill could not be sustained on the ground that the complainants, as sureties, were discharged by reason of the holder of the note having extended the time of payment to the principal debtor in consideration of a usurious premium paid by him in advance, it not being shewn that the complainants were prevented from setting up this defence in the action at law, by any fraud or accident, or by the act of the opposite party. And per BKOMSON, J. and JEWETT, C. J., an agreement made by a creditor with the principal debtor, to forbear the payment of the debt in consideration of usurious premium paid for such forbearance, is void, and therefore cannot ope- rate to discharge the sureties. Whether a mere surety is a borrower, within the meaning of the usury act of 1837 (Laws of 1 837, p. 4S7, $ 4,) quere. Appeal from Chancery. The appellants, complainants in the Court below, filed their bill in the Court of Chancery against the respondents, in which the case was stated in sub- stance as follows : In April, 1839, Harvey Church borrowed of the defendant, Jones, $200 for six months, and was to pay for the use thereof at the rate of ten per cent, per annum. Church and the complainants, as his sureties, thereupon gave their joint and several note to Jones, at six months, for $210, being the sum loaned and the interest added thereto, including three per cent, for the usurious premium. At the end of the six months it was agreed, between Church and Jones, that the debt should be forborne for aix months longer at the same rate of interest, which was then paid in advance by Church. One NEW-YORK, APRIL, 1848. 275 Vilas & Bacon v. Jones & Piercy. or more other agreements to extend the time of payment were made at the same usurious rate of interest, which was also paid in advance. The bill insisted that the note was void for usury, also that the complainants, as sureties, were discharged from liability by reason of the time of payment being extend- ed to Church, the principal in the manner above stated. In April, 1842, a suit at law was commenced on the note against Church and the complainants, in the najne of the defendant, Piercy, as endorsee of the note. The complainants pleaded to the suit the general issue, and gave notice of their defences above mentioned ; but it did not appear that the notice was verified by affidavit. The suit was brought to trial in Ma.y, 1842, and the complainants procured said Jones to attend as a witness, expecting, as the bill averred, to prove the facts above stated by him. But Jones, on being sworn as a wit- ness, stated on his voire dire, that he was the owner of the note, and that the suit was brought for his benefit, and he thereupon objected to testifying in the cause. The Court sus- tained his objection. Previous to the trial of the cause, Jones had been applied to by the counsel of the complainants, to learn who was the owner of the note, and Jones stated that he had sold the note to Piercy, and that Piercy was the owner, ^he bill however did not shew that this false information was the reason why the complainants did not verify the notice an- nexed to their plea, so as to enable them to call Jones as a witness to prove the usury, under the act of 1837, or that they had been in any wise misled thereby. The bill also alleged, that the facts on which the defence in the suit at law rested, were known only to Church and to Jones ; that Church, being a co-defendant in the suit, and Jones, being excused from testifying as above stated, the com- plainants were unable to establish their defence, and a verdict was taken against them for $197,34, the amount claimed to be due on the note, for which amount and costs of suit, judg- ment was perfected against them and Church ; that Church suffered judgment by default, and that he also refused to join in the bill of complaint ; that said Church had instituted pro- 276 CASES IN THE COURT OF APPEALS Vilas & Bacon v. Jones & Piercy. ceedings to be discharged as a bankrupt under the act of Congress, passed August 19, 1841 ; that he was duly declar- ed a bankrupt on the 16th of May, 1842, and (as the com- plainants were informed and believed) that he would be enti- tled to his discharge, and would receive the same before an order to take proofs could be entered in this cause, so that the complainants could have the benefit of his testimony to es- tablish the matters of defence above set forth. The bill also alledged that the complainants had released Church from all liability over to them, in consequence of their signing the note as his sureties. The prayer of the bill was for relief against the judgment by injunction to restrain execution and all other proceedings for the collection of the same from the complain- ants, for answer without oath, &c. The respondents severally demurred to the bill for want of equity. The cause was referred for hearing to the Assistant Vice Chancellor of the First Circuit, who allowed the demur- rers, and dismissed the bill. The Chancellor on appeal af- firmed the order. S. Stevens, for appellants. The complainants are entitled to relief on the ground of usury. They are to be deemed borrowers within the equity of the act of 1837, so far as re- gards the remedy given by that act. (Laws of 1837, p. 487 ; Perine et. al. vs. Striker, 7 Paige 598.) This defence was not available in the suit at law. Church, being a co-defend- ant in that suit, could not be examined as a witness. Jones, the payee of the note, the only other person to whom the facts were known, declined to testify, and his objection was sustained by the Court. (Cook vs. Spaulding, 1 Hill 580.) This presents a case upon which a Court of Equity will relieve after judgment. (Norton vs. Woods, 5 Paige 249 ; Morse vs. Hovey, 1 Barbour Ch. Rep. 404.) Church was not a necessary party to the bill. After suffer- ing judgment at law, by default he could have no claim to re- lief in equity ; nor could any decree to be pronounced in this NEW- YORK, APRIL, 1848. 277 Vilas & Bacon v. Jones & Piercy. cause affect him in any way. (Story JEq. PL 231. 443, 445.) The extension of the time of payment given by Jones, the creditor, to Church the principal debtor, without the consent of the complainants, who were mere sureties, discharged them. This defence is personal to themselves, and entitles them to the relief prayed by the bill. (Rathbone vs. Warren, 10 Johns. 587 ; King vs. Baldwin, 17 do. 384 ; Miller vs. Me Can, 7 Paige 451 ; Surge, on Suretyship, 197, 211.) James Edwards, for the respondents. I. The appellants having suffered judgment at law to pass against them on a trial upon matters which, if proved, con- stituted a defence at law, and of which they were fully cog- nizant before the trial, cannot be relieved from such judgment in equity. (Simpson vs. Hart, 4 Johns. Oh. R. 91 ; Q-elston Schenck vs. Hoyt, 1 Johns. Oh. R. 543 ; Barker vs. Elkins $ Simpson, 1 Johns. Oh. R. 465 ; Norton vs. Woods, 5 Paige 249 ; Bates vs. Bagley, 1 Breeses R. 60 ; Gown vs. Price, 1 Bibb's R. 173 ; Penny vs. Martin, 4 Johns. Oh. R. 566 ;. Northrup and al. vs. Survivor of Lane and al. 3d Dessau- sure s Repts. 324 ; Bateman vs. Wilson, 1 Sch. and Lefroy R. 201-4 ; Williams vs. Lee, M Atkins' R. 223 ; G-reen vs. Dodge and al. 6 Hammond R. 80 ; Thompson vs. Berry, and al. M J. Ch. R. 395 ; Thompson vs. Berry, 17 J. R. 446, on appeal; Duncan vs. Lyon, 3 J. Ch. R. 351 ; Campbell vs. Morrison, 7 Paige R. 157 ; Me Vicker vs. Woolcott, 4 J. R. 510 ; Cowen and Hill's Notes, 949, 950.) II. The appellants coming into this Court to set up a de- fence which they might have interposed at law, must do equity before asking it, and as the verdict was for no more than the original loan with the lawful interest on it, after deducting the payments, equity will not relieve them therefrom on the ground of usury. III. If the Court erred in excusing Jones from testifying, the remedy was by a bill of exceptions, and not by a bill in 278 CASES IN THE COURT OF APPEALS. Vilas & Bacon v. Jones & Piercy. equity. (Henry and Pierce vs. TAc Bank of Salina, 5 523 ; Stevens vs. TFMe, 5 Hill 548.) BRONSON, J. Harvey Church as principal, and the com- plainants as his sureties, made their joint and several promis- sory note for two hundred and ten dollars, payable to Jones, who endorsed it to Piercy. After Piercy had sued and reco- vered judgment on the note at law, against all of the makers, the complainants filed their bill in the Court of Chancery to be relieved against the judgment, on the ground that the note was void for usury ; but they neither paid nor offered to pay the money actually loaned, nor the legal interest thereon. Unless the case has been provided for by our recent usury statutes, it is entirely clear that such a bill cannot be main- tained. It is a fundamental principle of the Court of Chan- cery that he who asks equity must do equity ; and without an express command of the Legislature, the Court of Chancery never does so unjust a thing as to entertain a bill to annul a contract on the ground of usury, without requiring the debtor to do equity on his part. He must return, or offer to return, what he actually received, with interest. The principle is a familiar one, and I need not cite authorities to support it. Before examining the statute it is proper to notice, that the bill states, in express terms, that the agreement for the loan which the note was given to secure, was made between Jones and Church ; and that the loan was actually made by Jones to Church. And it is not stated that the complainants had any thing to do cither with the agreement or the loan. They only became sureties for the re-payment of the money. Let us now see what the Legislature has done. It has set aside the rule of equity which has been mentioned, in favor of the " borrower" of the money, but not in favor of any one else. (1 It. S. 772, 8, Stat. 1837, p. 487, 4.) It will only be necessary to notice the last act, as that goes further than any usury law which preceded it. The 4th section is aa follows : " Whenever any borroiverof money, goods, or things in action, shall file a bill in Chancery for relief or discovery, NEW- YORK, APRIL, 1848. 279 Vilas & Bacon v. Jones & Piercy. or both, against any violation ' of the usury laws,' it shall not be necessary for him to pay, or offer to pay, any interest or principal on the sum or thing loaned." The word " borrow- er" is again used near the close of the section, without any- thing to enlarge its ordinary signification. There is, I think, no established rule of interpretation which will so enlarge this provision as to make it include the sureties of the borrower. It cannot be carried so far without indulging a latitude of con- struction which would amount to a new enactment. I am aware that the Chancellor and the late Mr. Justice Suther- land, have respectively intimated an opinion that the surety is a borrower within the meaning of the staute. (Perrine vs. Striker, 7 Paige 602 ; Livingston vs. Harris, 11 Wend. 336.) But the point was not decided in either case. Both turned apon other grounds ; and in the case before the Chancellor, the bill was filed by the borrower in conjunction with the surety. It may be true, as was remarked by Mr. Justice Sutherland, that there is no reason, in the. nature of the case, why the surety should not have all the remedies and means of defence which are given to the principal debtor. But that does not settle the point. The question still remains, whether the Legislature has given the same remedies and means of defence to both. I think not. The agreement to borrow, and the security for the loan, are two things, and the borrower and his surety are two persons. The Legislature has given a new and peculiar remedy to one, and only one, of those two persons ; and I see no principle upon which tha Courts can so extend the enactment as to make it include both. It is quite possible that the Legislature, in its zeal to regulate this branch of trade, and make money cheap when it is scarce, as well as when it is plenty, would have given this new remedy to the surety as well as the borrower, if the thing had been thought of. But if it is a casus omissus in the statute, it is for the Legislature, and not the Courts, to supply the defect. (Jones vs. Smart, 1 T. R. 52.) To bring a case within the statute, it must not only be within the mischief contemplated by the Legislature, but also within the fair import of the words which 280 CASES IN THE COURT OF APPEALS. Vilas dc Bacon v. Jones & Piercy. the Legislature has used. (Brandling vs. Barrington, G T R. 469 ; Dwar. Stat. 711.) I had occasion to remark, in Waller vs. Harris, (20 Wend. 561,) that the current of au- thority at the present day was in favor of reading statutes according to the natural and most obvious import of their lan- guage, without resorting to subtle or forced constructions for the purpose of either limiting or extending their operation. If we read the statute under consideration, in that way , in- deed, if we do not take a most unwarrantable license with the language which the Legislature has used, the word " borrow- er" cannot be made to include the borrower, and his surety also. It is true that a majority of the Court of Errors gave a pretty large construction to the word " plaintiff," in another section of this statute. (Henry vs. Bank of Salina, 5 Hill .523.) But there was some color for that decision ; while, in my judgment, there is no solid ground for saying, that the word "borrower" includes one who did not borrow, and who had no other connection with the transaction than that of be- coming a surety for the man who did borrow. I have thus far considered the case as though the statute was remedial only, and ought therefore to have a liberal con- struction. But if the statute is remedial, it is also penal. It not only creates a forfeiture of the debt, but it punishes the lender as a criminal. The very section under consideration was made for the purpose of bringing about a forfeiture of the money actually loaned. All the books agree that penal statutes are to be construed strictly ; and I am not aware of any principle upon which such a usury law as we have can bo made an exception to the general rule. There is, however, no occasion for applying a strict construction in this case. The conclusion from what has been said may be stated in few words. Church, who borrowed the money refused to join with the complainants in filing the bill; and he is not a party to it in any form. As the bill was not filed by the "borrow- er," the case does not come within the provision of the statute which relieves him from the necessity of paying, or offering to pay, the money actually loaned. The complainants are enti- NEW-YORK, APRIL, 1848. 281 Vilas & Bacon v . Jones & Piercy. tied to no such favor, because the statute does not give it to them ; and when they go into Chancery they are met by that cardinal principle of the Court, that he who asks equity must do equity ; and as they had not paid, nor offered to repay the the money loaned, with interest, the bill was properly dismis- sed, so far as relates to the question of usury. 2. There is a further reason why this case does not come within the statute, and a reason which would exist though Church had joined with the complainants in filing the bill. This statute, like all other laws which provide a remedy or defence, must be understood as applying only to a remedy or defence which is set up or pursued before the matter has pass- ed into judgment. It would be strange indeed if a party could wait till after judgment, and then insist on a remedy or defence which might have been available had it been put for- ward at the proper time. When, therefore, the borrower does not move until after a judgment against him at law, if he can then go into Chancery at all, he cannot do it as a matter of right under this statute, but only as a matter of equity under the general powers of the Court : and when he cannot come with the statute in his hands, the answer of the Court is, you must do equity, or offer to do it, before you can be heard. There are then two reasons why this case does not come within the statute : (1.) the bill was not filed by the borrower of the money ; and (2.) it was not filed until after a judgment had been recovered on the note. And as the statute must bo laid out of view, the bill was properly dismissed, because the complainants did not offer to return the money actually loaned, with interest. II. There is a further difficulty in the way of the complain- ants : they have appealed to Chancery after a trial and judg- ment against them at law ; and the bill shows no sufficient ground for granting relief. I am still speaking of that branch of the case which rests upon the charge of usury. When a party goes into Chancery after a trial at law, he must be able to impeach the justice and equity of the verdict ; and i.t must be upon grounds which either could not be ip.ado 36 282 CASES IN THE COURT OF APPEALS. Vilas & Bacon v. Jones & Piercy. available to him at law, or which he was prevented from setting up by fraud, accident, or the wrongful act of the other party, without any negligence or other fault on his part. The cases were cited at the bar and I need not repeat them. The defence was available at law ; and the only difficulty which the complainants met with there was, the inability to prove it. The bill states in substance, that Jones was the only witness, and the complainants expected to prove the usu- ry by him. Prior to the trial their counsel applied to Jones to learn who was the owner of the note ; and he answered, that he had sold the note to Piercy, the plaintiff on record in that suit, and he was the owner of it. On the trial, the complain- ants called Jones, and he testified, that he owned the note ; that the suit was brought for his benefit, and Piercy had no interest in it. The Judge therefore decided that Jones could not be required to testify, without his consent. To the case thus made by the bill, there are several deci- sive answers. 1. If Jones told a falsehood in relation to the ownership of the note previous to the trial, there is no allegation in the bill that the complainants were deceived or in any way misled by it, or that they omitted to do anything which would have been done had Jones spoke the truth. There is no charge or state- ment in the bill that the declaration of Jones had any influ- ence whatever upon their conduct, or that it contributed in any degree to the defeat which they suffered in making out the defence. We cannot see, from the nature of the case, that the complainants must have been injured by the falsehood ; and as they have made no such charge, we cannot presume that they were injured. It would be a new and most danger- ous precedent, to allow a party to go into Chancery for a new trial because his adversary had told a falsehood, without show- ing, or even alleging, that the falsehood had led to the defeat in the trial at law, or been in any degree instrumental in bringing about that result. 2, It may be inferred from the bill, and such also i.s the of the counsel, that Jones w;is excuse- d from swear- ALBANY, JANUARY, 1848. 28-3 Vilas & Bacon v. Jones & Piercy. ing to the usury, on the ground that he was the plaintiff in interest, and not being the plaintiff on record, he could not be compelled to answer under the 2d section of the usury act of 1887. That was an erroneous ruling of the Judge, according to the decision of the Court of Errors in Henry v. Sank of Salina, (5 Hill, 523 ;) and the remedy of the complainants was a bill of exceptions. This is probably the first case on record where a party who has been defeated by an erroneous decision at law, has resorted to a bill in equity, instead of a bill of exceptions, to correct the error. But if it is not the first, I trust it will be the last case where such an experiment will be tried. In Perrine v. /Striker, (7 Paige, 598,) the Chancellor dis- missed a bill filed by the borrower and his surety, on the ground that they had an adequate remedy at law, by examin- ing the plaintiff to prove the usury, under the second section of the act of '87. The bill was filed before there had been a trial at law, and in pursuance of the express words of the 4th section of the same statute. If it was proper to dismiss the bill in such a case on the ground that there was an adequate remedy at law, no one can doubt that it was proper to dismiss this bill for the same reason. 3. The Court of Chancery will not aid a party after he has had a trial at law, unless he impeach the justice and equity of the verdict. Now in this case, instead of taking a verdict for the amount of the note with interest, which at the time of the trial was about $245, the plaintiffs took a verdict for on- ly $197,34 : and it was stated on the argument by the defend- ant's counsel, and admitted by the counsel for the complain- ants, that this was no more than the sum actually loaned with legal interest, after deducting all payments, according to the statement of those matters made in the bill. This then is a just and equitable verdict ; and yet the complainants have gone into Chancery to get rid of it, and bring about a forfeit- ure of the whole debt. No precedent for such a bill was men- tioned at the bar, and I presume none can be found. III. Another objection to the bill is the want of proper 284 CASES IN THE COURT OF APPEALS. Vilns & Bacon v. Jones & Piercy. parties. Church and the complainants were joint makers of the note, and they were all sued together. The defence of usury is common alike to all : it is as good a defence for Church, as it is for the complainants ; and yet Church has not been made a party to the bill. The whole controversy cannot be settled in this suit ; for another bill may be filed by Church, and the defendants be thus subjected to a double litigation. True, the complainants say, that Church suffered judgment to pass against him by default ; and that he refused to put in a plea, or to join with the complainants in filing this bill. But Church has a right to speak for himself ; and until he has been heard, cither as complainant or defendant, he cannot be concluded by this litigation. In Miller vs. McCan (7 Paige 457,) where the surety was allowed to maintain a bill against the creditor, without making the principal debtor a party, the equity on which the bill was founded was pecu- liar to the surety, and such as could not under any circum- stances be made available to the principal debtor. It is not so here ; and the non-joinder of Church is a fatal objection. Briggs vs. Butler (9 Paige 226,) reversing the decree of the V. C. of the 8th Circuit, (Clarke V. C. Rep. 517,) is a case in point. I have now done with that branch of the case in which the complainants ask relief on the ground that the note was void for usury. Second. The complainants set up as another ground of defence to the note, that they were sureties for Church ; and that after the debt became due, Jones, without their knowl- edge or consent, gave further day of payment to the principal debtor. 1. The first answer to this branch of the case is, that the- complainants have tried or had the opportunity of trying, that matter at law, where it is as good a defence as it is in equity ; and no sufficient reason is shewn for a subsequent appeal to the Court of Chancery. A portion of what has been said on the same subject in relation to the other branch of the case, is equally applicable here, and need not, therefore, be repeated. NEW-YORK, APRIL, 1848 285 Vilas & Bacon v. Jones & Piercy. But there is something to be added. It appears from the bill, that the complainants were apprised of the facts before they pleaded at law, and gave notice of this defence with the general issue ; and further, that they went to trial with the knowledge that no one could prove the defence but Jones or Church. As Church was a party to the record, the complain- ants knew that he could not be sworn. They say in the bill, that they "expected" to establish the fact of giving time by the testimony of Jones. That is a falsehood in point of law, if it be not also a falsehood in point of fact. Jones could be called in only one of two characters either under the usury act, as plaintiff in interest, (Henry v. Sank of Salina, 5 Hill, 523,) or simply as a witness. He could only be called as the plaintiff in interest, " for the purpose of proving the usury ;" (Stat. '37, p. 487, 2,) and not for any other purpose what- ever. (Bank of Salina v. Henry, 2 Denio 155, affirmed 1 Comst. See ante 83.) He could not be called as plaintiff, for the pur- pose of making out the defence of which we are now speaking. Let us now suppose him called as a witness merely, having no interest in the event of the suit. According to the state- ments in the bill, the facts to be proved by him to make out this branch of the case were, that he had on several occasions charged and received usury for forbearing and giving further day of payment on the note. He must then have been called to prove facts which would show him guilty of a misdemeanor punishable with fine and imprisonment ; (Stat. 1837, p. 487, 6 5 ) and of course he was not obliged to answer. So far as relates to this branch of the case, the objection which he made to giving evidence, was properly allowed by the Court. Now if we assume in favor of the complainants, what is not alleged in the bill, that they were misled by the falsehood imputed to Jones, and acted upon the assumption that he had no inter- est in the suit, and might therefore be called like any other witness, the complainants must still fail in this branch of their case ; for they either knew, or were bound to know, that Jones could not be compelled to testify to the facts which they pro- posed to prove by him. This disposes of every shadow of ex- 286 CASES IN THE COURT OF APPEALS. Vilas Ac Bacon v. Jones & Piercy. cuse set up in the bill for resorting to Chancery for a new trial, after having had a trial at law. 2. There is another answer to this branch of the case which I deem entirely conclusive. Merely giving further time of pay- ment to the principal debtor, -without the consent of the surety, is no defence for the latter ; time must be given in pursuance of a valid contract for that purpose, which ties the hands of the creditor, so that he cannot sue if he would. If the agree- ment be not under seal, it must, like other contracts by parol, appear to be founded upon a sufficient legal consideration. In this case the original note was never given up ; Jones kept it in his hands, and might have brought a suit upon it at any time after it fell due, unless he was restrained by some bind- ing agreement. Now each and every extension of time men- tioned in the bill was made upon an usurious contract, such as is expressly declared to be void by statute. In every instance Church agreed to pay more than the legal rate of interest for the forbearance ; and in most of the cases, the payment was actually made. It has not been suggested that a promise to pay usury in future, an engagement that is utterly void, can be regarded as any consideration whatever for a promise by the creditor to extend the time of payment. And undoubt- edly he may sue the next moment. And I am wholly unable to see how usury, paid down, can make the case any better. The contract for usury is equally void whether the money is actually paid or only promised to be paid at a future day. The statute has made no distinction ; but on the contrary, has declared void all contracts infected with usury. Though the debtor parts with the money, it still belongs to him ; and he may sue the next moment and recover it back. (1 R. S. 772, 3.) This shows that there is no force in the suggestion, that although the creditor cannot legally receive, the debtor is not forbidden by law to give money at a usurious rate for the for- bearance. Although the statute docs not in terms say that the debtor shall not give what he pleases for the forbearance, it does so in legal effect ; he is put into the same category with infants, femes covert, arid persons non compos mentis, NEW-YORK, APRIL, 1848. 287 Vilas & Bacon v . Jones & Piercy. and declared legally incompetent to make a bargain about money where more than seven per cent, is demanded. If he agrees to give more, the agreement is void ; and though the agreement be executed by paying the money, it is still void, and the money may be re-called at pleasure. I think it im- possible to maintain that either the promise or the payment of usury is a good consideration for a promise by the creditor to give time. It is no consideration at all. The creditor gets no benefit, and the debtor suffers no damage. This question was not decided in Miller vs. Me Can, (7 Paige 451,) for there is nothing to show that it was so much as thought of, either by Court or counsel. I believe the word usury is not even mentioned in the case. After proceeding thus far, tAvo cases in the Kentucky Court of Appeals, touching this question, have fallen under my ob- servation. (Tudor vs. Croodhue, 1 B. Monroe L. and Eq. Rep. 322 ; Kenningham vs. Bedford, id. 325.) In the first of those cases it was held, that an agreement by the creditor to extend the time for payment, on a promise by the principal debtor to pay an usurious rate of interest for the forbearance, did not discharge the surety, for the reason that as the promise of the debtor to pay usury was void, there was no considera- tion for the promise of the creditor to forbear, and conse- quently no binding contract for time. To that doctrine I fully subscribe. But in the last case, the usury was paid at the time the creditor promised to forbear ; and the Court held that the surety was discharged ; that although the contract was void as to the debtor, it was valid as to the creditor ; and if he should sue before the expiration of the stipulated for- bearance, the other party might have an action for damages. It was likened to a contract between an adult and an infant, where the adult is bound, though the infant is not. Although this decision comes from a learned and highly respectable Court, it has failed to convince my understanding. I am still unable to see how payment of the usury can make the agree- ment any more binding than it would be on a promise to pay in future. If the Kentucky statute is like ours, it makes all 288 CASES IN THE COURT OF APPEALS. Vilas ifc Bacon r. Jones & Picrey. contracts for usury void, without any distinction between such as are executed in part, and such as are wholly executory ; and it makes the contract void, not one side of it only, but the whole contract, so that neither party is bound by it. If the debtor pays usury for further time, it either operates as a pay- ment of so much money towards the original debt, or else the money may be recovered back at pleasure. And in either case, there is no sufficient consideration for a promise of any kind by the creditor. Payment, either in whole or in part, of a debt already due, cannot be a good consideration for a promise by the creditor ; for he gets nothing but his own. And if the money paid still belongs to the debtor, and may be recalled at pleasure, the creditor gets nothing at all ; and then it seems quite clear that there is no consideration to up- hold his promise. The case put by the Court of a contract between an adult and an infant, is not entirely parallel ; for there, if the contract fails, it is because one party was not le- gally competent to make it, and not on account of any vice in the contract itself. But where there is usury, the contract is vicious : it is a thing forbidden by law. Again, very few contracts made by an infant are void ; for the most, they are only voidable ; and some of them cannot be avoided. But contracts infected with usury are absolutely void ; and they are all void, without exception, If the usury laws are carried out into all their legitimate consequences when they operate against the creditor, as I think they should be, there is no good reason why they should not be carried to the same extent when they happen to operate in his favor. And as the statute does not declare the contract half good and half bad, but void, I think it altogether void. Neither party is bound, for there is no contract. I am of opinion that the decree of the Court of Chancery should be affirmed. GARDINER, J., said he concurred in the result of the opin- ion delivered by BROXSON, J., and also in the opinion upon all the points except that which holds that a surety is not a bor- rower within the provisions of the act of 1837. NEW YORK, APIRL, 1848. 289 Vilas & Bacon v. Jones & Piercy. JEAVETT, C. J., delivered an opinion in favor of affirming the decree. So far as the bill sought relief on the ground of usury, he was of opinion that after a trial at law it was too late, under the circumstances, for the complainants to resort to a Court of Equity to impeach the judgment. The bill did not pretend that they were in any wise misled by .the false statement of the payee of the note, that he had transferred it to Piercy the plaintiff, on the record in the action at law ; and if they had verified their notice of the defence of usury according to the provisions of the act of 1837, they might have called the payee, as the plaintiff in interest, and exam- ined him as a witness. The bill states that they expected to prove the usury by him on the trial, and it may therefore be presumed that the facts thus alleged, if true, might have been shewn, but for their own fault in omitting to take the neces- sary steps to entitle themselves to the proof. As to the second ground of relief, he was of opinion that the alleged agree- ments to forbear the payment of the note, in consideration of usurious premiums paid for such forbearance, were wholly void and therefore could not be set up by the sureties as a ground of discharge. It is conceded, he said, that an agree- ment to extend the time of payment, in consideration of an executory agreement to pay a usurious premium, is void, and does not suspend the remedy of the creditor against the prin- cipal debtor. But the distinction between that cas3 and the case where the agreement is executed on the part of the debtor by the actual payment of the usurious premium, rests upon no solid foundation. In either case the statute declares the con- tract void, and the debtor can recover back the money so paid by action. Upon these grounds he was in favor of affirming the decree of the Chancellor. The other members of the Court concurred in the conclu- sion that the decree should be affirmed. 37 Decree affirmed. 290 CASES IN THK COU11T OF APPEALS. Conover v. Insurance Company. S 5 el? 43 100 100 138 143 290 HA 604 "408 400 '272 4 422 4 423i '479, '436, CONOVER vs. THE MUTUAL INSURANCE COMPANY OP ALBANY. A bill of exceptions v/ill not lie to review the exercise of the discretion of a Circuit Judge on the trial of a cause, in disregarding a yariance between the declaration and the proof. Where a policy of insurance prohibited an assignment of the interest of the as- sured, "unless by the consent of the company manifested in writing," and the Secretary, on an application to him at the office of the company, endorsed upon the policy and subscribed a consent, it seems that his authority to do so, in the absence of evidence to the contrary, should be presumed. But if it were necessary to prove his authority, a formal resolution of the Board of Directors need not be shewn. Evidence that the Secretary, he being the sole agent of the company in transacting business at their office, has been in the uniform habit of giving such consent in writing, and made regular entries of his acts in the books of the company, without any objection or repudiation on the part of the company, is enough at least to carry the question of authority to the jury. A mortgage given by the insured upon the property covered by the policy, is not an alienation by sale or otherwise, within the meaning of the seventh section of the charter. (J^aws of 153G, p, 315 and 4,4.) And notwithstanding such mortgage, and an assignment of the policy to the mortgagee, with the consent of the company, a suit upon the policy to recover for a loss must be brought in the name of the insured. On error from the Supreme Court, where an action was brought by Conover against the Mutual Insurance Company of the city and county of Albany, upon a policy of insurance. On the trial, Conover had a verdict for the amount of the loss in question, on which the Supreme Court rendered judgment in his favor. For the facts, so far as material, see the report of the case in the Supreme Court, (3 Denio 254,) and the opinion of JOHNSON, J. R. W. Peckham, for plaintiffs in error. M. T. Reynolds, for defendant in error. JOHNSON, J. Whether there was a variance between the declaration and proof is not material to enquire, as it was at most only .such an OIK; as the Circuit Judge might properly NEW-YORK, APRIL, 1848. 291 Conover v. Insurance Company. disregard on the trial, and upon which no bill of exceptions will lie. (HerTc. Ins. Co. vs. Mann, 4 Hill 187 ; Mappa vs. Pearce, 15 Wend. 669.) The more material inquiry in this case is whether the con- sent to the assignment by the Secretary, Joice, to enable the plaintiff to procure a loan by a mortgage upon the insured property, was binding upon the company. For if that is not so, there is an end to this suit. The facts are briefly that the agent or attorney of Gridley, the party in interest, called at the company's office upon Joice, the Secretary, the person regularly in attendance there to transact their business, and stated to him that Gridley proposed to loan to the plaintiff, Conover, $500, and take a mortgage upon the insured pro- perty, provided he could obtain the consent of the company to the assignment of the policy as security. That to enable the parties to carry out their arrangement, the Secretary en- dorsed the consent upon the policy. Whereupon the $500 were advanced, and the mortgage and assignment executed. Joice testifies that he was in the habit frequently of giving consent to the assignment of policies for the same purpose, and always supposed he was authorized to do so by the by- laws or some resolution of the directors ; though on looking into the by-laws and minutes, as it would seem for the first time on the trial, for some evidence of such authority, he was unable to find it, and thence concluded none such had been given. It further appeared on the trial that the policy of the President of the company had also been assigned to secure the payment of a mortgage upon his property given after the insurance, and that the consent was endorsed upon it in the same manner as the one in question. Also upon producing the book of policies where memorandums are entered of such as have been assigned, the consent in every instance was found to have been endorsed by the Secretary, Joice. Most of this evidence was objected to as improper. But I think it was properly admitted, for the purpose of showing not only who was entrusted with the company's business, but the manner 292 CASES IN THE COURT OF APPEALS. Conover v. Insurance Company. in which transactions of this character had been uniformly conducted. Some evidence was introduced on the part of the defendant helow to show that these acts of their Secretary were never brought to the knowledge of the Board of Directors, or re- ceived their formal ratification. And it is insisted that inas- much as the Board never, by any formal act, gave their sanc- tion, and the by-laws required the consent in writing of the Directors to any conditional alienation by mortgage subse- quent to the insurance, the consent in this case was unau- thorized and void. I cannot subscribe to this doctrine. The Directors were bound to know the uniform course pursued by their sole agent in the transaction of their business at their office, especially where regular entries of his acts were made in their books, and they must be held responsible on the ground of a tacit assent and approval unless they can show that by a strict vigilance and scrutiny into his acts they were unable to ascertain the course he was pursuing, and could not therefore arrest it or put the public upon their guard. It is enough, it seems to me, that here the party in interest went to the sole place where the business of the company was transacted, and procured what was intended on all hands to be, and I think in effect was, an assent to the execution of the mortgage, as well as the assignment of the policy from one of the principal officers having the sole charge of the business, and that too in the same form as it had been frequently done there. (Bank of Vcrgcnnes vs Warren, 7 Hill 91.) Incorporated companies whose business is necessarily con- ducted altogether by agents, should be required at their peril, to see to it that the officers and agents whom they employ, not only know what their powers and duties are, but that they do not habitually and as a part of their system of business trans- cend those powers. How else arc third persons to deal with them with any degree of safety ? They can have no access to the by-laws and resolutions of the board, and no means of judging in the particular instance whether the officer is or is not within the prescribed limits. NEW- YORK, APRIL, 1348. 293 Conover v. Insurance Company. All that Gridley can be supposed to have known in the case before us would be derived from the face of the policy. There he would only learn that the interest of the insured therein, was not assignable without the consent of the company mani- fested in writing in pursuance of the by-laws and endorsed upon the policy. He accordingly repairs to the office where he had a right to suppose he could have the consent manifest- ed and endorsed in the proper form. It is done according to the system and in the form adopted and uniformly pursued there by an officer having charge of the business and who sup- posed this peculiarly within his province. In the faith that- all is right, he advances his money and receives his mortgage and assignment. No objection is made to this or numerous similar transactions, and even after the fire, payment is re- fused upon an entirely different ground. Clearly, as it seems to me, the company are not now at liberty to dispute or deny the authority of their Secretary to endorse the consent in question. The objection that the execution of the mortgage avoided the policy, was not distinctly made on the trial. But had it been made there as distinctly as it is here it could have been of no avail, as it sufficiently appears that the only ob- ject the company could have in giving the consent was to en- able Conover to borrow money by a mortgage upon the in- sured property. Nor are we called upon to decide whether the absolute alien- ation by Conover after the assignment of the policy is a good defence, as the point was not raised on the trial. But if we v/ere, I do not see how the interest of Gridley, the assignee, could be affected by it. (Traders Ins. Co. vs. Roberts, 9 Wend. 404.) The judgment, I think, should be affirmed. GRAY, J. One ground of the motion for a nonsuit made on the trial was, that there Was no proof that the Secretary of the Company had authority to consent to the assignment of the policy of insurance. On this point I cannot entertain a doubt that the evidence was pertinent and sufficient to carry the cause to the jury ; and the jury having found in favor of 294 CASES IN THE COURT OF APPEALS. Conover v. Insurance Company. the existence of the authority, their verdict is conclusive as to this branch of the case. It was insisted, on the part of the plaintiffs in error, that the mortgage given by the defendant in error to Gridley, was an alienation of the property insured within the meaning of the seventh section of the act according to which this Com- pany was incorporated, (Stat. 1836, p. 44, 7,) and there- fore that it avoided the policy. The language is, " whenever any property insured with this corporation shall be alienated by sale or otherwise, the policy shall thereupon be void," &c. The Legislature without doubt used the word in the ordinary sense which belongs to it, and it seems to me quite clear that it does not embrace a mortgage which creates but a lien or se- curity, and does not transfer the title. Nor did the policy become void by reason of the 13th by- law of the Company, requiring, when a mortgage is given by the insured, that he shall make a written representation there- of to the Company. It may fairly be presumed from the evidence in the case, and the jury have so found, that this re- quirement was complied with, or that it was dispensed with by the authority of the Company. If the giving of the mortgage by the insured had been an alienation of the property within the seventh section of the, act, the action would have to be brought in the name of the as- signee of the policy ; but as the case was not within that sec- tion, the suit was properly brought in the name of Conover. (Jesxel vs. Williamsburgh Ins. Co. 3 Hill 88 ; Mann vs. Her- kimcr Jus. Co. 4 Hill 187.) I see no error in the judgment, and am of opinion that the same should be affirmed. Judgment affirmed. NEW-YORK, APRIL, 1848. 295 Mattison v. Baucus. MATTISON vs. BAUCUS. . HA 639 ell '505 jll '510 Where, in a mortgage of personal property, it was provided that the mortgagor should permit the mortgagee to " have, possess, occupy, and enjoy," the mort gaged property, whenever he should demand the same, and after the mortgagor had absconded, the mortgagee took possession of the property by virtue of the -, a 27 mortgage ; held, that the interest of the mortgagor was not the subject of levy ^5 J 119 upon execution, although the debt secured by the mortgage had not, at the time 22 2 39 of the levy, become due. e28 1 577 It seems that the interest of a mortgagor of personal property, even before for ?_ , jg-. 9 feiture, where he has not the right of possession for a definite period, is but a g2 1 223 right of redemption merely, which is not the subject of levy and sale upon jH4 2 557 execution. On error from the Supreme Court. Mattison sued Baucus in trover in a Justice's Court, in the county of Rensselaer, and recovered judgment. The defendant appealed to the Common Pleas of that county, where the cause was tried in 1844, and the plaintiff again recovered judgment for the value of the property in question. A bill of exceptions was taken by the defendant on that trial, and a writ of error brought by him into the Supreme Court, where the judgment of the Com- mon Pleas was reversed, and a venire de novo awarded. A judgment record of such reversal being m'ade up, Mattison now brings error to this Court. The facts, so far as material to the decision of the Court, are stated in the opinion of GARDINER, J. T. 0. Ripley^ for plaintiff in error. J. Pierson, for defendant in error. GARDINER, J., delivered the opinion of the Court. Upon the trial in the Common Pleas, the plaintiff gave evidence tending to prove a judgment in favor of one Basset against John Foster, for 20,66, and execution issued upon trie same and delivered to Mattison, the plaintiff, who was a constable, by virtue of which he levied upon the property in question in 296 CASES IN THE COURT OF APPEALS. Mattison r. Haucus. July, 1839, then being in possession of one Lyon. It furthei appeared that Foster, the judgment debtor, had previously and on the llth day of June, 1839, executed a chattel mort- gage of said property, in due form of law, to Lyon, to secure a debt owing by the former to the latter, of 48,16, with in- terest, to be paid in six months from the date of said mort- gage. The mortgage contained a provision, " that the said Foster should permit Lyon, his executors, &c., to have, pos- sess, occupy and enjoy, the said articles of property, whenever he or they should demand the same." It also appeared that Foster had absconded, and that Lyon had taken possession of the property, under the mortgage, prior to the levy by Mat- tison, and that the property had been converted subsequent to the said levy by the defendant, Baucus, who took it from the possession of Lyon, the mortgagee, where it had remained from the time of the levy to the time of the conversion by the defendant. It was also proved, that after the conversion aforesaid, and subsequent to the bringing of the appeal, Bas- sett, the judgment creditor, took an assignment of the mort gage from Lyon, which he held at the time of the trial in the Common Pleas. The defendant moved for a nonsuit upon various grounds, among others, " that the plaintiff never acquired any posses- sion by his pretended levy so as to enable him to maintain trespass or trover. That the actual and legal possession of the property was in Lyon, under the mortgage from Foster." The Common Pleas refused to nonsuit, and the defendant ex- cepted. The Court directed the jury to find a verdict for the plaintiff for $50,47, being the whole value of the property, to which direction the defendant also excepted. Both of the exceptions are well taken. Cases in the Su- preme Court and the Court of Errors, recognize the principle, that the interest of a mortgagor having a right to redeem, and the right to the possession of the mortgaged property for a definite period, m.-ty be sold upon execution. (Marsh vs. Lntwncc, 4 Cotr. 4U7 : (ni* vs. Wood, 3 Wend. ;iOO : Bnili vs. /liirton, 8 Wc,i'22 ; ] 7 Wend. ;">..; NEW-YORK, APRIL, 1848. 297 Mattison v. Baucus. The debt secured by the mortgage to Lyon, was not paya- ble, according to the provisions of that instrument, until the month of December, 1839. Foster, the mortgagor, had there- fore a right of redemption. But by the express terms of the mortgage, the mortgagee " was at all times, upon demand, entitled to possess, occupy, and enjoy," the property mort- gaged, and the case shows that he had taken and held posses- sion at the time of the levy. The interest of Foster, the mortgagor ,and judgment debtor, was a right of redemption only, a mere chose in action, not the subject of levy and sale upon execution, according to the authorities cited, unless united with a right to the possession for a definite period. (3 Wend. 500.) The levy therefore by the plaintiff, was wholly inoperative. It gave no lien upon the property, and consequently no right to maintain this action. ' The nonsuit should therefore have been granted, and the judgment of the Supreme Court reversing that of the Com- mon Pleas was right. fc It is unnecessary to consider the other questions made at the trial, as the point decided will dispose of the cause finally. Judgment affirmed. JONES. JOHNSON and WRIGHT, Js., dissented. 38 298 CASES IN THE co: i:i' c>: \iTK\r.s. Dodge f. Man u ing. 298 s 2 e 7 71 73 79 =507 '167 '103 '119 J 143 HA 794 CORNELIA DODGE, Appellant, vs. RALPH MANNING, HARMA- NUS BECKER, and ALEXANDER BOYD, Respondents. A testator by his will, made in 1804, gave all his real and personal estate to hia wife during her life, and after her death to his grandson. To his grand- daughter he gave a legacy, to be paid by his grandson, " out of the estate, in one year after he should become of age. The grandson became of age in 1820, but -the widow's life estate did not terminate until 1832; field, that the legacy was not payable until the latter perio'd,and therefore thata bill filed soon afterwards, to recover the legacy, was not liable to a presumption of payment from lapse of time. The grandson, in 1826, mortgaged the real estate which he took under the will, and portions of it were purchased by the respondents, with notice of the .ega- cy, at a sale upon the foreclosure of the mortgage. Upon bill filed by the legatee against the respondents and the grandson, further held, that the grandson, by accepting the estate, became personally liable for the legacy, that the legacy was an equitable charge upon the real estate, but that the respondents should not be charged in respect to the real estate in their hands, except in case of a deficiency alter the remedy should be exhausted against the grandson. Appeal from Chancery. The appellant filed her bill before the Vice Chancellor of the Fourth Circuit, against the re- spondents and John B. Borst, in which the case was stated in substance as follows : John I. Becker, of Middleburgh, Scho- harie county, died in or about the year 1804, having first made his last will and testament, by which, after devising twenty acres of land to his daughter Caty, the wife of Michael Borst, he gave all the residue of his estate, real and personal, to his wife Cornelia during her life, and after her death to the defendant, John B. Borst, who was his grand-son, if he should arrive at the age of twenty-one years. To his grand-daughter Cornelia, the appellant, he gave a legacy of two hundred and fifty dollar.?, to be paid out of his estate by his said grand- son, John B. Borst, in one year after he should arrive at the age of twenty-one. If John B. Borst should not arrive at the age of twenty-one, then the estate was, by the will, given over to Peter Borst, who was in that case directed to pay the legacy out of the estate. Other legacies were also given by the will to the testator's other grand-children, with the same NEW-YORK. APRIL, 1848. 299 Dodge v. Manning. direction as to their payment. The testator's wife Cornelia, and two other persons, were appointed executors. John B. Borst became of age in 1820, and Cornelia, the testator's widow, died in 1832. In the year 1826, John B. Borst exe- cuted a mortgage upon the real estate so devised to him, to George Maxwell, to secure the payment of $6,000. In July, 1834, this mortgage having been foreclosed in Chancery, the premises covered by it were sold by a master, under the de- cree, in separate parcels, and the respondents and J. B. Borst became the purchasers separately, subject to the payment of the legacy to the appellant, and entered into possession of the premises respectively purchased by them. The prayer of the bill was, that the defendants, or such of them as ought to do so, might be decreed to pay the legacy and interest, and if necessary, that the premises in their possession might be sold, &c., and for general relief. The defendant, .John B. Borst, answered separately admit- ting the facts charged in the bill. The respondents answered, admitting that the legacy was mentioned as a charge upon the land at the time they pur- chased, but denying that they purchased in any manner sub- ject to the legacy, averring also that the mortgage under which they purchased was not subject to the legacy, and that the sale under the decree was absolute. They also alleged that the legacy had been paid, and if not, they insisted that John B. Borst, by accepting the devise, became personally lia- ble therefor, and that it was an equitable lien upon so much of the premises as was owned by him. The answer also set up, that the testator left personal estate to an amount sufficient to pay the legacies. A replication was filed to the respond- ents' answer, and proof was taken, which is not necessary to be stated further than that it related to the allegation of pay- ment, and to what was said about the legacy at the time the defendants purchased at the master's sale, and that it tended to show that the personal property left by the testator was sufficient to pay all the legacies. The Vice Chancellor, on the pleadings and proofs, made a 300 CASES IN THE COURT OF APPEALS. Dodge i-. Manning. decree declaring that the legacy was a charge on the real estate purchased by the defendants respectively, that the com- plainant was entitled to recover the same, and directing a reference to compute the amount and apportion the same among the defendants according to their respective bids, &c. The respondents appealed to the Chancellor, who reversed the decree of the Vice Chancellor, and directed the bill to be dis- missed as to them, with costs, upon the ground principally, that from the evidence in connection with the lapse of time, it appeared satisfactorily to him that the legacy had been paid, lie however made a decree against the defendant, John B. Borst, for the payment of the legacy and costs of suit, and charged the portion of the premises owned by him with such payment. The complainant appealed to this Court. N. Hill, Jr., for appellant. M. T. Reynolds, for respondents. GRAY, J. One of the reasons, if not the principal one, assigned by the Chancellor for a decree dismissing the bill as to the respondents, is, that the legacy to recover which the bill was filed, had been paid ; and this conclusion is supposed to be justified by the lapse of time and the evidence of one of the witnesses. If I do not misapprehend the effect of the will, no presumption of payment can be derived from the lapse of time. It is true that according to one clause in the will the legacy became payable in one year after John B. Borst attained his majority, which was in 1820 ; but it Avas directed to be paid by Borst "out of the estate' given to him, and on looking at the whole will it is entirely clear that he was not to have the estate until the death of his grand-mother, the testator's widow, which did not occur until 1832. It seems to me, therefore, that the legacy did not become due until the period last named, and it is not pretended that the time which elapsed between that period and the filing of the bill, would warrant in the slightest degree a presumption of payment. NEW-YORK, APRIL, 1848. 3Q1 DoJge v. Manning. As to the evidence tal^en on this point, we are all of opinion, that there was nothing in it to justify the conclusion at which the Chancellor arrived. The decision of the Vice Chancellor charged all the defend- ants with the payment of the legacy and costs, without any discrimination founded upon the equitable right of the respond- ents to insist, that the defendant, John B. Borst, and the real and personal estate of the testator in his hands, should be first charged, and that a resort should not be had to the estate purchased by them, until the remedy against Borst should first be exhausted. In this respect I am of opinion that the Vice Chancellor erred. It is true, that by the provisions of the will, the legacy in question became an equitable charge upon all the real estate devised to Borst, of which that pur- chased by the respondents respectively, at the master's sale, is a part. But the devisee, by accepting the real and person- al estate devised and bequeathed to him, became personally liable for the payment of the legacies which the will directed him to pay. He is therefore primarily liable, and the remedy should first be exhausted against him and the real and person- al estate of the testator remaining in his hands, before the respondents should be charged in respect to the real estate purchased by them. If they had purchased expressly subject to the payment of the legacy, that of itself might have made the estate in their hands directly and primarily chargeable. But I concur with the Chancellor that there is nothing in the evidence to justify the inference that they purchased in that manner. The admission in their answer, as well as the evi- dence, merely shews that they had notice of the existence of the legacy. If the decree of the Chancellor, therefore, had modified that of the Vice Chancellor in accordance with these views, it would, in my judgment, have been a correct disposi- tion of the case. But as the Chancellor's decree directs the bill to be dismissed, as to the respondents, with costs, it should be reversed, and a decree should be entered charging the lands purchased by them with the payment of the legacy and costs of suit, so far as there may be a deficiency after the appellant 302 CASES IN THE COURT OF APPEALS. Dodge v. Manning. shall have exhausted her remedy against the defendant, John B. Borst. JEWETT, CH. J. By the terms of the will, the legacy given to the complainant was to be paid out of the estate of the testator, by John B. Borst, sole devisee and legatee of all the property of the testator, (except twenty acres of land devised to another) real and personal, subject to the life estate therein devised and bequeathed to the testator's widow. The legacy thus given became an equitable lien upon the reversionary in- terest, as well in the real as personal property, so devised and bequeathed to Borst ; and a personal charge upon him in case of his acceptance of the testator's bounty, in respect to the estate devised and bequeathed to him. (Harris vs. Fly, 7 Paige 421 ; Glen vs. Fisher, 6 Johns. Chy. 85.) J. B. Borst accepted the devise. That is shown by the mortgage upon the real estate devised, executed by him to Maxwell, in 1826, containing a power of sale. He thereby became personally bound to pay the legacy given to the com- plainant according to the terms of the will, which a Court of Equity will compel him to discharge. As between him and the complainant, it is not material for her to show, that he had procured an account and payment from the executors of the testator, of the proceeds of the personal estate prior to the filing of her bill. She may sustain her claim against him personally, and enforce her lien against any of the property devised or bequeathed to him remaining in his hands, without calling upon the executors of the testator for an account and payment ; although it would have been competent for her to have made the executors parties with him, and thereby reached the personal fund in his hands, that being the primary fund for the payment of her legacy. But as between the complainant and the defendants, Man- ning, Becker and Boyd, they have an equitable right as against her, to insist that she shall first exhaust her remedy, not only as against Borst personally, but as against that portion of the property, real and personal, remaining in his hands, or to NEW YORK, APRIL, 1848. 3Q3 Dodge v. Manning. which he is entitled, before she can enforce her lien as against that portion of the property purchased by them on the sale under the mortgage foreclosure. Although the complainant's legacy in equity is a prior lien upon all of the estate given to Borst by the will, for its satis- faction, yet that portion of it remaining in the hands of Borst and the proceeds of the personal estate to which he is entitled, is primarily liable for its payment in exoneration of those portions which have been purchased by Manning, Beck- er and Boyd. If the bill showed that the personal estate had been exhausted in the course of administration, or that the persons who are accountable for it are not responsible, or that it had been accounted for and paid or delivered to Borst, or if the executors in whose hands the same remained, were parties to this suit ; in either case the complainant might have been entitled, in case her legacy remained unpaid, to a decree for payment and satisfaction out of that portion of the real estate so purchased by Manning, Becker and Boyd, for so much as should remain unpaid after applying what should be received under a decree against Borst personally, and for sale of that portion of the property remaining in his hands, and after the application of the avails of the personal estate undisposed of by him. But the complainant has failed to present by her bill such a case as will entitle her to a decree to enforce her lien as against the devised premises in the hands of Manning, Becker and Boyd, in the event that she does not obtain satis- faction under a decree against Borst, and for the sale of that portion of the premises still remaining in his hands, on the ground that it does not appear but that the personal estate still remains in the hands of the executors which might be reached and applied upon or in satisfaction of her demand. The Chancellor dismissed the bill as against Manning, Becker, and Boyd, on the ground that there was sufficient evi- dence to show that the complainant's legacy had been paid to Dodge, her husband, in his life time. I have considered the evidence relied on to show that fact, and am constrained to say that I ain unable to come to that conclusion. There are, 304 CASES IN THE COURT OF APPEALS. Dodge v. Manning. it is true, some circumstances which render it quite probable that payment was made as is alleged, but I do not see in the case any thing beyond that, that should be deemed proof of the fact. The testimony of Hezekiah Manning, the only witness to that point, falls far short of it. In my judg- ment it amounts to but little else than an inference of the wit- ness founded upon conjecture. But from the view which I have taken of the case, I am of opinion that the decree was right, and should be affirmed. BRONSON, J., also delivered an opinion in favor of affirming the decree, substantially upon the grounds stated in the opinion of JEWETT, Cn. J. The other Judges concurred in the result of the opinion delivered by GRAY, J., and therefore it was Ordered accordingly. CASES ARGUED AND DETERMINED COURT OF APPEALS STATE OF NEW-YORK, 305 IN JUNE AND SEPTEMBER TERMS, 1848. 5 '467 9 7 197 16 3 447 19 7 471 19 7 474 52 1 240 64 3 520 nr A L71 154 WHITNEY vs. ALLAIRE. d7l 4 553 71 556 Where one conveys or leases to another his right in real estate, an action will lie oc I 2tt for a fraudulent representation as to the territorial extent of such right. 95 4 240 And in such a case the proper measure of damages in favor of the lessee, is the sum 96 2 406 which in good faith he is obliged to pay to a third person to obtain what the lease e "j; ^" ' would have given him if the representation had been true. .. .. 2 orvi A demise for a term commencing in futuro, passes a present interest in the term to 130 4 175 the lessee. 130 5 178 And the lessee by taking possession at the commencement of the term, and after having discovered the fraud, waives thereby only his right to rescind the contract, but not his right to recover the damages occasioned by the fraud. The defendant, in February, executed to the plaintiff a writing under seal, stating that he had hired of the plaintiff a certain water lot and his right to a wharf in the city of New- York, for one year from the first of May next, at $1000 rent. He was induced to make the contract through the fraudulent representations of the plaintiff, that the right mentioned in the lease comprehended a parcel of land which in fact belonged to the corporation of the city of New- York. The defendant dis- covered the fraud before the first of May, and obtained from the corporation a lease for that parcel at an annual rent of $1000. On the first of May he took posses- sion of the whole and occupied during the year. In covenant for the rent; held, that he was entitled to a deduction by reason of the fraud, of the sum which he Was obliged in good faith to pay for the corporation lease. VOL. I. 39 306 CASES IN THE COURT OF APPEALS. Whitney . ALaire. R teems, that an action will Ho for a fraudulent representation by which a party i induced to enter into a contract which is executory merely. Per GARDINER, J. It seems also, that where one conveys or .cases real estate, an action will lie for a fraudulent representation as to the title. WHITNEY sued Allaire in covenant for rent, in the superior court of the city of New- York. On the first trial, the charge of the court upon the question raised was favorable to tbe plain- tiff, and a verdict was had and judgment rendered for the amount of rent claimed. That judgment was reversed by the supreme court, on error brought, and a new trial ordered. (See 1 Hill, 484.) On another trial, the verdict and judgment of the superior court were in favor of the defendant. The plaintiff, having made a bill of exceptions, brought error into the supreme court, where the judgment was affirmed. The plaintiff brings error into this court. The case, as it appeared on the last trial, was this : The plaintiff claimed to recover upon an instrument duly signed and sealed by the defendant, in these words : " I have this day hired of Stephen Whitney the water lot, and his right to the wharf on the east side of Market-slip, for one year from the 1st of May next, at the yearly rent of $1000 and taxes on said water lot, whatever it may be, the rent to be paid quarterly. 9th February, 1837." After the plaintiff had rested, the defendant called Richard C. White, who had been sworn for the plaintiff, and offered to prove the representations made by the plaintiff to the witness, (who was the general agent of the defendant) respecting the ex- tent of his right in the wharf on the cast side of Market-slip, previous to the signing of the above memorandum. The evi- dence was objected to by the plaintiff's counsel, the objection overruled, and an exception taken to the decision. The defendant then gave evidence tending to show that he was induced to sign the memorandum through a fraudulent representation of Whitney, that the right which was mentioned in the lease comprehended a certain other parcel of land which turned out to belong to the corporation of the city of New- York ; that Allaire discovered the fraud before the term commenced . ROCHESTER, JUNE, 1848. 397 Whitney v. Allaire. and that in order to secure the parcel of land owned by the cor- poration, and which was necessary for the business of the de- fendant, the latter was under the necessity of taking a lease thereof from the corporation, at an annual rent of $1000. White, the witness above mentioned, after testifying to the conversation which occurred between him and the plaintiff prior to the signing of the memorandum by the defendant, stated that the plaintiff told him that the wharf on the east side of Market-slip was his, and from this, witness supposed it was his, and so informed the defendant. This testimony was received without objection. The plaintiff's counsel then examined the witness, and the defendant on further examina- tion proposed to ask the witness the following question : " What did you understand, at the time of the said conversation, from the statement of the plaintiff, that you did hire from him ?" The counsel for the plaintiff objected to the question, the objection was overruled, and the plaintiff excepted. The judge charged the jury that to defeat the right of the plaintiff to recover, the defendant must prove that the plaintiff had been guilty of fraud, and not that there had been a mis- take or misconception upon the part of the defendant ; that the plaintiff must have intended to mislead or entrap the defen- dant. That although the defendant, after the discovery of the extent of the plaintiff's interest in the wharf in question, had entered into the possession thereof and enjoyed the use of the same for the term specified, without rescinding or offering to rescind the contract, yet he had a right to set up any fraudulent representations or concealment of the plaintiff, in respect to said contract, in bar of his claim for the rent or in reduction of the amount of such claim ; that if the jury should find that a fraud had been committed by the plaintiff, in adjusting the matter, the court would lay down the rule, that the jury should consider what would have been a fair rent of the 150 feet of the wharf owned by the plaintiff; to this sum should be added the three quarters rent due, and taxes claimed in the declaration, and from that should be deducted the $1000 paid to the cor- poration, if they were satisfied that the same was a reasonable 308 CASES IN THE COURT OF APPEALS. Whitney t>. Allaire. amount, and was agreed to be paid by the defendant in good faith, without any intent to defraud the plaintiff. The counsel of the plaintiff excepted to the whole and each part of the charge, and the jury returned a verdict for the defendant. E. Sandford, for plaintiff in error. F. B. Cutting, for defendant in error. GARDINER, J. The first exception to the admissibility of any evidence to establish the fraud, is sought to be sustained upon two grounds : 1. That the fraud relates to the title to lands. 2. Because the matters given in evidence are not embraced within the lease; as the plaintiff did not demise the wharf, but expressly limited it to his right to the wharf. For more than thirty years it has been the settled doctrine of the courts of this state, that fraudulent representations in reference to the title of real estate, accompanied with damage, is a good ground of action, and that it is immaterial whether any or what covenants are contained in the deed of conveyance. This was held in Wardell v. Fosdick, (13 John. 325,) where the defendant fraudulently sold without any title, but in effect with full covenants. In Monell v. Golden, (13 John. 402, 3,) the representation was that the vendor, as riparian owner, had the pre-emptive right to a grant of land under water in the Hudson river, and opposite the purchased premises. In Ward v. Wiman, (17 Wend. 103,) the declaration was that the prem- ises were free from incumbrance, and an action for the fraud was sustained although the deed contained a covenant to the same effect. In Culver v. Avery, (7 Wend. 386.) the affirma- tion was that the premises were clear of any other incumbrance than the mortgage under which the sale was effected, and that the purchaser would acquire a perfect title. In the first case cited, the fraud pertained to the title of the land conveyed. In the second, to ft privilege annexed to the land ; in the third, to an incumbrance upon the title ; and in the last, both to the title ROCHESTER, JUNE, 1848. 309 Whitney v. Allaire. and to incumbrances. Such has been the adjudication of our state during the period mentioned. The distinction between representations as to the title to land, and matters collateral to the land, was taken in Culver v. Avery, and repudiated, (7 Wend. 386,) and I think with reason. There is no middle ground of principle, between excluding evi- dence of fraudulent representations in all cases of the convey- ance of land, or admitting them when they refer to the title. They all are or may be equally obnoxious to objections arising from the statute of frauds, and in each case the vendee can protect himself by appropriate covenants. The rule thus set- tled, affecting as it does the right of property, should be upheld unless its maintenance would conflict with established principles. No such conflict is perceived. On the contrary, it harmonizes with the law in relation to personal property, requires fair deal- ing from the vendor in each case, and permits the vendee, with- out a penalty upon his credulity, to trust to declarations of material facts within the knowledge of the other party. In a word, to treat with the vendor upon the presumption that he is an honest man. 2. There is no force in the objection that the plaintiff did not demise the wharf, but only his right to the wharf, and there- fore the representation did not relate to a matter within the lease. The question in all these cases is not what passed by the conveyance, but what would have passed to the vendee, had the representations been true. The plaintiff fraudulently represented himself as the owner of three hundred feet of wharf, and the defendant would have acquired that quantity by hia lease, had the statement been true. The lessor, however, knew at the time that he was the owner of one hundred and fifty feet only, and the falsehood as to the extent of his right, was at once the inducement to the contract, aad the reason why it was inoperative. (Monell v. Colden, supra ; Dobell v. Stevens, 3 Barn. <* Cress. 623.) The question put to White, as to his understanding of the extent of the plaintiff's interest from his statement to him, was objectionable; but it could not have affected the verdict of the 310 CASES IN THE COURT OF APPEALS. Whitney v. Allaire. jury. The witness had previously sworn, without any objec- tion, " that the plaintiff told him that the wharf on the east side of Market-slip was his, and from this, witness supposed that the wharf was his, and so informed the defendant." His " understanding," derived from the plaintiff's statement, was therefore a part of the evidence before the jury, and its repetition could not have affected the plaintiff injuriously. A more important question arises under the exception to that part of the charge in which the jury were told that the discov- ery of the fraud, and the subsequent entry of the defendant upon and the enjoyment of the demised premises, would not bar his right to damages. In support of this exception it was argued, 1st. That until the discovery of the fraud, the defendant was not bound by the memorandum signed by him, and then only at his election: that prior to his adoption, the writing was in the nature of a proposition^ and being adopted with a full knowledge of all the material facts, there could be no fraud, because no deception when the contract had its inception. This hypothesis is rather specious than solid. The agree- ment when executed was binding upon both parties, and could be repudiated by neither without the assent of the other, except by an action. If the defendant had discovered the fraud the day alter the contract was made, he could have no relief short of a court of equity. In the mean time he would lose the ad- vanuige of a sale of his interest, would be in form legally respon- sible on his covenant, and subject to the doubtful chances of a litigation as the only means of reinstating himself in his former po?itk'u. lie made, as he had a right to suppose, an advan- tageous bargain, when in truth he had only purchased a law- suit as a means of deliverance from a bnd one. Now the very gist of the fraud consists in placing a man in this situation. It was an injury for which the supreme court have adjudged an action would lie, when the contract was consummated. I sec no reason to doubt the correctness of their conclusion. Every one mu .-, perceive the distinction between a mere proposition, and an agreement requiring an action to avoid it ; between the ROCHESTER, JUNE, 1848. Whitney v. Allaire. right to annul a contract by the mere volition of one of the parties, and a right to resort to a court of justice for the same purpose. In the second place, it was insisted that if there was an agreement, it was executory when the fraud was discovered ; and in such a case, whatever might be the rule as to contracts wholly or partially executed, the defendant, if he affirmed the contract, waived all right to damage for the fraud. In the first place, the contract was not executory, if by that is meant that until entry, the lease was a chose in action. A lease to com- mence in futuro is grantable. (Shep. Touch. 241.) The inter- est vests presently, although it does not take effect in possession until a future time. (Comyris Dig. tit. Assignment ; Taylor's Land, and Ten. 207.) The defendant, therefore, upon deliv- ery of the tease, acquired an interest in the term which he could assign, and for which he could maintain ejectment without any further act upon his part, if possession was withheld after his right of entry became complete. (Taylor's Land, and Ten. 132 ; Adams on Eject. 2d cd. 33, 161.) The interest of the de- fendant cannot be distinguished from the sale of a chattel to be delivered at a future period, to be paid for subsequent to delivery. The property would pass by the contract of sale, and replevin might be maintained by the purchaser after the time stipulated for the delivery. (2 Sumn. R. 211.) But if the agreement was executory, it would not, it is believed, change the right of the parties. It is conceded that if the contract had been partly executed, even in the most trilling particular, the defendant would have the right to rescind and bring his action for the deceit, or affirm the contract and have his remedy by way of recoupment when sued for the rent. Why should he not have the same remedies when the contract is executory ? In neither case, according to the assumption of the plaintiff, could there be a contract until ratified with a knowledge of the fraud. And if an adoption under such circumstances, of the agreement, is an abandonment by the person defrauded, of his claim to dam- ages for the deceit in the one case, it must be in both. In neither will repudiation of the contract alonf T '^V CASES IN THE COURT OF APPEALS. Whitney v. Allaire. show, relieve the party defrauded from his responsibility, and restore him to his rights as they existed prior to the agreement. No such distinction is recognized by the authorities. It is true, that if a party affirms a contract with knowledge of the fraud, he affirms it wholly, and this whether it is executory, or par- tially executed. But in neither case does he affirm it as a con- tract made in good faith. He consents to be bound by the provisions of the agreement, but does not thereby release or waive his claim for damages arising from a fraud collateral to the agreement. The case 5 Mees. cj* Wels. R. 83, is consistent with this doctrine, and the cases referred to in the opinion of the supreme court cannot otherwise be reconciled with each other or first principles. The last question relates to the damages. The rule given to the jury was as favorable as the plaintiff had a right to re- quire. The measure of damages in an action upon a warranty, and for fraud in the sale of personal property, are the same. la either case they are determined by the difference in value be- tween the article sold, and what it should be according to the warranty or representation. (Sherwood v. Sutton, 5 Mason, 1 ; Clare v. Maynard, 6 Adol $ Ellis, 519 ; 4 Hill, 625.) The same rule obtains, I apprehend, upon the sale of real estate, where the action is for deceit ; although a different one is ap- plied when the suit is brought upon a certain class of covenants, such as that of warranty, quiet enjoyment, seisin, &c. which is founded upon considerations of public policy, without reference to (he actual damages sustained by the party. In 13 John. 395, supra, it was held that the defendant was chargeable with all the damages resulting from the false repre- sentations. In Van Epps v. Harrison, (51-1111,69,) this rule was applied to an action upon a bond given for the purchase money of land, and where the defendant was suffered to recoup damages on occasion of the fraud of the vendor. Bronson, J. remarks, that the jury must inquire how much less the land was worth for building purposes than it would have been had the representations of the vendor been true. This rule of compensation is founded upon sound principles cf ROCHESTER, JUNE, 1848. 313 Whitney v. Allaire. morality. It compels the fraudulent vendor to make good the representations, upon the faith of which the vendee entered into the contract. This is but just. Applied to this case, it will at least justify the charge, and the verdict of the jury. Tue judgment should be affirmed. BRONSON, J. It is not necessary in this case to decide, whether an action will lie for a false and fraudulent represen- tation by the vendor of real estate that he has title to the prop- erty ; for that question seems not to have been made on the trial. And besides, the representation of which the defendant complains related to the extent of the demised premises, rather than the landlord's title to the property. The conveyance was of all the plaintiff's right to a wharf, without specifying its boundary or extent ; and the complaint is, that the plaintiff said he owned the whole wharf, which is three hundred feet in length, when in truth he owned only one half of it. Actions have been sustained where the deceit was in relation to some collateral thing, as the rents or other profits derived from the land, things appurtenant to it, the incumbrances upon it, the location, quality or condition of the land, what the ven- dor paid for it, and the like. (Ekins v. Tresham, 1 Lev. 102 ; I Keb. 510, 518, 522, *S*. C., by the name of Leakins v. Cli- zard ; Lysney v. Selby, 2 Ld. Raym. 1118; 1 Salk. 211, S. C., by the name of Risney v. Selby Dobell v. Stevens, 3 B. fy C. 623 ; Bowring v. Stevens, 2 C. $ P. 337 ; Pilmore v. Hood, 5 Bing. N. C. 97 ; Holbrook v. Burt, 22 Pick. 546 ; Moncll v. Golden, 13 John. 395 ; Culver v. Avery, 7 Wend. 380 ; Ward v. Wiman, 17 id. 193 ; Early v. Garret, 9 B. $ C. 928 ; Sandford v. Handy, 23 Wend. 260 ; Van Epps v. Harrison, 5 Hill, 63.) Some of these cases are open to obser- vation ; but it is enough for the present to say, that in none of them was the false representation upon the naked fact of title. In Wardell v. Fosdick, (13 John. 325,) the defendants fraudu- lently sold and conveyed land which had no real existence; and it was held that the purchaser might treat the deed as a nullity, and have an action on the case for the deceit. In *w T 40 3J4 CASES IN THE COURT OF APPEALS. Whitney . Allaire. Kostwick v. Lewis, (1 Day, 250,) there was a comoination to defraud the purchaser in relation to the quality of the land, as well as the title to it; and it may fairly be inferred from the report, that the recovery was on the ground of fraud in relation to the quality alone. Although evidence was given that the title to a part of the property was out of the vendor, it was ad- mitted for the sole purpose of showing that the residue of the tract was of no value. In Wade v. Thurman, (2 Bibb, 583,) it was held that the vendee might have an action against the vendor for falsely representing that the title to the land was in a third person, who would convey at any time. If this case does not go too far to prove any thing, it is sufficient to say that it is not the case of a fraudulent representation by the vendor of title in himself; and I do not find that such an action has ever been maintained. The learned judge who delivered the opinion of the court in Leonard v. Pitney, (5 Wend. 30,) evi- dently thought that such an action would not lie ; and the case of Roswell v. Vaiighan, (Cro.Jac. 190,) as understood by Lord Holt and Powell, J. in Lysney v. Sclby, (2 Ld. Raym. 1 1 19,) tends to the same conclusion. It is a strong argument against the action that no precedent for it has been found. In the usual course of business men insert covenants in their conveyances of real estate where it is intended that the vendor shall answer for the goodness of the title ; and it is easy to see that bad consequences may follow if the vendee shall be allowed to lay aside his deed, and have an action founded upon con- versations about the title pending the bargain. In Dobdl v. Stevens, (3 13. * C. 023,) where the vendee of a public house was allowed to recover in an action for the deceitful represen- tations of the vendor in relation to the amount of business done in the house, Chief Justice Abbott said, the representation was not of any matter or quality pertaining to the thing sold, and therefore likely to be mentioned in the conveyance, but was altogether collateral to it ; as was the rent in the case of Lis- ney v. Selby. And in Monell v. Colden, (13 John. 403,) Thompson, Ch. J. remarked, that the false representation was not respecting any thing to be included in the deed, but with ROCHESTER, JUNE, 1848. Whitney . Allaire. respect to a privilege which the plaintiffs were to acquire in consequence of owning the land on the shore adjoining the river. The intimation in both of these cases is, that had the fraud related to the title, or any thing else which is usually provided for in the conveyance, the action could not have been maintained. I do not intend to express a definitive opinion on the point ; and have only said enough to show that it is a grave question, which, as it is not necessarily before us, should not be regarded as settled by our decision. A present interest in the term passed by the lease : (Allaire v. Whitney, 1 Hill, 484 :) and as the contract was not wholly executory when the defendant discovered the fraud, the ques- tion which was considered in The Saratoga R. R. Co. v. Row, (24 Wend. 74,) does not arise. The defendant called his agent, White, as a witness, who gave the conversation between himself and the plaintiff about hiring the wharf; the defendant was then allowed to ask him what he understood from the statement made by the plaintiff on that occasion ; and the witness answered that he understood from the conversation that the plaintiff owned the whole wharf from Water-street to the end of the pier. The plaintiff was not answerable for the manner in which the witness understood the conversation, unless he had a right so to understand it ; and how it should be understood was a question for the jury. It was for them, and not the witness, to draw the proper infer- ence from what the plaintiff said. I see no principle on which the evidence could be properly received, and on that ground I think the judgment should be reversed, and a venire de novo be awarded. WRIGHT, J. was also for reversal on the same ground ; but on the other questions he concurred with GARDINER, J. JONES, J. orally delivered an opinion for reversal on the same ground with BRONSON, J. ; also on the ground that the defen dant, by taking and enjoying the possession after the discovery 316 CASES IN THE COURT OF APPEALS. Sherman t>. The Mayor, &c. of New-York. of the alleged fraud, had elected to affirm the contract, and therefore had no legal cause of complaint. He also thought the rule of damages was improperly laid down at the trial. GRAY, J. concurred with JONES, J. JEWETT, C. J., RUGGLES, J. and JOHNSON, J. concurred IA the opinion of GARDINER, J. Judgment affirmed. SHERMAN vs. THE MAYOR, ALDERMEN AND COMMONALTY 316 OF THE CITY OF NEW-YORK. '414 S. contracted with the corporation of the city of New- York to furnish all the mate- rials and labor necessary to complete the excavation, re-filling, and re-paving of a trench of specified dimensions for water pipes. The corporation agreed to pay as a " compensation for such excavation, re-filling, and re-paving," as follows: " For executing the digging" and re-filling, seven cents per cubic yard ; for re- paving, &c. four cents per square yard. A considerable portion of the trench waa excavated through hard pan, and this was proved to be worth 75 cents per cubic yard. Another portion was through rock, worth $'1,00 per cubic yard. It was also shown that seven cents (the contract price) per yard was the lowest price for excavating common earth. Held, nevertheless, that S. could recover nothing be- yond the contract price, and that extrinsic evidence was not admissible to prore the value of excavating hard pan and rock. The contract provided that, as the work progressed, the engineer of the corporation should, upon the request of the contractor, make estimates of the work done, which estimates were to be paid on the next pay day, less ton per cent ; also that when the work was done, the engineer should make a final estimate of all moneys due to the contractor, and then the whole to be paid. The engineer accordingly made a final estimate. It seems, however, competent in such a case, to resort to other proof of the amount of the work. ON error from the supreme court. Sherman sued the mayor, aldermen and commonalty of the city of New- York, in the su- perior court of that city. The cause was heard before referees appointed by that court, and the case was this : On the 17th of November, 1842, a written contract, under seal, was entered ROCHESTER, JUNE, 1848. Sherman v. The Mayor, &c. of New- York. into between the plaintiff and defendants, whereby the plaintiff agreed " to furnish all the materials and labor necessary to complete the excavation, backfilling, ramming, and re-paving" of a trench for water pipes in 14th street, from Union square to avenue A. The trench was to be six feet wide at the bot- tom, and eight and a half feet deep. The back rilling and ram- ming was defined by the contract to be the filling up of the trench in a certain specified manner, after the pipes should be laid. The compensation for the work was provided for in the same agreement in these words : " And the parties of the second part agree to pay the party of the first part in full com- pensation for the excavation, back filling, ramming and re- paving aforesaid : " For executing the digging, back filling, and ramming of the said trench, at the rate of seven cents per cubic yard. For re-paving," &c. It was also provided in the contract, that the engineer of the corporation " should, upon request of the contractor, make esti- mates of the work actually completed, and not included in any previous estimate ; and that payments should be made upon euch estimates, at the succeeding pay day as by law establish- ed ; ten per cent being retained until thirty days after the com- pletion of the whole work, when a final estimate was to be made of all moneys due to the contractor, the same to be paiu at the next succeeding pay day." The work was " to be sub- ject to the inspection of the defendants by their engineer afore- said, and was to be done at such times and in such order as the said engineer should direct." There were also other pro- visions in the contract upon which no question arose. On the hearing before the referees, the plaintiff offered evi- dence as to the amount and value of the work done under the contract. The defendants objected to any other evidence of such amount and value than the estimates of the engineer un- der the contract. The referees admitted the evidence, and the defendants excepted. It was then proved that the amount of excavation, independent of hard pan and rock, was 5416 cubic yards. The plaintiff then offered evidence of the amount and 318 CASES IN THE COURT OF APPEALS. Sherman . The Mayor, &c. of New- York. value of the hard pan and rock excavation, insisting that the seven cents per cubic yard for " executing the digging," &c. aa provided for in the contract, did not cover this species of exca- vation. The defendants objected to the evidence on the ground that the written contract controlled the price, and did not ad- mit of any other rate of compensation than the seven cents per cubic yard. The referees admitted the evidence, and the de- fendants excepted. It was then proved, that the amount of hard pan excavation was 5146 cubic yards and 12 feet, and of rock excavation 491 cubic yards and 21 feet ; that the hard pan excavation was worth 75 cents per yard, and the rock $1,00 per yard. It was also shown that seven cents per yard was the lowest price for common earth excavation. There was some evidence tending to show that when the plaintiff entered into the contract, he might, with ordinary attention and dili- gence, have ascertained the character of the ground to be excavated ; and there was also evidence tending to a contrary result. The referees reported in favor of the plaintiff the sum of $4743,43, which included the above quantities of hard pan and rock excavation at the prices proved. The defendants moved, in the superior court, to set aside the report, which motion was denied, and judgment rendered for the amount reported and costs. The defendants then removed the cause by writ of error into the supreme court, where the judgment of the superior court was reversed, and a new trial ordered in that court. The plaintiff brings error to this court. & Shcncoml, for plaintiff in error. The price for " executing the digging,'' which means, according to the popular sense, the loose excavation which may be done with a spade or shovel, was seven cents per cubic yard, and was not intended, nor did it in fact include "rock" or "hard pan," the first worth 1,00, and the latter 75 cents, per cubic yard. The position taken by the defendants, that " the engineer 1 ! estimate of the amount and value of the work should be taken instead of other proof,'' cannot be sustained, inasmujh as no ROCHESTER, JUNE, 1848. 319 Sherman t>. The Mayor, &c. of New- York. provision to that effect was contained in the contract ; and es- timates were never made satisfactory to the plaintiff, or founded upon a knowledge of the work by the engineers. The objection that no proof of the value of hard pan or rock excavation could be given with a view to compensation, on the ground that the contract did not admit of any extra com- pensation therefor, was not well taken. The words, in the instrument, " executing the digging," shows the sense of the parties, and refers to the lowest grade, or com- mon earth excavation, which only could be done for seven cents per yard. It was competent to show by parol proof, that neither rock nor hard pan were included in the terms " executing the dig- ging," by showing the usage in relation to the allowance for either when found, and by showing the value of the lowest grade, or earth excavation, from which the meaning of the parties could not be mistaken. Evidence of usage, or course of trade, where the contract is to be carried into effect, is admissible to explain the meaning, and remove the doubt. Ambiguous terms may be explained by proving the facts and circumstances tending to show the sense in which the terms were used. (Doe v. Hurt, I T. R. 701 ; Coit v. Com. Ins. Co. 7 John. 385 ; Powell on Cont. 378 ; 3 Kenfs Com. 556 ; Story on Conf. of Laws, 225, 233.) Willis Hall, for defendants in error. (1.) The testimony as to the amount and value of the work done under the con- tract was improperly admitted, as that was to be paid for on the estimate of the engineer ; and he having made a final esti- mate, the same is conclusive. (2.) The evidence as to the value of the hard pan and rock excavation, was improperly admitted. The terms of the written contract include excavation of ev- ery kind, and the price of seven cents per cubic yard is stipu- lated to be "in full compensation" therefor. There is nothing in the contract to indicate Jiat the word 320 CASES IN THE COURT OF APPEALS. Sherman v. The Mayor, &c. of New- York. " excavation" is used in any special sense. The written con- tract must therefore govern as to the rate of compensation for that labor. (Robertson v. French, 4 East, 135 ; Delaware fy Hudson Canal Co, v. Dubois, 15 Wend. 89, 95.) (3.) It was the duty of the contractor to have ascertained the nature of the soil before entering into the contract. Ordinary diligence would have enabled him to do so. JEWETT, Ch. J. The principal question in dispute between the parties is, whether the plaintiff had a right to show and recover the real value of excavating that portion of the trench composed of " hard pan," or " rock." The plaintiff offered such evidence, which the referees admitted, although objected to. The plaintiff insists that for excavating such portions of the trench no price was agreed upon between the parties, and that therefore he is entitled to show its value, and recover ac- cordingly ; that the contract merely contemplates and provides for excavating common earth. The argument for the plaintiff is founded upon the idea that the term digging, as applied in the contract, means nothing beyond removing common earth, and does not include hard pan or rock, or at least the term is ambiguous as applied, and therefore may be explained by proof of facts and circumstances tending to show the sense in which it was used by the parties in this contract. I am unable to see any ground for such argument. The plaintiff expressly contracts to furnish all the materials and labor necessary to complete the excavation of the trench in the manner set forth, and as a full compensation for the excava- tion aforesaid that is, for opening the trench described it is agreed that he should be paid by the defendant, seven cents per cubic yard. The term "for executing the digging," in the paragraph describing the rate of compensation, is plainly used as synony- mous with the term excavation in the paragraph immediately preceding it, and the same term is used in the specification showing the manner in which the work was to be done. It may have been a hard and ill advised contract on the part ROCHESTER, JUNE, 1848. 321 Spies . Gilmore. of the plaintiff. The substance to be dug out to make the trench, may have been composed of materials unexpected by him, rendering it worth tenfold more to do the work than ha expected, but that furnishes no valid ground to say that the digging contracted for was not to be of any other material than common earth. The contract, under the head excavation, called for the opening of a trench of the prescribed width and depth, through whatever substances should be met with on the line agreed upon ; and full compensation for that part of the work is agreed upon under the terms " for executing the digging," at the rate of seven cents per cubic yard. Therefore I am of opinion that the referees erred in admitting parol evidence of the value of that work. I think it is fixed by the written contract, which must, in this case, control the rate of compensation. An ob- jection was made by the defendant that it was not competent for the plaintiff to prove the number of yards excavated, in doing the work, by any other person than the engineer. It is sup- posed that the parties have, by their contract, confined the proof as to the amount of the work to the estimates of the defendants' engineer. I do not think that its terms can receive such con- struction. The referees were right therefore in admitting the evidence offered as to the amount of the work. I am of opin- ion the judgment of the supreme court should be affirmed. Judgment affirmed. SPIES vs. GILMORE and others. e!9 Where a note, specifying no place of payment, was made and endorsed in the state 21 of New- York, but the maker and endorser resided in a foreign country, and con- J24 tinueJ to reside there when the note fell due, their place of residence being known "* ' 40 to the payee and holder, both when the note was given and when it matured; 47 held, that presentment of the note to the maker, demand of payment from him, 85 and notice to the endorser, were necessary in order to charge the endorser. 1 58 VOT T 41 1K VoL - * 4AbD 52 5 Tr 214 322 CASES IN THE COURT OF APPEALS. Spies v. Gilmorc. F. being indebted to S., in order to obtain further time for payment, executed to him a note payable to the order of S. Before the note was delivered to S., G. endorsed it. The purpose for which the note was made being known to him, and it being part of the arrangement that he should become security for F. Held, that G. was liable only as endorser, and not as a joint maker, or as a guarantor. The case of Hall v. Newcomb, in error, (7 Hill, 416,) referred to, and the doctrine there established, reaffirmed. ON error from the supreme court. Adam W. Spies sued Robert Gilmore, John Jewett and George W. Jewett, in the superior court of the city of New-York, upon a bond given in a proceeding by attachment instituted by Spies against Gilmore as a non-resident debtor. The bond bore date October 20th, 1841, and was executed by Gilmore as principal, and by the other defendants as his sureties. The condition of the bond was such, that the plaintiff's right to recover depended upon the question whether, at the time the proceeding was instituted, he was a creditor of the said Gilmore, and the facts relating to that question, as proved on the trial, were as follows : On the 16th of September, 1835, one John Furlong executed to the plaintiff his promissory note, as follows : $530,07. New- York, Sept. 16, 1835. Six months after date, I promise to pay to the order of Mr. Adam W. Spies five hundred and thirty T 5 7 o dollars, value received. JOHN FURLONG." The defendant Robert Gilmore was the first and only en- dorser on this note. At the time the note was given, Furlong was indebted to the plaintiff in the amount thereof for goods sold to him by the plaintiff, at a credit of six months, which had expired. Furlong applied for a further credit of six months, and proposed to give the defendant Gilmore as secu- rity. The plaintiff agreed to the proposal. This arrangement took place in the presence of Gilmorc, and in pursuance thereof Furlong executed and Gilmore endorsed the above note. The note was made and endorsed in the city of New- York, but both the maker and endorser then resided at Matamoras, in Mexico, and continued to reside there when it came to maturity ; and their residence was known to the plaintiff. There was some ROCHESTER, JUNE, 1848. 333 Spies r. Gilmore. evidence tending to show that when the note fell due the plaintiff wrote to the maker and endorser at Matamoras, stating the non-payment of the note, and requesting payment, but there was no evidence that the note was presented to the maker or any other demand made upon him than by the letter aforesaid. The superior court ruled, and so charged the jury, that under the circumstances of the case, as they appeared in the evidence, no demand and notice were necessary to enable the plaintiff to sustain the action. The defendants excepted. A verdict and judgment for the plaintiff were had in the superior court. The supreme court, on writ of error, reversed such judgment. (See \ Harbour's Sup. Court Rep. 158.) And from the decision last mentioned the plaintiff brings error to this court. Charles O'Conor, for the plaintiff in error. Furlong the maker, and Gilmore the endorser, having been both residents of Mexico, a foreign country, at the maturity of the note, the plaintiff was entitled to recover without evidence of demand or notice. (2 Burr. 1077 ; Brown v. Harraden, 4 T. R. 148 ; 1 R. S. 768, 1 ; Chitty on Bills, 400, 485, note e, 8th Am. ed. ; Magrudcr v. Bank of Washington, 9 Wheat. 598 ; Anderson v. Drake, 14 John. 117 ; Hepburn v. Toledano, 10 Mart. 643 ; Story on Prom. Notes, 236 ; 1 Dev. Law R. 247 ; Taylor v. Snyder, 3 Denio, 151 ; 20 John. 102 ; 1 id. 94 ; 7 T. R. 242 ; Co. Lift. 210, B. ; 3 Cov. Powell on Mort. 939, note u. ; 2 Smedes fy Marsh. 553 ; 8 N. Hamp. Rep. 413 ; 20 Maine Rep. 325; 1 Bingh. N. C. 151; Consequa v. Fanning, 3 John. C/i. Rep. 588; 17 John. 518; Cox et al. v. United States, 6 Peters, 203 ; Story's Coiift. Laws, 280 ; Buckner v. Finley, 2 Peters, 590 ; ib. 179, App. 2.) The note ought to be held binding upon Gilmore as the joint and several note of himself and Furlong, or as a guaranty (Hall v. Newcomb, 3 Hill, 234, S. C. in error, 7 id. 420 fjabron v. Woram, 1 id. 93 ; 2 id. 84 ; 4 id. 421 ; Dean v Hall, 17 Wend. 217.) A. Crist, for the defendant in error. 324 CASES IN THE COURT OF APPEALS. Spies v. Gilmore. BRONSON, J. There are a few cases in the books which hold, in effect, that a written contract of one kind may be turned into a contract of a different kind, by parol proof con- cerning the intention of the parties ; that the endorser of a promissory note may, under certain circumstances, be charged as maker or guarantor ; and that the guarantor of a promissory note may sometimes be charged as maker or endorser. Al- though these cases stand upon no principle, it has been a work of some time and difficulty to get rid of them. The court of errors was at first equally divided on the question ; but after a second argument the court decided by a pretty strong vote to uphold contracts as they had been made by the parties, instead of making new contracts for them. (Hall v. Newcomb, 3 Hill, 233, and 7 id. 416, S. C. in error, and note, p. 426 ; Seabury v. Hungerford, 2 id. 80 ; Manrow v. Dunham, 3 id. 587, per Bronson, J.} The work was not completed until after this proceeding had been commenced, and the case had been dis- posed of in the superior court. It is evident from the declara- tion that the plaintiff expected to recover on the ground that Gilmore might be charged as maker or guarantor. But the court of errors having overturned that doctrine, the plaintiff" now seeks to uphold the judgment on another ground. He insists that as Furlong, the maker, lived at Matamoras, out of this state, and out of the United States, at the time the note fell due, no demand of payment from the maker, nor notice of non-payment, was necessary for the purpose of charging Gil- more as endorser. No such exception to the general rule, which requires demand and notice, has ever been sanctioned by the courts; and Taylor v. Snyder, (3 Denio, 145,) is a case in point against the plaintiff. It is not pretended that the maker had absconded, or removed out of the state, after the note was made ; nor that there had been any other change of circum- stances to excuse the want of a demand. So far as appeared on the trial, the maker still continued to reside at Matamoras', in Mexico, where he resided when the note was given, as the plaintiff well knew. The only excuse which has been offered for not making demand is, that it would have been incon- ROCHESTER, JUNE, 1848. 325 Spies v. Gilmorc. venient to go or send to Matamoras for that purpose. It is often inconvenient to present the note for payment when the maker and holder both reside in the same state ; and yet when the maker has a known place of residence, and there has been no change of circumstances after the giving of the note, mere trouble or inconvenience to tl^e holder has never been held a good excuse for omitting the demand. And this is so, however wide asunder the maker and the holder may live. If the plaintiff wished to avoid the inconvenience of sending to Mata- moras, he should have made the note payable in New-York, or got an endorsement with a waiver of demand. He has no right to change the contract which the endorser made, for the purpose of promoting his own convenience. If the demand could be dispensed with, the endorser was still entitled to notice of the default of the maker, and that the holder looked to the endorser for payment ; and there is no color of excuse for omitting to give notice. The giving of it would have cost the plaintiff no trouble, beyond sending a letter by the next ship which sailed for Matamoras, where the en- dorser lived. The plaintiff attempted to prove that this was done ; but there was a defect in the evidence. If there had been proof enough to carry the cause to the jury on that point, it would not aid the plaintiff; for the question was not left to the jury. The judge instructed them that neither demand nor notice was required by law to entitle the plaintiff to his action. The truth evidently is, that the cause was tried upon the doc- trine which has since been finally exploded, that Gilmore might be charged as maker or guarantor of the note. He was in fact endorser, and nothing else ; and as such he was entitled to notice I am of opinion, upon both grounds, that the reversal by the supreme court (1 Barb. 158) was correct, and that their judg- ment should be affirmed. JEWETT, Ch. J. The case of Hall v. Newcomb, (7 Hill, 416,) is in point to show that Gilmore cannot be made liable to Spies, as guarantor or maker of the note. The material question 326 CASES IN THE COURT OF APPEALS. Spies r. Gilraorc. then is, Was there proof given on the trial, sufficient to charge him as endorser ? The evidence showed that both the maker and endorser at the time of making and endorsing the note, as tte.i as at the time of its maturity, were residents of and doing business at Matamoras in Mexico, and that these facts were known to Spies, who at the same time resided in New- York, where the note was drawn, dated and endorsed. There was no evidence given to show either a demand of payment of the maker, at maturity, and notice of non-payment to the endorser, or of any facts constituting an excuse for omitting to make such demand, or any efforts to make it and give such notice, other than to show the residence of the maker and endorser to have been in Mexico, a foreign country. It is insisted in behalf of the plaintiff, that upon that ground the law excuses any demand and notice. The general rule of law is, that when a promissory note is not made payable at any particular place, in order to charge the endorser, payment must be demanded of the maker personally, or at his dwelling house, or other place of abode, or at his counting house or place of business. The note in ques- tion is not made payable at any particular place. There are, however, exceptions to this general rule, by which any demand is dispensed with. It is a question of diligence, and if a demand is found to be impracticable, proper efforts for that purpose having been made, the endorser will still be held liable, due notice having been given to him by the holder. These excep- tions are enumerated in the opinion of the court delivered by Mr. Justice Beardsley in Taylor v. Snyder, (3 Dcnio, 151.) and embrace cases under the following circumstances : 1. When the maker has absconded, that will ordinarily excuse a de- mand ; and notice of the -fact is sufficient to hold the endorser. 2. When the maker is a seaman on a voyage, having no domi- cil in the state, the endorser is liable without a demand being made ; out if he has a domicil in this state, although he be ab- sent, on a voyage, payment must be demanded there. 3. Where the maker has no known residence or place at which the note can be presented for payment. 4. Where a note is made by a resident of the state, who, before it is payable, removes from the ROCHESTER, JUNE, 1348. 327 Spies v. Gilmore. state and takes up a permanent residence elsewhere, the holdei need not follow him to make demand, but it is sufficient to pre- sent the note for payment at the former place of residence of the maker. These exceptions to the general rule, as Judge Beardsley re- marked, it will be seen, all rest on peculiar reasons. In the first, the maker has absconded ; in the second, he is tempora- rily absent, and has no domicil or place of business within the state ; in the third, his residence, if any he has, cannot be ascertained ; while in the fourth, he has removed out of the state and taken up his residence in another country. In each of these instances, let it be observed, the fact constituting the excuse, occurs subsequently to the making and endorsement of the note ; and it is this new and changed condition of the ma- ker, and that only, by which the endorser stands committed, without a regular demand. And this is just : for it is but rea- sonable to suppose that neither party, when the note was given, looked for this new and changed condition of the maker, and that each contracted upon the supposition that no such change would take place. It is obvious that the case at bar is not within either excep- tion to the general rule dispensing with a demand and notice. No change in the condition of either party has taken place since the note was made and endorsed. The maker and en- dorser, I repeat, respectively had a residence in Mexico at the time the note was made in New-York, which remained un- changed at the maturity of the note, and which was known to the plaintiff at each period of time. If the exception now in- sisted upon is made, it must rest upon some principle not hith- erto recognized by any rule of law, as I think is abundantly shown by the opinion in the case to which I have referred. I cannot assent to the truth of the position assumed, that be- cause the maker and endorser of a promissory note at the time of the making and endorsing reside in another state or foreign country, the endorser may be held liable without any demand being made on the maker ; especially when such residence was known to the holder at the time the note was made and has 328 CASES IN THE COURT OF APPEALo. Spies v. Gilaiorc. not been changed before the maturity of it. And in this there is no injustice : for it is but reasonable to conclude that each party contracted upon the supposition that the holder should make a demand of payment on the maker at maturity, at the place of his residence, and if not paid give notice to the endorser, or else a place as well as time of payment would be stipulated for in the note itself. To hold that a demand and notice can be dispensed with on the ground that the maker and endorser resided in a foreign country at the time of the making and ma- turity of the note, would, in my judgment, be nothing short of judicially changing the terms and legal effect of the contract between these parties. I think the judgment of the supreme court should be affirmed. GARDINER, J. dissenting. I cannot assent to the opinion, that a demand of the maker was necessary in this case. By his endorsement, the defendant contracted that if the note was duly demanded of the maker and not paid, or if after the exer- cise of due diligence no such demand could be made, he would on receiving due notice pay the amount to the endorsee or holder. (14 John. 1 17.) The question is whether due diligence required that a demand should be made of the maker, under the circumstances disclosed by the evidence. In Anderson v. Drake, (14 John. 114,) it was held that where the note is not payable at a particular place, and the maker has a known and permanent residence within the state, the holder is bound to make demand at such residence. The rule applies where there has been a change of residence by the drawer subsequent to the making the note, as well as to other cases. In McGruder v. Bank of Washington. (9 Wheat. 001.) it was decided that where the maker of a note had removed into another state subsequent to the making, no demand was necessary. So also in Anderson v. Drake, (snpra, 117,) and in Taylor v. Knydcr, (3 Denio, 146.) Justice Beardsley, in deliv- ering the opinion of the court, after a very able review of all the cases, came to the conclusion that demand and notice must be given where the drawer of the note at the time of the making ROCHESTER, JUNE, 1848. 339 Spies v. Gilmore. and when it fell due, had a known residence in one of the United States the payee residing and the note being given in this state. The question is now presented in a new form, whether the payee, in the exercise of due diligence, is required to follow the maker to a foreign country in order to make a demand. If the legal effect of the contract of the endorser is as stated by the learned judge in tSnyder v. Taylor, namely, that it re- quires a demand except in those cases where it " shall be found impracticable," the plaintiff was not excused in this instance, since it was possible to have demanded payment of the maker when the note matured. But I apprehend that this is stating the condition of the endorser's liability a little too broadly. In McGruder v. Bank of Washingtoji^ it was neither impossible or inconvenient to have demanded payment, as the maker lived, after his removal from the district of Columbia to the state of Maryland, only nine miles from the holder. The court deter- mined, as matter of law, that due diligence did not require a demand under such circumstances. They say, " on this point there is no other rule that can be laid down which will not leave too much latitude as to place and distance." The rule was adopted as a rule of convenience, and not on account of its abstract justice. The reasoning of the court is applicable to the case before us. In the absence of direct authority, we are called upon not to make a new exception to the general rule, but to apply that rule to a new class of cases. Expediency, public convenience, it seems to me, require that the necessity of a personal demand should be confined to cases where the ma- ker resides within the states or territories of the Union. It is difficult to prescribe any other rule which will not leave " too much latitude as to place and distance," and of course be fluc- tuating when it should be certain. Instances will readily occur to every one, in which the making of a demand in a foreign country would be attended with little inconvenience, and others in which it would be impracticable. Between these extremes there is a wide interval which would be opened to litigation, which sound policy requires to be closed. The case of Hepburn v. Toledano, (10 Martin's JR. 643,) and the remarks of Judge VOL. I. 42 330 CASES IN THE COURT OF APPEALS. Noble V. Ilalliday. Story in his treatise, are opposed to the extension of the privi- lege of an endorser further than they have been carried in Snyder v. Taylor, even if the criticism of Judge Beardsley upon that case is in all respects correct. Looking then to the nature of the instrument in question, as essentially domestic in its ori- gin and uses ; to public convenience, which demands certainty in the general- rule, rather than strict equity in special cases ; and to the extent of the country under the government of the United States, I have come to the conclusion that no demand was necessary in this case in order to charge the endorser. Judgment affirmed. NOBLE and others vs. HALLIDAY. 330 K '515 By statute (2 R. S. 464, 41, 42 ; id. 469, 67, 68, 72 ; id. 43, 12) whenever a receiver of an insolvent corporation " shall shmo bij his own oath or other competent proof" that any person is indebted to the corporalion, or has property of the cor- poration in his custody or possession, the officer to whom the application is made shall issue a warrant to bring such person before him for examination. Under this statute it is sufficient for the receiver, who applies for a warrant, to swear to the facts on information and belief. Accordingly, where the receiver of an insolvent corporation applied for a warrant under the above statute, and showed the facts only by his own oath on his infor- mation and belief, and a warrant was issued upon which the person proceeded against was taken and brought before the officer ; heltl, in an action brought by such person against the receiver and others acting under the warrant for an assault and battery and false imprisonment, that the warrant was a good justification. Under the above statute, a person having in his custody, as administrator of a de- ceased person, effects of the corporation, or indebted as such administrator, is liable to be proceeded against ; and where the sworn petition, on which the warrant was granted, stated that such person had property of the corporation in his custody, either individually or as administrator, &c. held good. ON error from the supreme court. Ilalliday sued Noble, Liv- ingston and Lamberson, in the superior court of the city of New- York, for an assault and battery and false imprisonment. On the 20th of July, 1811, Noble, one of the defendants, was appointed by the court of chancery receiver of the property and ROCHESTER, JUNE, 1848. 33] Noble V. Halliday. effects of The New- York Northern Fire Insurance Company. On the 24th of November, 1841, Noble, as such receiver, pre- sented a petition to the recorder of the city of New- York, and obtained from that officer a warrant directed to the sheriff of that city and county, commanding him to bring the plaintiff before the recorder for the purpose of being examined. The warrant was duly served and the plaintiff held in custody under it ; and that was the assault. &c. for which the action was brought. The question presented by the pleadings, on demurrer, was, whether the petition and oath annexed thereto, on which the warrant issued, were sufficient to authorize the issuing of such warrant. The principal facts required to be shown to the officer, were stated and sworn to on the informa- tion and belief merely of the petitioner. That was one objec- tion to the validity of the proceeding. Another was, that the petition stated that the plaintiff Halliday, either individually or as administrator with the will annexed, of Robert Halliday deceased, (without stating which,) had in his hands and custo- dy property and money which belonged to the petitioner as such receiver; and it was insisted for the plaintiff that he was not liable under the statute to be proceeded against as an ad- ministrator, and therefore that the petition being in the alterna- tive did not give the officer jurisdiction. The superior court gave judgment against the plaintiff; which, on error, was reversed by the supreme court. (1 Barb. Sup. Court Rep. 137.) The defendants bring error into this court. The statutes de- nning the powers of Noble as such receiver, and under which the proceeding in question was instituted, are material to a proper understanding of the case ; and these are sufficiently set forth in the opinion of RUGGLES, J. L. Livingston, for plaintiffs in error. E. Sandford, for defendant in error. RUGGLES, J. The question raised by the pleadings in this case is, whether the petition presented by Noble, the receiver oi 332 CASES IN THE COURT OF APPEALS Noble v. Halliday. The New- York Northern Insurance Company, verified by his own oath as to the principal facts, on his information and be- lief, was sufficient to give the recorder jurisdiction to issue the warrant. If it was, the arrest of Halliday was legal, and his action, founded on the supposed illegality of the arrest, must fail. The legality of the warrant is here drawn in question in a collateral action ; and for the purpose of maintaining the action it is necessary to show not merely that the recorder's decision :n granting the warrant was erroneous, but that it was abso- lutely void. The authority of the receiver to apply for and obtain the warrant against Halliday will be found in the following sections of the revised statutes, by which the receiver of insolvent cor- porations is charged with like duties and clothed with the same powers as are by another section given to trustees and assignees in cases of insolvency. (2 R. IS. 464, 41, 42 ; id. 469, 67, 68, 72 ; id. 35, 1.) The nature and extent of the powers and duties of trustees of insolvent debtors will appear by 2 R. S. 40, 41, 42, 6, 8, 12. The latter section is that under which the warrant issued. It is as follows : ' : 12. Whenever the trustees shall show by their own oath -jr other competent proof, to the satisfaction of any officer named in the first section of the seventh article of this title, or of any judge of a county court, that there is good reason to believe that the debtor, his wife, or any other person, has concealed or embezzled any part of the estate of such debtor, vested in the said trustees ; or that any person can testify concerning tin; concealment or embezzlement thereof ; or that any person who shall not have rendered an account as above required, is in- debted to such debtor, or has property in his custody or pos- session, belonging to such debtor; such officer or judge shall issue a warrant, commanding any sheriff or constable to causo such debtor, his wife, or other person, to be brought before him at such time and place as he shall appoint for the purpose of being examined." Upon a careful examination of the case I am satisfied that the judgment of the supreme court was erroneous ; and that the ROCHESTER, JUNE, 1848. 333 Noble v. Halliday. error arose mainly from a misconception of the nature of the proceeding against Halliday. It was in substance a proceeding to obtain his testimony as a witness, and not a proceeding against him as a party for relief by judgment or decree. It is true he was an interested witness and was called to testify against his interest, and in that respect he stands in the situa- tion of a defendant in a bill of discovery, where the sole object of the proceeding is to obtain the defendant's evidence under oath. The proceeding authorized by the statute appears to have been intended as an informal, but prompt and effective substitute for the tedious and expensive process on a bill of discovery in a court of equity. The necessity and utility of the proceeding are too obvious to require elucidation. The property of an insolvent corporation is usually in the hands of the officers and agents under whose management it has become insolvent. They are frequently its largest debtors ; and the power of compelling them and all others to disclose its condi- tion, and of ascertaining by that means where its property is, in whose hands, under what claim or pretence it is held, and who are its debtors, is indispensable to the interest of its cred- itors for whose benefit it is to be collected and distributed by the receiver. It seems to have been supposed that an executor or adminis- trator cannot be called upon to testify, under this statute, in relation to a debt due from his testator or intestate, or in rela- tion to property in his hands claimed in his representative ca- pacity. I am at a loss to know whence that idea could have arisen. Certainly not from the statute itself. If the adminis- trator have in his custody and possession property belonging to the corporation, it is immaterial by what right he claims it. He is bound to testify in relation to it. And if as administrator he is indebted to the corporation, there is nothing in the statute to excuse him from disclosing, under oath, what he knows in re- lation to such indebtedness. Such a case is embraced within the general terms of the 12th and 13th sections of the statute. The cases of Jackson v. Walsworth, (1 John. Cas. 362,) and Hinds' case, (9 Wend. 465,) have no application to this pro- 334 CASES IN THE COURT OF APPEALS. Noble r. Ilalliday. ceeding for discovery. Those cases relate to attachments against the property of an absconding debtor under 2 R. S. 3, 4. Proceedings under that statute have no resemblance or similar- ity to the proceedings against the debtor of an absconding debtor to compel him to testify. To authorize an attachment against an absconding debtor, the creditor must, by the express terms of the statute, have a demand against him personally. (2 R. S. 3, 3.) But the power to examine those who have his property, or who owe him money, is not thus limited. The statute would be exceedingly defective if it exempted those who owe in a representative capacity from liability to answer like all others as to their indebtedness. Executors and administrators are not thus exempted upon a bill in equity for a discovery, and the power under the statute to call for a disclosure is as ample as under such a bill. The receiver therefore was right in call- ing on Halliday to testify in relation to property that he held, or money that he owed the corporation as administrator with the will annexed of a deceased person. In that character he was liable to an action at law by the receiver ; and the power of discovery was undoubtedly intended to be co-extensive with the right to sue. It constitutes no good objection to the petition for the war- rant, that the grounds on which it was demanded were stated in the alternative. If it had been a declaration in a suit at law, or an indictment, or a proceeding under the act to abolish imprisonment for debt, by which Halliday might have been committed to jail until he paid a debt, the objection would have been a good one. In these cases the plaintiff, or party prose- cuting, is supposed to know the ground of his proceeding ; and he is bound to state it with precision, in order that the defen- dant may know what he is to controvert ; for he controverts at the peril of his property or his liberty. But this was a proceed- ing of a different character. The object was inquiry, and nothing else ; and the receiver could not be required to state positively facts which he did not know, and which he could not be supposed to know until the inquiry should be answered. In bills of dis- covery the complainant's allegations are usually stated in the ROCHESTER, JUNE, 1848. 335 Noble v. Halliday. alternative. They are so stated in judgment creditors' bills, and in others of the like nature, although relief as well as dis- covery is sought. No hardship was imposed on Mr. Halliday in compelling him to answer allegations thus stated. Nor ia there any just objection on his part to the discovery, at the same time, of matters which might affect him individually, and of others which might affect him in a representative capacity. The statute authorizes an informal discovery ; and it is much better that it should all be done at one time and under the same process, than to have two distinct applications and warrants. The remaining question as to the sufficiency of the petition is, whether the facts set forth in it were properly verified. It was sworn to by Noble, in the form heretofore prescribed in the court of chancery for the verification of bills of discovery, that is to say, as to the principal facts on his information and belief. In determining this question the statute under which the warrant issued must be our guide. This statute (2 R. S. 43, 12,) does not require the receiver to establish the truth of his petition by positive proof. It does not require him to give positive proof of the facts and circumstances from which its truth is to be inferred. It requires him to show to the satisfac- tion of the officer that there was good reason to believe that Halliday was a debtor to the corporation, or that he had its property in his possession ; and it made the receiver's own oath evidence for that purpose. It also authorized "other competent proof" instead of the oath of the party ; but the makers of the statute could not have intended proof competent to establish the facts in a legal sense, as before a jury. The facts are not required to be so established ; and proof sufficient to create a rational be- lief is all that the language calls for, and this may fall far short of that which is necessary to authorize a verdict. In all other respects the statute is silent with respect to the nature and quality of the proof on which the officer is to exercise his judg- ment. By the act of 1811, for relief against absconding debtors, from which the provisions in the present statute are taken, (see 1 R L. 160, 12,) a warrant in a case like the present might 336 CASES IN THE COURT OF APPEALS. Noble r. Halliday. have been issued by any justice of the peace, upon tne applica lion of the trustees against " any person known or suspected to detain any part of the estate or to be indebted to it." The present statute has taken this power away from justices of the peace, and has conferred it upon officers of a higher grade. (2 R. S. 34, 1.) And instead of allowing the warrant against any person whom the trustees might suspect to be indebted to the estate, it is now allowed, wherever the officer has "good reason to believe," that any person is so indebted. But the ob- ject and policy of the law is unchanged ; and it is apparent that the legislature intended to permit examinations of this nature to be made at the instance of receivers and trustees upon very slight proof; a shade stronger, indeed, than mere suspicion ; but it is clear that legal certainty is not required. It would have been absurd to require it, or to suppose it could oe had until after the arrest and examination. The proof in this case was that the receiver was informed and believed that Halliday was indebted to the corporation and had its property in his possession. According to the case of Fitch, an absent debtor, (2 Wend. 298,) this was sufficient. In that case the creditor was required by the statute, (1 R. L. 163, 23, act of 1801,) to make proof by two witnesses to the satisfaction of the judge, of the residence of the debtor out of the state. Two witnesses swore to their belief that he resided out of the state, without setting forth the grounds of such belief. The proof was held to be sufficient; and in the case of Haynes, ex parte, (18 Wend. 614,) Mr. Justice Cowen says, " on such a statute, with the high authorities to which I have referred, I think I should not hesitate in receiving the oath of mere belief." The belief of the applicant was, in that case, regarded by those eminent judges sufficient to establish a fact to be proved to the satisfaction of the judge. The statute, in the present case, does not require any fact to be established by proof; it demands only that the judge shall be satisfied that there is good reason to believe the fact. When the warrant against Halliday was issued, the officer had before him, as the basis on which his belief might be found- ROCHESTER, JUNE, 1848. 337 Noble v. Halliday. ed, not only the belief of the receiver, but the information on which the receiver's belief was founded. The case as it existed in thi mind of the receiver, was laid before the officer. Infor- mation constitutes, in many cases, ground of rational belief. In our daily and most important transactions we act on belief resting on that foundation only. The fact that this informa- tion had been given to the receiver was legally proved. The truth of the information was not proved ; but I think the re- corder might properly take notice of the fact that such informa- tion had been given, and if it operated on his judgment as it seemed to have affected the mind of the receiver, by creating a belief that Halliday was indebted to the corporation, it was all the act required. The act does not require the certainty of legal conclusion, as to the facts on which the application is grounded. In regard to the proof on which the warrant, in cases like the present, is to issue, the statute differs entirely from that which authorizes attachments against absconding debtors ; (2 R. S. 3, 5 ;) and from that which authorizes attachments and warrants in justices' courts. (2 R. S. 229, 19 ; Laws of 1831, ch. 300, 35.) In those cases the facts and circumstances to establish the grounds on which the application is made must be stated and proved. Such facts are made the only evidence on which the magistrate can act, and the belief of the applicant as one of the ingredients of proof is excluded. It differs also from that part of the act to abolish imprisonment for debt, which authorizes warrants against fraudulent debtors. (Laws of 1831, ch. 300, 3, 4.) The party applying for a warrant under that act must give evidence establishing one or more of the frauds specified in those sections, and facts must be shown to satisfy the judge that the fraud actually exists; and not merely to show there is reason to believe that it exists. The decisions, therefore, as to the proof required under these statutes, are not applicable to the present case. The objects and consequences resulting from the granting of process under those statutes are entirely different from the object and purpose of the warrant in the present case. They are proceedings to obtain a judgment VOL. I. 43 338 CASES IN THE COURT OF APPEALS. Noble v. Halliday. or decree. This is to obtain evidence. There he must contro- vert the allegation or pay the debt. Here he is discharged from the process on giving his testimony. I am unable to perceive any good reason, independent of the statute, why the proof to compel Halliday to testify should be any stronger or more formal than that on a bill of discovery, or indeed than that on which an attachment is granted against an ordinary witness for non-attendance under a subpoena. Such a witness may be subpoenaed without any proof of his materiality, and is bound to attend ; he is liable to a penalty of fifty dollars for non-attendance. (2 R. S. 400, 43.) An attachment issues against him on proof of his having been served with a subpoena and of his failure to attend. (Id. 441.) And where he is summoned to appear before any judge or of- ficer to give testimony or have his deposition taken, such judge or officer, on his failure to attend, and on proof of service of the summons and of such failure, is required to issue his warrant to bring him before the officer to be examined ; and for refusing to be examined when brought before the officer, the witness is committed to jail until he submits. No proof of the materiality of his testimony, or of the necessity of taking it, is required. The statute, however, under which the warrant issued in this case, must govern. But if there be any doubt about its meaning, as to the proof required to obtain the warrant, it should receive that construction which is most in conformity with proceedings having the like nature and object. I am sat- isfied that the petition and warrant were in all respects legal. They constituted a valid defence to the action brought by Hal liday againt those who acted under them. But it seems to be supposed that the plaintiff is, nevertheless, entitled to judgment, on the ground that Noble, by his demur- rer to the plaintiff's replication to his second plea, admitted on the record that Noble did not show to the recorder " good reason to believe that Halliday was indebted to the corpo- ration," &c. For the purpose of understanding the force of this objection, ROCHESTER, JUNE, 1848. 339 Noble v. Halliday. it is necessary to make a brief statement of the pleadings be- tween Halliday and Noble. 1. Halliday declared against Noble for an assault and bat- tery, and false imprisonment. 2. Noble pleaded a justification under the warrant issued by the recorder of New- York, setting it forth in substance. 3. Halliday replied, setting forth at full length Noble's petition to the recorder for the warrant, and con- cluded his replication with a traverse denying that Noble" had shown, by his own oath, to the satisfaction of the recorder, that there was good reason to believe that the plaintiff, Halliday, was indebted to the corporation, or had its property in his pos- session." To this replication Noble demurred, and Halliday joined in demurrer. It is now contended that by this demurrer Noble admitted that he did not show on his oath, to the satisfaction of the re- corder, that Halliday was so indebted, &c. But this is a mis- take. Halliday's replication is bad, because it puts his case upon a supposed defect in the petition, which defect does not exist. The petition for the warrant was good ; and the plain- tiff, Halliday, by setting it forth in his replication, showed that Noble had made all the proof necessary to entitle him to the warrant from the recorder. The traverse by Halliday was re- pugnant to the previous part of the replication. It denied what he had just previously shown was true, to wit, that Noble had made the necessary proof to obtain the warrant. Noble was right in demurring. Halliday had shown in his replication all that was necessary to Noble's defence. If the traverse was not a contradiction of the matters of fact previously stated in the replication, it was nothing but a denial of the legal effect of the petition for the warrant. This was a question of law, and not traversable. It is a familiar principle that a demurrer confesses nothing except that which is well pleaded. The cases of Livingston and Lamberson are governed by the same principles which are applicable to that of Mr. Noble. They are alike in all those respects in which the sufficiency of the defence is questioned. The special pleas would have been bad on special ' T -nurrer, 340 CASES IN THE COURT OF APPEALS. Noble v. Halliday. on the ground that each attempts, by the averment that the acts mentioned in it " are the several trespasses mentioned in the declaration," &c. to make that an answer to all the counts which is in fact an answer to one count only. But by reply- ing, the plaintiff has lost the benefit of that objection. (1 Ch. PL 450, 559, 7th Am. ed. ; 7th Lond. ed. 429, 553 ; 23 Wend. 488 ; Arch. N. P. 497, Lond. ed. of 1845.) On the whole, the defence set up by the defendants under the recorder's warrant, appears to be a good one ; and to have been substantially well pleaded. The judgment of the superior court was not erroneous. That of the supreme court should be reversed. JEWETT, C. J., and GARDINER, J., also delivered opinions in favor of reversing the judgment on similar grounds. BRONSON, J. (dissenting.) I cannot agree in the result to which a majority of my brethren have arrived. This is not merely a question about the examination of a witness. It is a question of personal liberty. The plaintiff has been arrested; and, as I think, without lawful authority. The necessary facts were to be shown, to the satisfaction of the officer, by the oath of the receiver, "or other competent proof." (2 R. S. 43, 12.) Information and belief that a man owes a particular debt, or that he has money or property in his hands belonging to another, are no proof whatever of the fact : especially where as in this case, the deponent tells who gave him the informa- tion, and assigns no reason for not producing the affidavit of his informant. The recorder had no right to be satisfied with- out some proof ; and there was none at all. I do not doubt that the defendants acted honestly, and with- out any improper intentions ; but that is not enough where a man has been imprisoned w'thout authority. Judgment reversed. ROCHESTER, JUNE, 1848. 34 j Taylor v. Morris. TAYLOR vs. MORRIS. 341 19 '455 A. testator, by his last will and testament, appointed three persons his executors, and authorized them, or the survivor of them, to sell and convey any part of his real estate, " in case they should find it proper or most fit in their opinion" to sell the ame for the purpose of paying his debts. Two of the executors neglected to qual- ify, and never acted as such. The other executor duly qualified, and took out letters testamentary in his own name only, and subsequently sold and conveyed a portion of the testator's real estate for the purpose specified in the will ; held, that the power contained in the will was well executed, and that the conveyance was valid. It seems, that the statute, (2 R. S. 109, 55,) which provides, that, where real estate is devised to executors to be sold by them, or is ordered by any last will to be sold by them, and any of the executors neglect or refuse to qualify and act as such, the sale may be made by the executor or executors who take upon themselves the execution of the will, applies as well to discretionary, as to peremptory powers of sale. EJECTMENT, brought by Andrew C. Morris against Robert L. Taylor, in the New- York common pleas, for an undivided fourteenth of a lot of land in that city. On the trial in the common pleas the case was this : Andrew Morris, the grand- father of the plaintiff below, died in 1828 seized in fee of the whole of the premises in question, having first made and pub- lished, in due form, his last will and testament, as follows : " I Andrew Morris, of the city of New- York, do make this my last will and testament, revoking any I may have heretofore made. I direct my executrix and executors, hereinafter named, to pay my just debts out of my estate. I give my wife Ellinor all the silver plate and household furniture of every kind and description that I may be possessed of, together with one third of my personal property, leaving also to her her right of dower in my real estate. I give one half of the remainder of my estate, real and personal, to my daughter Margaret E. Willcocks, the wife of Lewis Willcocks, and to her heirs and assigns. And I give the other half of the remainder of my estate, real and per- sonal, to the children of my son Thomas A. Morris, whom he now has or hereafter may have, to be divided equally among 342 CASES IN THE COURT OF APPEALS. Taylor r. Morris. them. I- hereby appoint my wife Ellinor my executrix, and my son Thomas A. Morris, and my son-in-law Lewis Willcocks, to be executors of this will. And I do hereby authorize them, or the survivor of them, to sell any part of my real estate, and give a deed or deeds for the same, in case they shall find it proper or most Jit, in their opinion, to sell the same for the pur- pose of paying my debts. And I hereby appoint my said son Thomas, guardian of his children during their minority, and in case he should at any time consider it best and proper for their interest to sell their part of my real estate, then I author- ize him to sell the same, or any part of it, and give a deed or deeds for any part he may sell, and put the money arising there- from at interest, and appropriate such interest, or any income of this devise, for the education, benefit and bringing up of his said child ten. In testimony," &c. The plaintiff was one of seven children which Thomas A. Morris had at the death of the testator, and claimed an undi- vided fourteenth of the premises under the will. The defen- dant was in possession at the commencement of the suit, and claimed title under a sale and conveyance of the premises made by Lewis Willcocks, one of the executors named in the will. The will was duly proved as a will of real estate before the surrogate of the city and county of New- York, in March, 1833, and in July, 1834, the said surrogate granted letters testamen- tary to the said Lewis Willcocks. Ellinor Morris, the execu- trix, and Thomas A. Morris, the other executor, were not named in (he letters, and never appeared, qualified, or acted as executrix and executor ; but no formal steps were ever taken to procure their renunciation. On the 17th of September, 1831, the said Lewis "Willcocks, as sole acting and qualified executor, sold and conveyed the premises to Francis Salmon, who afterwards conveyed to the defendant. Ellinor Morris joined in the deed to Salmon for the purpose merely of releasing her right of dower in the premises, describing herself in the deed as the widow of Andrew Morris, but not as executrix. The deed recited, among other things, that she and Thomas A. Morris had declined to take upon ROCHESTER, JUNE, 1848. 343 Taylor v. Morris. themselves the execution of the will. It was admitted, on the trial, that the defendant's title was good, provided Lewis Will- cocks had power under the will to sell and convey the real es- tate of the testator, without the concurrence of Thomas A. Morris, the other executor. Upon these facts, the court of common pleas ruled, that un- der the will it was necessary that all the executors named should join in the conveyance in order to render it valid, and that as Thomas A. Morris had not joined in the conveyance to Salmon, the defendant had failed to make out a title. A ver- dict was accordingly taken for the plaintiff, on which judgment was rendered, and the supreme court on error affirmed such judgment. The defendant below brings error to this court. Frederick R. Sherman, for plaintiff in error. The concur- rence of Thomas A. Morris, the other executor, was not neces- sary to give validity to the deed. By statute, (2 R. 1$. 71, 15,) every person named in a will as executor, and not named as such in the letters testamentary, shall be deemed superseded thereby, and shall have no power or authority whatever as ex- ecutor. The mere will itself, therefore, does not in this state, as in England, make a person executor. He must appear and qualify, by taking the oath of office, and by taking out letters testamentary. A refusal or neglect to comply with these requi- sites, is, in effect, the same as a renunciation by record, of the trust. Thomas A. Morris and Ellinor Morris, not having com- plied with these requisites, are therefore to be considered as blot- ted out of the will, and this leaves Lev/is Willcocks, in effect, the surviving executor. (Roseboom v. Masher, 2 Denio, 63 ; Sharp v. Pratt, 15 Wend. 610 ; Zcbactts Lessee v. Smith, 3 Bin. 69.) The power in question was well executed under the revised statutes, (2 R. S. 109, 55,) which declares, that when real es- tate is devised to executors to be sold, or where it is ordered to be sold by the executors, and any executor shall neglect of re- fuse to take upon him the execution of the will, then the sale, made by the executor who does take noon himself the exec" 344 CASES IN THE COURT OF APPEALS. Taylor v. Morris. lion of the will, shall he valid, as if all had joined. (Roseboom v. Mosher, 2 Dcnio, 63 ; Fran/din v. Osgood, 14 John. 554 ; Sharp v. Pratt, 15 Wend. 610 ; Bunner $ Manning's, ex- ecutors, v. Storm, 1 Sand. Ch. Rep. 357 ; Ogdcn v. Smith, 2 Paige, 198 ; ferfc// v. Fa/i Bur en, 4 fc7/, 494 ; ZebacVs Lessee v. StofcA, 3 Bin. 69 ; 3 McCorcFs Rep. (S. C.) 29 ; 1 Dev. fy Batt. 389 ; 3 Munf. 345, 347 ; 6 Rand. 594 ; 1 Ham- mond, 232.) The executors in the will in question take as executors vir- tute officii, and not nominatim, as individuals. They are ap- pointed to sell by their official description, and are to apply the produce of the sale officially ; that is, to the payment of the tes- tators debts. The payment of debts is strictly an executorial duty, and the power to sell for that purpose is highly favored. (Sug. on Pow. 144; Pow. on Dev. 240; Wither all v. Gar- tham, 6 T. R. 396 ; Jenk. Cent. p. 44, case 83.) The power contained in this will, viewed at common law, is not a mere naked power, but a power coupled with a trust, to wit, the payment of debts ; and there being also some interest in the executors themselves, the case falls directly within the principle of Franklin v. Osgood, (14 John. 554.) The judgment of the supreme court should be reversed with costs. / G. Ring, for the defendant in error. The conveyance by Wiilcocks to Salmon, having been made without the concur- rence of Thomas A. Morris, his co-executor, was void, and passed no estate in the land to Salmon. A power or authority given to t\vo or more persons cannot, in the nature of things, be executed by a less number than the whole. It is true that at common law a distinction was made between what was termed a naked power and what was termed a power coupled with an interest. The former could not be executed without the concurrence of the whole number of per- sons to whom it was given, and if one died or refused to act, the power could not be executed. (Co. Lilt. 112 b, 113 a, 181 b . Shcp. Touch. 419, pi 9 ; Powell on Devises, 292, 310.) The ROCHESTER, JUNE, 1848. 345 Taylor v. Morris. latter might be executed by the survivor or by the person taking upon himself its execution ; (3 Salk. 277 ; 3 Atk. 714 ; 2 P. Wms. 102 ; 1 Caines 1 Cas. in Err. 15 ; 3 Cowerts R. 654 ;) but a careful examination shows that there is nothing in these rules which militates against the above proposition. To under- stand the meaning of the terms "naked powers" and " powers coupled with an interest," as here applied, it is necessary to go back to common law definitions. " A naked authority," says Powell in his treatise on devises, " is where a man devises that his executors shall sell his land, or orders his land to be sold by his executors, or appoints A. and B., whom he makes his executors, to sell his land. In all these cases the executors have only a naked power, and after the death of the testator the freehold descends to the heir." (Pow. on Dev. 292, 3.) The same writer says, " If lands be devised to the executors to be distributed for the good of the testator's soul, in this case the freehold is in the executors after the death of the testator and not in the heir. By this devise they have authority coupled with an interest." (Id. 301. See also Sug- den on Powers, 129.) These definitions render the reason of the rules alluded to perfectly intelligible. A naked power to two cannot in the na- ture of things be executed by one, because one is not two, and less than two does not satisfy the words of the donor. A power coupled with an interest can be executed by the survivor, &c. ; not indeed as a power, (and here lies the key to the whole dif- ficulty,) because the same technical objection would here apply as to a naked power, that a part is not the whole. But the land being vested in all in joint tenancy, upon the death of one goes to the survivors by the jus accrescendi, (4 Kent's Com. 360,) and the trust (all powers whether naked or coupled with an interest were originally to direct uses and perform trusts,) (4 Kent's Com. 505, 314.} follows the land ; (2 Story's Eq. Jur 288, 976 ;) and a court of equity would compel the survivors to execute the trust ; and what a trustee may be compelled to do by suit he may voluntarily do without suit. ( 2 Story's Eq. fur. 290, 979.) The power itself actually becomes exunct, T. 4.4 346 CASES IN THE COURT OF APPEALS. Taylor r. Morris. but the trust surviving, a duty, and consequently an authority to execute it also survives. The rule was precisely the same where one of the trustees refused to accept the estate, which in such case would vest in the one accepting. (3 Paige, 421.) In the case before the court the power is a naked one ; but were it otherwise, and were the land vested in the executors, the survivor could not, without the express authority given in the will, execute the power, because there is no trust connected with it which a court of equity could enforce. At common law, neither a naked power nor a power coupled with an interest could be executed by less than the whole while the whole were living- and had not rejected the trust. (Sin- clair v. Jackson, 8 Cowen, 544 ; Bogert v. Hertell, 4 Hill, 514.) In the present case, Thomas A. Morris had neglected to qual- ify as executor, hut he had not rejected the trust. (Sugdenon Pow. 138 ; Judson v. Gibbons, 5 Wend. 227 ; 4 Hill, 508 512 ; 21 Wend. 436.) The revised statutes (1 R. S. 735, 112,) provide " where a power is vested in several persons, all must unite in its execu- tion ; but if previous to such execution one or more shall die, the power may be executed by the survivor or survivors. The conveyance of NY'illcocks is void under this provision of the statute. The revised statutes, (vol. 2, p. 109, 55.) has no application to a case like the present, because the land is not ordered to be sold. This statute is substantially a re-enactment of the stat- ute 21 lien. 8, (see 2 Paige, 108,) which statute applies to na- ked powers, as is shown by the recital " whereas divers sundry persons before this time having other persons seized to their uses of and in lands," &c. and was enacted to remedy the in- convenience of a strict construction of the common law, where one of the executors refused to intermeddle, by enabling the other executors, who accepted, to sell, and rendering their dis- position valid. (Powell on JJcv. 310 ; Sugd. on Powers, 139 ; 7 Dana, 8.) It was unnecessary to extend the statute to pow- ers coupled with an interest, (that is, where the donee also has the legal estate,) because the executors in such case had full power at common law. ROCHESTER, JUNE, 1848. 347 Taylor v. Morris. The section of the revised statutes referred to embraces both naked powers and powers coupled with an interest, the latter of course unnecessarily. The language of the statute, 21 Hen. 8, is where testators have by their last wills " willed and declared such their lands to be sold by their executors." The language of the section of the revised statutes referred to is, " or where such estate is or- dered by any last will to be sold by the executors" &c. Where land is ordered to be sold ; that is, where it appears from the will that the testator had determined to have it sold ; such a trust is created as would be enforced by a court of equity in case of the death or refusal of one or all of the executors ; and the statute does nothing more than anticipate the appoint- ment of a trustee by a court of equity. But the statute has no application to cases like the present, where there is a discretion given to the executors to determine whether the land shall be sold or not. There is in such cases no enforcible trust, and the exercise of the discretion by less than the whole would be a manifest violation of the intention of the testator. (Clay and Craig v. Hart, 7 Dana, 2 ; Wooldridge v. Watkins, 3 Bibb, 349 ; Coleman v. McKinney, 3 J. J. Marsh. 248 ; Peters v. Beverley, 10 Peters, 532 ; 1 R. S. 734. 96 ; and as to execu- tion of such a discretionary power at common law, see Sug- den on Powers, 145, 148, 222; Moore, 61, pi. 172; Cole v. Wade, 16 Ves. 27, 45, 46, 47 ; Walter v . Maunde, 19 id. 424; 7 Dana, 2, and cases cited ; 2 Story's Eq. Jitr. 397, 1061.) The testator directs his debts to be paid out of his estate ; which is the usual direction in all wills, and gives the executors no authority to meddle with the real estate. The method of paying debts " out of the estate," where no power is given by the will to sell real estate, is first to appropriate all the personal property to that purpose, and upon that proving to be insuffi- cient, the executor applies to the surrogate for an order to sell the real estate ; before this can be obtained, it is necessary that all the heirs and devisees should be cited, and the executor must show " that the whole of the personal property which could be applied to the payment of debts of the deceased has 348 CASES IN THE COURT OF APPEALS. Taylor v. Morris. been duly applied for that purpose." (2 R. S. 102, 14, sub. 3.) Under a power to sell real estate to pay debts, the executors act without any check, and may resort to the land in the first instance. They may squander away every dollar of the per- sonal property and still sell the real estate, and in answer to any complaint of the devisees they may say " we think most fit and proper" (See Roseboom v. Mosher, 2 Dcnio, 62.) The common law doctrine respecting powers given to indi- dividuals " nominating" and powers given to them ' eo nomine" cannot affect the present case, because, 1st, the power is given to the executors nominatim and not eo nomine. (Sugden on Powers, 141, 2, 4 ; 4 Kenfs Com. 326 ; Powell on Dev. 292 ; Clay $ Craig v. Hart, 7 Dana, 2 ; 2 Story's Eq. Jur. 398.) 2d. A power to individuals eo nomine as " my executors" could not be executed by a single individual, because a single indi- vidual did not answer the words of the donor, "executors" in the plural. In the language of Coke, it could only be executed while the plural number remained. 3d. The doctrine did not apply to cases of mere discretion. See Clay $* Craig v. Hart, (7 Dana, 2,) in which case the power was given to the " execu- tors" eo nomine. (See also 1 R. S. 735, 112.) The statute (2 R. S. 71, 15) declaring that any executor not named in the will shall be deemed superseded, does not aid the execution of the power in question. For if the statute did sus- pend the power of Thomas A. Morris, still Willcocks acquired no additional power thereby. But the statute did not suspend the powers of Thomas A. Morris as trustee ; his powers as executor were suspended, but not his powers as trustee. (Sug- dcn on Pow. 138; Judson v. Gibbons 5 Wend. 227; 4 Hill, 508, 512 ; 21 Wend. 432.) The object of the provision of the statute is manifest. At common law an executor might take pos- session of the testator's personal property and perform nearly all the legitimate duties of an executor without taking out letters upon the will. ( Toller on Ex'rs, 21.) This was a defect in the law, and it was to remedy this that the statute was enacted. ROCHESTER, JUNE, 1848. 349 Taylor v. Morris. RUGGLES, J. The question to be solved here is not whether the power of sale survives to the surviving executor. The will de- clares expressly that it shall so survive. But that case has not oc- curred. The executors were all living when the deed in question was executed under the power. Two of the three had, how- ever, neglected to act under the will. Only one had taken upon himself the execution of the will. He executed the deed in question alone and without the concurrence of the others. This was not a valid execution of the power at common law, and whether it was good under the statute of this state, (2 R. S, 109, 55,) is the question presented for decision. The statute is as follows : " Sec. 55. Where any real estate or any interest therein is given or devised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them, or where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or executors, who shall lake upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale." This statute is not a copy of 21 H. 8, ch. 4, but was intended un- doubtedly to embrace all the cases adjudged to fall within the scope of the English act, and perhaps others. But the plaintiff, who contests the validity of the deed, insists that the statute applies only to those cases in which the land is ordered to be sold by a positive and mandatory direction of the testator ; and not to the case of a mere power of sale, or where there is a discretion given to the executors to determine whether the land shall be sold or not. This distinction appears to be somewhat nice and refined ; one that might not occur to all readers of the statute. It seems to have slept unnoticed during the progress and termination of several contested cases in this state and elsewhere, in which the distinction, if sound, would have been fatal to conveyances that were ad'uclged, in those cases, to be valid. In Roseboom v. Mosher, (2 Denio, 61,) the testator gave to his executors discretionary power to sell his lands, if in then 350 CASES IN THE COURT OF APPEALS. Taylor v. Morris. opinion, it should become necessary for the support and main- tenance of his wife and children. One of the executors ne- glected to qualify, and the other who acted sold the land and executed the deed. It was regarded as a valid execution of (he power under the statute. The case turned chiefly on the question whether proof of renunciation by one was necessary to enable the other to execute the power ; and it was held that mere neglect to act was enough without a renunciation. The objection in that case would, if valid, have been fatal to the deed, but it was not raised by the counsel, nor suggested by the court. Sharp v. Pratt, (15 Wend. 610,) was a case of the same kind. Nicholas Kiersted by his will appointed four executors, and authorized them to sell his real estate which he had de- vised to his children. Two of the executors acted under the will and conveyed the land without the concurrence of the others. The contested question in the case was, whether it was necessary to show, in support of the deed executed by the acting executors, that the others had renounced ; and it was held not to be necessary. The objection now made was not raised ; but the language of the court shows that the statute authorizing acting executors to execute the conveyance, was supposed to apply as well to a mere discretionary power, as to a mandatory order of sale. The court say, "the statute in- tended to depart from the rule of the common law, by declaring that when power is given to several executors to sell the land, it may be executed by such as take charge of the administration, if the others refuse or neglect to take on themselves the execu- tion of the will ;" and after some further remarks the court proceed to say, " The deed, therefore, was equally efficacious to transfer the title of the testator as if it had been executed by all the executors named in the will. In this respect the statute ma/ccs no distinction between a devise to sell and a bare authority.' 11 In Bnnncr and Manning, ex'rs, v. Storm, (1 Sandf. 357,) Thomas Storm empowered his five executors to sell his real estate. Two of them acted, two renounced, and one was an ROCHESTER, JUNE, 1848. 351 Taylor v. Morris. infant. The two who acted sold the land under the power, and executed the deed without the concurrence of the others. In relation to the nature of the power, the vice chancellor said. " I am satisfied that the testator intended to make the executors the judges of the necessity for a sale." The question was whether the deed thus made by the acting executors was a valid execution of the power, and the vice chancellor adjudged that it was. Here then are three cases in the courts of this state, in which discretionary powers of sale have been held to be within the statute, and well executed by acting executors without the concurrence of the others. If these cases are not regarded as adjudications settling the construction of the statute in this state, they furnish at least very strong proof of the general un- derstanding of the profession and of the courts, that the statute embraces the case of a mere discretionary power as well as that of a peremptory direction. But we are referred to three cases in the court of appeals of Kentucky, in which it is declared that where a power of sale is conferred upon executors, leaving it to their discretion whether to sell or not, and part of the executors renounce, the acting executors cannot execute the power. By a statute of Kentucky, passed in 1799, it is enacted "that the sale and conveyance of lands devised to be sold, shall be made by the executors or such of them as shall undertake the execution of the will," &c. In one of the cases above mentioned, ( Wooldridge v. Wat/cins, 3 Bibb, 349.) it was held that this statute did not apply to a case in which the testator had " left it in the power of his executors to sell or exchange any part of his estate, real or personal, as they might judge necessary for the advantage of his estate." The opinion appears to have been founded on the reading of the act, and not upon any pre- vious adjudication. No authority is cited. The case was de- cided in 1814. In 1830, in the case of Coleman v. McKinney, (3 J. J. Mar- shall, 246,) it was held that the statute did apply to a case in vrhich the testator bad directed his executois to sell his lands 352 CASES IN THE COURT OF APPEALS. Taylcx v. Morris. for the payment of his debts, if his personal estate should be in- sufficient for that purpose, because the contingency on which the sale was to be made did not depend on the judgment of the executors. In Clay v. Hart, (7 Dana, 1,) decided in 1838, that court affirmed the law as laid down in Wooldridge v. Watkins, and added that the like doctrine had been long and incontro- vertibly settled in England, in reference to the statute of 21 H. 8, ch. 4. English books were referred to in support of that construcion. But with the greatest respect for that learned court, I am compelled to say, that I find nothing in the books referred to to uphold the doctrine. On the contrary, Mr. Sugden in his treatise on powers, at the place referred to, (p. 75,) says that formerly where a power was given to executors to sell, and one of them refused the trust, it was clear that the others could not sell, but that the 21 H. 8, ch. 4, had altered the law in that respect. The doctrine derives no support from the case cited from Moore's reports, p. 61. That was not the case of a power of sale executed by an acting ex- ecutor without the concurrence of a co-executor who had re- nounced. Nor was it the case of a power in which the executors had a discretion to sell or not. But it was a case in which the land was devised to be sold by the testator's executors, or by the executors of his executors. One of the testator's executors died intestate, and the survivor appointed executors and died ; and the question was whether the executors of the surviving executor could make the sale. It was adjudged that they could not, because the power was committed not to them alone, but to them jointly with the executors of the other executor. This case throws no light upon the construction of the slatute 21 H. S. It shows simply that a joint power cannot, at common law, oe executed by a part of those to whom it was entrusted, and vithout the concurrence of the rest. It was not a case within the 21 //. 8, because both the original executors were dead. Nor are the cases of Cole v. Wade, (1G Ves. 27,) and Walter v. Mannde, (19 id. 424,) any more satisfactory on this point. There the trust was to divide the estate of Sir Charles Boothe. among his nearest and most deserving relations the distribu ROCHESTER, JUNE, 1848. 353 Taylor t. Morris. tion to be made entirely in the discretion of the trustees. The trust was to be executed by Ruddle and Wade, the executors, and the heirs, executors and administrators of the survivor of them. It was declared that the devisees of the surviving trustee (who were not his heirs,) could not execute the trust, they mot being the persons designated therefor by Sir Charles Boothe, the original testator. The case has no relation whatever to the statute 21 H. 8. After bestowing some pains upon the search, I have not been able to find any English adjudication or dictum that the opera tion of the statute 21 H. 8, ch. 4, is limited to the case of a peremptory order to sell. Lord Coke speaks of it as embracing the case of " a power to sell." In his commentary upon Lit- tleton, 113, a, he says, "In Littleton's case admit that one ex- ecutor had refused to sell, then as the law stood when Littleton wrote, it was clear that the others could not sell. But now by the statute 21 H. 8, it is provided that when lands are willed to be sold by executors, though part of them refuse, yet the residue may sell : And albeit the letter of the law extendeth only where executors have a power to sell, yet being a benefi- cial law it is by construction extended where lands are devised to executors to be sold." Mr. Preston in his essay on abstracts of title (vol. 2, p. 253,) repeats the language of Lord Coke, say- ing, " This statute has been construed to extend as well to lands which are actually devised to be sold to two or more ex- ecutors, as to lands over which there is merely an authority ;" and in no English book can I find the trace of such a distinc- tion as that upon which the decision was founded in the case of Clay v. Hart. In Jackson v. Given, (16 John. 170.) Mr. Justice Platt seemed to have in his mind the distinction contended for on the part of the plaintiff. But that case presented a case of survivorship and not a question under the statute. It was so treated by me counsel. The testator made four executors, and directed them or any two of them, to sell his estate upon his wife's death or re-marriage. Two of them died without qualifying. Two qualified as executors and afterwards one of them died, and VOL. I. 45 354 CASES IN THE COURT OF APPEALS. Taylor v. Morris. the survivor sold and conveyed the estate. The two who quali- fied were authorized to sell by the express terms of the power. If the power survived, there was no need of the aid of the stat- ute. If it did not, the statute could not aid the sale, because it was not made " by the executors who took upon them the execution of the will," one of them being dead. Under such circumstances the observation made by the learned justice at the commencement of his opinion, ought not to be regarded as authority, especially when taken in connexion with the subse- quent cases heretofore mentioned. The distinction upon which the court acted in the cases of Wooldridge v. Watkins, and Clay v. Hart, in the state of Kentucky, does not seem to have been recognized in any other state. The Pennsylvania case of Zebach's lessee v. Smith, (3 Bin- ney, 69,) is against the Kentucky decisions. Bartholomew Ze- bach made his will, appointing three executors, and empowered them as follows : " to sell my land in Shamokin, on Penn's creek, in the old purchase, and to give good right. When my debts are paid, if any thing should remain, my wife shall buy two cows," &c. Two of the executors renounced and the other conveyed the land. There was no imperative direction to sell. The counsel for the plaintiff supposed that case to differ from the one in hand in this particular, that in the case of Ze- bach's will there was a trust which the creditors could have enforced in equity ; but that in the will in question there was not such a trust. But it seems to me there was such a trust : n both cases, and more plainly so in (he case of Morris' will than that of Zebach, because in Morris' will the power is given ex- pressly for the payment of debts, and in Zebach's it is only so by inference. The creditors have an interest in the execution of the power; and in case of a deficiency of personal estate, it ceases to be a matter of discretion in the executors whether to sell or not ; it becomes their duty to sell. It is true the creditors may have another remedy, and perhaps a better one than a bill in equity against the executor to enforce the execution of the oowcr, to wit, by application under the statute for an order to ROCHESTER, JUNE, 1848. 355 Taylor v. Morris. sell. But that does not change the character of the power, nor exonerate the executor from his duty to the creditors. In Chanet v. Villeponteaux, (3 M' Cord's South Car. Rep.) the testator devised his lands to be sold at the discretion of his executors, of whom there were two. One went to France with- out having qualified, and the acting executor made the sale and conveyance. It was adjudged to be a case within the 21 H. 8, which had been re-enacted in that state. In Wood v. Sparks, (1 Dev. fy Bat. N. Car. Rep.} the tes- tator, by his will, made three executors, only one of whom qualified. That one, without the others, sold and conveyed the land under a power expressed in these words, " If my ex- ecutors should think it best, I wish them to sell my real estate in the town of Plymouth, to the best advantage for the benefit of my children." The conveyance was adjudged to be a valid execution of the power by virtue of the statute 21 H. 8, ch. 4. It is true that no point appears to have been made in this case upon the discretionary character of the power. That question was not raised, although the case occurred more than twenty years after the decision of the case of Wooldridge v. Watkins. But the question has been raised, argued and decided in the court of appeals of Virginia, and the decision was adverse to the rule adopted in Kentucky. It is worthy of observation that the statutes of Virginia and Kentucky, on this subject, are pre- cisely alike, excepting that the statute of Virginia authorizes the administrator, with the will annexed, to execute the power of sale when ail the executors refuse to act, in the same cases in which the acting executor can execute it when part of the ex- ecutors refuse. The case alluded to was that of Brown v. Ar- mistead, reported in 6 Rand. 593. The power of sale in the testator's will was in these words : " My will and desire is that my executors hereinafter appointed, sell, at public sale, all my land, provided the said land will sell for as much, in their judg- ment, as will be equal to its value ; and the money arising from such sale to be placed in the hands of my friend Stark Armistead, one of my executors hereafter appointed, whom I vest with power to apply the said money to any use 01 uses he CASES IN THE COURT OF APPEALS. Taylor v. Morris. in his discretion may deem best for the benefit of my wife and all my children." The testator appointed three executors, all of whom refused to act. The sale was made and conveyance executed by the administrator with the will annexed. Judge Carr, in delivering the opinion of the court, says, " This statute," (speaking of that part of it of which the Kentucky statute is a copy,) " was taken from the 21 H. 8, ch. 4, It was admitted in the argument that if the testator had directed a positive arid un- conditional sale of the land by his executors, the case would have come directly within the law. But they are directed to sell provided the land will sell for as much, in their judgment, as will be equal to its value; and this, it is insisted, renders it a special confidence reposed in the individuals appointed execu- tors, which is personal to them, and can only be exercised by them, and not even by a part of them, but by the whole only. This point was argued with great strength, but the researches of the counsel had enabled him to produce no cases in support of it, nor have I found any." The power was adjudged to be well executed. The opinion of the court was unanimous, ex- cepting that one of the five judges was absent. The argument on the part of the plaintiff is founded on the assumption that the statute, in speaking of lands "ordered to be sold," speaks only of those which the executors are peremp- torily commanded to sell. But that would be a strict and nar- row construction of a remedial and beneficial statute, the object of which was to prevent the failure of the power, and to carry out the intention of the testator as far as possible by the agents of his own selection. Although an authority to an executor (o sell is not a command that he shall sell, it is substantially an order that he may sell. The statute was designed as a remedy for the oversight of a teslator in not providing for the contingency that some of his executors might refuse to serve ; and it was framed upon the presumption and belief that if that contingency had been fore- seen, the testator would have preferred that one of his executors should execute the power alone, rather than it should fail. This presumption applies with as much force to the case of a ROCHESTER, JUNE, 1848. 357 Taylor v. Morris. discretionary power as to one of a mandatory character. Very many testators are not aware of the common law rule, that in the execution of a joint power it is indispensable that all must unite. And in appointing the agents to execute a power in- volving the exercise of discretion, it is natural to suppose that each one would be selected with reference to his fitness and ca- pacity for the trust. This inference is natural and fair in all cases where the testator has not thought proper to say expressly that a certain number must unite in the sale. Gaston, J. in Wood v. Sparks, (1 Dev. $ Bat. 392,) says, " the great pur- pose of the statute. (21 H. 8, ch. 4,) is to correct mischiefs result- ing from a rigid construction of these testamentary authorities, and it is the rule of law to so expound the act as to suppress these mischiefs and apply its remedies." In the present case the power of sale was expressly given to the surviving executor : and the testator thereby manifested his intention that in a cer- tain event the power might be executed by one only of the three donees. It is true the event contemplated has not occurred ; that is to say, Willcocks is not the surviving executor, and therefore at common law the power could not be executed by him alone ; but if the testator in this case had not deemed each separate executor capable of executing the power alone, he would not have authorized its execution by the survivor ; and in ZebacKs lessee v. Smith, Yeates, J. says that by the statute 21 H. 8, an acting executor upon the renunciation of the others is put upon the footing of a surviving executor. The statute in fact goes further. It enables the acting executor to execute the power in those cases in which the survivor would not have that authority by the common law. I am satisfied both on principle and on authority that the statute should be held to extend to all powers of sale conferred on executors, whether they involve the exercise of discretion, 01 are peremptory in their character. Wills may thus be carried into effect according to their true intention, when otherwise they would be defeated by circumstances unforeseen by the testator. The judgment of the supreme court and of the New- York com- mon pleas should be reversed, and a venire de novo awarded. 358 CASES IN THE COURT OF APPEALS. Taylor v. Morris. JEWETT, Ch. J. The devise did not pass any interest in the real eslate of the testator to the executrix and executors named, but merely conferred on such of them as took letters testamentary thereon a power to sell and convey all or any part of his real estate, in case they in their opinion should find it proper or most fit to do so, to pay the debts of the testator. This power is a mere naked power, not coupled with any in- terest whatever, and at common law could not have been exe- cuted by.one of the three executors named. (4 Kent's Com. 5th ed. 320, n. c. ; Sharpsteen v. Tillou, 3 Cow. 651 ; Bergen v. Bennett, 1 Caines 1 Cases in Err. 15 ; Jackson v. Schauber, 7 Cowen, 187.) And now by statute, (1 R. S. 735, 112,) when a power is vested in several persons all must unite in its execu- tion, unless previous to its execution one or more of such per- sons shall die ; in that case the power may be executed by the survivor or survivors. But this provision is limited and con- trolled by the provisions of the statute. (2 R. S. 109, 55.) It is, however, contended that this statute does not affect the ques- tion, on (he ground that the estate is not ordered, but merely authorized to be sold, upon the contingency that the three ex- ecutors named, or the survivor of them, should in their opinion find it proper or more fit to sell it for the purpose of paying the testator's debts, and that the statute only operates upon and makes valid conveyances of land made by one of several execu- tors in the case mentioned, where the testator commands or imperatively directs a sale lobe made ; and does not extend to the case where a sale is merely permitted or authorized in the discretion of his executors. The statute was passed to remedy the inconvenience, where some of the executors refuse or neglect to act, as executors ; by reason of which such power conferred could not, by the princi- ples of the common law, be executed ; as all were required to concur in the act authorized to be done. The mischief is the same in effect, in the case where the testator has by his will authorized his executors in their discretion to sell his lands to pay his debts, &c. when some of his executors neglect or refuse to take upon themselves the execution of his will, as in tb* ROCHESTER, JUNE, 1848. 359 Moore r. DCS Arts. case where the same act is commanded or ordered to be done ; and I think that the statute should receive a liberal construc- tion, such as will suppress the mischief and advance the rem- edy, which is to render sales made under such power or authority by the executor or executors who do take upon them the exe- cution of such will equally valid as if all of the executors named in the will had joined in the sale. It is by no means unusual, in construing a remedial statute, to extend the enacting words beyond their natural import and effect, in order to include cases within the same mischief. (Dwarris on Stat. 735.) My con- clusion is that Willcocks had power under the will to convey the real estate of the testator, without the concurrence of his co-executor named in the will. Judgment reversed. MOORE, appellant, vs. DES ARTS, respondent. The defendant imported into the city of New- York goods on which the collector of customs exacted and received duties. The goods were by law entitled to a draw- back of the duties in case they were exported within three years. The defendant sold the goods to the plaintiff at the " long price," which by custom and agreement included the amount of duties paid, and carried to the purchaser the right to the drawback. Afterwards, and while the plaintiffs yet owned the goods and could export them so as to get the drawback, or could sell them in market at the "long price," the secretary of the treasury decided that goods of that kind were duty free, and thereupon the duties were refunded to the importer. In consequence of such decision tbe right to a drawback was extinguished, and the market price of the article was immediately reduced by about the amount of duties which had been exacted. Held, on bill filed to recover the amount of duties returned to the defen- dant, there being no fraud in the case, and no warrranty that the goods were du- tiable, and no allegation that the plaintiff intended to export the goods, that the plaintiff could not recover. Quere, whether, in case the plaintiff had a right to recover the money, the remedy would not be at law. APPEAL from chancery. Moore filed his bill before the vice chancellor of the first circuit against Des Arts, stating the case m substance as follows : In February, 1 344. the defendant irr> 360 CASES IN THE COURT OF APPEALS. Moore v. Des ArU, ported into the city of New- York 56,540 pounds of spelter, (a species of zinc,) on which the collector at the port of New- York exacted, and was paid by the importer, the sum of $'565,40, foi the duties, being twenty per cent ad valorem. The spelter was entitled to a drawback of the whole amount of duties in case it should be exported within three years. By usage and custom among merchants in New- York there are two modes of selling merchandise, so entitled to drawback ; one at the " long price," the other at the " short price." By a sale at the " long price" is meant a sale at the full market value, including the amount paid for duties, so that the right to the drawback or return of duties is transferred to the purchaser, who receives back the duties in case he exports the article. By the " short price" of such goods, is meant a price less than the " long price" by about the amount of duties paid, and the purchaser at the " short price" is bound to export the goods so as to entitle them to the drawback which the importer receives; or in case the purchaser at the " short price" does not export them, then he is bound himself to pay to the importer the amount of the drawback. After the spelter was imported, the complainant bought it of the defendant at the " long price," being 6 cents per pound, amounting in all to $3675,10. The "short price" at the time of such purchase was 5 cents per pound ; so that the di (Ter- ence, (one cent on each pound,) would be $565,40, the amount of duties paid. After the purchase by the complainant, and in September, 1844, the secretary of the treasury decided that spelter was free from duty, under the name of " teutcnc.quc" in the act of congress. And thereupon the sum of ,$'5()5,40. being the amount of duties which the defendant had paid on the importation of the spoiler in question, was refunded to him. The spelter was yet owned by the complainant, and in a con- dition to be exported, so as to entitle it to the drawback ; but, as the bill alleged, by the decision of the secretary of the treas- ury, the right to the drawback on exporting the goods, was lost and extinguished, and by the same cause the price of the arti- cle was immediately reduced by about the amount of duties paid, and the article could no longer be sold at the '' long price." ROCHESTER, JUNE, 1848. 351 Moore v. Des Arts. The bill further stated, that as soon as the decision of the secretary was made known, the complainant requested the defendant to furnish him with the proper authority to receive the return duties at the custom house, which the defendant re- fused to do ; also, that after the defendant received such duties, the complainant demanded that the same be paid over to him, which payment the defendant also refused. The bill claimed to recover the said sum of $565,40. There was no allegation that the complainant ever intended to export the spelter, or that he would have exported it, so as to obtain the drawback. The defendant demurred to the bill for want of equity, and his demurrer was overruled by the vice chancellor, whose de- cision was reversed by the chancellor on appeal, and the bill was ordered to be dismissed. The complainant appeals to this court. H. S. Dodge, for the appellant. The case presented by the bill entitles the plaintiff to the relief prayed, whether the spelter was charged with the duties correctly or illegally. Assuming the duties to have been improperly exacted, it is a case of mu- tual mistake. Both parties assumed and expressly agreed, that the article was dutiable, would be entitled to drawback, and on such assumption the contract for sale at the " long price" was made. This (if a mistake) was a mistake of fact, not of law. The question of fact being what was the meaning of " teute- neque" in the act of congress. The decision of the collector of the customs as to this fact could not be reviewed. But if the duties exacted were payable as the parties suppo- sed them to be, then the plaintiff was deprived, by the exercise of the discretion of the secretary of the treasury, of an advantage for which he expressly contracted and paid ; the literal perform- ance of so much of the defendant's contract as required him to receive the drawback as trustee for the plaintiff has been pre- vented, but the defendant has received an indemnity which he holds as trustee for the plaintiff in the same manner as he would have held the drawback if it had been received. Here is not only a failure of consideration by accident, but at the Vnr T " 46 362 CASES IN THE COURT OF APPEALS. Moore t>. DCS Arts. same time, a receipt of an indemnity, and precisely within the maxim " neminem cum alterius detrimento fieri locupletiorem? (1 Story's Eq. Jur. 472, 473 ; Quick v. Stuyvesant, 2 Paige, 84 ; Chase v. Barrett, 4 id. 148 ; Hachett v. Pattle, 6 Madd. 4 ; May v. Bennett, 1 Russ. 370.) The plaintiff is the purchaser and assignee of the defendant's right to any return of the duties, as well to an indemnity for the drawback, as to the drawback itself, and his equity is like that of the complainant in Randal v. Cochran, (1 Vcs. sen. 98 ;) Wood v. young, (5 Wend. 620 ;) New- York Ins. Co. v. Ron- let, (24 id. 505 ;) S. C. by the name of Varet v. New- York Ins. Co. (7 Paige, 561 ;) Heard v. Bradford, (4 Mass. R. 326 ;) 8 id. 340 ; 3 id. 443 ; 2 Denio, 224 ; 4 Hill, 635. The remedy is not exclusively at law ; if there be any reme- dy at law it is the equitable action for money had and received. This action is a substitute for a bill of equity, and assumes a concurrent jurisdiction in equity, and courts of equity have not lost their jurisdiction because the law courts have extended theirs. (2 Story's Eq. Jar. 1255, 1256.) D. Lord, for the respondent. I. The merchandize, spelter, was not in law dutiable ; and so was not within the usage al- leged as to debenture goods. II. Both parties are to be deemed conversant of the commer- cial name of the article, and then, whether dutiable or not, was a question of law ; the parties contracting in knowledge of the law and fact, are silent as to the sum exacted as a duty ; it is ihe vendor's money, and the vendee, without a contract for it, cannot claim it. III. The contract of sale merely, (without any mistake of fact, or fraud, or contract for the amount exacted,) docs not car- ry with it any obligation of refunding any part of the supposed components of the cost of the goods. IV. If the contract of sale, by its nature or the usage alleged, contains an agreement to refund any part of the cost, then the remedy is at law ; here being neither trust, mistake, acci- ROCHESTER, JUNE, 1848. 353 Moore r. Des Arts. dent or fraud, and no ground of jurisdiction for discovery or account. BRONSON, J. The case made by the bill amounts to this ; and nothing more. The defendant imported the spelter, and paid the duties which were demanded by the government. The property was then sold to the complainant at the " long price," or full market value, which, according to the alleged usage in the city of New- York, and the intention of the parties, gave the complainant a right to the drawback, in case the goods should be exported at such time and in such manner as to en- title them to a drawback. While the goods still remained in a condition in which they might have been exported and the draw- back secured, the secretary of the treasury decided, that the goods were free from duty ; and thereupon the money which had been wrongfully demanded of the defendant when he im- ported the spelter, was refunded to him by the government. Immediately on publishing the decision of the secretary of the treasury, the right to obtain the drawback on exporting the goods was lost ; and the complainant also lost the right and opportunity of obtaining an equivalent for the drawback by re- selling the goods at the "long price" the market value of the goods being reduced by about the amount of the duties. On this case, the complainant insists, that the money which was refunded to the defendant belongs to him. Although (here is a seeming equity in favor of 4he complain- ant, I have not been able to discover any principle upon which his claim can be supported. There was no warranty when the complainant purchased that the goods were dutiable ; and no fraud of any kind is imputed to the defendant. So far as ap- pears, the parties dealt upon equal terms, each knowing all that was known by the other. As the government officers have decided both ways on the question whether the spelter was sub- ject to duties, it may fairly be presumed that these merchants knew that was a debateable question ; they knew that the de- cision which had been made by the collector might be overruled by the secretary of the treasury, and the duties be refunded to 364 CASES IN THE COURT OF APPEALS. Moore v. Des Arts. the importer. With this knowledge the defendant sold, and the complainant purchased the spelter, with a right to the drawback, should that right ever become perfect. But there was no sale or purchase of the duties in case they should be refunded by the government, on the ground that the goods were not dutiable. At the time of the sale, there were two contin- gencies in which the duties might be restored to the importer : he might receive them as a drawback on exporting the goods ; or the money might be refunded on the ground that it was im- properly demanded at the first. The complainant purchased the right to the drawback ; but he did not purchase the other right. And I do not see how we can give it to him without making a contract for the parties. The argument for the complainant goes upon the ground, that he purchased the right to the duties should they be restored by the government for any cause. But that is not the case made by the bill. He only purchased a right to the duties in case they should be restored as a drawback on exporting the goods. There is no allegation that the defendant did any act which deprived the complainant of the right to the drawback. On tKe contrary, the allegation is. that the right was lost to tho complainant immediately on the making and publication of the decision of the secretary that the goods were free from duty. And such was evidently the necessary consequence of the de- cision. The right of drawback was at an end, whether the defendant received the money which the government offered to refund, or not. And the decision that such goods were free, would of course reduce their market, value by about the amount which had before been charged for duties. There is a further difficulty in the case. The bill contains no allegation that the complainant, at the time the secretary made his decision, intended to, or would have exported the- goods, if the duties had not been refunded ; nor that he could have sold the property to any one else for the purpose of expor- tation ; nor that the goods then bore a higher price in any for- eign market than they did in our own. Nor does it appear in ROCHESTER, JUNE, 1848. 355 Winter c. Kinney. any other way, that the complainant lost any thing of value, oy losing the right, which he purchased, to the drawback on exporting the goods. The fall in the market value of the prop- erty did not result from the loss of the right of drawback ; but was the natural consequence of the decision of the government that the goods were not subject to duties. I am of opinion that the decree of the court of chancery is nght, and should be affirmed. Decree affirmed. o WINTER vs. KINNEY. ^ 16 The policy of the law in declaring void bonds, agreements, &c. taken by sheriffs and 28 other officers colore qfficii not in conformity with statute, is to guwd against official oppression on the one side, and a lax performance of duty to the injury of the gQ plaintiff in the process on the other. 80 An agreement made with a sheriff by which a party under arrest is permitted to go e "* at large upon any terms other than those prescribed by statute is void. And so is any agreement taken from a party in custody intended as an indemnity to the sheriff for a breach of duty. But the prohibition extends only to the officer, and not to the plaintiff in the process. Therefore, where a party under arrest was permitted to go at large, upon deposit- ing with a third person the sum of money for which he was arrested, under an agreement, that if he did not surrender himself at a given time, the money might be paid over to the plaintiff in the process ; held, in an action to recover back the money from the person with whom it was deposited, that the question was, whether the agreement was made with the officer, or with the plaintiff at whose suit the arrest was made ; and upon the evidence, that question directed to be submitted to the jury. ON error from the supreme court. Kinney brought assumpsit against Andrew Winter in the supreme court, and declared for money had and received to his use. The defendant pleaded the general issue, and the cause was tried at the New- York circuit, before EDMONDS, circuit judge, in May, 1845. It ap- peared on the trial, that the plaintiff, who was a contractor on the New- York and Erie rail-road near the line of New- Jersey, was arrested in the fall of 1840, by John A. Winter, a deputy 366 CASES IN THE COURT OF APPEALS. Winter v. Kinnej. of the sheriff of the county of Bergen in New- Jersey, at th suit of one Wanmaker. The arrest took place on a Saturday evening, between the hours of seven and ten o'clock, within the state of New- Jersey. The plaintiff, on being arrested, agreed with the defendant, that if he would become his bail until Monday morning, he would deposit with him $340, that being the amount for which he was required to give bail ; and in case he failed to surrender himself to the deputy on Monday morning, or settle with Wanmaker, then that the defendant should pay the money over to Wanmaker. Under this agree- ment the plaintiff deposited with the defendant $340, being the money for which this suit was brought. Before daylight on Monday morning the plaintiff offered to surrender himself and demanded the money ; but the defendant and the deputy refused to accept the surrender at that time, alleging that he was not to surrender himself until after daylight. The evidence was conflicting as to the hour on Monday morning when the sur- render was to be made, and it did not appear that the plaintiff' made any other offer to surrender himself. The defendant paid the money over to Wanmaker on being indemnified. One of the witnesses testified that Wanmaker was present a part of the time when the agreement was made, and that the plain- tiff and Wanmaker on the same occasion conversed respecting Wanmakcr's claim. Another witness testified that one of the persons present began to draw a bail bond ; that the plaintiff remarked it was not worth while to be at the trouble and ex- pense of drawing it, because he would sec Wanmaker on Mon- day morning, and would arrange the matter with him, and there would be the end of it ; that it was all understood be- tween them. The circuit judge ruled that the agreement under which tho $340 was deposited was void ; that there were no questions of fact for the jury to pass upon, and that the plaintiff was entitled to recover. The defendant excepted. Verdict for the plaintiff. A motion for a new trial was denied by the supreme court, and judgment rendered for the plaintiff. ROCHESTER, JUNE, 1848. 357 Winter v. Kinney. G. R. J. Bowdoin, for plaintiff in error. Wm. Curtis Noyes, for defendant in error. WRIGHT, J. An agreement made with a sheriff, or other public officer, to obtain an indulgence not authorized by law to a party under arrest, or in contemplation of the escape of such party ; or the taking, by such officer, from a party in custody, an obligation or security not sanctioned by statute, for the ease and favor of the prisoner, and as an indemnity for a breach of duty on the part of such officer ; has uniformly been held void under the statute of 23 Henry 6, chapter 9, in England, in this state, and in other states of the Union in which that stat- ute has been in substance re-enacted ; at least, when such agree- ments or securities have been prosecuted by the officer himself, or in the name of others for his benefit, or where the attempt has been made to set up or enforce them for his relief or protec- tion. (IT. R. 418 ; 7 id. 109 ; 7 John. R. 159 ; id. 436 ; 8 id. 76; 5 Wend. 61; 19 id. 188; 1 Southard, 319; 2 id. 811.) At common law, undoubtedly, independent of the statute, if the agreement made or security taken colore officii contemplate an indemnity for the fraudulent escape of the party arrested, or for any act inconsistent with the duty of the officer, whereby either official oppression, or injury to the plaintiff in the suit may result, such agreement or security is void. The statute of New- Jersey is substantially a re-enactment of that of 23 Henry 6. It provides that no sheriff, under sheriff, coroner, jailer, or other officer that may have a party in custody, " shall take or make, or cause to be taken or made, any obligation" for letting out of prison, or from arrest, by virtue of any writ, process or warrant, in any personal action, or by reason of any indictment for trespass, " or by color of his or their office, of any person, or by any person, by course of law, but only to themselves respect- ively, and by the name of their office, and upon condition writ- ten, that the said prisoner shall appear at the clay and place mentioned and contained in the said writ, process or warrant." (Elm. Dig: 239; Laws of N. J. 1796.) The only mode in 368 CASES IN THE COURT OF APPEALS. Winter . Kinney. which the officer can discharge from arrest, is that prescribed bj statute ; nor can he take any obligation or security from the party in custody, conditioned otherwise than for his appearance at the day and place mentioned in the process. Should he do so, the act being without authority, he would not be protected against the party at whose suit the arrest was made, and the agreement or security being without consideration, so far as the officer was concerned, could not be enforced by him. The ef- fect, therefore, is to render such agreement or security in the hands of the officer, or when attempted to be enforced for his protection or benefit, utterly void. The policy of the law in declaring void agreements and securities not taken in conform- ity to the statute, when attempted to be set up and enforced by the officer, is to guard against official oppression on the one side, and a lax performance of duty, to the injury of the plain- tiffin the process, on the other. I would not be understood as saying that a public officer may not, under any circumstances, take a security unless it be one authorized by statute law. There are a variety of securities taken by the officers referred to in the New- Jersey statute, valid at common law, but not embraced within any statutory enactment. But where a party is in custody, and the officer, instead of taking the obligation for his release specifically prescribed by statute, takes one at his own volition, more or less onerous to the prisoner, he asserts, by virtue of his office, an illegal claim of right or authority to take it. He takes it color e ojficii. " Color of office," says Tomlin, " is when an act is evilly done by the countenance of an officer; and is always taken in the worst sense, being grounded upon corruption, to which the office is a mere shadow or color." But the statute is confined to public officers ; and hence a distinction is to be observed between agreements made by offi- cers colore nfficii, and those with the party at whose suit the arrest is made. The latter may make such agreement or take such security as he pleases, on discharging his debtor from ar- rest. In Hall v. Carter, (2 Mod. 304,) it was said, though a sheriff cannot take a bond in any other form than that prescri- ROCHESTER, JUNE, 1848. 359 Winter . Kinney. bed by statute, the party himself may ; and this doctrine was affirmed in Rogers v. Reeves, (1 T. R. 422,) and Fuller v. Prest, (7 T. R. 109) The party may also agree or consent that the prisoner shall go at large on a deposit of money to dis- charge his debt, or dispensing with the bail bond, may accept his own, or the undertaking of another, that he will appear. But in these cases, the officer must not be a party in any way beneficially interested in the agreement or security. There is but a single question in this case. If the agreement set up was made with the deputy sheriff, John A. Winter, through his brother Andrew, in contravention and evasion of the stat- ute, it was void ; and Kinney having parted with his money without consideration, it still belongs to him. On the other hand, if the contract was made with Wanmaker, the plaintiff in the writ, or with his assent and for his benefit, and the sheriff was no party to it, it was upon sufficient consideration, and legal. The circuit judge decided that the defendant, Andrew Win- ter, had not sustained his defence, and that it ought not to be submitted to the jury ; and he charged the jury " that there were no questions of fact for them to decide, and that the plain- tiff was entitled to recover, because the agreement on which the money was deposited was without consideration and void ;" thus withdrawing from their consideration the question whether the agreement had been made with Wanmaker, the creditor, or with the sheriff, and assuming to decide himself, from the evidence, that it was with the latter. In this I think he erred. Whether the agreement was void or not, depended upon the question of fact whether it had been made with the sheriff or with Wanmaker, the plaintiff in the writ. In this case, this was a question, with proper instructions as to the law, for the jury. There was some evidence, at least, favoring the idea that Wanmaker was a party to the agreement, or that it was made for his benefit, and by his authority and consent. He was present part of the time whilst Kinney was under arrest, and he conversed with Kinney respecting his claim. Kinney VOL. I. 47 370 CASES IN THE COURT OF APPEALS. Winter r. Kinnoy. spoke of seeing him on Monday morning, according to the terms of the agreement, with the view of arranging his debt, and re- marked " that it was all understood between them." Wanma- ker sent a message to Kinney to meet him for settlement on Monday morning, showing that he understood the agreement, and assented to it at the time it was made, or subsequently ; and Wan maker afterwards received the money that had been deposited. These facts, in connection with the other evidence in the case, may have failed to satisfy the jury that Wanma- ker, and not the sheriff, was a party to the agreement, but they were not so weak and irrelevant as to justify the court in au- thoritatively withholding them from their consideration. It is peculiarly the province of the jury to reconcile conflicting testi- mony, and settle disputed questions of fact. On a new trial, should the jury find that the agreement was made with the sheriff, or that he was a party in any way ben- eficially interested in it, it will not be necessary to pursue the further inquiry, whether it had been substantially complied with by Kinney, as it would be unauthorized and void ; but should they find that it was made with Wanmaker, the credi tor, then the question of performance by Kinney would neces sarily arise. At the trial the defendant offered to show the amount and consideration of the debt of Wanmaker against Kinney that the same was a just debt for three hundred and fifty dollars, and had been so admitted by Kinney, and agreed to be paid by him. To which evidence, so offered, the plaintiff objected, stating that if he was permitted to go into such evidence, he was ready to show that he did not owe Wanmaker, or if any thing, but a small sum, not exceeding ten dollars. The cir- cuit judge refused to allow or permit the defendant to give any evidence concerning the debt due from Kinney to Wanmaker. In this I think lie was right. It was clearly an attempt to throw into the case an irrelevant and impertinent issue. Upon the ground, therefore, that there was a question of fact in the case that should have been submitted to the considera- ROCHESTER, JUNE 1848. 371 Deraismes v. The Merchants' Mutual Ins. Co. tion of the jury, I am of the opinion that the judgment of the supreme court should be reversed, and a venire de Jiovo award- ed, costs to abide the event. Judgment reversed. 371 3 '292 e 4 '54 4 *448 DERAISMES and others vs. THE MERCHANTS' MUTUAL IN- \Q 1324 SURANCE COMPANY. 16 24 '313 167 2 304 Where the charter of a mutual insurance company authorized such company, "for 167 2 306 the better security of its dealers," to receive premium notes in advance, of persons 2 AbD^38S intending to take policies, and to negotiate such notes for the purpose of paying claims or otherwise, in the course of its business, and to pay to the makers of such notes a compensation not exceeding five per cent, per annum, on so much of the notes as exceeded the premiums on policies actually taken ; field, that a note taken by the company in pursuance of its charter for premiums in advance, was valid and effectual for the whole face thereof, although the premiums on insurances ac- tually received by the maker, amounted to only a part of such note. It seems, that a note so given, is valid by force of the statute authorizing it to be taken, and therefore that a partial failure of consideration cannot be set up to de- feat a recovery of the full amount. But if a consideration is necessary, the concurrence of others in giving similar notes for the purpose of giving a credit to the company in pursuance of an agreement entered into by all the makers, the contemplated advantages of insurance in such company, and the compensation authorized to be paid to the makers on such an amount as the notes should exceed the premiums on insurances actually taken, constitute a sufficient consideration to uphold such a note. THE Merchants' Mutual Insurance Company brought as sumpsit in the superior court of the city of New- York, against Deraismes & Boizard, upon a promissory note made by them, as follows : $2785,05. New- York, December 4, 1844. Twelve months after date we promise to pay the Merchants' Mutual Insurance Company, or order, for value received, twenty- seven hundred and eighty-five dollars and five cents. DERAISMES & BOIZARD." This note was given in renewal of a previous note for $3000, 372 CASES IN THE COURT OF APPEALS. Dcraisme* t>. Tho Merchants' Mutual Ins. Co. which was given for premiums in advance on policies of in- surance, intended to be received by the defendants from the plaintiffs, under the twelfth section of the act incorporating the plaintiffs, (Stat. 1843, p. 73,) and in pursuance of the following agreement, which was signed by the defendants and others : "The subscribers hereby agree to give their notes at one year from date, to The Merchants' Mutual Insurance Company, of which William Neilson is intended to be the President, for the amounts set opposite to their names respectively, being for pre- miums on risks to be taken by said company on the following conditions : First. The amount of said risks shall be respec- tively at least the sums affixed to our signatures, the rates of premiums to be agreed upon hereafter. Secondly. That this agreement shall be entered into by persons satisfactory to each of us, and to the collective amount of two hundred thousand dollars. Thirdly. That the rates charged by The Merchants' Mutual Insurance Company shall be the same as are charged by the insurance companies of this city. Fourthly. That the subscribers shall enjoy the advantage of The Merchants' Mu- tual Insurance Company, as secured by charter, and shall in no event be made liable for the debts of the company, beyond the amount of their several subscriptions." The defendants actually took policies of insurance in the company, in pursu- ance of the above agreement, and of the twelfth section of the charter, to such an amount only as that the premiums thereon amounted to the sum of $790, and no more. This sum, before the trial of the cause, had been paid to and accepted by the plaintiffs' attorney, together with the costs up to the time of such payment; and it was insisted that the note was not valid or collectable for any further sum, being, as was contended, for all beyond that sum, an engagement to pay premiums on risks which the company never assumed. The company became insolvent in consequence of losses sustained by the great fire in 1845. The judge who tried the cause in the superior court, charged the jury, that as matter of law upon the whole case, the plain- tifla were entitled to recover the full amount of the note, less ROCHESTER, JUNE, 1848. 373 Deraismes . The Merchants' Mutual Ins. Co. the sum of $790 paid. A verdict and judgment were had ac- cordingly, and the defendants having duly excepted, bring error into this court C. O' Conor, for the plaintiffs in error. The note in ques- tion was given in advance for premiums on risks to be assumed by the company for the defendants ; and so far as risks were not assumed the plaintiffs were not entitled to recover. The notes, authorized to be taken for premiums in advance from persons intending to receive policies under the 12th section of the act of incorporation, are not absolutely and unconditionally payable, whether the company earn premiums or not. That section is merely an enabling clause and not a clause providing a capital for the company. Its object was to provide the com- pany with accommodation notes, which if needed, might be used to pay ordinary expenses and losses occurring in the regu- lar course of its business. The other provisions of the charter harmonized with this construction, ( 11, 13, 15 16 17, 24,) while the construction contended for on the other side would lead to the greatest absurdities and incongruities. The nature and history of mutual insurance companies, and a comparative view of the characters they have borne at different times, also support the construction which we contend for. (Strang- v. Harvey, 3 Bing. 304; id. 315; 2 Term Rep. 512; 7 id. 339; Laws of 1809, p. 154 ; id. 1802, p. 152 ; id. 1814, p. 56 ; id. 1816, p. Ill; id. 1834, p. 530, 4, 7, 8; id. 1836, p. 128, 6,8, 11.) D. Lord, for the defendants in error. The defendants gave the note in question for the purpose of aiding in the establish- ment and support of a company for mutual insurance, without any stock capital. The advantages from such company to every person intending to take out policies, were a consideration sufficient to uphold a note given for the above purpose. The uniting or concurring with others who were to give similar notes, and the giving of such notes by others, was a considera- tion sufficient to uphold the note. It was also a sufficient con- 374 CASES IN THE COURT OF APPEALS. Deraiamcs r. The Merchants' Mutual Ins. Co. sideration to sustain this note, that the company organized and commenced business upon the basis of this and other similar notes, and issued policies to the makers. The taking of policies by dealers with the company, having the 12th section of this charter in its constitution, was a credit given to the company upon all the assets in its possession, and was also a good con- sideration. The note was valid as a statutory security ; the statute itself removed the objection of the want of considera- tion, and it sanctioned a compensation for the liability. The notes are valid as a security to dealers for their full amount ; otherwise they would not be a security to dealers. As mere advances of premiums, not to be valid unless the pol- icies were taken out, the notes were in nowise a security for dealers. As notes to be valid only when negotiated before in- solvency, they would afford no security to dealers, but would create as large a claim on the company as that which their negotiation satisfied. They were intended to induce insur- ances with the company not only from strangers, but from the givers of the notes ; to induce the makers to fill them up by premiums. If the makers are not held liable for the full amount, this object would be defeated. GRAY, J. This is an action to recover from the plaintiff in error a note for $2785,05, executed to the Merchants' Mutual Insurance Company, in renewal of a note for $8000, given by them to said company, pursuant to the provisions of the twelfth section of the act of incorporation of said com- pany, passed April 10, 1813. (See Sess. Laws of 1843, ch. 95. p. 73.) The second section of the act provides that after having received approved applications for insurance to the amount of 500,000, the premiums on which shall have been actually paid in or secured to be paid, the company may be or- ganized and commence its operations. No objection having been made on that ground, vre are authorized to infer that all the requirements of the act, preliminary to the due organization of the company, were observed and fully complied with. The 12th section of the act provides that " the company, for the ROCHESTER, JUNE, 1848. 375 Deraismes v. The Merchants' Mutual Ins. Co. better security of its dealers, may receive notes for premiums in advance, of persons intending to receive its policies, and may ne- gotiate such notes for the purpose of paying claims or otherwise in the course of its business," and authorizes a compensation not exceeding five per cent, per annum to be made to the signers of such notes on such portion thereof as may exceed the amount of premiums actually paid in by the several makers respectively. The note in question was given for premiums in advance under the 12th section. The premiums on insurances actually taken amount to $790, and to that extent the validity of the note is not denied. But the concession that the note is so far valid, it seems to me, virtually admits that it is good for the whole amount. It is not like an ordinary commercial note, where a partial failure of consideration may be set up as be- tween the original parties. I look upon this note as a statutory security, the validity of which may be rested entirely upon the statute authorizing it to be taken, and does not at all depend upon any question of consideration. And in this view the security, if good for any amount, is valid and effectual for the whole. If, however, a consideration should be deemed essen- tiaj to its validity, then the agreement signed by the plaintiff with others, interested as associates in this company, to give their notes respectively, and to share severally the liabilities, and enjoy the advantages'^ The Merchants' Mutual Insurance Company, as secured by its charter, and the fact also that divi- dends of the profits on the excess of the notes so given, over and above the amount of premiums on actual insurance, were also provided for by the charter, and to be annually distributed to the several makers of notes, constitute a consideration valid and sufficient to uphold this note. It was alleged on the part of the plaintiffs below, on the argu- ment, and the fact was not at all controverted, that the note in question to its full amount with, tbe notes of other persons given in advance for premiums, was, by the commissioners, included with the premium notes on actual applications, and used to make the amount of $500,000 required by the 2d section of the 376 CASES IN THE COURT OF APPEALS. Deraismea r. The Merchants' Mutual Ins. Co. act as a prerequisite to the organization and commencement of operations of the company. It may be questionable, perhaps, whether under the provisions of the charter these notes were thus applicable, and whether the) could be made legally available as the basis on which alone the organization of the company was authorized by the legislature But this question was not raised. The objection of the plaintiff in error does not extend to the legality of the company's organi- zation, nor to the collectability of that part of the note amounting to the premium on insurance actually made ; but the objection and the only question submitted for our consideration is, whether this note, as to the balance beyond the actual insurance, can be collected. Of that I have nodoubt. Admitting what I deem is con- ceded by the plaintiff in error, that the company was duly orga- nized, and that the note was taken in the exercise of its Jegiti mate powers, and is valid in part and collectible to the amount of $790, and there remains not a doubt of the validity and col- Isctability of this note to its entire amount, and the application thereof by the company to the purposes authorized by its charter. It was not the intention of the legislature, nor is it necessary to the validity of these notes to tkeir full amount, that insur- ance by the company shall, at the time, or subsequently, be ac- tually made to the persons making the notes, to such an amount as that the premium thereon shall in amount be equal to the amount of the notes. That is not at all important or necessary. The object of this note and all similar notes taken by the com- pany, and the purposes for which they were designed by the legislature, arc for the better security of the dealers with the company; and if losses have been or shall at any time be sus- tained by those dealers, these notes to the entire amount thereof are legally as well as equitably applicable to the payment and liquidation of those looses. By the great lire in New-York in 1815, this company incurred liabilities on account of insurances to an extent exceeding altogether its means, and was rendered utterly insolvent; and justice requires, therefore, that all its available means shall be collected and faithfully appropriated to meet the losses of its dealers and creditors. It would be a ROCHESTER, JUNE 1848. 377 Bogert v . Morse. palpable perversion of the object and design of the legislature, and a gross fraud upon the dealers and creditors of the com- pany, to hold that these notes and securities, upon the basis of which the community has been induced to deal with the com- pany, are void and uncollectable wholly, or available only to the extent of the actual insurance made thereon. I am of opinion that the judgment of the superior court should be affirmed. Judgment affirmed. BOGERT vs. MORSE. 377 It seems, that where one party receives money from another, and there is no expla- .. ** nation of the fact, the presumption is that he receives it because it is his due, and not by way of loan. But where a witness testified, that he asked the defendant if he had had any money of the plaintiff, and the defendant replied that he had had twenty dollars of him, and the witness then told the defendant that the plaintiff had requested the witness to speak to him about it, to which the defendant made no reply, but turned away; HELD, that a jury might infer from this evidence that the money was received by way of a loan, and the jury having so found, that their verdict in a justice's court was conclusive. ON error from the supreme court. Morse sued Bogert in a justice's court for money lent. The cause was tried by a jury, and on the trial a witness called for the plaintiff testified that at the request of the plaintiff he went to see the defendant about some money lent; that he asked the defendant if he had had some money of the plaintiff; the defendant replied that he had had twenty dollars of him ; the witness then said to him that the plaintiff had requested the witness to speak to him about it ; that the defendant made no reply to this observation, but turned away. There was no other evidence in the case, and the de- fendant requested the justice to nonsuit the plaintiff. The jus- tice refused to do so, and submitted the evidence to the jury, who found a verdict in favor of the plaintiff for the $20, on which the justice entered judgment. The defendant removed the VOL. I. 48 378 CASES IN THE COURT OF APPEALS. Bogert r. Mowe. judgment by certiorari into the common pleas of Yates county where the judgment was reversed. The plaintiff then brought error into the supreme court, where the judgment of the com- mon pleas was reversed and that of the justice affirmed. The following is the opinion of the supreme court. By the Court, BRONSON, Ch. J. What the plaintiff said to the witness was not communicated to the defendant, and must therefore be laid out of view. The proof then stands thus : The witness went to the defendant's store and asked him if he had had any money of the plaintiff. The defendant said he had had twenty dollars of him. Upon this proof, without any thing more, the fair and reasonable inference is that the defendant received the money because it was due to him, and not by way of a loan. When one man delivers a sum of money to another, if there be nothing else to explain the transaction, the legal pre- sumption always is that the money belonged to the one who received it, and not that he thereby became a debtor to the other. ( Welch v. Seaborn, 1 Stark. R. 474.) But the plaintiff thinks his case is helped by what followed. After the defendant said he had had twenty dollars, the witness said to him the plain- tiff told me to speak to you about it.. The defendant made no reply, but turned around and went into the store. I feel some difficulty in saying that this made out aprimafacicc3.se for the plaintiff. If the money was received because it was due to the defendant, he would understand from what the witness said that the plaintiff wished to obtain evidence of the payment ; and as that admission had already been made, there was no occasion for a reply. Nothing was said about a lo'an ; and the facts proved are about as consistent with the supposition that the defendant received the money as a creditor, as that he re- ceived it as a debtor. The plaintiff holds the affirmative ; and must show that it was a loan. It is not enough for him to make out a balanced case, and then leave it to a jury to guess at the truth. Although my brethren agree in this rule, they thin* that the scales were turned in favor of the plaintiff; that the act of the ROCHESTER, JUNE, 1848. 379 Loh man v. The People. defendant in turning away without a reply, wlien he was told that the witness had been directed to speak to him about the money, furnished some evidence that he received the money as a loan, and so made out a proper case for the consideration of the jury. On reflection, I shall not dissent from that view of the case. If there was enough to carry the cause to the jury, their decision was final. The judgment of the common pleas must therefore be reversed, and that of the justice affirmed. The cause was argued in this court by E. Van Buren, for plaintiff in error ; and B. W. Franklin, for defendant in error. After advisement the court were of opinion that the evidence was proper for the consideration of the jury, and the jury hav- ing found that the money was received by the defendant as a loan, that the common pleas erred in reversing the judgment of the justice. The judgment of the supreme court was there- fore affirmed. ANN LOHMAN, alias Madame RESTELL, vs. THE PEOPLE. 379 s49 AD 3' 25 HI Mere surplusage in an indictment will not vitiate, and therefore where an indictmen 32 5 1! alleges facts which constitute a misdemeanor, it will he good for that offence. d42 43 4 '' although it state other facts which go to constitute a felony provided all the facts ^ ,' alleged fall short of the charge of felony, in consequence of some other fact essen- m74 *2, tial to that charge, e. g. the intent of the party accused not being averred. 80 4 4' By statute (Laics of 1845, ch. 260, 2) it is a misdemeanor to administer drugs &c. "7 to a pregnant female with intent to produce a miscarriage ; and by statute {Laws, of 184G, ch. 22, 1) it is manslaughter to use the same means with intent to Jettrmt lheckild,\n case the death of such child be thereby produced. The indictment charged all the facts necessary to constitute the crime of manslaughter, except the intent with which the acts were done, and in its conclusion it characterized the crime as manslaughter; but the only intent charged was an intent to produce a miscarriage; HELD that the indictment was fatally defective for the felony, but good for the misdemeanor, and that the accused was properly convicted of the latter offence. A conviction for a misdemeanor under such an indictment would, it seems, be a bar to a subsequent indictment for the felony. The record would be conclusive evi- 380 CASES IN THE COURT OF APPEALS. Lohman r. The People. dencc that the acts were done with the intent alleged in the indictment, and therefore the people could not allege a different intent, so as to constitute a different offence. A juror being challenged to the favor testified before the triers, that he had formed no opinion and had no impressions as to the guilt of the prisoner, but that it had been and was still his impression that the general character of the prisoner waa bad. The question was then put to the juror whether he would disregard what he had heard and read, and render his verdict according to evidence. Objected to, and exception taken. Held that the question, although inartificially put, sub- stantially called for the consciousness of the juror as to his ability to try the cause impartially, and therefore that it was properly allowed. A witness is privileged from answering a question when the answer would tend to disgrace him, unless the evidence would bear directly upon the issue; and there- fore, where the answer could have no effect upon the case, except as it might im- pair the credibility of the witness, held that he was privileged. Where the cross-examination of the principal witness for the people was conducted in a manner tending to impair her credibility, and to show that the prosecution was the result of a conspiracy in which she was concerned ; held that it was com- petent to sustain the witness, by showing that another person, to whom the facts had become professionally known, wrote to the public authorities, and was the cause of the prosecution being instituted. THE defendant was convicted in the court of general sessions of the city and county of New- York, under the second section of the act to prevent the procurement of abortion, passed in 1845, and sentenced to imprisonment in the county jail. The judgment of the court of sessions was affirmed on a writ of error, by the supreme court, (see 2 Barb. Sup. Court Rep, 216,) which last decision the defendant removed by writ of error into this court. The first section of chapter 22, ($ess. Laws of 1846, p. 19,) enacts in substance, that every person who shall administer to any woman pregnant with a quick child, any medicine, drug, &/c. or shall use any other means with intent thereby to destroy suck child, (unless the same arc necessary to preserve the lift- of the mother,) shall, in case the death of the mother or child be thereby produced, be deemed guilty of manslaughter in the .second degree. The second section repeals the first section of the act to punish the procurement of abortion, passed in 1845 ; and the first section above quoted is a transcript of the section repealed, with the addition of the words, " in case the death of such child or mother be thereby produced." ROCHESTER, JUNE, 1848. 33 j Lohman c. The People. The second section of the act of 1845 provides, that if tne means mentioned in the first section are used " with intent to procure the miscarriage of such woman" the offender shall -be punished by imprisonment in the county jail, &c. All the counts in the indictment averred an intent upon the part of the defendant " to procure the miscarriage of Maria Bodine," varying only as to the means used, and alleging that " by means thereof the death of the child was procured." The several counts then conclude as follows: "And so the jurors aforesaid do say, that the defendant the said quick child in the manner and by the means aforesaid, feloniously and wilfully did kill and slay, against the form of the statute." At the trial, one Cortelyou was called as a juror, and chal- lenged to the favor by the defendant, which was denied by the people ; and upon the issue thus joined the juror was sworn as a witness for the defendant, and testified that he had formed no opinion as to the guilt of the prisoner ; that what he had read made no impression upon his mind ; that he did not think he had ever read a full statement of the case ; that he did not think he had any impressions as to the guilt or innocence of thr prisoner ; but it had been and was his impression that th< general character of the defendant was bad. On his cross examination he was asked by the counsel for the people the foi lowing question : " If you were sworn as a juror in this cause would you disregard what you have heard or read out of court and render your verdict upon the evidence?" The question wat objected to as irrelevant, as calling for the opinion of the wit- ness, and as substituting his judgment for that of the triers. The court overruled the objection, and the defendant ex cepted. Upon the trial Maria Bodine, the person named in the indict- ment, was called as a witness by the people, and testified that she went to live with one Cook in the month of July, 1845, that she had intercourse with him about a month after, which was continued to May, 1846, at which time she discovered that she was pregnant. Upon the cross-examination, the counsel for the defendant proposed the following questions to the witness 382 CASES IN THE COURT OF APPEALS. Lohman v. The People. which she declined to answer upon the ground that they would tend to disgrace her. " Had you any sexual intercourse with any other person than Cook prior to April, 1846 ? Had you during the fall of 1845, or winter of 1846, the venereal disease? Had you any sexual intercourse with any other person than Cook between July, 1845, and April, 1846 ?" The court re- fused to compel the witness to answer, and to this decision the defendant excepted. After a protracted cross-examination of Maria Bodine, one object of which was to impair the credit of the witness, the counsel for the people called Dr. Smith as a witness, who testified to an ex- amination of Maria Bodine, made by him in May, 1847, and as the result of that examination, his opinion as a physician, 1st, that the female must have been delivered of a child badly managed, or 2d, that an abortion must have been procured upon her, or 3d, that there had been some mechanical injury, or injury by some instrument, or violence. He was then asked by the prosecution the following question : " In consequence of your examination, and the opinion you formed, and in consequence of a commu- nication confidentially made to you as a physician by Maria Bodine as your patient cotemporaneously with your examina- tion, what steps did you take ?" On inquiry by defendant'* counsel, the counsel for the people avowed the object of the question to be in substance to sustain the testimony of Maria Bodine, by showing by the witness that he wrote to the mayor of New- York, and was the cause of the prosecution being insti- tuted. To the question, and the offer of the counsel for the people, the defendant objected ; the objection was overruled and an exception was taken. E. Sandford, for plaintiff in error. J. McKeon, (district attorney,) for the people. By the Court, GARDINER, J. The indictment is defective under the first section of the act of 1846, in omitting to charge *n intent to destroy the child by the means employed by the ROCHESTER, JUNE, 1848. 333 Lohrnan v. The People. defendant. It contains all and more than is necessary to consti tute a misdemeanor within the 2d section of the act of 1845. Mere surplusage will not vitiate the indictment, and of course is no ground for reversing the judgment. (People v. Jackson, 3 Hill, 94, and cases cited.) It is contended, however, that the prisoner, notwithstanding this conviction, may be indicted for manslaughter, adding to the charges in this indictment the intent to destroy the child. If this were admitted it would furnish no ground for reversal. The offences created by the first section of the act of 1846, and the second section of the act of 1845, are separate and distinct, as the counsel for the defendant strenuously insists. The pris- oner has been found guilty of a misdemeanor ; and I do not perceive how this court, in face of the verdict and the record, can assume that the defendant has been guilty of a felony. Upon the same principle, if the defendant had been convicted of an assault and battery, we might have been asked to reverse the judgment, because she might have been guilty of a battery with intent to kill. To constitute a felony, nothing would be necessary but to add the intent to the other allegations of the indictment. But in the second place, I incline to the opinion that the de- fendant could plead this conviction in bar to a subsequent indictment for the felony, under the first section of the act of 1846. The right does not result from the doctrine that a party cannot be put a second time in jeopardy for the same offence, because as we have seen the offences under the 1st and 2d sec- tions, are distinct, but from a principle of wider application, namely, that the accused may always avail himself of the plea of a former conviction, if the record shows affirmatively that the defendant could not have been guilty of the crime charged in the indictment. The difference in the offences as laid in this indictment, and the felony under the 1st section of the act of 1845, t is said truly, consists solely in the intention of the criminal the means of their commission and the consequences in either case being precisely the same. Now to constitute a misdemeanor 384 CASES IN THE COURT OF APPEALS. Lohnian r. The People. under the statute, the indictment must allege, and upon con- viction the jury must find, that the means charged were used with the intent to procure a miscarriage. The people there- fore would be concluded by the record from alleging, in a sub- sequent indictment, that the prisoner employed the same means, upon the same person and occasion, with a different design. A conviction for manslaughter is a bar to a subsequent in dictment for murder. The distinction in the offences consists in the intent with which the homicide is committed. The record of conviction would show, in effect, that the killing was without malice, and would be conclusive upon the people and the accused. (Chit. Cr. L. 456 ; Coke's R. part 4, 146.) The case of Rex v. Cross, (1 Lid. Raym.7\\,} cited by the defendant, is an au- thority to show that where the same facts which constitute a misdemeanor at common law, are made felony by statute, the indictment must be for felony. The case in 5 Mass. R. 106, and 9 Cowen, 578, decide that where a conspiracy is consum- mated, you cannot separate the agreement to conspire from the overt act by which it is accomplished. These are all in- stances of merger, and have no application to a case like the present, where the offences created by the 1st and 2d sections of our statutes are conceded to be separate and distinct. As to the question put to the juror Cortelyou. The issue to be tried was whether the juror stood indifferent between the parties. This of course depended upon his state of mind. To ascertain this was the object of the examination of both parties. Upon an issue of this kind, from the nature of the fact to be established, the opinion of the juror derived from his own con- sciousness, was relevant, competent and primary evidence. The interrogatory put was in form exceedingly inartificial, but its effect (and to this only the objection applies) was obvi- ously to elicit an opinion as to the strength of the impression to \vhich he had previously testified, and whether he was conscious of the ability to render a verdict according to the evidence not- withstanding. If the juror answered in the affirmative, it would have been a declaration that he possessed such ability. This would be but an opinion, but one founded on his own ROCHESTER, JUNE, 1848. 335 Lohman v. The People. consciousness, and so far entitled to the consideration of the triers, although by no means conclusive upon them. If he had responded in the negative, the answer would (if believed) have been decisive against his competency. For although a man may think himself impartial when he is not, he cannot be a competent juror if conscious of an inability to render a verdict without being influenced by previous impressions. The ques- tion then was equivalent to asking the juror whether he felt or was conscious that he could render an impartial verdict not- withstanding all that he had heard or read. This in effect was the question put and sustained by the supreme court, in The People v. Bodine, (3 Denio, 122.) As to the questions proposed to Maria Bodine. It is hard- ly necessary to say that the answers sought to these questions would have disgraced the witness. She was therefore privi- leged from answering unless her answers were material to the issue. Her pregnancy was, it is true, one of the facts to be established by the prosecution, but whether induced by Cook or any other person was entirely immaterial. If her response had been in the affirmative to each of these interrogatories, it would not have been inconsistent with, or tended to disprove the fact of her pregnancy, or the agency of the prisoner in procuring the miscarriage, any farther than those answers affected her general character. The privilege of witnesses has been carried much farther in some of the cases, but all the authorities agree, that where as in this case, the object of the question is to impair the credibility of the witness, she could not be compelled to answer. (People v. Mather, 4 Wend. 250, and cases cited; Cowen <$f Hill's Notes, No. 521, and cases cited ; I Burr's Trial, 244 ; 1 Greenl. 454.) As to the exception to the question proposed to Dr. Smith. It is now said that the question assumes two facts, viz. 1st. that Maria Bodine had made a confidential communication to the witness, and that he took some steps in consequence thereof; and 2d. that the communication, if made as assumed, was priv- ileged. If this were true, the answer is, that these matters were not suggested upon the trial, nor was the attention of the VOL. I. 49 386 CASES IN THE COURT OF APPEALS. Barren v. The People. court directed to them. The objection was of the most general character. The opinion formed by the witness upon the exam- ination testified to by him, aided by communications from the patient as to her symptoms and the state of her health, was not only competent evidence, but strongly corroborative of her testi- mony. (1 Greenl. 102.) It was a part of the res gestcB. If the physician was thereby induced (even if it was not the sole motive) to resort to the public authorities for the purpose of fur- ther investigation, I can perceive no objection to the fact being proved. The cross-examination of Maria Bodine, as is mani- fest from inspection, was designed to discredit her with the jury. She had stated in answer to the defendant's inquiries, the fact of her making a written statement at Walden, which she delivered to officer Boyer at that place, and minutely the circumstances of her visit to New- York after the crime was committed, and of her attendance before the grand jury. Now the defendant is not at liberty to say that this examination was irrelevant and it could only be material with a view to impeach the veracity, or the motives of the witness, by showing her agency in procuring the indictment. In either view, the testimony of Smith was important, as it went to corroborate her statement and vindicate her motives. We think there was no error in the judgment of the supreme court. Judgment affirmed. BARRON vs. THE PEOPLE. The deposition of a witness taken in a criminal case pursuant to the statute relating to certain offences committed in the city of New- York. {Slot, of 1844, p. 47G, 11,) may be read in evidence on the trial of the indictment, on proof that the witness u a non-resident of the city at the time of the trial, and was so when the deposi- tion was taken. Where, however, the only proof preliminary to reading the deposition was the evi- dence of a person employed by the district attorney to serve subpoenas, who twti- ROCHESTER, JUNE, 1848. 337 Barren r. The People. fied that a subpoena was issued to him for the witness whose deposition was offered to be read, that he called at two of the hotels in the city, where, as he was informed by the district attorney, the witness stopped when he was in the city, that he in- quired of the bar-keepers at each of those places, and was informed that the wit- ness was not at either of those places, and did not live in New- York to their knowledge, that he could not find the witness in the city, and did not know where he resided ; held insufficient to authorize the deposition to be read. ERROR to the supreme court. Barren was indicted in the New- York general sessions for grand larceny, committed in that city. The indictment was removed into the New- York oyer and terminer, and tried there. On the trial the district attorney ofiered to read in evidence against the defendant the deposition of James Whaley Bennett, purporting to have been taken de bene esse on the 27th of April, 1847, before the recorder of the city, pursuant to Stat. 1844, p. 476, 11. The deposition was filed on the 30th of April three days after it was taken. To authorize the reading the district attorney called Thomas W Brennan, who testified as follows: "I am one of the officers employed in the office of the district attorney of the city of New- York to serve subpo3nas, and had a subpoena in this cause for James Whaley Bennett. I had a subposna for Bennett to look for him, to look after him, to serve it on Bennett. I went to Rathbun's hotel and Lovejoy's hotel in this city, the places where I was informed by district attorney that Bennett stopped when he was in the city. I went to Lovejoy's and Rathbun's several times, at each time the cause was on the calendar since last. I inquired of the bar-keepers at each of those places for Bennett, and was informed that he was not at either of those places, and did not live in New- York to their knowledge. I could not tind Mr. Bennett in this city." On cross-examination the witness said, he did not know where Bennett resided. The defendant's counsel objected to the reading of the depo- sition on several grounds ; and among others, that it did not appear that Bennett was a non-resident of the state, or even of the city of New- York ; and that the prosecution had not used due diligence to obtain the personal appearance of the witness that they ought to have sent a subposna for him to Chautauque county. It was stated in the deposition that the witness re 388 CASES IN THE COURT OF APPEALS. Barren v. The People. sided in that county. The court overruled the objection, and the defendant excepted. The deposition was read, and the de- fendant was convicted, and sentenced to five years imprison- ment in the state prison. On error brought the supreme court affirmed the judgment of the oyer and terminer. The defen- dant then brought error to this court. E. Sandford, for the plaintiff in error John McKeon, (district attorney,) for the people. BRONSON, J. When certain offences are committed in the city and county of New-York, against persons being in, but not being residents of the city, the testimony of all witnesses in the matter, being in, but not residing in the city, may, on the appli cation of the district attorney, be taken de bene csse, before a judge, out of court. The witness must be examined in pres- ence of the accused ; the examination must be reduced to wri- ting, and filed in the office of the clerk of the court of sessions ; and may be used before the grand jury, and all courts and tri- bunals having jurisdiction of the subject matter, in the same manner and with the like effect as the witness could be were he personally present. (Stat. 1844, p. 476, 11.) There is another statute touching this matter, but it does not affect the present question. (Slat. 1846, p. 408, 9.) The testimony is to be taken "de bene esse" or conditionally ; but upon what condition, or under what circumstances the deposition may be used, the legislature has not specified. Although the supreme court felt embarrassed in The People v. Haddeji, (3 Dcnio, 220,) by the want of such a specification, they were clearly of opinion that the deposition could not be read in evidence under all pos- sible circumstances, or as a matter of course ; but that the dis- trict attorney must give some account of the witness, or the reason why he was not produced, before the deposition could be received : and a new trial was ordered in that case, because the district attorney had been allowed to read the deposition, without sufficiently accounting for the absence of the witness. ROCHESTER, JUNE, 1848. 339 Barren r. The People. There can be no doubt of the correctness of the decision. But I think the court might have gone a step further, and solved the question when, or under what circumstances, the deposition may be read in evidence. As the testimony is to be taken de bene esse, or conditionally, without any specification of the cir- cumstances under which it may be used, the legislature mus have referred to the established practice of taking testimony de bene esse, or conditionally, in civil cases. Such deposition can only be given in evidence on showing that the witness is dead, insane, or unable to attend the trial in consequence of sickness or settled infirmity ; or that he is absent from the state. ( The People v. Restell, 3 Hill, 295, and cases cited; 2 R. S. 391, art. 1.) Unless we understand the legislature as referring to the practice in civil cases, the words " de bene esse," as they are used in the statute, will have no meaning. But with that reference, all is plain enough. The deposition cannot be read on the trial, without first showing that the attendance of the witness could not be procured, either in consequence of his in- ability to come, or his absence from the state. It has not been contended, on the part of the people, that the deposition may be read under all possible circumstances. It is admitted that some account must be given of the witness. But it is said to be enough to show that the witness is a non-resident of the city, or cannot, upon diligent search, be found in it, at the time of the trial. That admission is enough to dispose of this case ; for there was no proof whatever that the witness was a non-resident ; and nothing like sufficient proof that he could not be found in the city. The deposition had not been read at the time this question arose ; and Mr. Brennan knew nothing about, the residence of the witness. He was only called for the purpose of showing that the witness could not be found in the city at the time of the trial ; and there was a total fail- ure to make out any thing like due diligence in the search and inquiry. It amounted to no more than this : Brennan, without knowing any thing himself about the witness or his residence, went to two hotels, where he was informed by the district at torney that Bennett stopped when he was in the city ; and on 390 CASES IN THE COURT OF APPEALS. Barren . The People. inquiry, he was informed by the two bar-keepers that Bennett "was not at either of those places, and did not live in New- York to their knowledge:" which means, I suppose, that they knew nothing about the matter, either one way or the other. The district attorney was not called to state what he knew about Bennett, or why he sent Brennan to the two hotels. Some stress was laid on the concluding remark of Brennan, that he "could not find Mr. Bennett in the city." But he had previously given the particulars of what he had done in the premises ; and it was far enough from a diligent search or in- quiry after the witness. This is enough to dispose of the case as it now comes before us. But as the question which has already been made, will undoubtedly be made again upon the new trial which must be ordered, it is proper that we should determine what must be shown concerning the witness before the deposition can be read. That has already been intimated. It is not enough to prove that the witness is a non-resident of the city, or (hat upon diligent search and inquiry he cannot be found in it : nor will both of those facts combined make out a proper case. Absence from the city is not mentioned at all in the statute ; and non- residence is only spoken of in reference to the class of persons who are injured by the offence, and the witnesses who may be examined out of court. When we come to the question, upon what condition, or under what circumstances the deposition may be read, the .statute is entirely silent, except in the use of the words dc bcnc esse. If we do not reject those words as utterly senseless, they evidently point to the rule in civil cases; and the witness must be produced on the trial, unless his at- tendance is prevented by insanity, sickness, settled infirmity or absence from the state. The legislature could not have in- tended to make a rule more burdensome to the accused in criminal cases, than is the rule in relation to a party in a civil suit. They did not intend that the deposition should be read wnen the witness resides at Brooklyn, in sight of the New- York city hall ; and yet such is the result of the doctrine which has been urged on the part of the prosecution. ROCHESTER, JUNE, 1848. 39} Barren . The People If this question were more doubtful than it is, it should be borne in mind, that upon any construction, this is a statute in derogation of the common law rules of evidence ; and that it violates a principle which was thought of sufficient importance to be adopted as a part of the sixth amendment of the consti- tution of the United States, and also forms a part of our bill of rights, in these words : " In all criminal prosecutions the accused has a right to be confronted with the witnesses against him." (1 R. S. 94, 14.) This means something more than that the accused shall have the right to stand face to face with his accuser out of court ; it means that they shall be confronted on the trial, so that the judge and jury may have the opportunity of observing the appearance and manner of the witness, as well as hearing what he has to say the former sometimes proving a complete antidote to the latter, as is well known to every nisi prius lawyer. We cannot very well over- stimate the importance of having the witness examined and jross-examined in presence of the court and jury. Although the constitution of the United States does not apply to state prosecutions, and our bill of rights is but a statute, which, like other statutes, may be repealed, we ought to adopt the most strict construction for the purpose of confining any supposed repeal especially one by mere implication to the narrowest possible limits. Justice to the legislature requires that we should so construe the statute as not to carry the inroad which, to some extent, it makes upon a great principle, any further than is absolutely necessary. I am of opinion that the rule which governs the reading of depositions taken conditionally in civil cases, should be applied to depositions taken under the New-York criminal statute. Upon this construction the statute will still have effect. It will apply wherever the witness, at the time of the trial, resides oui of the state, or is dead ; arid where, though alive and residing in the state, he has become incapable of attending the trial ia consequence of sickness or insanity. But a majority of the judges are of opinion that though the witness may be a resident of the state and able to attend tK 392 CASES IN THE COURT OF APPEALS. Ruckman r. Pitcher. trial, the deposition may be read on proof that he is a non-resi- dent of the city at the time of the trial, and was so when the deposition was taken. We are all of opinion that there was no sufficient proof of such non-residence in this case ; and on that ground the judgments of the supreme court and the oyer and terminer must be reversed, and a new trial be awarded. Ordered accordingly. Af*< > RUCKMAN vs. PITCHER. 392 15 "525 ^k 6 ' os ' n S party in an illegal bet or wager may recover from the stakeholder the 15 "526 8Um deposited by him, although the stakeholder by his direction, given immedi- 15 '527 ately after the wager is determined, has paid the money over to the winner. " I* An action to recover money deposited on an illegal wager may be maintained with }2 1459 out demand. A wager upon the result of a horse race in Queens county is unlawful, notwith- standing the statutes authorizing and regulating the racing of horses in that county. A party who stakes a surn of money on an illegal wager may recover so much thereof as belongs to himself without joining in the action other persons who con- tributed specific portions of the fund. ERROR from the supreme court, where the action was debt, brought by Ruckman against Pitcher, for money had and re- ceived contrary to the provisions of the statute against betting and gaming. The defendant pleaded nil dcbct, and the cause was tried at the New- York circuit held by KENT, circuit judge, in October, 1811. The case was this: The plaintiff made a bet of $3000 with one M in turn on the event of a trotting match to take place at the Centreville course on Long Island, and the money on both sides was deposited with the defendant as stake- holder. Minturn won the wager and immediately after re- quested the defendant to pay over to him the money. The defendant then asked the plaintiff, who was present, if he had any objection to the money being paid over and whether he was satisfied. The plaintiff replied that he was satisfied, and ROCHESTER, JUNE, 1848. 393 Ruckman v. Pitcher. directed the defendant to pay over the money, which he accor- dingly did. The evidence tended to show that other persons besides the plaintiff were interested in the money staked by him, and that in fact only $500 belonged to him. The counsel for the defendant requested the circuit judge to charge the jury that the defendant was entitled to a verdict on the following grounds, viz. 1. That other persons being inter- ested with the plaintiff in the money bet, the action was not properly brought in the name of the plaintiff alone ; 2. That the race was not unlawful, being on a regulated course in dueens county, and authorized by the act of 1834 ; 3. That the money when lost was paid over by the consent and direc- tion of the defendant; 4. That the plaintiff could only recover, if at all, the amount he was proved to be interested in the bet, to wit, $500 ; 5. That the action could not be maintained without proof of a demand of the money. The circuit judge charged the jury, that if the money was paid over by the consent and direction of the plaintiff, he could not recover. On the other points the charge was favorable to the plaintiff. The jury found a verdict for the defendant. The plaintiff made a bill of exceptions and moved the supreme court for a new trial, which was denied, and judgment rendered for the defendant. / T. Brady, for plaintiff in error. The circuit judge erred in charging the jury that the plaintiff could not recover if the money staked had, after the race, been paid to Minturn as the winner thereof, with the consent and by the order of the defen- dant. The revised statutes (1 R. S. 662, 8, 9, 16) make the stakeholder liable, whether he has or has not paid over the money to the winner. His liability arises from merely having the stakes in his possession. In paying over the stakes to the winner he knew that he was violating the law, and that his liability to refund to Ruckman continued notwithstanding such payment. The consent to such payment could not make it legal, nor relieve the stakeholder from liability. There was no legal nor moral consideration for the transfer of the plaintiff's mo ney. On the contrary, it was transferred in violation of the law. VOL. I. 394 CASES IN THE COURT OF APPEALS. Ruckman r. Pitcher. Any other rule would defeat the intention of the legislature, and destroy the utility of the statute against betting and gaining. The consent after the race, should not create any right, or change any liability, more than the consent involved in the wager itself, viz. that the stakeholder might deliver the stakes to the winner. (Rev. Notes, 3 R. S. 2d ed. p. 555, 9.) There is no room for the argument that this was a voluntary gift of the money by Ruckman to Minturn like an ordinary donation. It was paid by a stakeholder, as the stakes of an unlawful wa- ger, to the winner as such, with the consent of the loser, and in illegal satisfaction of the bet. To recognize the defendant's position on this point would be palpably circumventing the policy of the law. If this court consider the other questions in the case, the plaintiff insists that this suit was properly brought in the name of Ruckman alone, he being the person who delivered the mo- ney to the defendant, and had the legal interest to demand it back. (1 Chit. PI. 2, 9, Springf. ed. of 1839.) Whether the race in question was or was not lawful, the wager upon its issue was void. (Gouverneurv. Gibbons, 1 Den. 170.) The ninth section of the revised statutes gives the right of action, instanter, on the deposite being made with the stake- holder not after demand made. To require a demand of the deposite from the stakeholder after he has paid it over would be absurd. No demand before suit brought was necessary. (Downes v. Phenix Bank of Charleston, 6 Hill, 297.) N. B. Blunt, for the defendant in error. JONES, J. It is claimed to have been shown, on the trial of this cause, that the race was run upon a regulated course in Queens county, in full accordance with the special statutes ex- empting certain races in that county from the prohibitions and penalties of the general statute on the subject of the racing of animals ; ($tat. 1834, ch. 73 ; id. 1821, ch. 193 ;) and hence it has been insisted, that as the race itself was lawful under those statutes, the same statutes permitted and sanctioned the bet or ROCHESTER, JUNE. 1848. 395 Ruckman t>. Pitcher. wager upon the result of the race. I understand the supreme court to have held that the wager was illegal, as coming within the general statute against betting and gaming, although the race itself was licenced by the special acts referred to, and I fully concur in that opinion. The argument in favor of the defendant in error is, that as the general statute relating to the racing of animals, prohibits such racing for any wager, bet or stakes, and the exempting acts allow the racing of horses on particular courses freed from the provisions and penalties of the general prohibitory act, it is therefore not illegal to wager money upon the result of the permitted race. It is evident, I think, that the only effect of the special statutes is to exempt the race itself from the penalties of the general law against racing, leav- ing the general statute which prohibits betting and gaming to have its full operation upon the wager on the event of the race. The statute against the racing of animals declares all running, trotting, &c. for any bet or stakes, except such as are allowed by special laws, common and public nuisances and misdemea- nors, and that all parties concerned therein shall be deemed guilty of a misdemeanor, and shall be punished by fine or im- prisonment. (1 R. S. 672, 1 ; 1 R. L. 222, 1, 2, 3, 4, 6.) The act against betting and gaming, (1 R. S. 662 ; 1 R. L. 223,) declares unlawful "all wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot or chance, or unknown or contingent event whatever, and that all contracts for or on account of any money or property or thing in action, so wagered, bet or staked, shall be void." These statutes relate to different subjects, contain distinct and separate provisions, affording different remedies, and imposing different penalties, as will be seen on a reference to the sections under each article. While, therefore, the special acts which have been referred to, may exonerate the parties concerned in the race in question from the provisions and pen- alties of the act against the racing of animals. I see no reason to doubt that the wager upon the result of the race comes fully within the provisions of the act declaring all wagers unlawful, and all contracts relating to them void. 396 CASES IN THE COURT OF APPEALS. Ruckman r. Pitcher. The payment of the money over to the winner by the consent and direction of the plaintiff", constitutes the principal ground of defence. It is claimed for the defendant that he is dis- charged thereby from all liability to return or pay back to the plaintiff the money thus paid by his order to the winner. The plaintiff is bound, it is said, by his own act, and is precluded and estopped by his consent and direction to the stakeholder to pay the stakes to the winner, and the payment over of the same by the stakeholder, in obedience to such direction, from now claiming the money as being still his own, and coercing the payment of it by the stakeholder to himself. But how can that rule be claimed to apply? The question is not upon the ab- stract rights and obligations of parties left free to contract, con- sent and act for themselves, and bound by their admissions and acts. The liability of the stakeholder to the loser, and the loser's right of action against him, rest upon the statute. The legislature has prescribed the rules which are to govern the case, and our inquiry must be what the rules are which the statute intends to apply. In the first place, the fact simply of the payment over of the stakes to the winner, can certainly be of no avail to the stake- holder, for the statute on that point is perfectly clear and ex- plicit. It expressly enables and authorizes any person who shall pay or deliver or deposit any money or property upon the event of any wager or bet thereby prohibited, to sue for and recover the same of the winner or person to whom the same shall be paid or delivered, and of the stakeholder or other per- son in whose hands the same shall be deposited, whether the same shall have been paid over by such stakeholder or not, and whether the wager was lost or not. In the present case the stakes were paid over by the stakeholder to the winner, and evidence was given to show that such payment was with the consent and by the direction of the loser, and the question must be upon the effect of such consent and direction as the proof shows to have been given, upon the claim of the loser and the obligation and liability of the stakeholder. In other words, whether the consent and direction of the loser to the stakeholder ROCHESTER, JUNE, 1848. 397 Ruckman v. Pitcher. to pay over the bet or stakes to the winner, and the actual pay- ment over of the same under that direction varies the case. and deprives the loser of the right the statute gives him to re- claim and recover back the same of the stakeholder who has thus paid it over. It is contended, on the part of the defendant, that the statute applies to voluntary payments only of the stakes by the stake- holder to the winner, without the direction or assent of the loser, and not to payments by the order or with the consent and per- mission of the depositor. And it is urged that if the money or stakes, notwithstanding the result of the race, was still the money of the depositor, and at his disposal, his order to the stakeholder to pay it to the winner was a valid disposition of it obligatory upon the stakeholder, and which the loser could not be permitted to revoke or disregard. To this the counsel for the plaintiff replies, that the statute gives to the loser the un- qualified right to sue for and recover his stake or deposit of the stakeholder, whether such stake or deposit has been paid by the stakeholder to the winner or not ; that the right to recover is absolute, and previous payment to the winner is no defence. The clear and obvious import of the language of the statute is that the payment of the stakes or deposit by the stakeholder to the winner, does not discharge or exonerate him from his liability to pay the same to the loser, who has a perfect right, notwithstanding such payment to the winner, to recover the same from the stakeholder. There is no provision made or intimation given by the statute, that the consent of the loser to such payment, or his direction to the stakeholder to pay the same to the winner, shall give effect to such payment as a dis- charge to the stakeholder, or a bar to the loser's action against him. And in my judgment, any construction of the statute which should limit and confine its application to voluntary pay- ments of tbe stakes by the stakeholder to the winner, and allow such payment over, when by the order or with the consent of the loser, to be valid and effectual as a discharge to the stake- holder, and a defence for him to the action of the loser, would contravene the sense and policy of the statute, and materially 398 CASES IN THE COURT OF APPEALS. Ruckman t. Pitcher. impair the value of the provisions on which its successful opera- tion must depend. I agree that in ordinary transactions the order or direction of a person having money in the hands of another, to pay it to a third person, will authorize and justify him in whose hands the money is, to pay the same on such order, and that such payment will be a perfect defence for the party who has thus paid it over, against any claim or action therefor hy the owner. But this was not the ordinary case of the direction of a person having money in the hands of another to pay it to a stranger or third person. It was the consent of a loser of a bet to a stakeholder to pay that bet to the winner. It was given by the loser on the race-course upon the authoritative announce- ment of the result of the race, and on the application of the stakeholder to him for permission to pay over the stakes to the winner, as being won by him. The very time and place when and where the application was made, and the consent given, characterize it as a mere assent and acquiescence of the loser in the loss of the bet, and the right of the winner to it, and the consequent authorization of the loser to the stakeholder to pay it over accordingly. Look at the transaction as narrated by the witness. The whole alleged direction was simply this: On the application of Minturn the winner, to Pitcher the stake- holder, upon the decision of the judge that the race was won by Americus, for the stakes as won by him, Pitcher, the stake- holder, called Ruckman, the loser, who was on the ground, and asked him "if he had any objection to handing over the money, and if he was perfectly satisfied." He replied that u he was," and "to hand over the money." What was this reply to the stakeholder's question more than a mere assent of Ruck- man, the loser, to the decision of the judge as to the result of the race, and that his bet upon it was lost by him, and that the stakes were to be paid to the winner? The crnsent and direc- tion given were to pay the money to Minturn, as money won by him, and to which he was entitled as the winner. It was in no sense of the terms a direction by the plaintiff in error to the defendant to pay money in his hands belonging to him, ROCHESTER, JUNE, 1848. 399 Ruckman v. Pitcher. the plaintiff, which he had the right and the power to dispose of as he saw fit, and which was subject to his order in favor of Minturn, or any other person, at his own free will and plea- sure. It was distinctly and emphatically an acknowledgment by him that the money belonged not to himself, but to Minturn. and was in the defendant's hands as the money of Minturn, and to be paid to him. It was simply a consent, or at most, an order by the loser on the stakeholder to pay a bet lost by him to the winner. He had before, by the deposit of the money in the hands of the stakeholder as his stake upon the event of the race, virtually authorized and directed him, the defendant, to pay over the same to the winner, in case the bet should, by the result of the race, be lost by him. The direction given by him in his answer to the question put to him by the stakeholder after the race was decided against him, to hand over the money to the winner, was simply the recognition and repetition of the authority before given by him when he made the deposit " to pay over the same in case of loss." But that consent and au- thority thus given to the stakeholder at the time of the deposit of the stake in his hands, to pay the same to the winner, the statute intended to cancel and annul. It was effectually an- nulled by authorizing the loser, in disregard of it, to sue for and recover back his deposit after the loss of the bet, from a stake- holder who had paid it over to the winner, notwithstanding such payment of it over by him. I can discover no evidence in the bill of exceptions before us, of any assent or order of the plaintiff to or for the payment over of the money, which does not refer to his express or implied instructions to the stakeholder at the time of the deposit, or was not manifestly in compliance with the contract of wager, and for the fulfilment of engage- ments it imported. And if I am right in my views of the stat- ute, neither any express directions given at the time of the de- posit, nor the implied authority incident to the deposit of the money with the stakeholder, as the stake upon the race, nor the repetition or renewal of that authority after the race was run and the bet decided, nor an assent, order or direction given at the time when the loss of the bet was announced, to pay 400 CASES IN THE COURT OF APPEALS. Ruckman t>. Pitcher. over the stake to the winner, can be available as a defence to the action of the plaintiff for the recovery of the deposit The evident intention of the legislature was to discourage and repress gaming in all its forms, including bets and every species of uager contracts of hazard, as a great public mis- chief, calling for effective measures of prevention and remedy. Under our system of jurisprudence, as it existed previous to the revised statutes, wagers not against morals or sound policy, and of no evil or pernicious tendency, and not prohibited by statute, were held not to be illegal ; but all wagers and bets which are contrary to morality or public policy, or which tend to endanger the public peace, or affect the character or feelings of the citizen, or are otherwise of evil tendency, as well as those which were prohibited by statute, were held to be illegal and void ; and no action at law could be maintained by the winner against the loser to recover the money bet or wagered, however fairly as respected the chance or hazard, and the issue or event of it, the same might be lost and won. If, however, the money or bet, not recoverable by law. was voluntarily paid by the loser to the winner, 110 action could be sustained by the loser to re- cover it back ; for the wager being illegal and the contract void, and the winner and loser both implicated in the illegality, the law would lend its aid to neither against the other for consum- mating or giving effect to any alleged right or claim growing out of the same, or in immediate connection therewith, but would leave the party in possession of the fund or money, to retain and hold it against the other; not from favor to the pos- sessor, or from respect to his as the superior title thereto, but from disfavor to the illegal transaction, and in support of the statute or common law prohibition of it. This denial to the winner of the aid of legal process against the loser, for the com- pulsory payment of the bet to such winner, when won by him, was calculated, and doubtless tended to discourage wagers and bets understood to be illegal. But it was counteracted by causes which the laws could not reach or control. The loser, under the pressure of influences too powerful for him in the excite- ment of the ace or game to withstand, would most generally, ROCHESTER, JUNE, 1848. 49 \ Ruckman v. Pitcher. on the decision of the bet, pay the money lost to the winner. But instances would occur of losers who would avail them- selves of the defence and protection which the law, in refusing its aid to the winner, furnished them against the payment of the bet. It was of course desirable and important to betters to guard against the exercise of this power of the loser thus to re- pudiate and render abortive the right and claim of the winner to the money won of him ; and the readiest and most reliable measure of protection against it, was the intervention of a stakeholder, with whom the stakes should be deposited and placed for custody and for delivery over to the winner on the result of the race or game. The stakeholder would have no personal interest in the stakes to swerve him from his engage- ment and duty to pay the same over to the winner ; and the money, when thus paid over to the winner, would be secured to him beyond the power of the loser to reclaim it or recover it back. But under this arrangement it was a point still unset- tled, whether the loser could not, in the interval, after the loss of the bet, and before the payment of the money to the winner, reclaim his stake and sustain an action against the stakeholder for the money so deposited with him. It was a question which underwent much discussion, and on which opinions were di- vided. In England the rule was finally settled that when money was thus deposited with a stakeholder on an unlawful race or game, and had not been paid over by him, the loser might, after the event on which the bet was made to depend had happened, and was known, recover back the stake or money so deposited with and yet remaining in the hands of the stakeholder ; but that when such stake or money had been, after the loss of it, paid over to the winner with the loser's con- sent, the loser could not afterwards maintain an action against the stakeholder to recover back such deposit. The decision on the point was at first the same way with us. The question came before the supreme court of this state in the case case of Vischer v. Yates, (11 John. Rep. 23.) The action was by the loser against the stakeholder, to recover back his deposit on a wager or bet upon the election for governor of YOL. I. 51 402 CASES IN THE COURT OF APPEALS. Ruckman v. Pitcher. the state, which had resulted adversely to the plaintiff, and his bet was lost ; but the stakes had not been paid over by the stakeholder to the winner, and Chancellor Kent, who was then the chief justice of that court, was of opinion that the wager was illegal as being against public policy, and he held, in accord- ance with the English rule, to which he adverted in terms of approbation, that the deposit, being upon an illegal wager, and remaining still in the hands of the stakeholder not paid over to the winner, might, though the bet was decided against the plaintiff, be recovered back by him of the stakeholder ; and the other members of the court concurring with him in opinion, judgment was rendered for the plaintiff. There were several actions then pending in the same court, involving the same questions, and judgments were given for the plaintiffs in them all. But on a review of that decision by the court for the cor- -ection of errors, in one of those cases (the case of Yates v. Foot,) the judgment was reversed ; and that court held that money deposited with a stakeholder as stakes, upon a wager void by the common law, could not be recovered back from the stakeholder by the depositor after the event had happened on which the wager depended, although it remained still in his hands not paid over, and he had notice from the loser not to pay it over to the winner. Senator Sandford, who delivered the opinion on that occasion, states the rule to be, that in cases of illegal wagers and contracts of hazard, void by the common law, and which either party might rescind, the party who elect- ed to rescind must make his election, and take his action upon it before the contingent event happens, for that the happening of the event is the crisis in the contract which terminates all option and election of the party to revoke or rescind it ; that before the contingency happens, either party may recede, but that after the result is known, neither party can retract ; and applying the principle to the case then before him, he held that as the hazard had ceased and the result of the election was known, no action could be allowed or maintained to recover back the money or stake in the hands of the stakeholder. On these grounds that court decided that the loser could not recover ROCHESTER, JUNE, 1848. 493 Ruckman v. Pitcher. back his deposit. The statutes against gaming and horse racing were then subsisting and in force, but the wager then in ques- tion did not come within the provisions of either of them. And it was admitted by Senator Sandford that the rule deduced by him from the principles of the common law, did not apply to cases of gaming and horse racing. These two species of contracts of hazard, he observed, had been made the subject of special legislation ; that they were the only classes of hazardous con- tracts in which the loser was allowed to reclaim and recover back the money he had wagered after the event was known and the wager lost ; and that the object of the legislature was to suppress them, evidently on the grounds of public policy. This decision was in 1814, and as the law of this state was thereby declared to be, the better who deposited money with a stakeholder on an unlawful wager, not within the prohibitions of the statutes against gaming or horse racing, could not, after the bet was lost, recover b^ck his deposit ; and whether the money had been paid over to the winner by the stakeholder, or remained in his hands, was of no consequence ; the loser could in neither case, after the loss of the wager, maintain an action against the stakeholder for it. The bet therefore, though ille- gal, if in deposit with a stakeholder true to his trust, was under no effectual legal restraint or interdiction, unless it was within the scope of the statutes against gaming or horse racing. These statutes professed and were intended to suppress the mis- chiefs to which they referred, but they differed greatly in the extent of the provisions they contained, and the efficiency of the remedies they applied, for the purposes intended. The statute against horse racing expressly prohibited all horse racing for wa- gers or stakes within the state ; and the penalties affixed to the offence were so severe and stringent as to ensure to a moral cer- tainty the suppression of the mischief. But the statute against gaming fell far short of that against horse racing in efficiency. It professed to be " An act against excessive and deceitful gam- ing," and it contained some wholesome provisions. It repressed and punished with due severity all deceit, fraud, cheating and unfair practices in the species of gaming it prohibited, and in 404 CASES IN THE COURT OF APPEALS. Ruckman r. Pitcher. petting upon the game ; but its provisions against bets and gaming, as being themselves illicit, and intended to be repressed, were not sufficiently comprehensive and coercive to make them effectual. The statute provided and declared that all securities and conveyances for money or property won by play at any game, or by betting thereon, or bet or advanced for those pur- poses, should be void, and losers to the amount of $25 at any one time or sitting, who should pay the same, were enabled to iccover back the same at any time within three months, from the winner, with costs. By the 5th section of the statute to prevent horse racing, and for other purposes, subsequently passed, it was in substance further provided, that all contracts for, or on account of, any money or other thing bet, or staked, or de- pending on any such race, (referring to the race before men- tioned in the statute,) or concerning the same, or for or on account of any gaming by lot or chance, of any kind or descrip- tion, should be deemed and adjudged void, and that it should be lawful for any person who might have paid any money or other thing upon the issue or event of any such race or game, to recover the same in like manner as provided in the 2d and 3d sections of the act entitled an act against excessive and de- ceitful gaming. And by those sections of that act the action was to be brought within three months, and was to be against the winner. These provisions and penalties were thus limited to the species of gaming by play at any game, or by lot or chance ; to bets upon such gaming, and to money lent for those purposes ; and the action given to the loser was limited to three months, and to be against the winner only provisions of much importance and use indeed, but obviously inadequate to the suppression of the offences they were intended to prohibit and prevent. The revised statutes which went into operation in 183(1, fully supplied the deficiency, and indeed have gone the whole length of prohibiting all wager?, bets, and stakes upon any contingent or unknown event, with the exception only of contracts of insu- rance, and upon bottomry and respondentia, and have enabled the loser to recover the money wagered and lost, not only of tho ROCHESTER, JUNE, 1848. 495 Ruckman r. Pitcher. winner, but also of the stakeholde , notwithstanding that he may, after the loss of the bet, have paid the same over to the winner. It was manifestly the intention of the legislature to suppress and prohibit every species of wager and bet, either up- on the racing of animals, or upon any contingent or unknown event whatsoever, other than the contracts expressly excepted, and to abolish all distinction between lawful and unlawful wa- gers, and make them all invalid and void. As one of the best and surest means of accomplishing that end, the provision was adopted enabling and authorizing the loser to sue for and re- cover back his stake or deposit from the stakeholder, whether the race or game may have been lost or not, or the money paid over to the winner or not. Anterior to the revised statutes, questions were liable to occur upon the legality of the wager, and the provisions and penalties applied by the laws to the pre- venting or the suppression of those adjudged to be unlawful, might be evaded by the betters, or might prove inadequate to the effectual restraint of the offence. And the action given by the statutes to the loser to recover back the money lost and paid by him, was too limited and defective to be, for any purpose, a reliable remedy. For the provision giving the action limited the time for the commencement of it to the short space of three months, and applied it to the winner, without any notice of the stakeholder or reference to him. The remedy thereby, upon a strict construction of the act. would be against the winner alone ; or if the terms of the 5th section of the act against horse racing admitted of an exposition sufficiently broad to include the stake- holder, in the cases to which that section refers, as being a party to whom the loser had paid the money he sought to recover back, the action for it, against him, to be effectual, must be brought before the same was in good faith paid over to the win- ner. And it is quite obvious that the payment over of the stakes to the winner may be made so promptly upon the decision of the race or game, as not to allow sufficient time to the loser to arrest it, by his action, in the hands of the stakeholder, and that the loser's recourse to the stakeholder would thus be frus- trated. 406 CASES IN THE COURT OF APPEALS. Ruckman r. Pitcher. But under the provisions of the revised statutes, those diffi- culties and doubts cease to exist. The article entitled " of bet- ting and gaming," is general, comprehensive and explicit. It embraces and embodies the pre-existing restraints upon betting and gaming, with the further provision making the stake or deposit of the loser recoverable by him of the stakeholder, either before or after the loss of the race or game, notwithstanding that the same may have been paid over to the winner, and whether the same has been thus paid over or not. This fur- ther provision thus rendering the payment over of the stake to the winner of no avail to the stakeholder as a defence to the action of the loser against him under the statute for the recov- ery of it back, gives to the present system a decided advantage over that which preceded it, for suppressing the obnoxious prac- tices of betting and gaming. And if full effect be given to it, and it shall be fairly applied and carried out, it must have an efficient agency in the accomplishment of the purposes of the statute. But to give it that effect, the loser's assent to the pay- ment over of the stake, or his order directing it, must not be allowed to affect the stakeholder's liability : for when the wager is upon an event or contingency unknown to both the parties and the result is uninfluenced by either of them, and no decep- tion, fraud or unfair practice is imputable to the winner, the loser will very rarely dissent from the payment of the stake to the winner ; but will, when present and called upon for his consent, usually acknowledge the winner's claim, and authorize the payment of the stake for him by the stakeholder accord- ingly. To allow such consent and authority of the loser, so given by him, to be a sufficient warrant to the stakeholder to pay over the money, and an effectual defence to the action of the loser against him, would be to open the door to evasions of the statute, which would essentially impair its provisions and render it altogether inadequate to the purposes for which it was intended. The statute, to be effectual, must be construed and held to provide that no payment of the stakes by the stake- holder to the winner, either without the consent of the loser or with such consent, shall be a defence for the stakeholder to the ROCHESTER, JUNE, 1848. 407 Ruckmun r. Pitcher. action of the loser against him for the same. That such was the intention of the framers of the statute, the defects in the pre- existing- laws which the further provision of this statute was intended to supply, the remedy it provides, and the language it employs, appear to me to fully and clearly evince. It was the agency and concurrence of the loser in giving effect to the ille- gal contract of wager, and chiefly the consent and direction so habitually given by the loser, to the payment of the stakes to the winner, which under the former system rendered the pro- visions of law against betting and gaming so ineffectual ; and it was to provide a remedy for that evasion of the former stat- utes, that the action was given to the loser in its present ampli- tude, vesting in him the unqualified right to recover back his deposit from the stakeholder who had paid it over to the winner. The language of the statute giving the action is full, clear and explicit ; the right to sue for and recover the deposit of the stakeholder is unconditional, and applies to all cases of deposits and stakes, whether the bet is lost or not, or the stake is paid over or not. The statute makes no exception of payments with the consent or by the order of the loser, and the court can make none. It is incorrect and unjust to predicate of this denial of effect to such consent of the loser of the bet, that it encroaches upon his right to the free disposition of the fund, or interfered with his power over it. He had a perfect right and was at full lib- erty to dispose of it as he pleased, and to order and direct it to be paid by the defendant to any person whomsoever, other than the winner as being entitled thereto on the ground that he had won the wager. The plaintiff in error, being the owner of the money, had the right to call upon the stakeholder for it him- self, or to dispose of it to others, and order and direct the pay- ment of it to them ; and the payment of it to such order by the defendant would be perfectly regular, and would discharge him from his liability therefor to the plaintiff. But the plaintiff in error, as loser, could not direct the payment of the stake to the winner as being won by him. Such order and direction, and the payment under it, would be in consummation of the un- 408 CASES IN THE COURT OF APPEALS. Rucknian t>. Pitcher. lawful bet, and if permitted would give effect to the contract which the statute declares to be void. If such order and direction of the loser to the stakeholder to pay over the stakes to the winner, could have the efficacy as- cribed to it by the defendant in error, it must be either because the payment over of the money is by such consent and direction authorized and made a legal and valid payment, or because the loser who gives it precludes himself thereby from afterwards contesting its validity or asserting a claim to the money after his waiver of his right to it, and in disaffirmance of his own disposal of it to another person. In questions between parties to contracts and transactions, on common law principles, where no statute rule intervenes, those grounds of objection to a plain- tiff's right of action would be available, and might be conclu sive. But in the application of statutory provisions, the rules given by the statute are to govern. The statute under consid eration, which makes the wager illegal, and the contract void implicates the stakeholder in the illegality ; and to render the remedy it provides against him effectual, authorizes and enables the depositor to recover back a stake deposited with him as stakeholder, after he has paid it over, and notwithstanding such payment. He therefore cannot exonerate himself from his liability to the action of the loser for the deposit, by paying the money over, but must continue, notwithstanding such payment, amenable to the loser for it. And any consent or order of the loser to him to pay it over, as it contravenes the spirit and in- tention of the statute, and tends to impede its operation and frustrate its design, must be nugatory and inoperative. In ihe case of Lewis v. Miner. (3 Dcnio, 103,) it was con- tended that the loser, by the payment or delivery over of the money or thing wagered, consented to part with the property, and had no remedy by the common law to recover it back. Such was admitted to be the common law rule, but the court held that the statute nullifies the consent, and gives the loser a remedy by action. The demand was there against the winner ; but the question was on the effect of the consent of the loser to part with his property, and upon his right of action to recover it ROCHESTER, JUNE, 1848. 499 Ruckman v. Pitcher. back ; and the opinion expressed by the chief justice was, that the statute " nullified the consent," and gave the loser a remedy by action. How are we to distinguish that case in principle from this ? The point was that the statute nullified the con sent of the loser to the payment of the wager when lost to the winner. And if the payment of it direct to the winner is nul- lified, must not the consent and direction to the stakeholder to pay it over be equally inoperative and void? The stakeholder is the agent of the better, and takes the money deposited in his hands as the better's stake, under the express or implied engagement to pay it over when lost and won, to the winner. If the wager had been lawful, and the contract valid, he would need no other or farther assent, order or authority from the loser to pay it over ; or if the statute had left the stakeholder at liberty to fulfil his engagement, and had not interdicted the payment of the stakes to the winner, such payment would have exonerated him from his liability. But the statute, by giving the loser an action against him for the money, after the pay- ment of it over by him to the winner, has, in effect, interdicted such payment over, and made the same ineffectual and of no avail to him as a defence to the action of the loser against him. The authority given by the original deposit to pay over the stake upon the loss of the bet to the winner, is necessarily nul- lified by the provisions of the statute giving the loser a remedy by action to recover it back ; and the repetition of that au- thority by the consent and direction given immediately after the loss, to pay the same over, cannot surely give validity to a payment which the statute thus impliedly interdicts. Such subsequent consent and direction is in effect nothing more than the affirmance of the contract and authority created and given by the original deposit, and an order and direction to fulfil and perform it in disregard of the statute. In the case of Ruckman v. Bryan, (3 Dcnio, 340.) the de- fendant had borrowed a sum of money of the plaintiff to bet on a horse race, which had been deposited with a stakeholder, by whom the same, on the decision of the race, had been paid over to the winner. The defendant, who was the borrower, had VOL. I. 52 410 CASES IN THE COURT OF APPEALS. Ruckman v. Pitcher. afterwards promised to pay the loan to the plaintiff; and ac- tion was by the lender against the borrower for the money. The court wholly disregarded the subsequent promise of the borrower, made after the loss of the race, to repay the loan ; and held such loan to be illegal, and the money lent irrecover- able by the lender of the borrower. So here, the payment over of the stakes by the stakeholder to the winner, being in itself inoperative as a discharge of his liability, the consent or direc- tion of the loser to him to pay the same over, could not impart to it the force and validity of a duly authorized and available payment. Such payment of the money wagered, by the stake- holder to the winner, on the ground that he had won the wager, whether with or without the consent and direction of the loser, is the payment of an illegal bet, in consummation of an un- lawful and void contract. The order or direction of the loser to the stakeholder to pay it, cannot and does not change the nature or character of the payment. And no such consent or direction can, in my judgment, be a defence for the stakeholder against the action of the loser given to him by the statute. Such, I understand to be the rule laid down in the case of Lewis v. Miner as applicable to the case of an action by the loser against the winner. And it appears to me to be equally applicable to the case of an action against the stakeholder. I am, however, not to be understood to hold that the money wagered and deposited with a stakeholder can, under no cir cumstances, be directed by the depositor, after the loss of the wager by him, to be paid to the person with whom the bet was made; but if such direction of the loser can, consistently with the terms and policy of the statute, be allowed in any case, (other than an actual bona fide purchase,) to avail the stake- holder for his justification, it must surely be on the ground that such consent and direction have been freely given for the pay- ment of it, not as money to be paid over to a winner as a stake won by him, and thereby become his money, but as money of the loser, directed by him to be paid to the winner, not as hav- ing any right to it, but as the free and voluntary gift and gratuity of the loser to him. It would be highly improl able, ROCHESTER. JUNE, 1848. Ruckman v. Pitcher. I will not say impossible, that any such case should ever occur, and in perfect good faith exist. And I hold it to be clear that no consent or order of the loser to pay the money or stakes lost to the winner, as money won by him. can in any case give the winner any claim thereto, or the stakeholder any right or authority to pay the same to him. The stakeholder can con- sequently avail himself of no such consent or direction as an authority to him to pay the loser's deposit to the winner as money or stakes won by him on the issue of the race or game, nor claim the benefit of such payment as a defence to the action of the loser against him for the deposit. In this case it is admitted and avowed that the money was paid by the defendant to the winner as money won by him on the race. The judge, in his charge to the jury, instructed them that if the money was paid to Minturn after the race, as winner of the stakes, by and with the approbation and consent, and upon the order of the plaintiff, such payment was a bar to the plaintiff's right of action against the defendant. This direction, in our view of the law was clearly incorrect, and vitiates the verdict. The jury could not, if guided by it, find otherwise than they did. The proof was full and clear that the money was paid to Minturn after the race, as winner of the stakes, with the con- sent of the plaintiff in error, given on the race-course at the time the race was run and the result announced. It was paid as money lost, and received as the stakes won upon the race. Such payment must, I think, be deemed as fully within the provisions of the statute, as a payment by the loser himself to the winner would be. But again, it is objected that as the payment of the stakes by the stakeholder to the winner gives the loser a right of action against the winner for the recovery of the same from him, the proper resort of the loser is to him, and recourse cannot be per- mitted to the stakeholder also, as a double satisfaction might thereby be obtained. It is a sufficient answer to this objection, that the statute in express terms authorizes the loser to sue for and recover his deposit or stake of the stakeholder, whether he has paid the same over to the winner or not. The loser, as- 412 CASES IN THE COURT OF APPEALS. , Ruckman v. Pitcher. suming that he would be confined to one satisfaction, might surely have concurrent remedies therefor, against both the stakeholder who paid over the stake, and the winner to whom it was paid, and be entitled to take his remedy against either of them, and against the stakeholder in the first instance. He consequently must have the right to prosecute his action against such stakeholder to judgment and execution, and could not be turned round to his action against the winner, and thus be driven to a remedy against a party who might be irresponsible and unable to pay. Whether the loser would have the right to pursue the winner after a fruitless recovery against the stake- holder, or be entitled to other or double satisfaction, are ques- tions with which we have nothing to do in this action. If he is restricted to a single satisfaction, and obtains it in his action against the stakeholder, the fact of such satisfaction so obtained in such suit would be available to the winner as a defence to an action for the same cause against him. The objection of the non-joinder of other parties having an interest in the bet, as plaintiffs, assumes that others were inter- ested with the plaintiff in error in the bet, and that their interest made them necessary parties to the suit. It does appear that the money wagered and staked did not belong wholly to the plaintiff in error. Two of the witnesses testify to contribution by them to make up the sum, one to the amount of $100, the other to $50, and each of them slates that he paid to the plain- ti!F his contribution, and avers that he had not authorized thi.s suit for his part of the stakes. There may have been other contributors, who, or some of them, may have paid their contri- butions ; and as respects some of those shares and interests in the deposit, the right of the plaintiff in error to recover may be questionable : but if the shares of those who disapproved acting are to be disallowed, and even if in addition thereto the interest of all other contributors shown to have an interest in the bet are also to be excluded, the plaintiff in error would still be enti- tled, if his action was otherwise maintainable, to recover the esidue of the sum wagered and bet shown to belong to others. Ind so the judge in effect decided ; for he instructed the jury ALBANY, SEPTEMBER, 1848. 413 Cayuga County Bank r. Warden. that the plaintiff, if entitled to recover, was entitled to recovei the amount of the money bet and lost by him, less the twc sums of $50 and $100, belonging to persons who had not authorized the suit. But it is further objected that no demand is shown to have been made of the return or repayment of the money before the commencement of the action. The answer is, that no demand was necessary. The statute makes the stakeholder liable ab- solutely and at all events, and gives the loser an immediate right of action against him. No demand could be necessary ; especially in a case like this, where the money had been actually paid over to the winner. Whether a previous demand would have been necessary or proper, if the action had been brought before the race was run, and when the event on which the bet depended was still contingent and undetermined, or the action might even in that case have been brought and maintained without any previous demand, it is not necessary now to in- quire, for this defendant' has actually paid over the stakes to the winner ; and as such payment, over was, in our view of it. without sufficient authority and in his own wrong, he made himself liable to an immediate action against him, and a pre- vious demand, if otherwise prooer, would be unnecessary. The judgment must be reversed. Judgment reversed. BRONSON, J. dissented. 2 6 THE CAYUGA COUNTY BANK vs. WARDEN and GRTSWOLD. s 6 e 9 d!9 Due presentment for payment and notice of non-payment are conditions precedent to the liability of an endorser of a promissory note. No precise form of words is necessary in giving notice. It is sufficient if the lan- guage used is such as to convey, either in express terms or by necessary implica- tion, notice to the endorser of the identity of the note, and that payment, on due presentment, has been neglected or refused by the maker. Where a notice misdescribes the note in some particular, it may he shown in aid of the defect that there was no other note in existence to which the description con- tained in the notice could he applied. 413 28 36 ITr 414 CASES IN THE COURT OF APPEALS. Cayuga ^County Bank v. Warden. A notice of protest need not in terms state that a demand has been made upon the maker. It is sufficient if it state that the note has been protested for non-payment. The defendants were endorsers upon a note for $600, payable to their joint order at the plaintiffs' bank. The notices of protest were dated at the bank on the last day of grace, and were addressed to the defendants severally. They had the character and figures " $600" in the margin. In the body they ran thus : " Sir ; take no- tice that S. Warden's note for three hundred dollars, payable at this bank, endorsed by you, was this evening protested for non-payment, and the holders look to you for the payment thereof." It was proved that there was no other note in the bank made by S. Warden and endorsed by the defendants. Held, that the notice was sufficient to charge the endorsers. ERROR from the supreme court, where the action was as- sumpsit, tried at the Cayuga circuit before MAYNARD, J. in January, 1848. The plaintiffs claimed to recover the amount of a promissory note made by S. Warden and endorsed by the defendants, in these words : "$600. Ninety days after date I promise to pay to the order of F. L. Griswold and E. A. Warden six hundred dollars for value received, at the Cayuga County Bank. Auburn, N. Y. January 30, 1848. S. WARDEN. (Endorsed) F. L. Griswold. E. A. Warden." The note at its maturity was in the plaintiffs' bank, and was protested for non-payment. A notice of protest was served on each of the defendants, addressed to them severally, and was in these words : ' 600. Cayuga County Bank, Auburn, May 3, 1845. Sir : Take notice that S. Warden's note for three hundred dollars, payable at this bank, endorsed by you, was this evening protested for non-payment, and the holders look to you for the payment thereof. Your obedient servant, P. B. EATON, Notary Public." It was proved, under objection by the defendant's counsel, that the above note was given in renewal for a balance of a previous note signed by S. Warden and endorsed by the defen- dants, due the llth November, 1844; also that the note in question was the only note in the bank, made by S. Warden, and endorsed by the defendants. ALBANY, SEPTEMBER, 1848. Cayuga County Bank . Warden. The above facts appearing, it was insisted on the part of the defendants, that they were not properly charged as endorsers, and the following grounds were urged : 1. The notice of protest was not upon the note in question, but was a notice of protest of a note for $300. 2. The note in question is made payable to the order of the defendants jointly, and the notice of protest speaks only of an individual endorsement, and is ad- dressed to the defendants severally. 3. The plaintiffs had no right to show that the defendants were not misled by the notice. 4. Even if the note had been correctly described in the notice, still such notice was defective in not stating that payment had been demanded and refused, and when the note was made, and when it became due and payable. MAYNARD, J. held that the notice was not sufficient to charge the defendants as en- dorsers, and that the plaintiffs could not recover. The plain- tiffs excepted, and had a bill of exceptions duly signed and sealed, on which the supreme court sitting in the seventh dis- trict, gave judgment for the defendants. John Porter, for the plaintiffs in error. The notice of protest served on the defendants was a sufficient notice to charge them as endorsers of the note in question ; for it informed the defen- dants with all reasonable certainty, that this note for $600 had not been paid by the maker, and that the same had been de- manded at the time and place of payment, aftid payment re- fused. (Reedy \. Seixasfi John. Ca. 337 ; Bank of Roches- ter v. Gould, 9 Wend. 279 ; Bank of Alexandria v. Swan, 9 Peters, 33 ; Mills v. Bank of the U. S. 11 Wheat. 431 ; Re- mer v. Downer, 23 Wend. 620 ; Kilgore v. Bulkley, 14 Conn. 362 ; Crocker v. Getchell, 10 Shep. 392 ; Story on Prom. Notes, 349, 354.) As no particular form of a notice of protest is prescribed by law, the object being merely to inform the endorser of the de- mand, and non-payment by the maker, and that he is held lia ble for the payment of the note, if the amount had been omitted it would still have been sufficient to identify the note and 416 CASES IN THE COURT OF APPEALS. Cayuga County Bank v. Warden. charge the endorsers ; and therefore that portion of the notice may be rejected as superfluous. (Reedy v. Seixas, supra.) It is not necessary to state in a notice of protest, either the date of the note, or the time when it became payable. In these respects the notice in this case is in the same form with that in general use by notaries, as is proved by the forms of notices given in decided cases. (Remer v. Downer, 23 I Vend. 620 ; Bank of Rochester v. Gould, 9 id. 279 ; Edmonds v. Cates, 2 Lond. Jur. 183 ; Gurgeon v. Smith, 2 Nov. <$ Perry, 303 : Margeson v. Goble, 2 Chit. R. 364 ; Houlditc/t v. Cautty, 6 Scott, 209.) The statement in the notice served, that the note " was this evening protested for non-payment, and that the holders look to you for the payment thereof," and signed by a notary, is equivalent to saying that payment of the note had been de- manded by him, and had been refused ; and necessarily implies that he had demanded payment of the note, according to its terms, and that payment had been refused. (See cases last cited ; Chit, on Bills, Wth Am. ed. 467, 8, 9, and notes ; Mills v. Bank of U. &. 11 Wheat. 431 ; Story on Prom. Notes, 350, 351, 352, 354.) The note is made payable to both the defendants, and is en- dorsed by them individually, and the notice correctly describes them as having endorsed individually; the law only requiring that notice should be served upon both, as was done in this case. ' Xhcpcrd v. Hawlcy, 1 Conn. 368 ; Willis v. Green, 5 Hill, 232 ; Story on Prom. Notes, 308 ; Sayre v. Prick, 7 Watts *$* Scrg. 383.) W. T. Warden, for the defendants in error, insisted that the notice of protest was not sufficient to charge the endorsers ; and cited Reiner v. Downer, (23 Wend. 620;) Ransom v. Mack, (2 Hill, 587 ;) Cayuga Co. Bank v. Dill, (5 id. 403 ;) Esdaile v. Sower ly, (11 East, 114;) Staples v. Okines, (1 Esp. R. 332 ;) Free v. Hawkins, (8 Taunt. 92 ;) Peeking v. Graham, (I Cramp, ij* Mees.725;) Clcgg v. Cotton, (3 Bos fy Pull. 239 ;) Prcdeaux \. Collier, (3 Star/tie, 57;) TindaL ALBANY, SEPTEMBER, 1848. Cayuga County Bank v. Warden. v. Brown, (I T. R. 167;) Chit, on Bills, 527, 8th Lond. ed. , Thompson on Bills, 506 ; Bank of Chenango v. Root, (4 Cowen, 126 ;) Boulton v. Welsh, (3 Bing. N. Cases, 688 ; 4 id. 411 ;) Messenger v. Southey, (1 Man. fy Granger, 76 ;) Strange v. Price, (10 Ad. fy E. 125 ;) Hartley v. Case, (4 Barn. $< Cress. 408 ) 7 .Smg-. jRep. 530, 533 ; 2 #e. /ac&. 609 ; Furze v. Sharwood, (2 ^rf. # .EMis, AT. S. 388.) JEWETT, Ch. J. There is no question but that, due pre- sentment for payment and notice of non-payment to the en- dorsers of a promissory note, are conditions precedent to the liability of the endorsers, and that the notice may be either written or verbal. (Cuyler v. Stevens, 4 Wend. 566.) Such presentment of the note in question was made and notice of non-payment in the form shown by the evidence given. The only material question then is, whether that notice is sufficient. It is well settled that there is no precise form of words necessary to be used in giving notice ; it is sufficient, if the language used is such, as, in express terms or by necessary implication, to convey notice to the endorsers of the identity of the note, and that payment of it on due presentment has been neglected or refused by the maker. The fact which was necessary to be established by the plain- tiff' is, that the defendants had due notice of the dishonor of the note in question. The notice, such as it is, was given at the precise time and place required by law. The evidence shows that this note was given for a balance due upon and in renewal of a former note payable at the same bank on the llth of November, 1844, made by S. Warden and endorsed by the defendants, to whose order it was made payable. But it is con- tended that the notice merely informs the defendants of the non-payment of a note drawn and endorsed respectively by the defendants for $300, and not of a note for $600, endorsed by the defendants jointly. Concede that such variance or mis- description exists. It is well settled in accordance with good sense, that an immaterial variance in the notice will not vitiate it. The variance must be such as, that under the circumstances of the VOL. I. 53 418 CASES IN THE COURT OF APPEALS. Cayuga County Bank v. Warden. case, the notice conveys no sufficient knowledge to the en- dorsers of the identity of the particular note which has been dishonored. (Mills v. The Bank of the U. S. 11 Wheat. 431 ; Bank of Alexandria v. Swann, 9 Peters, 33.) Now having the accessary facts, namely, that this was the only note in this bank drawn by S. Warden and endorsed by the defendants, and the intimation conveyed by the figures " $600" upon the margin of the notice, who can doubt but that this notice conveyed to the minds of the defendants the informa- tion that this identical note had been dishonored, although it misdescribed the note as it respects the sum for which it was made in the body of it ? The defendants knowing the facts stated, on the receipt of this notice could not, as it seems to me, fail to be apprized by it that this particular note had been dis- honored. It was said on the argument, that the notice, to be effectual, must be perfect on its face, to carry the information to the endorser of the non-payment of the note, and that it could not be aided by accessary facts. The cases of Shelton v. Braithwaite, (7 Mees. $ Welsb. 430,) and Stockham v. Parr, (11 id. 809,) are very much in point to show that a notice, de fective on its face, may be aided by such facts, and that it is proper to consider them in deciding the question of the suffi- ciency of such notice. It was also contended that the notice is fatally defective and insufficient to charge the defendants as endorsers of the note in question, on the ground that the notice describes the endorse- ment of the note as an individual and not a joint endorsement. The note is drawn payable " to the order of F. L. Griswold and E. A. Warden," and is endorsed by the payees respectively. In such case the law requires notice to be given to each of them, as notice to one will not, as it will in the case of partners, be deemed notice to the other. ( Willis v. Green, 5 Hill, 232.) The objection rests upon the ground of misdescription of the note in question ; that the receipt of this notice did not and was not calculated to inform the defendants of the non-payment of this note ; that to effect such object this notice should have described the note as having been endorsed by both defen- ALBANY, SEPTEMBER, 1848. Chretien v. Doney. dants. It seems to me that to hold in conformity with thia objection would be to sacrifice substance to the merest tech- nical formality ; and that it is quite impossible not to see that under the circumstances of this case the notice fully informed the defendants that this particular note had been dishonored. Another objection to the notice is that it does not state that payment of this note was ever demanded or that it was refused, nor when nor where such demand was made and payment refused. The notice is dated " Cayuga County Bank, Auburn, May 3, 1845," and states that S. Warden's note for $300, pay- able at this bank, endorsed, &c. " was this evening protested for non-payment, and the holders look to you for the payment thereof." The case of Mills v. The Bank of U. S. (11 Wheat. 431,)shows that it need not be stated in the notice that a demand of payment was made ; that it is sufficient to state the fact of non-payment of the note, which the notice in this case alleges, as it states that the note was protested for non-payment. Whether the demand was duly and regularly made is matter of evidence to be given at the trial ; and to the same effect is the case of Slacken v. Collins, (9 Carr. fy Payne, 653.) I am of opinion that the no- tice under the circumstances of this case was sufficient, and that the court below erred in its judgment ; that the judgment should be reversed with a venire de novo by that court, and that the costs should abide the event. Judgment reversed. CHRETIEN vs. DONEY and others. A. executed to B. a lease of certain premises for one year, containing a clause in these words : " B. to have the privilege to have the premises for one year, one month and twenty days longer, but if he leaves he is to give four months notice before the expiration of this lease." Held, that the lease created a term for the full period of two years, one month and twenty days, defeasible at the election of the tenant, after one year, by giving notice of his intention to leave the premises, four months previous to the expiration of the year. 420 CASES IN THE COURT OF APPEALS. Chretien . Doney. Where the landlord obtains possession of the demised premises by summary proce* J- ings which are reversed in the supreme court upon czrtiorari, that ccurt should not award restitution to the tenant, if the term has expired before the judgment of reversal is rendered. ON error from the supreme court. John Chretien, on the llth day of March, 1846, instituted proceedings before a su- preme court commissioner, under the statute authorizing sum- mary proceedings to recover the possession of demised premises. In his affidavit, presented to the commissioner, he set forth a lease under seal, executed between himself and John Doney. dated the 5th of March, 1S45, whereby he demised to said John Doney certain premises, known as the Farmers' Exchange, in the city of Buffalo, for one year from the 10th day of March then instant, at a rent of five hundred dollars ; fifty dollars pay- able down, and the remainder in seven equal monthly instal- ments, the first to be paid on the 10th day of April then next. The lease contained a clause by which it was to become void in case the lessee should " demise or assign" the premises with out the consent of the landlord. The last clause in the lease was in these words : " The said Doney to have the privilege to have the premises for one year, one month and twenty days longer ; but if he leaves he is to give four months' notice before the expiration of this lease." The affidavit further stated that Giroux and Wilson, or one of them, was in possession of the premises, holding the same as the assignees, lessees, or agents of said John Doney, to whom said Doney had sold or assigned his interest in said lease before the expiration of the term; that the said John Doney, as the deponent was informed and believed, lived at Rochester ; that he had given no notice of his intention to hold the premises after the 10th of March, 1846 : and that the said Doney, or the persons above named, held over and continued in possession of the premises, after the ex- piration of said lease, without the pcrmissioji of the deponent. and against his will. Upon this affidavit the commissioner, on the 4th of March, 1846, issued his summons directed to Giroux, Wilson, and Do- ney, and requiring them to remove from the premises, or show ALBANY, SEPTEMBER, 1848. 421 Chretien v. Doney cause, on the same day at four o'clock. The summons was served at half past one o'clock, P. M., of the same day, person- ally on Wilson and Giroux, and on Doney by delivering a copy to Wilson, a person of mature age, residing on the premises, Doney being absent from the premises and in the city of Roch- ester, his last place of residence being, as the affidavit of service stated, on the premises. At the time mentioned in the sum- mons, Giroux alone appeared before the commissioner, and made oath in writing that he was the agent of Doney, the les- see, and as such was in possession of the premises under the same lease set forth in the landlord's affidavit; that under the last clause in said lease, no notice was necessary unless the lessee concluded to surrender the premises ; that the said " Doney, or the persons named in the affidavit of John Chretien, are not holding over, and do not continue in possession after the expiration of the term, without permis- sion ;" that said Doney was holding the premises under the lease and agreement aforesaid, and intended to hold for one year, one month and twenty days from the 10th day of March, 1846 ; and that on the 14th day of February, 1846, he gave notice of such intention to said Chretien. Giroux also objected before the commissioner to any further proceedings in the matter, on the ground that it did not appear by the affidavit of the landlord that either of the persons sum- moned held over after the expiration of the term granted by the lease. The objection was overruled by the commissioner, who also decided that John Doney himself should have made the affidavit instead of Giroux, no reason being given why it was not made by Doney ; and that, even if the affidavit was properly made by Giroux, it was not a sufficient denial of the facts upon which the summons was issued. The commissioner therefore immediately issued his warrant of removal in the usual form, under which the landlord was put in possession of the premises. The supreme court, on certiorari, reversed the proceedings, and awarded restitution. The judgment of revei sal and restitution was rendered in December, 1847. 422 CASES IN THE COURT OF APPEALS. Chretien v. Doney. R. Germain $ N. Bennett, for the plaintiff in error. J. B. Lathrop fy H. Seymour, Jr. for the defendants in error. RUGGLES, J. The lease from Chretien to Doney was a lease for one year, or for two years, one month and twenty days, at the option of Doney. Doney's election to give up the premises at the end of the first year, was to be signified by a notice of at least four months before the expiration of that year. If he failed to give that notice, the contract became a lease for the longer time. No new writing or agreement was contemplated between the parties. Although the amount of rent and the time or times of payment for the extended term, are not expressed, that omis- sion is supplied by construction of law. The right to hold during the extended term is given to Doney in plain and ex- press language, in the lease ; and the legal inference is that he should pay rent at the same rate as for the shorter term, and at corresponding times. The rent, therefore, for the extended term was at the rate of $500 a year ten per cent, of which was payable at the commencement, and the residue in seven equal monthly instalments. The affidavit of the landlord, on which the proceedings be- fore the commissioner were founded, does not state that Doney gave the notice mentioned in the lease that he intended to leave the premises at the expiration of the first year ; and this notice was necessary to put an end to the lease at that time. There is a provision in the lease that if Doney, the tenant, should assign his lease without the consent of the landlord, then the lease should determine and be void. And the land- lord, in his affidavit, does say that Doney had sold or assigned his interest in the lease and premises before the expiration of the lease ; but he does not say that he sold or assigned without the lessor's consent. The landlord, in his affidavit, therefore, does not show that the tenant's term was at an end, either by lapse of time or otherwise, nor is there enough in the affidavit to show the tenant's possession unlawful. This objection to the sufficiency ALBANY, SEPTEMBER, 1848. 423 The Mayor, &c. of New- York v. Schermerhom. of the affidavit was made before the commissioner, and over- ruled. The commissioner erred, therefore, in proceeding to remove the tenant, and the supreme court was right in revers- ing his decision. But when the judgment of the supreme court was rendered the extended term of the lease had expired, and Doney's right of possession had ceased. That part of the judgment of the supreme court which restores him to the possession of the premises, is therefore erroneous. It was probably entered by the attorney without being so ordered by the court. It stands on the record, however, and must be reversed. But we are of opinion that under the 48th section of the statute under which this proceeding was had, (2 R. S. 516,) the supreme court had the power of giving costs on the reversal of the judgment of the commissioner, whether they awarded restitution or not. The judgment of the supreme court ought therefore to be affirmed in all respects except as to the award of restitution. That part of it should be reversed. The judg- ment being reversed in part and affirmed in part, neither party should recover against the other his costs on the writ of error in this court. Ordered accordingly. JEWETT, Ch. J., dissented. 1 THE MAYOR, &c. OF NEW-YORK, appellants, vs. SCHER- MERHORN and others, respondents. 5 Where the decree or order appealed from was made before the 1st of July, 1848, when the code of procedure took effect, the right of appeal, the time within which it must be brought, and the form of bringing and prosecuting it, depend upon the law as it stood when the decision was made ; but where the decision was after that day, whether in a suit pending on that day, or commenced subsequently, the right of appeal, the time within which it must be taken, and the mode ot proce- dure, are regulated by the code. An interlocutory order was made by the supreme court in equity, and notice thereof served 19th May, 1848. An appeal was taken July 24th, 1840; Md, that such appeal, being barred by the lapse of fifteen days, according to the statute in force before the code of procedure took effect, was too late. 424 CASES IN THE COURT OF APPEALS. The Mayor, &c. of New- York v. Schermcrhom. An order of the supreme court at general term, denying an application for a rehear- ing, is interlocutory within the meaning of the statute requiring an appeal to bo brought within fifteen days. Mr. Taber, for the respondents, moved to dismis two ap- peals. On the 1st of April, 1848, a decree in favor of Scher- merhorn and others against the corporation was made by the supreme court in special term. The corporation applied to the court in general term for a rehearing ; the motion was denied, and notice of the order denying the motion was served on the 19th of May. The corporation appealed from both orders to this court on the 24th of July. Mr. Willard, for the appellants. BRONSON, J. No appeal will lie to this court from an order or decree of the supreme court made at a special term. ( Grade v. Freeland, ante p. 228.) And that appeal must therefore be dismissed. The order made at the general term denying the motion for a rehearing was not a final decree ; and the appeal should therefore have been made within fifteen days after notice of the order. (2 R. S. 605, 78, 79.) The time for appealing ex- pired with the third day of June, and the appeal was not taken until the 21th day of July. It was then too late. But we are referred to the code of procedure, which allows two years for taking an appeal ; ( 279 ;) and gives this court jurisdiction to review by appeal every determination " hereafter made." ( 11.) And as the order in question was made on the 19th of May, after the code was passed, the appellants in- sist that they had two years from the date of the order to bring an appeal. Although the code was passed on the 12th of April, before the order was made, it did not take effect, excepting a few sections, until the first day of July following. ( 391.) It did not begin to speak until that day; and that was after the order had been made, and after the time allowed for appeal- ing, by the old law, had expired. The eleventh section says nothing about such a case ; it only speaks of cases where the ALBANY, SEPTEMBER, 1848. 426 The Mayor, &c. of New- York v. Schermerhorn. determination was made on or after the first of July the time when the code took effect. Another argument remains to be noticed. The 279th section o{ the code, which gives two years for taking an ap- peal, only applied, as it was originally passed, to actions com- menced after the code took effect. ( 8.) The second section of the supplemental code applies the 279th section, among others, to future proceedings in civil suits pending when the code took effect; and when a judgment, decree or final order in such a suit has been made since that time, or shall be made hereafter, it may be reviewed in the cases, ( 282,) within the time, ( 279,) and in the mode, ( 271,) prescribed by the code. But this suit was not pending on the first day of July, when the code took effect ; it had been terminated by a final decree before that time ; and there have been no proceedings in the suit since that time to be reviewed. We are reminded by the counsel for the appellants, that the third subdivision of the second section of the supplemental code speaks of the 279th, and several other sections of the code, as applicable to the review of judgments, decrees and orders " from which no writ of error or appeal shall have been aiready taken ;' ; and it is inferred from the words quoted that there may be an appeal under the code after the first of July, from a judgment, decree or order made before that time. But there is an incon- gruity between those words and the general clause of the section ; they are irreconcilable, and one or the other must give way. The section took effect at the same time with the code. (Supp. Code, 18.) The general clause of the section says that certain sections of the code shall apply to future proceed- ings, that is, proceedings after the first of July, in suits pending on that day ; and it is absurd to speak of reviewing proceedings taken after the first of July, " from which no writ of error or appeal shall have been already taken ;" that is, taken before the first of July. As the general clause applies to, and qualifies all of the subdivisions of the section, it is more important than the words quoted from the third subdivision : and those words must, I think, be rejected. After they are out, the whole pro- VOL. I. 54 426 CASES IN THE COURT OF APPEALS. Spaulding t>. Kingsland. vision will be congruous ; and the third subdivision will still have effect, though its influence will not be so wide as that which the appellants seek to give to it. On the construction which I have given to these statutes, when the matter was decided before the first of July, the right to a review, the time within which the proceeding must be commenced, and the form of prosecuting it, from beginning to end, all depend upon the old law. The code says nothing on the subject. But when the matter is decided after the first of July, whether the suit was commenced before or after that day, the right to appeal, the time within which the appeal must be taken, and the mode of procedure, all depend upon the code. A different construction might give an appeal after the first of July, in a case where the right of appeal had been lost by the lapse of time before the code took effect, which could not have been intended by the framers of the code. The code has nothing to do with this case ; and as the time for appealing had expired before the appeal was taken, I am of opinion that the motion should be granted. Motion granted. and others, respondents. 426 An order was made by the chancellor on the 23d of June, 1848, denying a motion irf>r to vacate a decree and for leave to take proofs. An appeal was brought in 1343 the mode prescribed lnj the code of procedure, on the llth of July, 1848 ; held, that such appeal should have been made in the form prescribed by the statute and rules in force before the code of procedure took effect. Held further, that the code of procedure gives no new right of appeal from an order made before it took effect, and that the chancellor's order in question, being upon a matter addressed to his discretion, was not the subject of appeal, according to the previous rule in such casea. S. Stevens fy N. Hill, Jr. for the respondents, moved to dis- miss the appeal. The chancellor, on the 23d of June last, de- nied the appellant's motion to vacate a decree which had been ALBANY, SEPTEMBER, 1848. 427 Spaulding v. Kingsland. entered against him by default, and a further motion (if the first should be granted) to open the order closing the proofs. Notice of the order denying the motions was served on the 29th of June, -and the appeal was taken on the llth of July. The appeal was taken in the mode prescribed by the code of pro- cedure, and not in accordance with the old law. A. Taber, for the appellant. BRONSON, J. The 271st section of the code of procedure, which abolishes the old, and gives a new mode of review, did not at the first apply to any adjudication in actions com- menced before the first of July, when the code took effect. ( 8, 391.) But it was subsequently applied to proceedings af- ter the first of July in suits which were pending before and on that day. (Supp. Code, 2. 18.) The suit in which this order was made was not pending on the first day of July ; it had been disposed of by a final decree before that time. And further, there has been no proceeding in the suit since the first of July: the order appealed from was made before that day. The appeal should have been in the form prescribed by the old law, the code having nothing to do with the case. (Mayor of New- York v. Schermerhorn, ante, p. 423.) There is a further, and equally fatal objection, that the order was not one from which an appeal would lie. It was a question of practice addressed to the discretion of the chancel- lor. (Fort v. Bard, ante, p. 43.) The right to appeal, as well as the mode of proceeding, depended on the old law. Appeal dismissed. 428 CASES IN THE COURT OF APPEALS. Butler v. Miller. BUTLER and VOSBURGH vs. MILLER. When an appeal under the judiciary act of December, 1847, (Stai. 1847, p. 639,) was brought prior to the 1st day of July, 1848, from a decision of the supreme court granting a new trial on a bill of exceptions ; held, that the jurisdiction of the court to hear and determine such appeal was not taken away by the code of procedure. Whether appeals may still be brought from the decisions of the supreme court on bills of exceptions in cases where the action was pending prior to the first day of July, 1848, qucre. It seems, that the code does not take away a right of appeal which had attached be- fore it went into operation. APPEAL by the plaintiffs, under the fifth section of the judi- ciary act of December, 1847, (Stat. 1847, p. 639,) from a de- cision of the supreme court granting a new trial to the defen- dant upon a bill of exceptions. The appeal was taken prior to the first dsy of July last, when the code of procedure took effect. (Slat. 1848, p. 497.) K. Miller, for the defendant, said the court could not hear the appeal, as the provisions of the judiciary act on this subject were repealed by the 388th section of the code. He cited also 271, 282, 11. John H. Reynolds, for the plaintiffs, cited 10 of the code. ORONSON, J. The code of procedure specifies the cases in which there may be an appeal to this court, without including the appeal on a bill of exceptions provided for by the judiciary act of December, 1847, (i282, 11.) and abolishes writs of error and appeals as they have heretofore existed. ( 271.) And further, all statutory provisions inconsistent with the code arc repealed. ( 388.) But originally these sections only applied to actions commenced on or after the first day of July last) ( 8,391, 10 ;) and the supplemental code has only applied sections 271 and 282 to future proceedings in suits pending on that day. ( 2.) Tliis appeal was taken prior to the first day of July last, and ALBANY, SEPTEMBER, 1848. 429 Brown v. Fargo. we still have jurisdiction to hear it. (Code, 10.) The act of December, 1847, when applied to appeals depending on the first of July, is not so inconsistent with any thing in the code as to come within the repealing section. (388.) The code-makers did not intend to take away any right which had already at- tached under the old law ; but only to change the law for the future. Whether appeals may still be brought from the decisions of the supreme court on bills of exceptions, in cases where the ac- tion was pending prior to the first day of July, is a question which need not now be decided. We are of opinion that this appeal, and the others which have been mentioned as depending on the same question, may be prosecuted in the same manner as though the code had not been passed. Ordered accordingly. BROWN vs. FARGO. The judiciary act of December, 1847, (Slot, of 1847, p. 639,) authorizing appeals from decisions of the supreme court on bills of exceptions, applies only to cases where the supreme court grants or refuses a new trial before any judgment in the cause ; and not to cases where that court reverses or affirms the judgment of a subordinate court. J. K. Porter moved to dismiss the appeal. In May, 1848, the supreme court, on writ of error, reversed the judgment of the Chenango common pleas, and ordered a venire de novo to issue. From that decision the defendant in" error appealed to this court before the first of July, 1848, under the judiciary act of December, 1847. N. Hill, Jr. for the respondent. PER CURIAM. The statute under which this appeal is brought does not authorize an appeal in such a case. The remedy was by writ of error. Motion granted. 430 CASES IN THE COURT OF APPEALS. Schermerhorn v. Anderson. SCHERMERHORN, appellant, vs. ANDERSON and others, respondents. Where an appeal is brought under the code of procedure from two orders, an under- taking in the sum of $850 is not sufficient, although one of the orders embraced in the appeal is made at a special term of the supreme court, and therefore is not appealable to this court. The appellant allowed to amend his undertaking on terms. L. Livingston moved to dismiss the appeal. On the 1st of April, 1848, a decree was made by the supreme court at special term, dismissing 1 the bill of complaint. An application was made to the general term for a rehearing, which was denied by order pronounced on the 8th of May, but not entered and served until the 5th of July, 1848. On the 14th of July this appeal was taken, and was intended to conform to the provisions of the code of procedure, regulating the manner of bringing ap- peals. The notice of appeal stated that such appeal was taken from the decree of the 1st of April and the order of the 8th of May. The undertaking also recited both these orders, and that the appeal was from the " said decree and order," and it bound the appellant and his sureties to pay all costs and damages that might be awarded on the said appeal, not exceeding 1 two hun- dred and fifty dollars. A. H. Dana, for the respondents. PER CURIAM. The motion must be granted absolutely, so far as the appeal relates to the decree made at the special term, on the ground that no appeal lies from the special term. The appeal being from two orders, the undertaking is not large enough, and the motion must therefore be granted also as to the appeal from the order of the general term, unless the appel- lant amend the undertaking by striking out so much as relates to the order of the special term, and pay the costs of the appeal from that order, and of this motion. Ordered accordingly. ALBANY, SEPTEMBER, 1848. 43] Slade v. Warren. SLADE, appellant, vs. WARREN, respondent. A DEFAULT was regularly taken at the last term of the court at Rochester by the counsel for the respondent who was in at- tendance. The appellant moved at this term to have his de- fault opened on affidavits showing an excuse. Mction granted, on payment of the taxable costs of the^term and of opposing the motion, and a counsel fee of fifty dollars for attending prepared to argue the cause. CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS OP THE STATE OF NEW-YORK, IN NOVEMBER TERM, 1848. 433 15 4 138 16 4 447 d36 " 83 47 4 215 60 412 h63 8 500 THE FARMERS' LOAN AND TRUST COMPANY, appellants, vs> 67 414S 93 *249 HIRAM WAL WORTH, clerk in chancery, respondent. 99 1321 113 4 462 Where moneys deposited in the court of chancery, in a suit for the partition of * ^ r, ~ * lands, have been invested by the clerk upon bond and mortgage executed to him in his official character, such clerk has no power to discharge the mortgage with- out the order of the court. And it seems, that where the clerk executes such a discharge without actual pay- ment, and without the order of the court, it is void even as against bonafide pur- chasers of the property encumbered by the mortgage. But the unauthorized act of the clerk, in executing such discharge, may be ratified by the owners of the fund secured by the mortgage. A ratification of part of an unauthorized transaction of an agent, or one who assumes to act as such, is a confirmation of the whole. One of the clerks in chancery loaned upon bond and mortgage the sum of $29,000, which had been paid into that court to secure a widow's dower, in pursuance of a decree in partition. Afterwards, the borrowers executed to the clerk another bond for the same sum, and another mortgage upon different property. These securi- ties were intended as a substitute for the first bond and mortgage, and were so received by the clerk, who, thereupon, without any direction of the court, execu- ted a satisfaction of the first mortgage, which was entered of record. The owners of the fund, (after the death of the widow,) with notice of all the circumstances, VOL. I. 55 434 CASES IN THE COURT OF APPEALS. The Farmer*' Loan and Trust Co. v. Walworth. foreclosed the second mortgage, in the name of the clerk, and had the property sold Held, that although the discharge of the first mortgage was void, and might have been treated as a nullity, yet the election of the owners of the fund to proceed upon the substituted security, was a ratification of the acts of the clerk, and therefore, that a bill filed to foreclose the first mortgage, for the purpose of collecting the residue of the money not realized by the first foreclosure, could not be sustained. It seems, that if the owners of the fund had elected to proceed upon the first mort- gage, the appellants, who were bona fide purchasers of the property covered thereby, would have been entitled to the second mortgage for their indemnity. The act of a public officer exceeding the authority conferred on him by law may be adopted by the party for whose benefit it is done. Per BRONSON, J. The equitable doctrine in regard to marshalling securities is applicable only where one party has a lien upon or interest in two funds, with a right to resort to either or both, and another party has a lien upon or interest in only one of those funds. Per GARDINER, J. APPEAL from chancery. The bill in this cause was filed against Samuel Jones, John L. Graham, and The Farmers' Loan arid Trust Company, to foreclose a mortgage bearing date the 4th day of April, 1835, executed by Jones and Graham to John Walworth, as clerk in chancery for the first circuit. The Farmers' Loan and Trust Company defended (he bill, and the case, upon pleadings and proofs, was in substance as follows. On the said 4th day of April, 1835, John Walworth, as such clerk, loaned to Jones and Graham the sum of $29,000, paya- ble on the 4th of April, 1838, with annual interest ; to secure which they executed their bond and the mortgage in question, covering eighty-eight lots in the twelfth ward of the city of New- York. The money so loaned had been previously paid into the court of chancery, in pursuance of a decree of that court made in a suit for the partition of the real estate of Henry A. Coster, deceased ; the widow of said Coster (Mrs. Hosack) being entitled to the interest during her life, as a part of her dower, and his heirs and their assigns being entitled to the money, after her decease. She died in July, 1841, and this suit was instituted by the persons who became the owners of the fund upon her decease, under the direction of the court of SYRACUSE, NOVEMBER, 1848. 435 The Farmers' Loan and Trust Co. v. Walworth. chancery, in the name of Hiram Walworth, the successor in office of John Walworth. On the 31st day of December, 1836, Jones and Graham, the mortgagors, conveyed the premises covered by the mortgage, and other lands, to The Farmers' Loan and Trust Company, for the consideration of $200,000, payable in certain certificates to be issued by that company, of which $125,000 was paid at the time, and $75,000 was to be retained until Jones and Gra- ham should pay off and discharge the mortgage above men- tioned, and such other liens as encumbered the premises con- veyed. This conveyance was recorded April 6, 1837. On the 12th day of April, 1837, Jones and Graham executed to the said clerk a new bond for the same sum of $29,000, and a new mort- gage upon other real estate situated in a different part of the city. These were intended as a substitute for the previous bond and mortgage, and were so accepted by the clerk, who there- upon executed a satisfaction of the first mortgage, which was duly entered of record. A certificate of such satisfaction was exhibited to The Farmers' Loan and Trust Company, and the company afterwards issued to Jones and Graham certificates for the remaining sum of $75,000. The last mortgage was substituted for the first, and the first one satisfied by the clerk, without the direction or authority of the court of chancery ; but these acts were done in good faith, and with no improper de- sign on the part of any of those concerned in them. The unencumbered property included in the last mortgage was esti- mated, by competent appraisers to be of sufficient value to ren- der the debt amply secure ; and the evidence tended to show that, at the sale thereof in 1842, (hereafter mentioned,) it pro- duced as large a sum as the property embraced in the first mortgage could have been sold for. The property embraced in both mortgages had then greatly depreciated since the mort- gages were respectively executed. On the 2d of May, 1842, (Mrs. Hosack having died,) the com- plainants in interest in the present suit, the owners of the fund loaned to Jones and Graham, filed their bill in the name of the clerk to foreclose the last mortgage, and on the 5th of October, 436 CASES IN THE COURT OF APPEALS. The Farmers' Loan and Trust Co. v. Walworth. 1842, obtained the usual decree of foreclosure, and for the sale of the premises. The Farmers' Loan and Trust Company were not made parties to that foreclosure. Under that decree the premises covered by the last mortgage were sold for the sum of $21,960, on the 7th day of November, 1842, leaving a deficiency of $15,578,49, which amount still remains due ; and for the purpose of making that sum, the present suit was insti- tuted to foreclose the first mortgage. At the time the previous suit was instituted to foreclose the last mortgage, it was known to the solicitor of the complainants in interest therein, that the last mortgage had been substituted for the first, and that the first one had been discharged by the clerk ; but it being also known to him that the clerk had exe- cuted the discharge without actual payment, and without the direction of the court, it was his intention to fall back upon the first mortgage, in case the foreclosure of the last did not pro- duce enough to satisfy the debt. Jones and Graham, the mort- gagors, were in affluent circumstances when the mortgages were respectively executed, but at the time of the foreclosure suit upon the last mortgage, they had become insolvent, and that fact was also known to the solicitor. The same solicitor also testified in the present suit, that from the fact of the insol- vency of the mortgagors, he took it for granted at the time he instituted the suit to foreclose the last mortgage, that they had parted with the property included in the first mortgage, but who had acquired the title to the same, he had never inquired. The assistant vice chancellor of the first circuit made a de- cree, declaring that the discharge executed by the clerk, of the first mortgage, was void, that such mortgage was still in force, and granting the prayer of the bill for foreclosure and a sale of the premises. The Farmers' Loan and Trust Company appealed to the chancellor, and the cause then became vested in the su- preme court organized under the new constitution, where the decree was affirmed. The Farmers' Loan and Trust Company appealed to this court. SYRACUSE, NOVEMBER, 1848. 437 The Farmers' Loan and Trust Co. v. Walworth. Wm. Curtis Noyes, for the appellants. I. The clerk in chancery was the trustee or agent appointed by statute to invest, manage, control and collect the fund loaned to Jones and Gra- ham upon their bond and mortgage of April 4th, 1835. (2 R. S. 169, $ 8, 9 ; 1 id. 119, 24, sub. 4 ; 2 id. 170, 11 ; id. 171, * 18, 21, 22 ; id. 172, 24, 25.) And having authority to re- ceive payment, he had, as a necessary consequence, power to acknowledge satisfaction. II. The 70th section of the act concerning the partition of lands, (2 R. S. 328, 70,) does not apply to the partition of lands in the court of chancery, for although a like power is con- ferred upon that court, yet the 80th section does not declare all the provisions of the act applicable to that court, and the lan- guage of the 70th section does not, in terms, embrace the regis- ter in chancery. Besides, the statute was not necessary to confer jurisdiction, in partition, upon the court of chancery. This has been for a long period an acknowledged head of equity jurisdiction, independent of any statute. (Allnat on Partition, 77, 83.) III. In any event, the only defect in the discharge of the mortgage, was the want of the order of the court authorizing it. And on this point it is submitted on behalf of the appellants, that there was nothing, either in the law or the facts of the case, to charge them with notice of the omission. On the contrary, they acted with entire good faith, relying upon the accuracy and integrity of a public officer ; and they had a right to be- lieve, as they undoubtedly did believe, that the clerk had au- thority to perform the act upon which they relied ; and having advanced a valuable consideration, they are purchasers in good faith, and as such are entitled to protection. (1 Story's Eq. 376 ; 1 Y. 3- Coll. 328 ; 1 Story's Eq. 400, a ; 1 Hare's Rep. 43 ; & C. 1 Phil. 244 ; Frazer v. Western, 1 Barb. Ch. Rep. 220.) IV. The second mortgage of Jones and Graham was taken by the clerk as a substitute for the first mortgage, and the par- ties in interest having, with a knowledge of all the circumstan- ces, foreclosed and received the avails of the second mortgage, 438 CASES IN THE COURT OF APPEALS. The Farmers' Loan and Trust Co. v. Walworth. they have thereby ratified and confirmed the act of the clerk in taking the substituted security, and are bound by it* with the same effect as though they had originally authorized it. And having thus ratified and adopted the act of their agent and trustee in part, they are not at liberty to reject another part of the act performed by him, although it may have been to their prejudice. (Liv. on Agency, 44, 394, 396 ; Story on Agency, 244, 250, 253 ; Frothingham v. Haley, 3 Mass. 70 ; Wil- son v. Timmin, 6 Man. fy Gr. 236 ; Foster v. Bates, 7 Lon. Jur. 1093 ; Codwise v. Hacker, 1 Caines, 527 ; Cairnes v. Bleecker, 12 John. R. 300 ; Vianna v. Barclay, 3 Cowen, 281 ; Bell v. Cunningham, 3 Pet. R. 81 ; 1 Am. Lead. Cas. 421 ; West Boynton Man. Co. v. Searle, 15 Pick. 225 ; Gaincs v. Acre, Mi- nor's (Ala.} R. 141 ; Hampshire \. Franklin, 16 Mass. 76 ; Zi no v. Williams, 9 Lou. R. 58 ; Planters' Bank v. Sharp, 4 Smedes < Marsh. 75 ; Church v. Sterling, 16 Conn. R. 389; Burrill v. The Nahant Bank, 2 Mete. 163 ; Lawrence v. Tay- lor, 5 Hill, 107.) This adoption amounts to an estoppel. (Amer. Lead. Cases, 420 ; Blair v. Pathkiller's Lessee, 3 Yerg. 407 ; Ruggles v. Washington Co. 3 Miss. R. 495 ; Daggett v. Emerson, 3 Story's R. 700 ; Slate v. Perry, Wrights Ohio R. 662; Rogers v. Knceland, 13 Wemf. 114; Viggers v. PtAre, 8 Clark $ jFm. 526.) And the adoption ex- tends to the entire act of the agent or person professing to act as such. (Amcr. Lead. Cases, 421 ; St^ry on Agency, 250, 244 ; Cushman v. Lokcr, 2 Mass. R. lub ; Wilson v. Poult cr, 2 Strange, 859 ; Newell v. Hnrlbut, 2 Verm. R. 351.) This view of the case is also sustained by the analogy of the law in relation to infants. (2 Grccnl. Ev. 2d ed. 307 ; Goodscll v. Myers, 3 Wend. 479 ; Boston Bank v. Chamberlain, 15 Mass. 220 ; Lawson v. Lovejoy, 8 Grccnl. R. 405 ; Delano v. Blake, 11 TFenrf. #. 85; //i/fyer v. Bennett, 3 Udw>. CA. #. 222; Fontclet v. Murrill, 9 Low. 7?. 305 ; Lowcry v. Blake, 1 Z>a- na's 7?. 46.) So by the law in relation to the unauthorized acts of trustees. (2 Stonfs Eq. 12, 62 ; Murray v. Ballon, 1 .7o/m. CA. #. 581 ; Murray v. Lylburn, 2 id. 441 ; .HJ/f on Trustees, 525, 338.) So upon the doctrine of election as appli- SYRACUSE, NOVEMBER, 1848. 439 The Farmers' Loan and Trust Co. r. Walworth. cable to all the classes above enumerated. (Bac. Abr. tit. Election ; Co. Lit. 146 ; Lawrence v. Ocean Ins. Co. 11 John. 241; 2 Story's ^.1075.) V. The doctrine in regard to marshalling assets has nothing to do with this case. That doctrine is only applied in cases where a party has a lien upon, or an interest in, two or more funds for a debt, and another party has a lien upon, or an in- terest in, only one of the same funds for another debt. In this case the clerk had but one fund, viz : one of the bonds and mortgages, as a security for the $29,000, inasmuch as the con- dition of giving the last was, that the first should be satisfied. They never existed together. To hold that they did exist to- gether, would be in direct contravention of the agreement upon which the last bond and mortgage were given, and would be a fraud upon the appellants, the grantees of Jones and Graham. (1 Story's Eq. 633 ; Chit, on Cont. Spring/, ed. 1842, p. 622, 783 ; Domat, B. 1, tit. 1, 1, sub. 5 ; id. 3, sub. 1 ; 1 Evans' Pothier, p. 22.) Wm. M. Evarts, for the respondent. I. The validity of the mortgage was not discharged or impaired in any manner by the act of John Walworth, in executing and delivering the paper purporting to be a certificate of the payment of said mortgage. (1.) No clerk of the court of chancery, virtute officii, or by statute, had power of his own motion, to discharge, vary, or impair the securities for moneys remaining in such court, or in any manner to deal with such securities or moneys, except under the direction of the court itself. (2 R. S. 169, 170, 171 ; Chan. Rules, 127, 128, 180.) (2.) The provisions of the statute respecting suits in partition confer but very limited powers, and impose very limited duties upon clerks of courts into which moneys or securities under proceedings in such suits may be brought, in respect of such moneys or securities. These pro- visions clearly exclude any inference of such authority to the clerk as was exercised in this case. (2 R. S. 325, 329, 50, 54, 66, 68, 69.) (3.) The statute respecting suits in partition, distinctly provides in respect of investments of moneys brought 440 CASES IN THE COURT OF APPEALS. The Farmers' Loan and Trust Co. v. Walworth. into court in such suits, that " no such security, bond, mortgage, or other evidence of such investment shall be discharged, trans- ferred or impaired, by any act of the clerk, without the order of the court, entered in the minutes thereof." (2 R. S. 328, 70.) This section of the statute is not merely prohibitory of certain acts of the clerk, but renders them, if committed or at- tempted, entirely inoperative upon the security, which survives unaffected by such acts. But if the provisions of the statute are merely prohibitory on the clerk, then his acts in contraven- tion of its absolute terms are equally void. (Hallctt v. Novion, 14 John. R. 273, 290 ; Illinois v. Dclafield, 8 Paige, 527 ; Rex v. Justices, $*c. 7 Barn. <$f Cross. 12 ; Jackson v. Andrews, 7 Wend. 152.) II. The defendants, Jones and Graham, could not oppose any equity to the foreclosure of the mortgage in suit, nor insist upon the validity of the pretended satisfaction piece. They were active parties to the illegal acts of the clerk, and besides, being personally bound for the debt, were indifferent as to what property it is satisfied out of. III. The defendants, The Farmers' Loan and Trust Com pany, stand in no better condition in respect of the complain- ants' equity, than Messrs. Jones and Graham. (1.) They are subsequent mortgagees with actual notice of this mortgage, and an express acknowledgment of its superior lien. (2.) The first parcel of their bonds was advanced to Jones and Graham, in reliance upon the covenant of the latter, that out of them or their proceeds, they, (Jones and Graham,) would pay off this and other incumbrances. The second parcel was advanced upon the representation of Jones and Graham, that they had done so. For this breach of covenant and false representation, they are confined to a personal remedy against Jones and Gra- ham. (3.) The Farmers 1 Loan and Trust Company were affect- ed with notice of the peculiar character of this security, and if they have acted upon insufficient evidence of its payment or satisfaction, they must bear the consequences of their own error. (Sugd. on Vend. ch. 17 ; 1 Story's Eq. 399, 400 ; Jackson v. CadwclL 1 Cowen, 622 ; Hcrrison v. Fly, 7 Paige, 421 ; Grif- SYRACUSE. NOVEMBER, 1848. 44) The Farmers' Loan and Trust Co. v. Walworth. feth v. Griffeth, 9 id. 317 ; Greene v. Sluyter, 4 John. Ch. JR. 46 ; Pitney v. Leonard, 1 Paige, 461 ; 5 Price, 306 ; 7 Conn. 333.) IV. The parties in interest, the owners of the money in court in the partition suit, (the actual complainants in this suit,) had not in any manner waived or impaired their right to enforce the mortgage foreclosed in this suit. (1.) John Walworth never acted by any agency or authority derived from them, and they are not bound by his acts, admissions or acquiescence. He never was their trustee, and never had the legal title or posses- sion of the fund in himself. (2.) Since (by permission of the court) they have resumed the control of their property which had been confided to the court of chancery, they have sought, to realize the same from the securities which were delivered to them by the court as the representatives of their fund, in the order which the settled doctrines of this court sanction. (1 Sto- ry's Eq. 633, 637, and notes, 499.) (3.) The second mort- gage, an undoubted security as against Jones and Graham, was on property in which no other parties were interested, and this they first exhausted, and have thereby relieved the property on which The Farmers' Loan and Trust Company had a subse- quent lien, from their own prior lien, to the extent of the value of their second security. And the master's sale is conclusive of the value of that security. V. The case at bar is sui generis, and the analogies claimed by the appellants' counsel have no application. (1.) No case for election, nor any juncture for entire repudiation or entire rati- fication, was ever presented to the parties in interest. They never had an opportunity of free choice, or of fall repudiation. (2.) The relations of the parties in interest to John Walworth and his acts, are not even illustrated, much less governed, by those of principal and agent, infant and adult, trustee and cestui que trust. VI. The doctrines of election, in the limited extent they aie recognized at law, and in their full and complete administra- tion in equity, widely differ. At law, from the imperfection of its processes, they result in estoppel and forfeiture, proceeding upon technical and logical grounds only. In equity they pro- VOL. I. 56 442 CASES IN THE COURT OF APPEA:. S The Farmers' Loan and Trust Co. v. Walworth. ceed upon grounds of morality and conscience, to further and sustain in just proportion the conflicting interests of all parties. This case is governed by the latter. VII. The parties in interest should be held to have made no election or ratification more unfavorable to themselves than the court would have obliged them to make, had the facts within the cognizance of the parties been spread before the court. 1. The court never would have compelled them to elect at their peril, between the second and inferior security, and the first se- curity involved at least in litigation, and prima fade abso- lutely nullified. 2. The court never would have permitted them to elect to take only the first security, if by such election the second would have become void, and thus the burden of their whole claim thrown upon the property in which innocent third persons had acquired rights. 3. The operation of law upon the facts, was, that the first mortgage was not satisfied; that the second mortgage was not a payment as against us ; but that as regards Jones and Graham and these appellants, it was a pay- ment to its value in money and should be so upheld. In equity, Walworth, (or the parties in interest, and in this connection it is immaterial which,) became affected with a trust to realize the second security, and sustain it as a payment to its value on the first security, in furtherance of the intent of Jones and Graham, and in protection of these pppellants, as far as the law would respect that intent, or could afford that protection. Tim has been done. 4. No party can complain of this treatment of the second security, unless prejudiced by it. No party has been prejudiced by it, and these appellants have been benefited to the extent of $20,000. VIII. The equitable doctrines of election and of marshalling securities afford the nearest analogies and the best guides for the judicial interpretation of our acts in respect of the two seen rities, and the court is referred for a full discussion and exami- nation of them, and for collected authorities to 1 Story's Eq. G33 to 037, and notes ; also 499 and note; 2 id. 1075 to 1098 and notes ; Dunlap's Palcy on Agency, 173, 324 ; 10 East, 378 ; 3 Pick. 495, 505. SYRACUSE, NOVEMBER, 1848. 443 The Farmers' Loan and Trust Co. v. Walworth. BRONSON, J. We are, I believe, all agreed, that the clerk had no authority, without an order of the court of chancery, tc take a new mortgage as a substitute for the first, and discharge the first ; and that the persons interested in that mortgage had the right to treat it as a valid and subsisting security, notwith- standing the satisfaction which had been entered of record. And this right might be exercised not only against the mort- gagors, but against the Loan and Trust Company, although the company had advanced its funds on the faith of the sup- posed satisfaction. This brings us to the question whether the owners of the first mortgage have done any act by which they have lost the right of resorting to that security. The first or original mortgage was given to secure the pay- ment of a loan, made by the clerk, of moneys which had been paid into court on account of the dower of Mrs. Hosack in cer- tain lands which had been sold in a partition suit. The mort- gage was made payable to the clerk, as is usual in such cases : but it was given and received for the benefit of Mrs. Hosack and the persons who would be entitled to the fund on her death. The clerk acted under an authority conferred by law ; but the act was done for the owners of the fund, and they were the persons beneficially interested in the mortgage. If the security had failed, the loss would have fallen on them. The second mortgage was upon other property. It was not an additional, but a substituted security : it was to take the place of the first mortgage, which was to be thereby satisfied, and satisfaction was to be, and was in fact entered of record. Such was the arrangement between the clerk and the mort- gagors. It was no part of their purpose to do a wrong to the owners of the fund : the lands covered by the second mortgage were deemed an ample security for the debt ; and the only object of Jones and Graham in procuring the substitution of securities was, the better to enable them to complete a pending negotiation with the Loan and Trust Company for a loan of two hundred thousand dollars. The lots covered by the original mortgage were included, with others, in a conveyance which Jones and J44 CASES IN THE COURT OF APPEA uS The Farmers' Loan and Trust Co. v. Walworth. Graham made to the company ; arid after satisfaction of the original mortgage had been entered of record, and in the belief that it had been legally done, the company lent funds to Jonea and Graham to an amount greatly exceeding the amount of the mortgage. Although the clerk in consenting to the substitution of securi- ties made a mistake and exceeded his authority, he was never theless acting for the owners of the fund, and not for himself. It was an act which the fund owners might adopt, and which, when ratified, would completely legalize the substitution of the second mortgage for the first. The first would thereupon be satisfied in law, as well as in form, and the owners of the fund would have the beneficial interest in the new security. But it is said, that when an officer acts under an authority conferred upon him by law, the act cannot be ratified by the person for whose benefit it was done; and we are referred to the case of Wilsonv. Tumnian, (6 Man. tj* Gran. 230,) in support of that doctrine. The case proves no such thing. The point decided was, that when an officer, under process against A., seizes the goods of B., without any direction or authority from the creditor, the subsequent assent of the creditor to what has been done, without any act on his part, will not charge him with the trespass which wa> committed by the officer. But although mere assent would not make him a trespasser, his acts might have that effect. Indeed, it was admitted by Baron Parke on the trial of the cause, that the attorney of the creditor, who was also a defendant, would have been liable for the trespass, if the goods had been detained under an authority which he gave for that purpose subsequent to the seizure. And besides; although tin; creditor was no! answerable to the owner of the property for the trespass. th;ii docs not prove that the act of the officer was in its nature inca- pable of ratification, so that nothing could be done to give it effect as between the creditor and the officer. It is undoubtedly a general rule, as was said in that case, that a man cannot adopt an act which was neither done for him, nor in his name. V'V? Saundcrson v. White, 5 /?. ij- C. 900 ; Vcrc v. As/tby, 10 id 283.) But when an officer executes process in favor of a SYRACUSE, NOVEMBER, 1848. 445 The Fanners' Loan and Trust Co. v. Walworth. creditor, although his authority is conferred by law, he acts for, and is the agent of the creditor in such a sense that the act is capable of ratification. I have met with no case which holds a different doctrine. In Armstrong v. Gar row, (6 Cowen, 465,) the defendant, as sheriff, had arrested one Mumford on a ca. sa. in favor of the plaintiff, and on receiving the promissory note of a third person for the amount of the debt, had discharged Mumford out of custody. The sheriff had done an illegal act: the note was void in his hands, and he was liable to answer the plaintiff for the escape. Still the plaintiff was willing to accept the note, and demanded it of the sheriff, who refused to give it up. The plaintiff thereupon sued the sheriff for money had and received to his use, and recovered. The sheriff in- sisted that he could only be made liable in an action for the escape. But the court held, that the plaintiff might affirm the act of the sheriff, consider the execution paid, and call on him for the money. It was further held, that had the note been delivered to the plaintiff, the ratification would have made it a valid security in his hands. And from the note of the learned reporter it seems also to have been considered, that after the plaintiff had recovered against the sheriff on the ground that his act in taking the note had been affirmed, the note would have been valid in the hands of the sheriff. This rests on the principle, that a subsequent ratification is equivalent to an ori- ginal authority. In Pilkington v. Green, (2 B. c|* P. 151,) the officer arrested Green on process in the nature of a ca. sa. issued by the commissioners of excise, and discharged Green out of custody on receiving promissory notes for the amount of the debt. The commissioners afterwards sanctioned what had been done ; and on that ground the notes were held to be valid in the hands of the officer. The case of Sugars v. Brink worth) (4 Camp. 46.) affirms the same principle. (See also Corning v. Sutherland, 3 Hill, 552.) There are undoubtedly many other cases which have gone upon the ground that an act done under an authority conferred by law might be adopted by the person for whose benefit it was done. Indeed, I doubt whether the principle has ever before been questioned; an] I 446 CASES IN THE COURT OF APPEALS. The Farmers' Loan and Trust Co. v. Wai worth. think it quite safe to conclude, that the acts of the clerk in rela- tion to the two mortgages in question were of such a nature that they might be ratified by the persons interested in the fund If the act of the clerk was of such a nature that it might be adopted and made their own by the persons interested in the fund, it is a point almost too plain for discussion that it was in fact ratified. Let us see what was done. In 1842, Mrs. Hos- ack having previously died, the owners of the fund were desi- rous of taking the money out of court, and for that purpose propose to call in the loan which had been made to Jones and Graham. They learned from the clerk and the public records every thing- which was necessary to enable them to act with a just regard to their own interest. They knew that the first mortgage had been discharged, and that the second had been taken as a substitute for it. They knew also that Jones and Graham had become insolvent ; and from that fact they infer- red, as well they might, that Jones and Graham had parted with the property covered by the first mortgage to some one ; and if they had looked at the public records, they would have found the conveyance to the Loan and Trust Company. There was clearly enough to put them upon inquiry, and they were, I think, chargeable with notice of that conveyance. It is enough, however, for the present, to say, that they had actual knowledge of every thing which had taken place between the clerk and Jones and Graham ; and that they had good reason to believe, and did in fact believe, that some third party then owned the lands which were covered by the first mortgage. They knew, or were bound to know, that they had not a shad- ow of title to both of the mortgages : that if they asserted their rijrht to the first, they could have no right to the second ; and if they took the second, they could have no further claim upon the first. The alternative was thus fairly presented, whether they would disaffirm the act of the clerk, and take the first mortgage ; or whether they would adopt his act, and take the second. They elected to take the second mortgage ; and did take and foreclose it. and put in their pockets the money pro- duced uy the sale of the property. They had no color of title SYRACUSE, NOVEMBER, 1848. 447 The Farmers' Loan and Trust Co. v. Walworth. to that mortgage, except upon the ground of adopting the act of the clerk in taking it ; and it can hardly be doubted that there was a complete ratification. It is true that the owners of the fund had the secret intention of falling back upon the first mortgage, if the foreclosure of the second should not produce enough to pay the debt. They in- tended to adopt the act of the clerk so far as it was beneficial to themselves, and to reject the residue. That, the law would not permit them to do. They had no choice but to take the whole, or none; and when they confirmed the agency in part, they ratified the whole transaction. By foreclosing the second mortgage, they confirmed the discharge of the first. This principle is so just in itself, and is so firmly settled, that I need do no more than refer to one or two books where many of the authorities are collected. (Story, Agency, 250 ; Paley, Agency, 172, Dunlap's ed.} It would be strange indeed if the law would permit them to have the second mortgage, to which they have no title whatever except by affirming the act of the clerk, and yet allow them to reject that part of his act which induced the giving of that mortgage. As the owners of the fund have, with their eyes open, agreed to the satisfaction of the mortgage which they are now attempt- ing to foreclose, it cannot be very important to inquire whether they acted wisely or not, or whether they will be gainers or losers by the decision which they made. Nor is it important to know whether the Trust Company is better or worse off than it would have been had the owners of the fund disaffirmed the agency, and foreclosed the first mortgage. But as the owners of the fund think it hard that they should be held to the election which they made, I will briefly inquire how the case would stand without any special regard to the doctrine of ratification. And in the first place, the owners of the fund had no right to both morteraeres. Although Jones and Graham were bound to o o o pay the debt, they were under no obligation to give additional security for the payment ; and they never gave any. They executed a new security as a substitute for the first, and on the condition that the first should be discharged The owner? 448 CASES IN THE COURT OF APPEALS. The Farmers' Loan and Trust Co. . Walworth. of the fund had no right to the new security, except upon the terms on which it was made and offered to them. If they took it, they, by that act, plainly consented to the discharge of the first mortgage. If, on the other hand, they determined to keep the first security, they could have no title to the second, because they would not assent to the terms on which it was offered to them. I am not aware of any rule, either of law or of equity, which will permit a creditor to accept a pledge or other security for his debt, and yet repudiate the condition on which the secu- rity was given. Debtors have rights as well as creditors. The case is still stronger in favor of the Trust Company, who are bona fide purchasers from Jones and Graham. Clearly the owners of the fund had no title to both mortgages ; and yet the decree which has been made goes upon the ground that they have such a right, and that, after having foreclosed one mortgage, they may resort to the other. It is impossible, I think, that such a decree can stand. But it is said, that had there been an attempt to foreclose the first mortgage, the Trust Company would have insisted, and equity would have decreed, that the owners of the fund should irst exhaust their remedy under the second mortgage, and thus xonerate, in whole or in part, the lands which the company nad purchased from Jones and Graham : that by resorting to the second mortgage in the first instance, the owners of the fund have done no more than equity would have compelled i hem to do, and that the company can sustain no damage. This argument is open to several objections. In the first place, it assumes that the owners of the fund had two securities, and a right to resort to both of them, when such is not the fact. They had title to only one security, with an election between two as to which they would take. In the next place, the argu- ment assumes that the company would have insisted that the second mortgage should be first foreclosed, when there is noth- ing to show that they would have made any such claim. I . liink the company would have reasoned differently, and said. ' We cannot prevent the foreclosure of the first mortgage, and will not attempt it : if we are thus deprived of the property SYRACUSE, NOVEMBER, 1848. 449 The Farmers' Loan and Trust Co. v. Walworlh. which we purchased from Jones and Graham on the faith that the first mortgage was satisfied, we shall have a clear equitable claim to the use of the second mortgage for our indemnity, and equity will decree us such right : that will be just as between us and Jones and Graham ; it will leave to the owners of the fund all the security which they ever had a right to claim ; and no wrong will be done to any one." Thus they might, and undoubtedly would have reasoned, if they had followed their own interest. There is no foundation, therefore, for the argu- ment, that the owners of the fund have done only what equity would have compelled them to do had they resorted to the ori- ginal mortgage in the first instance. The company would not have asked such a decree ; or at any rate, no one can un- dertake to affirm that they would have done it. If the owners of the fund had wished to know what the company would say on a bill filed to foreclose the original mortgage in the first in- stance, they should have filed such a bill, and made the com- pany a party, ahd thus allowed them to answer for themselves. As that was not done, the owners of the fund can have no right now to guess what the company would have done under such circumstances, and build up a claim upon that foundation. And finally, the course which the owners of the fund have pursued, and are now pursuing, will give them more than their just rights, and will do it at the expense of the Trust Company. The sale on the foreclosure of the second mortgage took place in October, 1842. Had the first mortgage, instead of the sec- ond, been foreclosed at that time, I do not understand from any of the witnesses that the property would have brought enough to pay the debt. The assistant vice chancellor states the effect of the evidence to be, that on a sale in the fall of '42, the lands included in the first mortgage would not have brought any more than was realized from the sale under the second mort- gage. Assuming that the lands conveyed by the two mort- gages would at that time have sold for equal sums of money, let us see how the case stands. The owners of the fund have got already not the whole debt but all that they ever had a right to claim beyond the personal obligation of the mortgagors VOL. I. 57 450 CASES IN THE COURT OF APPEALS. The Farmers' Loan and Trust Co. r. Walworth. They have bad their election between the two mortgages; and as it turns out, the choice was not a bad one; for they have got as much by taking the second as they would have obtained by taking the first. And further, had they elected to take the first mortgage, they would have got no more than they have got now ; and they would then have had no color of title to the se- cond mortgage. The Trust Company would in that case have had a plain equity to use that mortgage for their benefit ; and thus they would have got a lien upon as much property in value, as they would have lost by the foreclosure of the first mortgage. In short, whatever election between the two mortgages the own- ers of the fund might have made, the Trust Company would have remained unharmed. But how is it now ? After the owners of the fund had got all which they had any right to claim from their land security, and had left the Trust Company nothing more than its just rights, they filed this bill, and have obtained a decree charging the lands conveyed to the company with the payment of more than eighteen thousand dollars. I can see no just foun- dation for such a decree, nor for any decree, against the company. It is possible that the lands covered by the first mortgage would have brought more on a sale in the fall of '42, than was realized from the sale under the second mortgage. But it is evident from the nature of the case as detailed by the witnesses, that it is now utterly impossible to determine, with any degree of accuracy, what the lands in the first mortgage would have brought at that time. There can at the most be nothing better than mere conjecture, without any such certainty as is neces- sary for the basis of a judicial determination. In any view which I have been able to take of the case, we are brought to the same conclusion. I am of opinion that the decrees of the court of chancery and the supreme court should be reversed ; that the bill should be dismissed ; and that the Trust Company should have costs in the courts below. It is not usual to give costs in this court on the reversal of a decree. RUGGLES, J. delivered an opinion in favor of reversing the decree, concurring substantially in the views of BKONSON, J SYRACUSE, NOVEMBER, 1848. 45 1 The Farmers' Loan and Trust Co. v. Walworth. GARDINER, J. also delivered an opinion for reversal upon similar grounds. He further remarked as follows : It was insisted that the equitable doctrine of marshalling se curities affords the nearest analogies and best guide for the inter- pretation of the acts of the complainants in reference to the two securities in question. I am unable to perceive any analogy between the cases. The familiar principle, that if one party has a lien on two funds for a debt, and another party a lien on one of those funds for another debt, equity will compel the former to resort to the fund in which he has an exclusive in- terest in the first instance for satisfaction, has no application to these parties. To authorize the interference of a court of equity in the case supposed, the first creditor must have a lien upon, or interest in, each of the funds, with the right as be- tween him and his debtor, to resort to both or either of them for satisfaction. But the complainants in interest in this cause, as we have seen, never had a lien upon both of these mortgages. They had an election which of the two they would take, and when that was determined, the exclusive and absolute right to the one chosen, and that only. There is another, and to my mind an insuperable objection, to the maintenance of this suit. The equity by which the complainants would avoid the effect of their own deliberate acts in affirmance of the second mortgage and a ratification of the act of the clerk in discharging the first, is an equity in be- half of the Trust Company, and not in favor of the complainants. The design of Jones and Graham and the clerk, as we have seen, was to substitute the second for the first mortgage. They failed in this, as the complainants allege, in consequence of not obtaining the sanction of the court. The appellants, who in good faith advanced their money, relying upon the validity of the discharge of the original mortgage executed by Walworth, must lose all, or be remitted to the second security. This is their equity. It results from the election of the complainants to avail themselves of their legal right to the first mortgage. How can this equity be invoked by the complainants to sustain this suit? By what right did they constitute themselves the 452 CASES IN THE COURT OF APPEALS. Vanderheyden t>. Mallory. guardian of the Trust Company, and undertake, by foreclosing the second mortgage, to determine for the latter the time and circumstances under which they shall enforce a claim implied in equity exclusively in their favor? The foreclosure of the sec- ond mortgage, without adopting the acts of the clerk in dis- charging the first, in virtue of the equity above mentioned, and without making the appellants parties to the suit, if not a fraud upon them, was without color of right. The supposed trust in favor of the appellants, with which the complainants now claim they were affected, was not sug- gested or alluded to in that suit, but they foreclosed as the rightful and absolute owners of the second mortgage. I think they must be concluded by their election to accept the second security, made under the circumstances and with the knowledge disclosed by the pleadings and proofs in the cause. The bill can be sustained only upon the assumption that the second mortgage was given as additional security for the same debt, an assumption without proof and entirely repugnant to the arrangement of the parties and the purpose for which it was executed. The decrees of the supreme court and of the assistant vice chancellor must be reversed. And thereupon the decrees of the assistant vice chancellor and of the supreme court were reversed, and the bill ordered to be dismissed with costs in the courts below, but not on this appeal. VANDERHEYDEN and wife, appellants, vs. MALLORY and 452 HUNTER, respondents. 18 '277 42 "642 The separate estate of a married woman is not liable at common law for her debts contracted before marriage; and the only ground on which it can bn reached in equity, is that of appointment, i. c. some act of hers after marriage indicating an intention to charge the property. The bankruptcy of the husband ; although it extinguishes the debt as t> him, and suspends the legal remedy as to her during the coverture, does not afford any ground for proceeding in equity to charge her separate estate. SYRACUSE, NOVEMBER, 1848. 453 Vanderheyden v. Mallory. The creditor in such a case may prove his debt and share in the distribution of the bankrupt's estate. Afenic sole, having contracted a debt, and owning some shares of bank stock, mar- ried. After marriage, the stock, with the consent of the husband, was transferred to a third person for the purpose of having it transferred back to her for her sole and separate use, which was accordingly done. She also held other shares of bank stock which had been transferred to her separate use by the executor of her father's estate. The creditor sued the husband and wife at law, and being met by a plea of the husband's bankruptcy, discontinued. He then filed a bill in equity for the purpose of reaching the bank stock. No fraud in the transfer to the wife's separate use being alleged, nor any act of the wife after marriage indicating an intention to charge this fund ; field, that the bill could not be sustained. It seems, that when a debt is contracted by a woman during coverture, either for her- self or as surety for her husband, this will be prima facie evidence of an appoint- ment or appropriation of her separate estate to the payment of the debt. But this doctrine has no application where the debt was contracted by the woman before marriage. The act of marriage docs not raise an appointment ; nor does a promise by her and her husband to pay the debt out of some other fund not con- veyed to her separate use, e. g. a legacy or distributive share in her former hus- band's estate, enable the creditor to reach her separate estate. The law casts upon the husband a temporary liability for the debts of the wife con- tracted before marriage. This liability ceases with the coverture, unless judgment has been recovered against both. If the wife survive the husband and judgment have not been recovered, her sole liability revives. Per JEWETT, C. J. The bankruptcy of the husband extinguishes the liability as to him ; but it revives against the wife if she survive her husband. Per JEWETT, C. J. APPEAL from chancery. Joel Mallory and John Hunter filed their bill in the court of chancery against Levinus Van- derheyden and Lenchy his wife, stating the case in substance as follows : Between the 30th day of April, 1835, and the 6th day of December, 1837, the said Lenchy being during that pe- riod the widow of John J. Bradt and a feme sole, became in- debted to the complainants in the sum of $2022,96, for goods sold and moneys advanced at different times. The bill averred that the complainants credited her in this sum upon the know- ledge that she was entitled to a large amount of property from the estate of her late husband. The complainants were in- debted to the estate of Bradt in a large sum, and while their account was accruing against Lenchy she agreed with them that she would make an arrangement with the executor of 454 CASES IN THE COURT OF APPEALS. Vanderheyden . Mallory. Bradt to have such account applied against their indebtedness to that estate. On the 6th of December, 1837, the said Lenchy and Le vinus intermarried, and between that time and February, 1843, they frequently promised that the account against Lenchy should be arranged in the manner above stated, and in the ex- pectation that this would be done the complainants neglected to enforce the demand : but about the time last stated they re- fused to make such arrangement or any other for the payment of the debt. The complainants therefore, in May, 1843, insti- tuted a suit in the supreme court against Vanderheyden and wife upon such account, to which they pleaded in bar that on the 17th day of April, 1843, the said Vanderheyden was dis- charged as a bankrupt, from all his debts under the act of con- gress passed August 19, 1841. This plea was true in fact, and the complainants, being advised that it was an effectual bar, discontinued the suit. The bill further stated that during the time the complain- ants' account was accruing against Lenchy, she was worth a large amount of property bequeathed to her by her late hus- band, a large part of which was unpaid to her and yet remained in the hands of the executor, but a portion of which had then been received by her and invested in bank stocks ; that before any part of the complainants' demand accrued against her, she was the owner of thirty-five shares of bank stock, (the value of which was $2100,) which stood in her own name ; that she con- tinued to be the owner of those shares while such demand was accruing, and was still the owner thereof in her own right ; that after her marriage with Vanderhcyden, she, with the ad- vice and consent of her husband, transferred said thirty-five shares to a third person, for the purpose of having the same transferred back to her for her sole and separate use, which was immediately done, so that at the filing of the bill she held those shares in her own name and to her sole and separate use : also that at the filing of the bill she was the owner in her own right of nineteen other shares of bank stock, received by her out of the estate of her father, and which the executor of that estate SYRACUSE, NOVEMBER, 1848. 455 Vanderheyden v. Mallory. had transferred to her sole and separate use : also that she was possessed in her own name and right of a large amount of other property. The prayer of the bill was that Lenchy Vanderheyden might be decreed to pay the complainants' demand, and to apply for that purpose her separate property before mentioned, or so much thereof as should be necessary, and for general relief. The de- fendants demurred to the bill, as well generally for want of equity, as for reasons more specially assigned. Their demurrer was overruled by the vice chancellor of the third circuit, to whom the case was referred for hearing, and his decision was affirmed by the chancellor on appeal. The defendants appealed to this court. N. Hill, Jr. for appellants. I. The debt in question was not contracted under circumstances giving the respondents a right to proceed against the separate property of Mrs. Vanderheyden, nor has any thing been done by her since which gives such right. It was contracted by Mrs. Vanderhey- den as a. feme sole, and the bill does not pretend that the bank stock in question was even an inducement to the credit given her. On the contrary, it alleges that the complainants relied upon means which they expected she would derive from the estate of her former husband, and not upon the bank stock, which she then owned. The subsequent acts of Mrs. Vander- heyden show no intention to charge the bank stock with the complainant's debt, but only the property held by Bigelow, as executor of her former husband. The only ground upon which the separate estate of a. feme covert can be reached in equity is that of appointment ; i. e. some act on her part clearly evincing an intention to charge the property proceeded against. And as to the bank stock in question, such an intention, so far from being shown, is disproved by all the circumstances. (2 Story's Eq. 1399 ; 2 Rop. Husb. and Wife, 241 to 244.) But the doctrine of appointment has no application to this case. That relates exclusively to acts done by married women as such ; and there is no pretence that Mrs. Vanderheyden, 456 CASES IN THE COURT OF APPEALS. Vanderheyden r. Mallory. since she married her present husband, has done any act which can be construed into an appointment, cither express or implied. (2 Story's Eq. 1398, 1399, 1400.) No case holds that the mere act of marriage raises an appointment by implication ; and therefore the most the complainants can claim is, that their demand is a general debt of the wife, contracted on her gene- ral personal responsibility. And the authorities agree that, for such a debt, her separate property cannot be reached in equity, any more than at law. (2 Story'' s Eq. 1398 ; 2 Rop. Husb. and Wife, 241 to 244.) The chancellor does not put his decision upon the doctrine of appointment, but upon an as- sumed equity, arising out of the husband's discharge in bank- ruptcy ; and he admits that no precedent can be found for the decision except Biscoe \. Kennedy, (I Browrfs C/i. Cas. 18, note.} We contend that he erred, for the following reasons: 1. The husband's discharge in bankruptcy creates no such equity as against the wife. Though the remedy by action is barred, the creditor can prove his debt, under the commission, and thus reach the property of the husband not only, but all the property of the wife not settled to her separate use. (Ban/e- rupt Act, 1841, 3 ; 4 Paige, 73, 4.) 2. The same species of equity exists, therefore, upon principles of natural justice, where the remedy by action proves inadequate, by reason of the hus- band's pecuniary inability : and yet no one pretends that this furnishes ground for charging the wife's separate estate. 3. The decision subjects the separate property of the wife for her gene- ral debts, contracted upon her general personal responsibility, which i.s contrary to law. ('.I Story's Eq. {> 1398; 2 Hop. Husb. and Wife, 241 to 24 1.) The case of Jliscoe \. Kenne- dy, relied on by the chancellor, ought not to govern the present question. It is not found in any regular series of reports, but only in a note furnished the reporter by counsel. It has never been acted upon, or even referred to since, by any judge or wri- ter, till the decision of this case. (Ram on Leg. Jndg. 49, 50.) Brown's Reports are at best but poor authority. ( Greet. I. Ovcrr. Cas. 57 ; Ram on Leg. Jndg. 101.) The particular reasons for the decision are not stated, and cannot be ascertained. (Id SYRACUSE, NOVEMBER, 1848. 457 Vanderheyden v. Mallory. 21.) The controlling reason may have been that the husband was regarded as civilly dead after outlawry, and the wife thus restored to her capacity as a feme sole. (2 Kent's Com. 158 ; 2 Wm. Bl. Rep. 1081, 2.) Or the reason may have been that the settlement on the wife was fraudulent as to creditors, and so the property was the husband's ; that being the only ground taken by the counsel who argued the cause. The absence of all reliable authority in favor of the principle assumed by the chancellor, tends strongly to prove that no such principle exists. (Ram on Leg. Judg. 156, 7.) II. The discharge in bankruptcy of Mr. Vanderheyden ope- rated as an extinguishment of the debt against his wife, at least during coverture. The debt was proveable under the bankrupt act, and therefore is extinguished, at least during coverture. (Bank, act, 4, 5 ; 12 Verm. Rep. 510, 511 : 13 Pick. 64, 67.) The very fact that the bankrupt act operated to discharge the husband is conclusive to show that the complainants' claim is a debt, within the meaning of the act. If so, it is extinguished. The discharge operates upon the debt in the same manner as a release of the husband by the creditor, and of course extin- guishes it. Moreover, it has been expressly decided that the wife's debts dum sola, are absolutely extinguished by the hus- band's discharge as a bankrupt or insolvent. (2 Nev. * Mann 255 ; 10 Mod. Rep. 243 ; 1 P. Wms. 249 ; Gilb. Eq. 318 ; Reeve's Do?n. Rel. 71 ; 2 Kent's Com. 146.) The reasoning on which these cases are based applies to the remedy in equity as well as at law. And the bankrupt act declares, moreover, that the certificate shall be a full and complete discharge of all debts, in all courts, &c. and may be pleaded as a full and complete bar to all suits brought in any court. (Bank, act, 5.) III. The bill is not framed to reach the bank stock on the ground that there was fraud in transferring it to the wife's sep arate use. On the contrary, it treats the bank stock as her separate property, and seeks to reach it as such, thus conceding the validity of the transfer. IV. There is no equity in this case. The bill shows that independent of the bank stock, the husband acquired a large VOL. I. 58 458 CASES IN THE COURT OF APPEALS. Vanderhcydcn t>. Mallory. amount of property from his wife. The complainants might have reached this by due diligence, but chose to wait until the husband's other creditors had exhausted it, and now claim to seize the small remnant in question. The wife has been obliged to submit to the disadvantages arising from bankruptcy, and is therefore entitled to share in its advantages. V. But the bill shows that the complainants have not ex- hausted their remedy against the husband's estate. Equity requires that they should prove their debt under the com- mission, and only resort to the wife's separate property for the balance. D. Buel, Jr. for the respondents. I. The doctrine established in the courts of equity in the earlier as well as in the more recent cases is, that a married woman, as to her separate prop- erty, is to be deemed a feme sole, and therefore that her en- gagements, although they would not bind her person, should bind her separate property. Among the numerous early cases are the following : Peacock v. Monk, (2 Ves. sen. 190 ;) Hitlmc v. Tenant, (1 Brown's Ch. C. 1G.) and the cases cited in Mr. Eden's note ; Lillia v. Airey, (1 Vcs. 277 ;) Balpin v. Clarke, (17 id. 277.) The most recent cases in England accord with the early cases, and establish the position, that if a feme covert having separate property obtains credit, her separate property shall be subject to the debt without any special appointment 01 charge, written or verbal. (Murrey v. Burlcc, 4 Simons' 1 C/t. Rep. 82, S. C. G Eng. Ch. R. 43 ; Same case on appeal to Ld. Ch. Brougham, 3 Mylnc $ Keen, 209, and 9 English Ch. R. 1 ; Owen v. Dickinson, 1 Craig $ Philip, 48.) The American cases, and especially those decided in the court of chancery of this state, and the late court of errors, go the full length of the earlier and more recent English cases. (N. A. Coal Co. v. Dyott, 7 Paige, 9, IS. C. on appeal, 20 Wend. 570 ; Gardner v. Gardner, 7 Paige, 112, S. C. on appeal, 22 Wend. 52G ; Jacques \. The Methodist Episcopal Church, 17 John 548, per Spencer, C. J. and Plait, J.) SYRACUSE, NOVEMBER, 1848. 459 Vanderheyden v. Mallory. II. The facts stated in the bill and admitted by the demur- rer present at least as strong a case for the exercise of the power of the court over the separate property of Mrs. Vander- heyden, as would have been presented if the debt had been contracted subsequently to her marriage to Vanderheyden, for, 1. The debt was contracted on the credit of her being the owner of property derived from her former husband, and from her father, which she has continued to own, and still enjoys. 2. The stocks sought to be subjected to the complainants' debt were transferred to her sole and separate use on the advice ot her husband, and shortly before his bankruptcy, and were thus kept from passing into the hands of the assignee in bankruptcy; and 3. Vanderheyden, by his discharge in bankruptcy, is for- ever exonerated from personal liability for the debt, and no suit at law can be brought against his wife during her husband's life. (Miles v. Williams, 1 P. Wms. 258.) The consequence of denying the prayer of the bill would be to enable Vanderheyden to make use of his bankrupt discharge, not only to rid himself of his own debts and free himself from suits for his wife's debts, but by a new species of subrogation to take the place of her creditors in respect to her separate prop- erty, and instead of having it applied to pay debts which were contracted on the credit of it, quietly enjoy it himself. It is not strange the chancellor felt so strongly the injustice of al- lowing the defendants to put the complainants at defiance, in respect to the wife's separate property, as to induce him to de- clare that if a precedent for granting the relief asked for was wanting, he should deem it his duty to make one. But the chancellor did not find it necessary in this case to change the law or make a precedent. A case was decided by Sir Thomas Clarke, master of the rolls in 1762, which is analogous and fully sustains the grounds on which the bill was filed. (Bris- coe v . Kennedy, 1 Brown's Cli. C. 18, reported by Mr. Eden in note to Hulme v. Tenant.] The only difference between that case and ours is, that in Briscoe v. Kennedy a suit at law was instituted against husband and wife, and the husband (who 460 CASES. IN THE COURT OF APPEALS. Vandcrhcydcn v. Mallory. was out of the realm.) prosecuted to outlawry before the court sustained the bill. But outlawry in civil cases is a mere pro- cess. It is not civil death, nor equivalent to a divorce. (Bac. Abr. Outlawry, D. 2.) In our case, the defendants in the suit at law, pleaded the bankrupt discharge. In both the remedy at law was resorted to and exhausted before filing the bill. The authority of Briscoe v. Kennedy, therefore, furnishes a prece- dent in point. III. But it is objected that the effect of the bankrupt dis- charge of Vanderheyden was not only to exonerate him from the claim, but that it cancelled the debt against the wife and her property, and destroyed all remedies in equity as well as at law for the debt. This proposition, which the appellants' coun- sel endeavored to sustain by a remark of Ch. J. Parker, in Miles v. Williams, (1 -P. Wins. 258.) we deny. The point was not involved in that case. And so the chief justice virtually admits. He says : " It will be a discharge to her, at least a temporary one, viz : during the husband's life. But though it be not ne- cessary to give any opinion upon that, yet I think it will amount to a perfect release, and the wife will be discharged forever." The opinion respecting the effect of the certificate being an absolute discharge of the wife from the debt, is clearly and avowedly an obiter dictum, and no decision sanctioning it as law in any case where the question directly arose, can, we think, be produced. It would destroy the symmetry of the law respecting the relation of husband and wife. If the wife dies before judgment is obtained against the husband, lie is no(. liable; but if she survives him, she is liable;. AY Ky should a discharge of the husband in bankruptcy have a greater efTect in releasing the wife's debts, contracted dui>c sola, than his death? (Clancy on the rig/its of married women, 13 to 16 ; Reeve's Dom. Rcl OS, 09; 2 Kent's Com. 143, 144, \th cd. ; Woodman v. Chapman. 1 Camb. R. 189, and notes ; Heard v. Stamford, 3 P. Wms. 409 ) There is nothing in the bank- rupt law of 1811 that gives to the discharge of the husband the effect contended for by the appellant. The 4th section pro- SYRACUSE, NOVEMBER, 184S. 45 j Vanderheyden v. Mallory. vides, that every bankrupt complying with the provisions of the act " shall be entitled to a full discharge from all his debts.' As the wife's debts did not become his debts by the marriage, why should a discharge from his debts release the debts against her? The common law doctrine, that if one of two or more joint debtors is released, the release operates to discharge the others, cannot apply ; for the husband is in no sense a joint debtor with the wife, as to her debts contracted dum sola, be- fore judgment obtained against them. IV. If it is objected that the stocks are not held by a trustee, but invested in Mrs. Vanderheyden's own name, we answer, that the husband will be deemed her trustee ; and it was there- fore necessary to make him a party to this bill. (2 Kent's Com. \th ed. 162, and note (&,) in which the authorities are col- lected ; also 2 Story's Eq. 3d ed. 1380, and note 3.) V. As to the objection that the complainants should have resorted to the assets of Vanderheyden, in the hands of the as- signee in bankruptcy ; we answer, 1. That it will be time enough to meet that question when it shall be set up in the defendants' answer and proved that any assets were transferred. 2. Vanderheyden was a voluntary applicant and must have been insolvent, and the court on a demurrer to the bill will not presume that the debt may have been satisfied out of property in the assignee's hands. 3. As this debt was not the debt of Vanderheyden, (as before shown,) it is questionable whether the complainants would have a right to claim distribution of any assets which Vanderheyden may have possessed. They cannot be considered as creditors of Vanderheyden. He was never their debtor. It seems clear, therefore, that they could not come in for distribution if there were any effects to distri- bute. (Bankrupt act, 5.) But if there were assets of Van- derheyden in the hands of the assignee, and if such assets could legally be applied towards this demand, it would be more equi- table to leave them for his creditors, and require the complain- ants to seek satisfaction for their demand out of property on the faith of which the credit was obtained. 462 CASES IN THE COURT OF APPEALS. Vonderheydcn r. Mallory. JEWETT, Ch. J. By the common law a married woman is disabled from disposing of either real or personal estate during the marriage, with the exception of the former by fine, and, by our law, by any legal conveyance executed under a due exam ination ; and of the latter with the privity and concurrence of her husband. That being the legal rule, a married woman cannot, at law, bind herself personally by any contract in re gard to her separate property. In conformity with this princi- ple courts of equity hold that her general personal engage- ments will not affect her separate property. And to this extent courts of law and equity act in concert. But as a conse- quence of the principle established that a married woman may take and enjoy property to her separate use, courts of equity enable her to deal with it as a feme sole. The right of disposition or appointment is an incident belonging to such interest and power. She may sell, pledge, or incumber her separate estate when she shows an intention so to dispose of it, in the same manner as if she were a feme sole, unless spe- cially restrained by the instrument under which she acquires it ; and every security thereon executed by her is to be deemed an appointment pro tanto of the separate estate. (Hulme \. Tenant, 1 Brown's Ch. 10 ; Petteplace v. Gorges, 1 Ves. jr. 46 ; 2 Story's Eq. Jur. 1392, 1399 ; Jaqucs v. The Meth- odist Epis. Church, 17 John. R. 519 ; Gardner v. Gardner, 22 Wend. R. 52G.) The great difficulty is, to ascertain what circumstances, in the absence of any positive expression of an intention to charge her separate estate, shall be deemed sufficient to create such a charge, and what sufficient to create only a general debt. But it is agreed, that there must be an in- tention to do so, otherwise the debt will not affect her sepa- rate estate. The fact that the debt has been contracted by a woman du- ring her coverture, either as a principal or as a surety, for her self, or for her husband, or jointly with him, seems ordinarily o be held prima facie evidence to charge her separate estate SYRACUSE, NOVEMBER, 1848. 453 Vanderheyden v. Mallory. without any proof of a positive agreement or intention so to do. (2 Story's Eq. Jur. 1400.) The doctrine of appointment or appropriation in equity, however, relates wholly to engagements made or debts con- tracted by a married woman, as such, having a separate estate, and in reference to it. It has no application to debts contracted or engagements entered into by a feme sole. The bill contains no allegation that Mrs. Vanderheyden, af- ter her marriage with her present husband, did any act or made any engagement with or promise to the complainants in refer- ence to their debt against her or in reference to her separate estate, other than, it is alleged, that soon after the intermar- riage of the defendants and at several different periods subse quently, one of the complainants made application to them, urging them to make some arrangement by which the appli cation of the debt due to the complainants from said Lenchy would be made on the debt which they owed the estate of Bradt in the hands of his executor, and that they, until about the month of February, 1843, constantly upon every request so made, evinced a desire to have an arrangement made with the executor of Bradt by which such application would be made, and that they agreed that such an arrangement should be made. This is all that the bill contains of acts charged upon Mrs. Vanderheyden since she has been a married wo- man, to sustain a claim of an appointment in equity by her for the payment of the complainants' debt out of her separate estate ; and this, it seems to me, falls far short of bringing the claim within any principle heretofore established in equity. Even if Mrs. Vanderheyden had contracted the debt subsequently to her marriage with Vanderheyden, the facts charged expressly negative the idea that she intended to pay, or that the com- plainants expected to be paid, their debt, out of what is now denominated her separate estate. The allegation in that re- spect is, that there was a large amount due to her from, and that she had a claim upon, the estate of her late husband, Bradt, out of which she agreed to make an arrangement with nis executor to enable the complainants to have applied upon 464 CASES IN THE COURT OF APPEALS. Vandcrheydcn v. Mallory. the debt which they owed Bradt in the hands of his executor, the amount of the debt which she had contracted and should contract with the complainants, and that the complainants knowing that she was thus entitled and would have abundant means therefrom to pay any debt she might contract with them credited her. It is nowhere alleged that any part of the amount to which Mrs. Vanderheyden was entitled from the estate of her former husband, out of which she promised to pay. and out of which the complainants expected to be paid in the manner stated, has ever come to her hands. For any thing appearing in the bill, the same remains in the hands of Bradt'<< executor, or has been collected and received by Vanderheyden, or if not, has passed to the assignee in his proceedings in bank i aptcy. The thirty-five shares of bank stock was owned and held by her from 1833 to July, 1842, when it was formally transferred to her for her separate use. The residue of the stock which is now held by her in that character did not come from the estate of her former husband. It is a part of her share bequeathed to her by her father. And although it is alleged that Mrs. Vanderheyden now holds in her own right and name u large amount of other property, it is not averred that it was all or any portion of her share in, or claim upon, her former husband's estate, in the hands of his executor, at the time of the accruing of her indebtedness to the complainants, in refer Mice to which exclusively, she when sole, and she and her present husband since their intermarriage, it is alleged, so agreed to make an arrangement respecting the payment of (he complainants' debt. Therefore I see no ground stated in the oill, which would authorixe a court of equity to subject the separate property of Mrs. Vanderheyden to the payment of the complainants' debt against her. There is nothing which gives countenance to the idea, that she ever, either before or since her marriage, made any contract with the complainants indicating any intention to affect by it the property which she now holds to her separate use ; but on the contrary, the bill expressly neg- atives such intention. The whole dealing and contract, as well urior as subsequent to her marriage, referred to other and dif- SYRACUSE, NOVEMBER, 1848. 455 Vanderheyden v. Mallory. ferent property as the means of paying the debt contracted by her. It is true, that prior to her marriage all of her property was liable for the payment of this debt upon a judgment and execution against her; and even after her marriage her sepa- rate property might have been subjected to it upon a judgment and execution against her and her husband, if the transfer of it or any part of it to her separate use was fraudulent as against her creditors ; but that is not alleged, and of course no decree at any time, either before or since the discharge of the husband, could be made subjecting such separate property to the payment of the debt upon that ground. It is further insisted by the defendants that the discharge in bankruptcy of the husband operated as an extinguishment of the debt against the wife, at least during coverture. It is ar- gued that it extinguished the husband's liability for the debt It could not operate to extinguish the debt as against the wife, unless it was the husband's debt absolutely and exclusively. The effect of the discharge is to extinguish his, not her debts. By the marriage, the law cast upon the husband a contingent and temporary liability for all the debts and demands against the wife contracted by her before coverture, if sued and judg- ment recovered against both, before her death, but not after. If the wife survive her husband, her sole liability revives. She may then be sued upon all her contracts made before marriage, which remain unsatisfied. The husband's liability is gone by his death, and no liability is left upon his representatives. (1 Chit. PI. 44.) The case of Miles v. Williams^ (IP. Wms. 249,) was refer- red to as an authority to show that the debt is extinguished by the discharge, as well against the wife as the husband. That was an action of debt against husband and wife, upon a bond made by the wife dum sola. The defendants jointly pleaded in bar the discharge of the husband in bankruptcy after the intermarriage, to which the plaintiff demurred. One question was whether, it being debt on a bond given by the wife dum sola, it was such a debt as should be discharged by the bank- ruptcy of the husband by virtue of the statute 4th Ann, ch. 17, VOL. I. 59 466 CASES IN THE COURT OF APPEALS. Vanderlieyilen r. Mallory. mentioned in the plea. The words of the clause upon which it depended are, " that the bankrupt shall be discharged from all debts by him due and owing at the time he became bank- rupt ;" and then, in case he be sued for any such debt, the act directs " that he shall and may plead in general that the cause of action did accrue before he became bankrupt." It was held that it was the husband's debt within the meaning of the stat- ute, and that the discharge was therefore a bar to the action. And as to the wife, it was said that it was a discharge as to her, at least a temporary one, to wit, during the husband's life ; and the chief justice added, that he thought it would amount to a perfect release, and the wife would be discharged forever. But it was admitted that the decision of that case did not call for any opinion as to the effect of the discharge upon the debt in regard to the wife. The 4th section of the United States bankrupt act of Augus^ 1841, provides that every bankrupt who shall bonafide surren- der all his property," &c. shall unless, &c. " be entitled to a full discharge from all his debts, to be decreed and allowed by the court which has declared him a bankrupt, and a certificate thereof granted to him by such court accordingly upon his peti- tion filed for such purpose." " Provided, that no discharge of any bankrupt under this act shall release or discharge any per- son who may be liable for the same debt as a partner, joint contractor, endorser, surety or otherwise, for or with the bank- rupt." And again ; ' And such discharge and certificate, when duly granted, shall in all courts of justice be deemed a full and complete discharge of all debts, contracts and other engage- ments of such bankrupt, which are proveablc under this act, and may be pleaded," etc. That this debt, as against the husband in his proceedings in bankruptcy, was proveablc, admits of no doubt ; but that does not necessarily affect the question whether the discharge operated to extinguish the debt as against the wife. Unless it was a debt proveable under the act, the husband would not DC dis- charged from it, for the discharge as to him only operates upon debts of that character. SYRACUSE, NOVEMBER, 1848. 457 Vanderheyden v. Mallory. The difficulty in holding the husband's discharge to be an ex- tinguishment of the debt absolutely, is raised by the principle that the debt existing against the wife before coverture is not trans ferred from her to the husband by the marriage. The legal effect of that is to suspend the individual liability of the wife, and to create and cast upon the husband and wife a joint liability for the payment of the debt, to continue during the coverture and no longer, unless in the mean time judgment shall be recovered against them. And when that terminates by the death of either, the liability thus created ceases ; and if the wife survive her husband, her individual liability for the debt revives, unless in- deed the debt is paid, released, or judgment is recovered during the coverture. The nature of the debt is not changed by mar- riage ; that is only done by the recovery of a judgment against the husband and wife. It then becomes the debt of the hus- band, and may be enforced against him and his property after the death of the wife. And in case of the death of the wife leaving her husband surviving, he is no longer liable for the debts of the wife contracted by her before marriage, where a judgment has not been recovered : but he as her administrator would be liable for such debts to the extent of the assets which he should receive, if he took administration on her estate to which he would be entitled ; and if he should not take admin- istration on her estate, he would be presumed to have assets in his hands sufficient to satisfy her debts, and would be liable therefor. (1 R. S. 75, 29 ; 2 Kent's Com. 5tk ed. 116, 411.) My conclusion is that the husband's discharge operated to ex- tinguish his liability for the debt of the wife, and would be a bar, if pleaded, to any action brought against him and his wife, for the recovery of any debt contracted by her before their mar- riage, and to suspend the remedy for the recovery of such debt as against the wife during coverture. The chancellor did not (as the vice chancellor seems to have done) place his decision upon the doctrine of appointment in equi ty by the wife for the payment of the debt, but upon a supposed equity resulting from the fact that the husband's liability for thf debt had been extinguished by his discharge under the bank 468 CASES IN THE COURT OF APPEALS Vanderheyden v. Mallory. rupt act, and the complainants' remedy at law against the wife and her estate suspended during coverture. And upon this ground the chancellor held that they could come into a court of equity to subject her separate property to the payment of their debt, although the husband is still living, and although the wife's separate estate, during the life of her husband, is not liable, generally, for debts contracted by her before the marriage. The only case relied on by the chancellor as an authority for his de- cision is the case of Biscoe v. Kennedy, (1 Brown's R. 18, n.) decided at the rolls in 1762, which was this : The defendant, Jane Kennedy, when a feme sole, was indebted to the plaintiff, Biscoe, in 114, by bond, 22d April, 1755, and was possessed of several leasehold houses and 1000 East India stock. By settlement, on her marriage with the defendant James Kenne- dy, all her personal estate (excepting 500 East India stock which the husband was to have) was conveyed to the defendant MacCollock, in trust for the separate use of the defendant Jane. The marriage having taken effect, the plaintiff filed his bill (without having sued the husband) to have the separate estate of the wife applied to the payment of the debt ; which was dis missed. The plaintiff then sued out writs against the husband and wife ; but the husband absconding, could not be served, and the plaintiff proceeded to outlawry, and then filed the bill to be paid out of the separate estate of the wife. The defen- dant insisted that during her husband's life her separate estate was not liable to this debt, contracted by her while sole. The plaintiff contended that the settlement was, as to him, fraudulent. The master of the rolls, upon the hearing, declared that upon the circumstances of the case the effects of the defendant vested in her trustee were to be considered as the properly of a feme sole, and ordered the plaintiff's debt and costs to be paid out of the 500 East India stock in the hands of her trustee. The declaration that the property vested in the trustee for the use of the wife should be considered as the property of a feme sole, was in accordance with well settled principles, and in regard to which it is well settled that she is to be treated as & feme sole, having the general power of disposing of it, but SYRACUSE, NOVEMBER, 1848. 459 Vanderheyden v. Mallory. without capacity to charge herself personally. But upon wha principle the decree followed that the debt should be paid ou* of her separate property, during the lifetime of her husband, ig not clearly stated, and cannot with any certainty be ascertained from the statement of the case or the decision of the court. The ground may have been that the wife was deemed to be restored to her capacity as a feme sole, capable of suing and being sued without her husband, regarding him as civilly dead after the outlawry, (2 Kenfs Com. 154. 5th ed. ; 2 Bac. Abr. tit. Baron and Feme, M. 64 ; Hyde v. Price, 3 Ves.jun. 444.) If by the discharge of the husband in bankruptcy, an equity is created against the wife, to subject her separate property to the payment of the debt during the life of her husband, it would be difficult to give a good reason why such equity would not arise in every case where such creditor had exhausted his remedy against the husband and wife at law and in equity without satisfying his debt by reason of the pecuniary inability of the husband, and yet it has not as yet been suggested that such equity would arise in that case. The right of the creditor to be paid his debt, would be no stronger in the one case than in the other, and the remedy would be no more inadequate to meet the justice and equity of the case in the one than in the other. By the decree declaring the husband a bankrupt, all the property and rights of property of the wife to which the husband became entitled, either absolutely or qualifiedly. by the marriage, undisposed of previously, in addition to his other property, by operation of law became vested in the assignee in bankruptcy, subject to the wife's right by survivorship ; ( Van Epps v. Vaiideusen, 4 Paige. 73 ; 3 of the U. S. Bankrupt act of August, 1841 ; Mitford v. Mitford, 9 Ves. Jr. 87:) in which the complainants were entitled to share on proving their debt pro rata, with all the other creditors of the husband, with certain exceptions specified in the bankrupt act. (See 5.) And this is the remedy given by law to the creditors of a bankrupt to meet the equity and justice of their case ; and for any thing alleged in the bill, the complainants might have realized their entire debt if they had pursued this remedy. At all events, if 470 CASES IN THE COURT OF APPEALS. Vandcrhcyden r. Mallory. they refuse or neglect this remedy, they do not present any very high claim upon a court of equity, to alter the law to en- able them to have applied the separate property of the wife, to the payment of their debt, in advance of the legal period, when it might be so subjected, namely, when the marriage shall be dissolved by the death of either husband or wife. There is no remedy for the wife to have applied any portion of the property which passed to the assignee in bankruptcy, to satisfy the com- plainants' debt. But they have such remedy, and although they have a remedy upon the separate property of the wife on the termination of the marriage by the death of either husband or wife, I think the wife has a strong equity against the com- plainants, requiring them to assert their right under the pro- ceedings in bankruptcy. The equity which the chancellor assumed, as arising out of the husband's discharge in bankruptcy, in this case, is very nearly akin to the equity which prevailed in the case of Free- man v. Goodham, (1 Cas. in Chan. 295.) where a feme sole bought goods, but did not pay for them, and afterwards married and died, having brought a good portion, which came to the hands of her husband, who, on the creditor's filing a bill against him to be paid for the goods, demurred ; and when Lord Chancellor Nottingham overruled the demurrer, saying with some earnestness, that he would change the common lait, in that point. And in the case of Powell v. Bell, (Abr. of Cases in Eq. 16 ; Prc. in Chan. 256,) where it was decreed that the wife who had contracted debts ditm sola being dead, the hus- band should account for what he had received with her. and should be so far liable to her debts ; it being insisted that one precedent relieving a creditor, was more to be regarded than three to the contrary. But these cases were disregarded or overruled, and the principles of the common law sustained and applied under the like circumstances, in Earl of Thomard v. Earl of Suffolk, (1 P. Wins. 470,) and in Heard v. Stamford, (3 id. 409.) The last case was this. A feme sole was indebted to her sister in 50, by note. She married and brought a per- sonal estate to the value of 700 to her husband, with whom SYRACUSE, NOVEMBER, 1848. 471 Vanderheyden t>. Mallory. she lived about a year and a quarter, and then died. The cred- itor by note never recovered judgment against the husband and wife, and the debt remained unpaid. The husband, on the wife's death, administered to the wife. The sister married, and with her husband brought a bill against the defendant, and finding that the choses in action of which the wife died possessed were not sufficient to pay the 50 debt which the wife owed dum sola ; it was prayed that the defendant, the husband, for so much as he had received out of the clear per- sonal estate of the wife upon his marriage, should be made liable to answer the plaintiff's demand. And it was insisted to be but common reason and justice, that as the wife was the owner of a visible estate upon the credit of which the plaintiff might have entrusted her ; so he that had such estate should pay the debt, which he might well afford to do ; that it would be a case full of hardship, if a feme sole who, in ready money, goods, jewels, &c. might be worth 10,000, and might owe 1000, should afterwards marry and die, that on her death her husband should go away with the 10,000, and not be obliged to pay one farthing of his wife's debts. This would prove of the most pernicious consequences to the creditors : whereas, on the other hand, the husband could have no rea son to complain of being liable to answer their demands, as far as he had received a fortune with his wife ; and the cases of Freeman v. Goodham and Powell v. Bell were cited to show that such equity had been established under like circumstances. But Lord Chancellor Talbot said it was extremely clear, thai by law the husband was liable for the wife's debts only during coverture, unless the creditor recover judgment against him in the wife's lifetime ; and that he did not see how any thing less than an act of parliament could alter the law r ; that the wife's choses in action were assets, and would be liable, but they, it seemed, were not sufficient in the principal case to an- swer the demands ; that in the case of Freeman v. Goodham there was some reason for the court to be provoked, when the goods themselves continued, after the death of the wife, in the hands of the husband, who notwithstanding refused to pay foi ^72 CASES IN THE COURT OF APPEALS. Vandcrheyden r. Mallory. them. If he relieved against the husband because he had suf- ficient with his wife wherewith to satisfy the demand in ques- tion ; by the same reason, where a feme indebted dum sola afterwards marries, bringing no fortune to her husband, and judgment is recovered against the husband, after which the wife dies, he ought to grant relief to the husband against such judgment, which he said was not in his power ; consequently there could be no ground for a court of equity to interpose in the case before him ; that if the law, as it then stood, be thought inconvenient, it would be a good reason for the legis- lature to alter it ; but till that was done, what was then law must take place. The remarks of the lord chancellor in that case may well be applied to the circumstances of this case. It is extemely clear, that by law the wife, or her separate property, are not liable for the debts which she owed dum sola, during the life of her husband ; and I do not see how any thing less than an act of the legislature can change the law. And from the circumstances of this case, I do not discover any rea- son even, for the court to be provoked on account of the exist ence of such rule of law ; as it seems that the wife carried to the husband a large personal estate irrespective of her separate property, the same to which she was entitled and which in duced the complainants to give her the credit, and that nearly five years elapsed after the marriage, before the husband ap- plied to be decreed a bankrupt, during which period it, is fair to presume the complainants might have collected their debt, by proceedings against the husband and wife, out of the prop erty which the husband received or might have received by tin- marriage, and which has passed to the assignee in bankruptcy : and even there, the complainants have neglected to go for their share of it. Upon the whole, I think the decree of the vice chancellor, and the affirmance of it by the chancellor, were cr roneous, that it should be reversed, and the complainants' bill be dismissed with costs. Ordered accordingly. SYRACUSE, NOVEMBER, 1848. 473 Martin v. Martin. MARY MARTIN, by Joseph Dean her next friend, appellant, - ^g vs. NORRIS L. MARTIN, respondent. 47 H69 Where real estate was purchased and paid for in part with the money or funds of the husband, and with his assent the conveyance was taken to a trustee who simultaneously gave a mortgage on the estate for the residue of the purchase mo- ney, and also with the husband's assent executed a declaration of trust to the effect that the premises were held to the sole and separate use of the wife, subject to the mortgage ; held, the rights of creditors not being in question, that the decla- ration of trust was valid and binding upon the husband, and that the husband had no interest in such estate. Where real estate of a wife which is held subject to the marital rights of her hus- band is sold, the proceeds of such sale, being money or personal property, belong to the husband, subject only to the equitable right of the wife to a support there- from ; and equity will not interpose in such a case in her favor, where suitable provision is otherwise made for her, or where she is living in a state of unjustifia- ble separation from her husband. Accordingly, where the wife owned a dower interest in four-sixths of certain real estate of which her former husband died seized, and owned in fee the remaining two-sixths, and the husband and wife united in a sale, and out of the proceeds of such sale the sum of $3000 was paid, without the husband's assent, upon a mort- gage which encumbered the wife's separate estate; held, that the husband had a claim upon such separate estate to that extent. But another sum of $2000 out of such proceeds appearing to have been paid upon the same mortgage with the husband's unqualified assent ; held, that such pay- ment was a valid appropriation of that sum to the wife's separate use, and that in respect to it the husband had no claim upon the separate estate. APPEAL from chancery. The bill in this cause was filed before the vice chancellor of the first circuit, by Mary Martin against her husband Norris L. Martin, and Samuel Richards her trustee. The assistant vice chancellor of that circuit, be- fore whom the cause was heard on pleadings and proofs, made a decree which was modified by the chancellor on appeal to him. By one of the provisions of the decree as so modified, the husband was declared to have a lien upon the real estate which was the subject of the controversy, to the amount of $5000 and interest thereon, which had been paid in two sums of $2000 and $3000, upon a mortgage encumbering the premises, Mrs. VOL. I. 60 474 CASES IN THE COURT OF APPEALS. Martin r. Marlin. Martin appealed to this court. The material facts are stated in the opinion of the court as delivered by WRIGHT, J. D. D. Field, for the appellant. H. B. Duryea, for the respondent. WRIGHT, J. The bill in this cause was filed in the court of chancery to restrain the respondent from controlling or inter- fering in any way, with certain real estate alleged to be held in trust by one Samuel Richards, as the sole and exclusive property of Mrs. Martin, the appellant; also, to remove Rich- ards from such trust, and to appoint a new trustee in his place under the sanction and authority of that court ; with the fur- ther prayer that, in the mean time, a receiver of the rents, issues and profits of such real estate might be appointed, and such rents, issues and profits appropriated and paid to the now appel- lant. Richards was originally made a party defendant to the suit. The case is one exclusively between husband and wife ; for, although it is apparent from the evidence, that at the time of the purchase of the properly which is the subject of controversy, and subsequently, the respondent was insolvent, no question affecting the rights of creditors arises. There are two principal and leading questions in the case. 1st. Is the subject matter of the controversy the separate and exclusive property of the appellant? 2d. What are the rights of the parties in the prop- erty arising from transactions subsequent to (he creation of the alleged trust? When the bill was filed the appellant had left her husband, and was living separate from him ; but the proof fails, although an apparently strenuous effort was made on that point, to establish such a case of cruel treatment by the husband, as, for that reason, to justify the separation, and to call for the particular interposition of the court of chancery in the appellant's behalf. Conduct, it. is true, was shown, incon- sistent with good manners or an affectionate regard for the feel 'ngs of a wife ; but there was no proof ot violence, or other SYRACUSE, NOVEMBER, 1 *48. 475 Martin v. Martin. manifestations of cruelty, rendering it unsafe for her to cohabit with him. The evidence fell short of what courts of equity have regarded as an excuse for a wife leaving her husband in disre- gard of her marriage vows. Still, it may be remarked, that although living apart from the respondent, no allegation was set up of unchasteness or immorality on the part of the appel- lant ; nor any attempt made to impeach the purity of her char- acter and morals. The evidence shows that on the 9th of December, 1829, pur- suant to an agreement fully understood by the parties to this suit, John Haggerty and wife conveyed the premises in ques- tion (being a farm on Long Island) to Samuel Richards. Mr. Haggerty testifies that both the parties (Mr. and Mrs. Martin) conducted the negotiation with him for the purchase of the farm, and he understood from both of them that it was purchased foi her exclusive use and benefit, with her means, and that she might have a place as her home from which she might not be disturbed. The purchase money agreed to be paid was twelve thousand dollars. Of this sum, three thousand dollars was paid at the execution of the deed, by the transfer to and acceptance by Haggerty of a mortgage for that amount held by the respou dent on certain Brooklyn lots ; and the balance was secured by bond and mortgage of Richards upon the premises. Whelhej this sum of three thousand dollars was the proceeds of the prop- erty of the wife or the husband appears to have been made a question in the court below; but it was scarcely alluded to in the argument before us ; and it is quite clear that in either view the rights of the parties would not be changed. The mortgage was transferred, and the payment made, by the act and consent of the husband ; and if it were the absolute prop- erty of the husband, so long as creditors did not interfere, he had the right to settle it upon his wife for her sole and sepa- rate use. Simultaneously with the execution of the deed from Haggerty to Richards, a declaration of trust was executed by Richaids. This instrument recited that Richards, at the request of the appellant, had consented to become trustee of the lands con- 476 CASES IN THE COURT OF APPEALS. Martin v. Martin. veyed to him by Haggerty, and which conveyance from Hag- gerty was to be contemporaneous with it ; that three thousand dollars of the trust moneys had been appropriated for the pay- ment of so much of the purchase money of the land, and the residue, amounting to nine thousand dollars, was to be secured by bond and mortgage ; that the appellant had required that a declaration of trust should be executed, and that the instru- ment had been drawn for such purpose. The trusts declared by the instrument were, 1st. To indemnify Richards, his heirs, executors and administrators, from and against the bond and mortgage executed by him for securing the balance of the pur- chase money, and all payments of principal and interest thereon ; for the purpose of which indemnity. Richards, his heirs, execu- tors, administrators and assigns, were empowered to sell the premises or any part thereof, or mortgage or demise the same, as he or they should think fit, and apply the proceeds thereof to such indemnity. 2d. Being kept indemnified, that Richards, his heirs and assigns, at the election, from time to time, of Mrs. Martin, and during her lifetime, should permit her and her family to occupy the premises, or receive the rents, issues and profits thereof, to her sole and separate use, to he paid on her sole and separate receipt, and to be accounted to her solely and separately, and to be free from the debts, contracts, and inter- ference of her husband, present and future. '3d. Being indem- nified as aforesaid, Richards, his heirs and assigns, should, upon the request in writing of Mrs. Martin, witnessed by one witness, convey unto such person or persons, and for such prices, and upon such terms as she should think fit, all and singular such premise!!, and give receipts and acquittances for the purchase money thereof, which should fully discharge the purchaser or purchasers fur the price expressed therein to be paid by them. 4th. That on the death of Mrs. Martin. Richards, his heirs, ex- ecutors and assigns, being indemnified, should convey the prem- ises unto such person or persons, in such estates, and upon such uses and trusts, as Mrs. Martin should by writing in the nature of a will appoint, declare and direct; and in case no such instru- ment should exist at the time of her decease, then to convej SYRACUSE, NOVEMBER, 1848. 477 Martin v. Martin. the premises unto the heirs at law of Mrs. Martin, in the same shares, proportions, and estates, as if she had survived her husband. About the time the purchase was made, and the declaration of trust given, the appellant went into the occupation of the premises, and, the proof shows, continued to principally manage and control them until 1838. The respondent, who appears to have been pursuing no regular employment or business, and who was evidently without means, except what should be de- rived from his wife's property, also resided upon the premises, and although he superintended the improvement of them, whilst she continued in their occupation, he uniformly treated them as the exclusive property of his wife, taking receipts for labor performed thereon in her name, and consulting her in re- lation to renting a portion of them. There can be no doubt, also, from the admissions of the respondent in his answer, and the evidence, that he understood fully the purport, contents and effect of the declaration of trust. He was in no respect deceived, as he was the principal actor in obtaining it. His object clearly then was, as he stated to Haggerty, to secure a home for his wife, by her means, (a great deal of which had already been wasted,) and thereby secure one for himself. The declaration of trust was in his hand-writing, and he presented it to Richards for execution. It was executed and acknowledged by Rich- ards, and delivered to the respondent, not conditionally, or as an escrow, but absolutely for the use of the wife, in furtherance of the original design of the parties as stated to Haggerty. This was an effectual delivery to vest in Mrs. Martin the rights declared by the instrument, and to divest the respondent of any equitable title in the property. It is alleged in the answer, that the declaration of trust was, without the respondent's con- sent or knowledge, placed upon record ; but whether it was or not, could not alter or affect the rights of Mrs. Martin acquired thereunder. It became operative from its execution by Rich- ards and delivery to the husband for her use. There is, therefore, no difficulty in determining the first question presented by the case. The subject matter of the 478 CASES IN THE COURT OF APPEALS. Martin v. Martin. controversy is, so far as the respondent is concerned, the sole and separate property of the appellant, and, as against him, she is entitled to the sole and exclusive use, and the rents, is- sues and profits thereof. Being indemnified against the prin- cipal and interest due or to become due on the mortgage given by him, it was the duty of the trustee to allow her to occupy the premises, or to receive exclusively the rents, issues and profits thereof, free from the debts, contracts or interference of her husband. The husband had no interest therein ; and it is obvious that he did not design to have any that might be reached by creditors. Indeed, on the argument the ground was in effect abandoned that as between the parties to this liti- gation the trust was not a valid one, and the farm, prior to the payment of the surn of five thousand dollars on the mort- gage given by Richards, the sole and separate property of the wife ; for the entire argument of the counsel for the respondent related to his client's equitable rights in the property, growing out of transactions subsequent to the creation of the trust, and some three years after the appellant had entered into the use and occupation of the premises under it. 2. Do transactions subsequent to the creation of the trust give to the respondents any equitable rights in the property ? This question is more difficult of solution than the first ; and this difficulty mainly arises from the loose, imperfect and un- satisfactory manner in which the facts of the case are presented. We have a massive volume before us. the minutest proportion of which bears upon the question. Certain facts, however, are proved, and some others are admitted, that may enable us to arrive at a pretty satisfactory conclusion. It appears that in May. 1832, more than two years after the purchase of the prop- erty and the creation of the trust, and whilst Mr. and Mrs. Martin were living thereon, and paying semi-annually the in- terest on the mortgage of isOOOO given by Richards, and appa- rently using and enjoying the property without any control or intervention of the trustee, Edward G. Miller, a son of the ap- pellant, paid to Haggerty, in two several payments, one of and the other of $3000, the sum of 5000, in part pay SYRACUSE, NOVEMBER, 1848. 479 Martin v. Martin. inent of the bond and mortgage of $9000 which Haggerty held on the property. It was admitted on the argument that this sum of $5000 was realized from the sale of the appellant's in- terest in certain real estate in the city of New- York, formerly belonging to a deceased husband, which interest consisted of a dower right in four-sixths thereof, and a fee in the remaining two-sixths. That the respondent knew of the sale of this New- York property to Edward G. Miller, and that he made no de- mand on the latter for the proceeds prior or subsequent to the payment in 1832 to Haggerty, and that he knew of the payment about the time it was made, is quite apparent ; for he was a party with his wife to a deed executed to Miller in 1830, for a part of the property, and from the fact of his ordinarily paying the in- terest as it fell due on the Haggerty mortgage, (which interest was payable semi-annually,) he must have known that the mortgage was reduced to $4000, within six months at least after the payment had been made. In this interest of the ap- pellant in the New- York property, the respondent Martin had a life estate subject to the equity of the wife for a sufficient settlement out of the dower fund, provided such settlement had not been made under the trust deed, or in some other way. At the time of the sale and the payment of this sum of $5000 to Haggerty, the respondent was in law entitled to receive the in- come of such sum, and had he brought his action at law to maintain his marital rights, a court of chancery would not have interfered, unless he had deserted his wife, or neglected to provide for her, and the income of the dower fund \vas abso- lutely required for her maintenance and support. It is clear, then, that the proceeds of the interest of the appellant in the New- York property, could not be legally used to proportionably discharge an incumbrance on the wife's separate property, and thus divest the respondent of all interest therein without his acquiescence, or some agreement on his part to that effect. That he might acquiesce in, or agree to an appropriation which forever afterwards would estop him from setting up any claim growing out of his marital rights, is quite manifest. The counsel for the appellant contends that the respondent 480 CASES IN THE COURT OF APPEALS. Martin v. Martin. agreed to the appropriation made by Miller of the &5000 in part liquidation of the Haggerty mortgage ; or, at least, that he acquiesced in such appropriation subsequently to its being made, which was equivalent to a previous agreement. His conduct certainly was unlike that of a person who contemplated setting up a claim to any part of the proceeds of the New- York prop- erty coming through his wife. He knew of the sale, and that (he proceeds were in the hands of Miller, yet he suffered them to remain there, making no claim by virtue of his marital rights. He certainly knew of the appropriation shortly after it had beer made, if he did not at the time, yet he made no objection to it. He never called on Miller for any explanation of the matter. He made no claim to the land on account of the payment. In 1834, two years after the payment, and when he must have known the precise state which the trust property was in, he accepted a deed of appointment from his wife of an estate for life in the premises, to commence at her death, in which deed the trusts showing that the property was held for her sole and separate use, were recited. Neither at the time this appoint- ment was accepted, nor in his answer, did he make any claim lo the proceeds of the appellant's interest in the New-York prop- erty, nor pretend that it was not agreed to be his wife's, and to be considered as a part of her separate estate. But it is urged, on the other hand, that he made no claim, or set on foot any proceedings to assert his rights in the estate derived from his xvife, for the reason that he was in common with her, in the use and enjoyment of the farm on Long Island, and was always in the expectation of obtaining' from her an appointment that would secure to him a jointure in it ; and that if he is now com- pelled to relinquish the use and enjoyment of the premises, and be disappointed in his expectations of obtaining an interest therein, his acts ought not to be regarded as an acquiescence in the appropriation for .such purposes. I think there is force in this argument in respect to $3000, parcel of the sum realized from the appellant's real estate in 'Jie city of New-York ; but none as to the additional $2000 of that sum. The respondent admits in his answer, that at the time of the purchase of the SYRACUSE, NOVEMBER, 1848. 43 j Martin v. Martin. Long Island farm, it was contemplated and agreed on his part, that the first payment on the Haggerty mortgage, which was the sum of $2000, to become due in two years from the date of the purchase, should be made out of the proceeds of the appel- lant's interest in the New- York property, and that he so in- formed Richards at the time of the execution of the declaration of trust. He had therefore agreed, prior to the execution of the trust deed, which was to give to his wife the separate estate, that $2000 of the proceeds of her property should go to propor- tion ably discharge the purchase money, and with this agree- ment fully understood, and in view of its effectual consummation, the declaration of trust was executed and delivered to the re- spondent. I find it nowhere expressly alleged or set up in the answer, that this agreement was a conditional one, only to operate in the event of the respondent's obtaining an interest in the premises ; and his subsequent acquiescence in the pay- ment of the sum contemplated by the agreement, must be con- sidered as an indication of an intention not to avoid it. About the period that the sum of $2000 fell due on the Haggerty mortgage, it was paid, and it is to be inferred from the respon- dent's admissions and the facts proved in the case, with his assent. There would be no equity, therefore, as against the appellant, to revive a right in the respondent's behalf that he evidently assented to part with absolutely. But with regard to the further amount of $3000 paid on the Haggerty mortgage before it fell due, there is no admission of the respondent of an assent or agreement on his part that the payment should be made from funds realized by a sale of the appellant's property. Indeed, it is expressly alleged in the answer of Martin, that the balance of the mortgage, after the first payment of $2000 had been made, was to be paid by the respondent himself out of certain moneys expected to be received by him from the corpo- ration of the city of Brooklyn. It is true that there was an apparent acquiescence of more than six years in the specific appropriation of the money by Miller; but this was, as has been urged, whilst the respondent was in the enjoyment of the prop erty, and whilst he hoped and expected, by the act of the wife, VOL. I. 61 482 CASES IN THE COURT OF APPEALS. Martin v. Martin. to obtain a legal interest therein. Had the appellant imme- diately on the execution of the trust deed, strictly asserted her rights thereunder as against the respondent, and the latter had, for more than six years, quietly acquiesced in the appropriation of the $3000 for the discharge of the mortgage, there would have been good reason for inferring an assent on his part to the appropriation for the absolute benefit of the wife ; but I cannot arrive at the conclusion under the facts of this case, that the husband would at any time have consented that his whole marital interest in his wife's real estate in New- York, should go to the discharge of an incumbrance on her separate property, whilst he was excluded from any enjoyment thereof, or any expectation of an interest therein. To my mind the facts of the case do not present such a case of acquiescence in the ap- propriation of the $3000, as to exclude the respondent from setting up any claim to an interest in that sum in the event of giving full effect to the declaration of trust. The appellant now asks that effect may be given to that declaration ; that the respondent may be restrained from inter- fering with the property ; and the rents, issues and profits there- of may be appropriated and paid to her exclusively. The $3000 has gone into the land ; it is but just and equitable, therefore, that he should have a lien thereon to that extent, so as to entitle him to receive such sum, subject to the balance due upon the mortgage to Haggerty, which should be first paid. I should desire much to save for the appellant the whole of the interest in the Long Island farm, after the discharge of the mortgage. It appears that it is all that is left to her of a con- siderable fortune brought to a husband who is now insolvent. But it cannot be done consistently with a due regard for the rights of the respondent. Several minor questions, affecting to some extent the rights of the respective parties, were raised during the progress of the case ; but coinciding fully with the views of the chancellor re- specting them, I have intentionally refrained from their dis- cussion. I am of the opinion that the decree of the chancellor should SYRACUSE, NOVEMBER, 1848. 433 Harvey . Olmsted. be modified so as to strike therefrom the words "five thousand dollars," wherever they occur in such decree, and insert in lieu thereof the words " three thousand dollars." Decree accordingly. 483 p 4 56 HARVEY vs. OLMSTED. 4 . JJI 4 &y 4 1 63 7 8 170 Where, by a will made prior to the revised statutes, lands are devised in general ' 1 J 1 terms without words oflimitation or inheritance, the devisee takes a life estate only, ^g 14^7 And such introductory words as these " I order and direct my real and personal 62 1 549 estate to be divided and distributed as follows," do not enlarge the devise into a fee. A charge, to carry a fee by implication, where the devise is without words of limita- tion, miist be upon tlie person of the devisee in respect to the lands devised. Where this exists, it gives to the devise the character of a purchase. A testator, by his will made in 1821, gave a part of his real estate to his wife during her widowhood, and after her decease to two of his children. To his son Na- thaniel he gave two parcels, one designated in the will as the Powers lot, the other as the mountain lot. To another son he gave a legacy of $1000 to be paid out of his personal estate, if sufficient after paying debts and other legacies, but if not sufficient, then to be paid in land " from the Powers lot, so called." There were no words of inheritance in any part of the will. Introductory to all the de- vises and bequests were these words : " I order and direct my real and personal estate to be divided and distributed as follows." In the concluding part the testa- tor declared, that in case any dispute should arise upon the will, the same should be referred to three men, to be chosen for that purpose, who should " declare theii sense of the testator's intentions, unfettered by law and the niceties of legal con- struction." Held, that Nathaniel took only a life estate in the mountain lot. EJECTMENT, brought in the supreme court by Anna Olm- sted against Asa Harvey, to recover an undivided fourth of fifty acres of land known as the mountain lot, situated in the town of Austerlitz, county of Columbia. The cause was tried at the Columbia circuit, before WHITING, circuit judge, in Oc- tober, 1846, when a verdict was directed for the plaintiff subject to the opinion of the supreme court on a case, with leave tc turn the same into a bill of exceptions, containing the follow ing facts : 484 CASES IN THE COURT OF APPEALS. i . Harvey t>. Ol mated. The plaintiff claimed as one of the children and heirs at, law of Nathaniel Olmsted, sen. The defendant claimed as the grantee of Nathaniel Olmsted, jun., who died in 1835, and who claimed the premises under the will of Nathaniel Olmsted, sen. The question was whether a fee or only a life estate in the premises passed by that will. Nathaniel Olmsted, sen. died in 1821, having first made his last will and testament, which, after directing the speedy pay- ment of the testator's debts, proceeded as follows : " Second. I order and direct that my real and personal estate be divided and distributed as hereinafter described, which is as follows, viz. : I give and bequeath unto my beloved wife, Sylvia Olmsted, the use and occupancy of the home farm (so called) containing about one hundred acres, with the buildings thereon, as also she, the said Sylvia Olmsted, to have the use and occu- pancy of the Bartlett lot (so called) which described lands as aforesaid, are to remain in the possession of the said Sylvia Olm- sted, so long as she remains my widow, and no longer. But at the decease of the said Sylvia Olmsted, the above described lands and buildings, are to be equally divided between my sons Nathaniel Olmsted, jun. and Joseph Washbum Olmsted. I give and bequeath to my son, Nathaniel Olmsted, jun. the lot of land, that I purchased of Jacob Powers, containing fifty acres or more, and he the said Nathaniel to come into possession of the same immediately after my decease. 7 also give and be- queath imto my son, Nathaniel Olmsted, jun. the mountain lot of land (so called,} containing- about fifty acres, and the said Nathaniel to come into possession of the same immedi- ately after my decease. "I give and bequeath to my son, Joseph Washburn Olmsted, one thousand dollars to be paid to him when he arrives to the age of twenty-one years ; the said thousand dollars to be paid out of my personal estate should there be a sufficiency left after the sums bequeathed hereafter to Anna Olmsted and Mary Olmsted. I give and bequeath to my daughter Anna Olmsted, two hundred dollars to be paid to her out of my personal prop- erty within one year from my decease. SYRACUSE, NOVEMBER, 1848. 435 Harvey v. Olmsted. " I give and bequeath to my daughter Mary Olmsted, three hundred dollars to be paid out of my personal property in one year from my decease. I order and direct, that after my decease, and legal estimation shall be made of personal estate, if said per- sonal estate (after deducting all my debts and the legacies to An- na Olmsted and Mary Olmsted as aforesaid.) shall not amount to the sum of one thousand dollars, being the sum by me be- queathed to Joseph Washburn Olmsted ; then in that case the said Joseph Washburn Olmsted, shall be paid in lands from the Powers lot so called, to be appraised by my executors hereinafter named, so as to make to him the sum of one thousand dollars. " And I do most sincerely and solemnly enjoin it upon my executors, hereinafter named, to see and take care that this my will be religiously fulfilled in all respects according to the true intent and meaning thereof. But in case any dispute should arise respecting any gift, bequest, matter or thing contained in this instrument, then in that case, the same shall be referred to three impartial and intelligent men of the town of Canaan, known for their honesty and integrity, each party choosing one, and those two choosing a third, which three men thus chosen shall, unfettered by law and the niceties of legal construction, declare their sense of the testator's intentions, and their decision to be binding on the parties, the same as would be in any court, of record in the United States." The personal estate of the testator, after paying his debts and the legacies to Anna and Mary Olmsted, was not sufficient to pay the legacy of $1000 to Joseph Washburn Olmsted, there being a deficiency of $609,69, which therefore according to the will became payable out of the fifty acres called in the will the Powers lot. Nathaniel Olmsted, jun. conveyed the mountain lot, the premises in question, to the defendant, in 1826. The supreme court gave judgment for the plaintiff, (sec 1 Barb. Sup. Court Rep. 102,) and the defendant, having had a bill of exceptions duly signed and sealed, brings error to this court. K. Miller, for the plaintiff in error. I. The testator hav- ing expressly ordered and directed that his real and personal 486 CASES IN THE COURT OF APPEALS. Harvey v. Olmstetl. estate should be divided and distributed as in and by his will was directed, passed a fee to the appellant's grantor in the premises. (Jackson v. Merrill, 6 John. 191 ; Carr v. Jen- nerett, 2 McCord, 66 ; Morrison v. Semple, 6 Binn. 94; Hun- gerford v. Anderson, 4 Day, 368 ; Den, ex dem. Moor, v. M ellen, 5 T. R. 562 ; Watson v. Powell, 3 CaM, 306 ; Brown v. Wood, 17 Mzss. #. 72 ; Fox v. PAeZ/w, 20 TFend. 445.) II. There are no words of perpetuity used in any part of the will, and no devise of any reversionary interest or estate. As the testator made no devise of any reversionary interest in any of the lands, it is evident he supposed he was devising all his real estate. (18 Wend. 207, per Chancellor.) III. The devise to Nathaniel Olmsted, jun. and Joseph W. Olmsted, of the home farm and Bartlett lot after the decease of the widow, (who had a qualified life estate therein,) being a remainder interest, shows clearly that the testator intended that they should take a fee estate. (Butler and wife v. Little, 3 Maine R. 239 ; 2 Free, of Wills, 291, 2 ; 6 Bac. Abr. 16, C. Phil. ed. of 1846 ; Oatis v. Cook, 3 Burr. 16S8 ; 3 Bing. 3, 13 ; 1 Ves. sen. 491 ; Gall v. Esdaile, 8 Bing. 323 ; Spraker v. Van Alstyne, 18 Wend. 204.) IV. The devises to Nathaniel Olmsted, jun. of the Powers and mountain lots passed a fee, as the Powers lot is expressly charged with the deficiency that should or might exist to pay the legacy of $1000 to Joseph, after the application of his per- sonal estate to his debts and other legacies ; (which deficiency upon settlement was $609,69.) (Spraker \. Van Alstyne, 18 Wend. 200 ; per Chancellor, 204 ; per Senator Dickinson, 209 ; Cook and others v. Holmes and wife, 1 1 Mass. R. 528 ; 8 id. 3 ; 1 Munf. 589 ; 6 Binn. 94.) The charge of the $1000 leg- acy to Joseph was a direct charge upon the devisee of the estate specifically devised to him, so as to create a fee by implication. (Doc v. Richards, 3 T. R. 356 ; Denn, ex dcm. Moor, v. Mel- len, 5 id. 562 ; Doe v. Allen, 8 id. 499 ; Jackson v. Bull, 10 John. 153 ; Heard v. Horton, 1 Denio, 166.) V. The estate given to Joseph, and which the executors were contingently authorized to set off and convey to him in SYRACUSE, NOVEMBER, 1848. 437 Harvey v. Olmsted. satisfaction of his legacy, must be deemed to be a fee, and which raises an implication that the testator intended that Nathaniel should have the same estate. (Cook, fyc. v. Holmes., 11 Mass. R. 528.) VI. The whole tenor, and especially the concluding clauses of the will, show that the testator intended that a fee estate should pass to his two sons, arid that he did not intend that in the disposition of his property his will or intention should be fettered by the niceties or technicalities of legal construction. H. Hogeboom, for the defendant in error. I. The devise of the mountain lot, (which is the lot in question,) is wholly with- out words of inheritance, and is not aided by, or referred to in any other part of the will. Upon the well established princi- ples of the common law, therefore, prevailing at the testator's death, the devise conferred simply a life estate. (Dean v. Gas- kin, Cowp. Rep. 657 ; Jackson v. Wells, 9 John. 222 ; Jackson v. EmUer, 14 id. 198 ; Ferris v. Smith, 17 id. 221.) II. The introductory words in the will by which the testator orders and directs his real and personal estate to be divided and distributed as thereafter directed, do not necessarily convey a fee. (Doe v. Buckner, 6 T. R. 610 ; Doe v. Wright, 8 id. 64; Doe v. Alien, id. 497 ; Denn v. Gaskin, Cowp. 657 ; Hogan v. Jackson, id. 299 ; Wright v. Russell, id. 661 ; Loveacres v. Blight, id. 352 ; Roe v. Vernon, 5 East, 51 ; Goodright v. Bar r on, 11 id. 220 ; Jackson v. Harris, 8 John. 141 ; Jackson v. Wells, 9 id. 222 ; Bar hey dt v. Bar hey dt, 20 Wend. 576 ; Wheaton v. Andross, 23 id. 452 ; 2 Taylor's Prec. of Wills, 292.) Again, the phraseology expressly refers to the division afterwards spoken of, and is therefore limited by the subsequent words. III. A fee by implication is not to be deduced from the estates given to the two sons being limited upon a previous life estate to the wife. (Hay v. Earl of Coventry, 3 T. R. 83 ; Hackley v. Mawbry, 3 B. C. C. 82 ; Cojnpton v. Compton, 9 East, 267; Doe v. Clark, 5 Bos. fy Pull. 343 ; Doe v. Wright, 8 T. R. 64 ; Doe v. Clark, 2 N. R. 343 ; Ferris v. Smith, 17 John, 488 CASES IN THE COURT OF APPEALS. Harvey v. Olmsted. 221 ; 2 Powell on Devises, 377.) Successive life estates were lawful and were frequently created upon the same property, when this will took effect. Again, this implication, if ever al- lowable, does not apply to the mountain lot. IV. A fee by implication is negatived by the description of the premises, or terms employed to designate them. The terms are " the mountain lot of land, so called," " the home farm, so called" " the Bartlett lot, so called" &c. conveying the idea that they were intended only to designate the premises, not the nature or extent of the testator's interest therein. (Morrison v. Semplen, Binney, 97 ; Spraker v. Van Alstync, 13 Wend. 578.) V. The words " to be equally divided between them," afford no just inference of an intent to pass a fee. (Jackson v. Bull, 10 John. 148 ; Jackson v. Luqucer, 5 Coicen, 221 : Spraker v. Van Alstyne, 13 Wend. 582.) The use of these words is en- tirely consistent with the division of life estates ; they refer probably to a territorial division. They do not go to the limi- tation of the estate. (Jackson v. Luqueer, 5 Cowen, 221.) They do not affect the mountain lot. VI. The charge upon the Powers lot does not raise a fee by implication. To raise a fee by implication, the legacy must be charged upon the person of the devisee. (Jackson v. Bull, 1C John. 143 ; Jackson v. Martin, 18 id. 31 ; Jackson v. Harris, 8 id. 141 ; Spraker v. Sprakcr, 18 Wend. 200 ; Earhcydt v. Barheydt, 20 id. 576 ; Whcalon v. Andross, 23 id. 452 ; Doc v. Clark, 5 Bos. cj- Pull. 313 ; Fox v. Phclps, 17 Wend. 393 ; Burlingham v. Bclding, 21 id. 403.) When the charge or annuity is to be paid out of the lands merely without saying by whom, the devisee's estate will not be enlarged. (8 East, 141 ; 8 Pclcrsd. 105.) To raise a fee by implication, the charge must also be absolute and not contingent. (Mcrson \. Black- more, 2 Atk. 341 ; Doc v. Allen, 8 T. R. 497 ; Jackson v. Har- ris, 8 John. 141 ; Spraker \. Spraker, 18 Wend. 200; Spra- ker v. Van Alstync, 13 id. 578; Dcnn v. Mcllor, 5 T. R. 558 ; Jackson v. /?/ ^4 title or actual possession in himself at the time the injury was committed. - And if no one was in the actual possession, it will not be sufficient proof to author- ize a recovery, to show that the premises were conveyed to the plaintiff at some period prior to the injury by a person not shown to have been in possession or to have title. THIS was an action on the case brought in the supreme court by Gardner against Heart for an injury to three lots of land which the plaintiif claimed to own in the city of Troy. The defendant was the owner of a hill called Mount Ida in the vicinity of the lots, and the injury complained of was occasion- ed, as alleged, by the defendant carelessly and negligently un- dermining the hill, so as to cause a slide precipitating the earth upon the plaintiff's lots. The cause was first tried before WILLARD, circuit judge, in 1813. when the plaintiff was non- SYRACUSE, NOVEMBER, 1848. 529 Gardner v. Heart. suited. The supreme court on bill of exceptions set aside the nonsuit and ordered a new trial. See 1 Denio, 466, where the case, as it then appeared, is stated. Another trial was had be- fore PARKER, circuit judge, in April, 1847, when a verdict was had for the plaintiff. The defendant moved the supreme court for a new trial on bill of exceptions, which motion was denied. See 2 Barb. Sup. Court Rep. 165, for a statement of such ques- tions as arose on the last trial, and the opinion of the supreme court. Among those questions was the following : The plaintiff gave in evidence a deed from Charles M. Baker to himself for the lots which had been injured, dated in 1829, but he neither proved that the grantor had any title, nor that either Baker or himself had been in possession. The defendant moved for a nonsuit, and urged as one of the grounds, that the plaintiff had not shown title to the lots claimed to have been injured. The motion was denied. The defendant appealed to this court un- der the judiciary act of December, 1847. J. Pier son, for the defendant. D. L. Seymour, for the plaintiff. WRIGHT, J. After the plaintiff had rested, the defendant's counsel moved for a nonsuit on the ground that the former had shown no legal title to the lots in question. At this time the plaintiff had only introduced and read in evidence a deed from Charles M. Baker, dated July 24, 1829, purporting to convey to him the lots in fee. No evidence had been given, nor was it subsequently supplied, of title in his grantor ; yet the judge re- fused to nonsuit the plaintiff, and affirmatively charged the jury that " enough had been made out to show that the plaintiff was the owner of the lots." They were unoccupied city lots. The plaintiff was bound to show either a regular paper title or ac- tual possession. The barely giving in evidence of a deed to him of the premises, fell short of proving a title ; yet the judge must have acted upon the assumption that it did prove such title, both in denying the nonsuit and in charging the jury. VOL. I. 67 530 CASES IN THE COURT OF APPEALS. Houghtaling v. Kilderhouse. After the nonsuit had been denied, considerable evidence was incidentally given tending to show an actual possession of the lots by the plaintiff, insomuch that had the question of posses- sion, upon such evidence, been submitted co the jury, and they had found for the plaintiff, we would hardly have disturbed their verdict on that ground. Buc no questina of actual pos- session was made or submitted ; ai\d the judge seems to have continued to the end the error into which he had fallen on the motion for the nonsuit. A new trial must be granted m wbich this error may be cor reeled, costs to abide the event. New trial granted. HOUGHTALING vs. KILDERHOUSE. 530 4 496 h!42 601 In an action for slander, it is not competent for the plaintift to introduce evidence of his good character in reply to evidence introduced by the defendant tending to prove the truth of the charge. ON error from the supreme court, where Houghialing sued Kilderhouse in slander for charging the plaintiff with having killed the defendant's horses by administering poison to them. The defendant pleaded not guilty and gave notice of justifica- tion. On the trial, after the plaintiff had proved the speaking of the words, the defendant gave circumstantial evidence tend- ing to show that the charge was true. The plaintiff also intro- duced evidence upon that issue in reply, and in connection with such evidence offered to prove that his general character was good. This was objected to by the defendant and exclu- ded. The plaintiff exccpted. The jury having found a ver- dict for the defendant, the plaintiff moved in the supreme court for a new trial, which was denied by that court, and judgment rendered for the defendant. (See 2 Barb. Rep. 149.) SYRACUSE, NOVEMBER, 1848. 531 Lyme v. Ward. H. G. Wheaton, for the plaintiff in error, insisted that the issue on the trial involved simply the question of guilt or inno- cence of a crime, amounting to felony and involving gross moral turpitude. In such cases the general good character of the party accused is always a circumstance to be submitted to the jury to repel the presumption of guilt ; particularly where the evidence to sustain the charge is, as in this case, purely circumstantial. (Ruan v. Perry, 3 Caines, 120 ; Townsend v. Graves, 3 Paige, 453 ; Harding v. Brooks, 5 Pick. 244 ; Greenl Ev. 426 ; 2 Starkie's Ev. 216, 217, n. 4 ; Powell v. Harper, 5 C. $ P. 590 ; Petrie v. Rose, 5 Watts fy Serg. 364.) R. W. Peckham, for the defendant in error, cited upon the question, Go/ v. St. John, (16 Wend. 646 ;) Fowler v. The jEtna Fire Ins. Co. (6 Cowen, 673 ;) Humphrey v. Hum- phrey, (7 Conn. R. 116;) Potter v. Webb, (6 Greenl. Rep. 141 ;) Anderson v. Long, (10 Serg. * Rawle, 55 ;) Nash v. Gilkeson, (5 id. 352 ;) Woodruff v. Whittlesey, (Kirby, 60 ;) Attorney General v. Bowman, (2 Bos. $* Pull. 532.) THE COURT, after advisement, were of opinion that the point had been properly decided in the courts below, and therefore the judgment was affirmed. LYME vs. WARD, survivor, &c. It is irregular to serve an assignment of errors before one has been filed ; and where the assignment was not filed until the next day after it was served, the rule to join in error and all subsequent proceedings set aside. Where the judgment of the court below is reversed by default in not joining in error, the remittitur should not be sent to the court below until ten days have elapsed. Where the action was commenced before the code of procedure took effect, this court may grant costs on a special motion ; and the amount is to be settled by taxation. But where the suit is commenced after the code took effect, this court cannot granJ costs to the party who makes a special motion. 532 CASES IN THE COURT OF APPEALS. Lyme v. Ward. WRIT of error by Lyme to remove a judgment against him in favor of Ward and Goadby, in the New- York C. P. The writ of error was returned and filed with the clerk of this court on the 30th of June last. On the same day the plaintiff in er- ror served an assignment of errors, with notice that the defen- dant Ward, who had survived Goadby, was required to join in error within eight days, or be precluded : but an assignment of errors was not filed until the next day, the first of July. On the llth of July, the plaintiff in error entered an order preclu- ding the defendant in error from joining in error. On the 13th of July, the plaintiff in error entered an order reversing the judgment of the court below with costs ; and on the sarre day a remittitur was issued. N. Hill, Jr. for the defendant in error, moved to set aside the order precluding the defendant from joining in error, and all subsequent proceedings, for irregularity. S. Stevens, for the plaintiff in error. BRONSON, J. The plaintiff in error was irregular in serving an assignment of errors before one had been filed : (Rule 4.) and the orders precluding the defendant from joining in error, and reversing the judgment, were therefore unauthorized. We are also of opinion, that the remittitur should not have been sent to the court below until the expiration often days from the reversal of the judgment. (Rule 20.) As the defendant in error has been obliged to come here at considerable expense to get rid of an irregular proceeding, he ought to have costs on the motion, if we have any authority to give them. The 270th section of the code of procedure forbids the allowance of costs to the party who makes a motion. But originally, that section did not apply to this suit, which was (commenced before the first of July. (Code, 8, 391.) And al- though it has since been applied to proceedings in such suits subsequent to the first of July in certain specified courts, this court is not among the number. (Supp. Code, 2.) We, SYRACUSE, NOVEMBER, 1848. 533 Van Dewater v. Kelsey. therefore, have power to allow costs. The amount must be settled by taxation. The statute authorizing the supreme court to make rules regulating the amount of costs on special motions does not apply to this court. (Stat. 1840, pp. 333, 336, 15, 39 ; Stat. 1847, p. 321, 8.) If the suit had been commenced since the first of July, the defendant in error would have been obliged to bear the expense of getting rid of the irregular r -jeedings of his adversary. Motion granted, with costs to be taxed. 533 2 565 VAN DEWATER. appellant, vs. KELSEY, respondent. 3 334 e47 472 It rests in the discretion of the court of original jurisdiction to grant, continue, or 59 1< 6 rtn 48^> dissolve a temporary injunction ; and therefore a determination upon such a ' 92 o^y matter is not the subject of appeal to this court. qo g4(] ON a bill filed by Van Dewater, a temporary injunction was - issued, restraining the defendant from selling the property in controversy pending the litigation. In December last, after the defendant had answered the bill, the supreme court made an order dissolving the injunction ; from which order the complain- ant appealed to this court. iS. Matheivs, for the respondent, moved to dismiss the appeal, on the ground that an appeal would not lie in such a case. He cited 16 Wend. 369; I Comst. 43; 4 John. 510; 4 Wend. 173 ; 1 Paige, 97 ; 3 John. 566 ; 2 Story's Eq. 863, 959.(a.); 3 Daniel's Ch. Pr. 1833, ch. 35, 3. N. Hill, Jr. for the appellant, cited 16 Wend. 373 ; 26 id. 152 BRONSON, J. The granting, continuing and dissolving ol temporary injunctions rests in the discretion of the court of ori- ginal jurisdiction ; and we think an appeal will not lie from the order dissolving this injunction. Motion granted. 634 CASES IN THE COURT OF APPEALS. Selden v. Vermilya. 534 1 610 5 557 SELDEN, appellant, vs. VERMILYA and others, respondents. Under the provisions of the code of procedure, there is no right of appeal to this court from an interlocutory determination of the supreme court, e. g. an order dis solving a temporary injunction. ON a bill filed, a temporary injunction was granted restrain- ing the sale of the property in controversy pending the litiga- tion. Pending the suit, in September, 1847, the supreme court in special term made an order dissolving the injunction ; which order was confirmed by the supreme court on a re-hearing in general term, in September last. From the order made at the general term the complainant appealed to this court. G. F. Comstock, for the respondent, moved to dismiss the appeal. P. Y. Cutler, for the appellant. BRONSON, J. Although this suit was commenced prior to the first of July, yet as the order of the general term dissolving the injunction was made since that day, the right to appeal depends on the code of procedure. (Mayor of New- York v. Schermerhorn, ante, p. 423.) And it is quite clear that the code does not give an appeal in such a case. ( 282, 11.) Motion granted. SYRACUSE, NOVEMBER, 1848. 535 Marvin v. Seymour. MARVIN and others vs. SEYMOUR and others. An appeal will not lie to this court from an order of the supreme court in general term, denying an application to rehear an order made at a special term, where the order of the special term would not be the subject of appeal to this court, if it had been affirmed by the general term. A motion to compel a party to appear before a master and submit to an examination is addressed to the discretion of the court of original jurisdiction, whose decision, therefore, cannot be reviewed in this court. THE defendants made a motion before the supreme court in special term, for an order to compel one of the complainants to appear and submit to an examination before a master to whom the cause had been referred. The motion was denied. The defendants then applied to the supreme court in general term for a rehearing, which was denied in May last. From the order denying the rehearing the defendants appealed to this court. N. Hill, Jr. for the respondents, moved to dismiss the appeal H. Denio, for the appellants. BRONSON, J. We held in Grade v. Freeland, (ante, p. 228,) that a party had a right to a rehearing at the general term, after a matter had been decided against him at the special term ; and we have acted upon that decision by reversing orders denying a rehearing. But it has been in cases where the order made at the special term, if it had been confirmed by the gen- eral term, might have been reviewed by this court on appeal. In this case we think the order made at the special term would not have been appealable, if it had been confirmed by the su- preme court in general term ; and in such a case, although a rehearing may be improperly denied by the supreme court, we are of opinion that there can be no appeal from the decision to this court. Motion granted. 536 CASES IN THE COURT OF APPEALS. Grover v. Coon. GROVER, appellant, vs. COON, respondent. Where a writ of error was pending in the supreme court when the code of proce- dure took effect, and that court afterwards rendered judgment of affirmance, there is no right of appeal to this court, the determination of the supreme court being final under the provisions of the code. A statute, which takes away the right to a future appeal in an action pending and undetermined when the statute takes effect, is not unconstitutional. C. P. Kirkland, for the respondent, moved to dismiss the appeal. Before and on the first day of July last a writ of error was pending in the supreme court, on a judgment of the com- mon pleas affirming a judgment rendered by a justice of the peace, in an action commenced before him. On the 20th of July last, the supreme court, after argument, affirmed the judg- ment of the justice ; and Grover appealed to this court from that determination. John Clarke, for the appellant. BRONSON, J. The 282d section of the code of procedure ap- plies to proceedings subsequent to the first of July, in suits which were pending on that day. (Sitpp. Code, 2.) The writ of error in this case was pending in the supreme court on the first of July, and was, we think, a suit within the meaning of the statute. The judgment of affirmance was subsequent to the first of July ; and as the action was " originally commenced in a court of a justice of the peace," there was no right of appeal to this court. ( 2S2. 11.) The judgment of the supreme court was final. We see no force in the objection urged by the appellant's counsel, that the statute is unconstitutional. The legislature did not take away a right of appeal which had already attach ed : they only said that for the future, no appeal to this court should be allowed in such cases. Motion granted. CASES ARGUED AND DETERMINED IN THE COUET OF APPEALS OF THE STATE OF NEW-YORK, IN DECEMBER TERM, 1848. 537 TEALL vs. FELTON. aia HOW us 284 s49 AD 3o2 61 '432 ay be maintained in the courts of this state against a postmaster for improp- 81 2 391 . y detaining a newspaper, although such detention is undercolor of the laws of the United States and the regulations of the post office department. The question, when the jurisdiction of the federal courts is exclusive and when con- current with that of the state courts, considered. A postmaster, who assumes to charge letter postage on a newspaper, in consequence of an initial being on the wrapper, does not act judicially in such a sense as to protect him from an action for improperly detaining such newspaper, although no fraud or malice be alleged or proved. ON error from the supreme court. Mary C. Felton, by her next friend Charles T. Hicks, sued William W. Teall in a justice's court, and declared in trover for converting one news- paper called the Michigan Expositor, of the value of six cents, and one newspaper wrapper of the value of six cents. The de- fendant pleaded the general issue, and the cause was tried by a jury. On the trial it appeared that the defendant was post- master at the city of Syracuse ; that the newspaper mentioned VOL. I. 68 538 CASES IN THE COURT OF APPEALS. Teall r. Fclton. in the declaration came to that post office and was puf into the box of Mr. Hicks, who demanded it of the postmaster in behalf of the plaintiff, and tendered the newspaper postage thereon, being one and a half cents. There was an initial upon the wrapper, and for that reason the defendant refused to deliver it until letter postage, fifteen cents, should be paid. The letter postage was marked at the Syracuse post office. One of the clerks in the post office testified that it was the general custom to charge letter postage on newspapers having on them a single initial. The defendant in the course of the trial objected to the jurisdiction of the court, which objection was overruled. After the plaintiff had rested, the defendant introduced in evi- dence a circular from the post office department as follows : " To Postmasters. I am directed by the postmaster general to call your special attention to the multiplied and increasing attempts to violate the law and defraud the revenue by writing on the wrappers, margin or other portion of newspapers, pam- phlets and magazines sent by mail. The cheap postage system has removed every reasonable excuse for violating or evading ihe law, and too much vigilance cannot be exercised by post- masters to detect and punish the offenders; and public senti- ment, w r hen well informed, will not fail to sustain you in the faithful discharge of this duty, which is as imperative upon you as any other. That frauds of this kind may be detected and traced to their origin, you are particularly instructed to stamp or mark in writing any transient (by which is meant all not regularly sent to subscribers) newspapers, pamphlets or maga- zines, with the name of the office and amount of postage. The wrappers of all such newspapers, pamphlets or magazines, when they have reached their destination, should be carefully removed, and if upon inspection, found to contain any manuscript or memorandum of any kind, either written or stamped, or by marks or signs made in any way, either upon any newspaper, printed circular, price current, pamphlet or magazine, or the wrapper in which it is enclosed, by which information shall be asked for or communicated, except the name and address of the person to whom it is directed, such newspaper, printed circular, ALBANY, DECEMBER, 1848. 539 Teall v. Felton. price current, pamphlet or magazine, wi*h the wrapper in which it is enclosed, shall be charged with letter postage by weight. If the person to whom the newspaper, printed circular, price current, pamphlet or magazine is directed, refuses to pay such letter postage thereon, the postmaster will immediately transmit the same to the office from whence it was forwarded, and request the postmaster thereof to prosecute the same for the penalty of five dollars as prescribed by the 30th section of the act of 1825. Suits may be brought either in district courts or before state magistrates having civil jurisdiction in actions of debt for this amount under the respective state laws. The name of the sender written or stamped either upon the newspaper, printed circular, price current, pamphlet or magazine, or the wrapper in which it is enclosed, communicates such information as sub- jects it to letter postage, and the consequential penalties, if such postage is not paid at the place of its destination. The diminution of the revenue of the department under the iheap postage system, and the great and increasing demand for additional mail facilities throughout the country, w r hose territo- ry now extends to the Pacific, render it absolutely necessary not only that every cent of lawful revenue be collected and ac- counted for, but that the utmost vigilance should be exercised for the prevention of fraud, and the sure and speedy infliction of the proper penalty upon the offender. This can only be accomplished by the strictest attention of postmasters, who are the sworn agents of the department, and bound to see the laws faithfully administered. Post Office Department, Dec. 4, 1846. W. J. BROWN, 2d Assistant Postmaster General." The jury gave their verdict for the plaintiff for six cents dam- ages, on which the justice rendered judgment. The common pleas of Onondaga county, on certiorari brought by the defen- dant, affirmed the judgment. The defendant then brought error into the supreme court, and that court sitting in the fifth district affirmed the decision of the common pleas. The opin- ion of the supreme court was delivered by GRIDLEY, J. as follows 540 CASES IN THE COURT OF APPEALS. Teall v. Fclton. GRIDLEY, J. We have no doubt that this action was prop- erly brought in a state court. If a letter enclosing $1000 in oank notes, had been sent by mail to the post office in Syracuse, directed to the plaintiff, and had been withheld by the postmas- ter, unlawfully, after a tender of the postage chargeable on the package, it is difficult to see why an action would not lie against the postmaster for a conversion of the money, in a stale court. The injury is one for which the common law gives redress, and the party injured may seek his redress by the usual common law remedy, in any appropriate common law tribunal. The case is not one where the remedy is given by an act of congress, and is to be sought in the courts of the United States. So too, we are of the opinion that the conversion of a newspaper belong- ing to a citizen, authorizes an action of trover in the appropri- ate state tribunal, notwithstanding the party guilty of the conversion should be a postmaster. To justify such an action, however, the conversion should be clearly proved. The with- holding of the paper should be shown to be without color of right, and the plaintiff should establish his title to it by unques- tionable proof. This view of the case brings us to the consid- eration of the question whether there is any error apparent in the record for which we are authorized to reverse the judgment. This will depend upon the facts proved on the trial of the cause, or rather upon what we are bound to adjudge to be the facts of the case after the verdict of the jury. By the act of 1815, (Acts of2d Session of 28th Congress, p. 24, 1.) the defendant was bound to charge with letter postage, not only letters in manuscript, but also " a paper of any kind by or upon which information ahull be asked for or communi- cated in writing, or by marks and signs" &c. Now it is quite clear that an initial may be so placed upon a paper as to convey information, and precisely such information as was in- tended to be prohibited by the act. For instance, a friend whose initial is known to his correspondent who may be trav elling to a certain place, in Michigan, may thus communicate \ a distant person, the fact of his arrival. So also a distant coy- respondent may, by a paper which in itself contains nothing of ALBANY, DECEMBER, 1848. 54] Teall v. Felton. mportance, on which is inscribed his initial, communicate the fact of his friendly remembrance and recognition, and of his own good health. There are cases, therefore, in which a post- master may only be doing his duty under the act, in charging such a paper with letter postage. And chap. 58, 426, of the regulations for the government of the post office department, shows that it is immaterial whether the writing, or sign, or mark is on the paper or the wrapper. We have no doubt that the above is a sound though a severe interpretation of the act, when we consider the object for which it was passed, and the change in the phraseology from that employed in the act of 1825. But it is equally clear that an alphabetical character which would be an initial of some word or name, may often be found inscribed on the wrapper of a newspaper made carelessly and with no definite intent, or which may have been upon the paper used as a wrapper before it was employed for that pur- pose. In such a case the initial would be no evidence at all, that it was a mark or sign by which information was asked or communicated. Now we have no evidence in this return of the justice that this single letter was a capital letter; whether it appeared to be written by the same hand, or with the same ink and pen with the address on the wrapper, nor as to what position it occupied on the wrapper. Nor have we any evi- dence, whatever, to show by circumstances or otherwise, whether it was probably written by the person who sent the paper, to communicate information, or not. For aught we know, it was written with a different ink and pen and hand, and was placed in such a position on (he -wrapper, as to indicate that it was there by accident and not by intent. It is true that the evi- dence does not show that it was so, nor does it show to the contrary ; and that is precisely the case where the law declares that every intendment and presumption is to be made in favor of and to uphold the verdict of the jurv. If the facts are such as to indicate an intentional making of the letter by the same hand which wrote the address, that should have appeared on the return of the justice. (See IS Wend. 141 ; 3 Mm. 435, 439 ; 2 id. 378.) The jury saw the witness and may have had op- CASES IN THE COURT OF APPEALS. Teall v. Felton. portunities to arrive at the truth, which we have not. Hence the difficulty of setting aside a verdict when there is room for controversy about the facts. We must hold, therefore, inasmuch as it may have been clearly an accidental mark, that the jury have found that it was so. This we feel bound to adjudge, while we can readily imagine that by means of a careless mode of trying the cause, or of an imperfect return, injustice may have been done to the defendant below. S. D. Dillaye, for the plaintiff in error. I. The act, on ac- count of which this suit was brought, was done by the plaintiff in error as postmaster, and in the regular exercise of his duties under the laws of the United States and the regulations of the post office department. For any, even an erroneous, exercise of his duties as such postmaster he was not amenable to the tribunals of the state of New- York. The state courts had no jurisdiction over the subject matter of the suit. (Const, of U. S. art. 1, 8 ; Post Office Laws of 1825 and 1827 ; Common- wealth v. Feely, 1 Va. Cas. 321 ; Sergeants Const. Law, 279 ; United States v. LatJirop, 17 John. 8, 9, 10 ; Story on the Const. 1124, 1632 ; McCidlough v. The State of Maryland, 4 Wheat. 416 ; United States \. Cornell, 2 Mason's Rep. 60 ; Osborn v. Bank of U. S. 9 Wheat. 738 ; Slocum v. Mayberry, 2 id. I; Federalist, No. 80.) II. In the absence of fraud or malice, which are not pretend- ed or alleged in this case, officers required by the law to exer- cise their judgment are not answerable for mistakes of law or errors of judgment. (Drew v. Colton, 1 East, 563 and note ; Seaman v. Patten, 2 Caines, 312; Jenkins \. Waldron, 11 John. 114; Va.-idcrhei/den v. Young, id. 160; Cunningham v. Bucklin, 8 Cowen, 185 ; Weaver v. Deavendorf, 3 Dcnio, 117.) The act complained of was in its nature judicial, and the cases cited show that the plaintiff in error was not liable therefor. III. The evidence on the trial clearly showed that there was an initial on the wrapper of the newspaper when it came to the ALBANY, DECEMBER, 1848. 543 Teall v. Felton. Syracuse post office ; and it should have been decided as mat- er of law that the plaintiff in error, in imposing letter postage, lid no more than follow out the instructions from the post office department, and therefore that he was not liable. B. D. Noxon, for the defendant in error, to sustain the juris- diction of the state courts, cited Bruen v. Ogden, (6 Halst. 370, 377, 379, 381 ;) Wilson v. McKenzie, (7 Hill 95 ;) Story on Agency, 319, 319 , 3196, 320, 321, 322; Cowp. 754; 1 Kent's Com. 386. On the merits he insisted that the ques- tion was one of fact purely, as to which the verdict was conclu- sive. (18 Wend.Ul-, 1 Hill, 61; 3/0^.435,439; 2U378.) WRIGHT, J. The first point taken by the plaintiff in error is, that if any action could be maintained against him, the de- fendant in error had not the choice of a forum, as the jurisdic- tion of the courts of thellnited States, in a case of this character, is exclusive. If this proposition be true, it is quite unnecessary for the plaintiff in error to come here to ask us to reverse the judgment, for it is utterly void. This is undoubtedly a question of grave importance ; for if the plaintiff in error be right, the state courts have been wrong ever since the adoption of the constitution of the United States ; as the cases are almost without number, in which such courts, in the exercise of their ordinary, original and rightful jurisdic- tion, have incidentally taken cognizance of cases arising under the constitution, the laws, and treaties of the United States. (1 Kenfs Com. 395.) In our own courts, officers of the gov- ernment of the United States have been impleaded in actions of assumpsit, debt, trespass, &c. in which the defence set up was that they were acting officially under the laws of the Un- ion. (Ripley v. Gelston, 9 John. R. 201 ; In the matter of Stacy, 10 id. 328 ; Hoyt v. Gelston fy Schenck, 13 id. 141 ; Wilson v. M'Kcnzie, 7 Hill, 95 ;) and in at least one case the supreme court of this state held that they had jurisdiction, and sustained a suit on a bond for duties given to a collector of the United States customs. ( United States v. Dodge, 14 John 544 CASES IN THE COURT OF APPEALS. Tcall v. Felton. R. 95.) I am not disposed to assume for the courts of this state the exercise of powers, concurrently or otherwise, clearly taken from them by the constitution of the United States ; nor a jurisdiction in all cases that may grow out of, and be pecu- liar to that instrument : but I think that to divest them of prim- itive jurisdiction, or pre-existing authority, the grant of power to the federal courts should be direct and exclusive, and the ex- ercise of it by the state courts expressly prohibited. This was the construction given to the clauses of the constitution provi- ding for the organization of the federal judiciary, cotcmpora- neous with its adoption, both by the national legislature and eminent expounders of it. (Judiciary Act of 1789 ; Feder- alist, No. 82.) The first section of the third article of the constitution of the United States provides for the organization of a supreme court, and such inferior courts as congress may from time to time or- dain and establish. This provision simply denotes the organs of the national judiciary. Were its construction extended fur- ther, " it would (as has been remarked by one of the eminent framers of the constitution,) amount to an alienation of state power by implication." (Federalist, No. 82.) The second sec- tion provides that " the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority ; to all cases affecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more slates, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or sub- jects." This is a mere grantof jurisdiction to the federal courts, and limits the extent of their powers, but without words of ex- clusion, or any attempt to oust the state courts of concurrent jurisdiction, in any of the specified cases in which jurisdiction existed prior to the adoption of the constitution. The apparent ALBANY, DECEMBER, 1848. 545 Teall v. Felton. object was not to curtail the powers of the state courts, but to define the limits of those granted to the federal judiciary. This doctrine of exclusive and concurrent jurisdiction grow- ing out of the provisions of the third article of the constitution of the United States, was fully examined in the court for the correction of errors, in the case of Delafield v. State of Illinois, (2 Hill, 159.) and that court, with great unanimity, arrived at the conclusion, that the constitution had not, by its own force, divested the state courts of any of their former jurisdiction ; and that a mere grant of jurisdiction to a particular court, without words of exclusion as to other courts previously possessing the like powers, will only have the effect of constituting the former a court of concurrent jurisdiction with the latter. See, also, Federalist, No. 82, in which a similar doctrine is maintained. I will not contend that congress may not make the jurisdic- tion of the federal courts exclusive in cases affecting ambassa- dors, other public ministers, and consuls ; or in cases of admi- ralty and maritime jurisdiction ; or in cases growing out of, and peculiar to the federal constitution, and where the remedy is exclusively given by an act of the national legislature. In the latter cases congress may unquestionably provide that the rem- edy specifically given shall be pursued and enforced in the fed- eral courts solely. But in many cases where the law of the Union prescribes the remedy, the power to pursue and enforce it in the state courts, is expressly given by congress. In cases where this has not been done, and there is no exclusive grant of jurisdiction to the federal courts, if the state tribunals are so organized as to afford redress, it may be obtained therein. I think that it is strictly true that in all civil cases where the common law affords redress, the party injured may seek it in a state tribunal, proceeding according to the course of the com- mon law, and having jurisdiction of the person of the defen- dant, though he may be an officer of the federal government, and affect to act under a law of the Union. < : The judiciary power of every government," says one of the distinguished au- thors of the Federalist, - looks beyond its own local or munici- pal laws, and in civil cases lays hold of all subjects of litigation VOL. I. 69 546 CASES IN THE COURT OF APPEALS. Teall v. Felton. between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan not less than of New- York may fur- nish the objects of legal discussion to our courts." (Federalist, No. 82.) I am aware that there are cases of federal cogni zance, in which the state courts have not a concurrent juris- diction. A sovereign state cannot be sued in the court of another state, neither could she be in the federal courts, but by agreeing expressly in the national compact to submit herself to their ju- risdiction. Crimes against the government of the United States cannot be punished in the state courts, for every criminal pros- ecution must charge the offence to have been committed against the sovereign whose courts sit in judgment upon the offender, and whose executive may pardon him. (1 Kenfs Com. 402.) Nor will the courts of this state enforce the penal laws of the United States, ( United States v. Lathrop, 17 John. R. 9,) or of any other state. (Scoville v. Canjicld, 17 John. R. 338.) But the want of jurisdiction in these cases depends upon princi- ples older than the federal constitution, and wholly indepen- dent of it. But the counsel for the plaintiff in error contends that this is a case which the state courts did not hold cognizance of at the adoption of the federal constitution, for the reason, that the post office department not only never in any manner or at any time, pertained to the state or colony, but is entirely the creation of the national statute : that it owes its existence exclusively to the constitution and national legislature, and hence, that the federal judiciary has exclusive jurisdiction in all matters grow ing out of, or pertaining to it. That the post office is a federal institution no one will deny ; but it is difficult to perceive how the premises of the counsel sustain the conclusion at which he arrives. The same reason would apply with equal force in case of a suit being brought against a collector of the customs. The present action is one coeval with the common law, to en- force a right to property, alleged to have been wrongfully con verted by the defendant. This remedy for a tortious conversion has always been complete in the state courts. It does not fol ALBANY, DECEMBER, 1848. 547 Teall v. Felton. low that because the defendant may have been acting under a law of congress, in withholding the newspaper, and consequently may defend himself against the alleged conversion, that juris- diction of the subject matter is exclusively given or acquired by the federal courts under such law. The plaintiff is not seeking redress under the post office laws, or attempting to enforce a penalty specifically imposed by them on the postmaster for a fraudulent act pertaining to his official duty. She simply seeks to recover in an appropriate common law tribunal, competent to afford a remedy, and in a form of action more ancient than the federal constitution or laws, the value of her property. If the defendant can maintain that by the post office laws, or any constitutional act of the national legislature, there was no legal conversion, his defence will be complete. But it is an incorrect conclusion, that because a law of congress prescribes the duties of an officer of the federal government, and in a proper case he may thereunder defend his acts, for such reason the state courts are ousted of jurisdiction. Upon the whole, I have no doubt that the justice had jurisdiction in the present case : and whilst asserting this jurisdiction, I would not be understood as inclined to throw the least obstacle in the way of a successful operation of the general government, or to encourage the exercise of state power having that tendency. The remaining point of the plaintiff in error is. that the post- master was required by law to judicially determine whether the initial on the wrapper of the newspaper, asked for or commu- nicated information ; and that being compelled to act, he is not answerable for a mistake in law, or a mere error of judgment, unaccompanied by fraud or malice. The principle is well set- tled that a public officer, who is not a mere volunteer, but com- pelled to act in a judicial capacity, is not amenable either civilly or criminally, for a mistake in law, or error of judgment, when his motives are untainted with fraud or malice : and if it be true that the postmaster in this case was compelled to exer- cise his judgment in determining the object or purpose of the initial upon the wrapper, the judgment against him should be reversed. (Drew v. Coulton^ I East's R. 563 ; Seaman v* Pat 548 CASES IN THE COURT OF APPEALS. Teall . Fclton. ten, 2 Caines* R. 312; Jenkins v. Waldron, 11 John. R. 114; Weaver v. Devendorf, 3 Denio, 117.) I have been unable, however, to arrive at the conclusion on this point, so confidently put forth by the counsel for the plaintiff in error. In the act " to reduce the rates of postage," &c. (Laws of the U. /States for 1845, chap. 43, 1,) this provision occurs : " In lieu of the rates of postage now established by law there shall be charged the following rates, viz : For every single letter in manuscript, or paper of any kind by or upon which information shall be asked for or communicated in writing, or by marks and signs, conveyed in the mail, for any distance under three hundred miles, five cents ; and for any distance over three hundred miles, ten cents," &c. This is the only provision touching the ques- tion, and this it is insisted compels the postmaster, in all cases, in which a newspaper shall be conveyed through the mail, hav- ing writing thereon, or marks and signs, to judicially determine whether such writing, or marks, or signs, ask for or communi- cate information. In other words, that it is submitted to him as the sole judge in every case to decide the question of fact ; and it follows of course that from his judgment there is no ap- peal. I see nothing in the law of congrcs* that submits this question exclusively to his judgment ; nor is the power within the general scope of his duties as postmaster. I think that if ne assumes to determine, he does it at his peril. It is true that he is bound to charge the rates of postage prescribed on letters or papers, conveyed by the mail, of the description embraced in the act of congress. In a great variety of cases it would be obvious that the writing, marks, or signs, were used to ask for or convey information, and as a matter of fact a jury would not hesitate to come to that conclusion. In such cases the post- master would be but doing his duty to charge letter postage. But there may be cases where the intent is riot apparent, or the writing, mark or sign, may be on the newspaper or its wrapper, without a definite intent, or by accident. He is not made the exclusive arbiter to decide that such newspapers should or should not be rated with letter postage. When he does undertake to Jecide, it should be in a case in which the fact, if disputed, ALBANY, DECEMBER, 1848. 549 Teall v. Felton. could be satisfactorily established. Whether a newspaper, by having 1 writing or marks thereon, falls within the description authorizing- it to be rated with letter postage, is a question of fact, and if disputed, must be determined in the same manner and by the same tribunals, that determine other questions of fact. I confess that I see difficulty in many cases to successfully carry out the provisions of the act of congress. It might be impossible, many times, for jurors to satisfactorily determine whether an initial, or mark, found on a newspaper passing through the mail, was placed thereon with a definite intent. But this is no reason for the postmaster to assume judicial power. The national legislature can alone remedy the diffi- culty. In this case the jury have found that the initial on the wrap- per of the newspaper was there without any design of asking for or communicating information ; that it was a mark thought- lessly or accidentally made, or that it was on the paper prior to its being used as a wrapper, and hence that the paper did not fall within the description authorizing the postmaster to de- mand letter postage. From the return of the justice, no facts appear to indicate an intentional marking, nor are there any facts showing the contrary ; and as the return does not pur- port to give the whole evidence, I think we must intend that the defendant failed to establish a defence, and that the facts proved justified the finding of the jury. I am of the opinion that the judgments of the courts below should be affirmed. Judgment aiiinned. 550 CASES IN THE COURT OF APPEALS. Gilbert r. Wiman. 550 s49 AD 359n 12 e48 48 63 72 79 e83 103 137 304 '536 '537 2 390 '267 '127 * 61 530 4 441 GILBERT vs. WIMAN and others. In contracts of indemnity where the obligation is to perform some specific thing or to save the obligee from a charge or liability, it seems the contract is broken when there is a failure to do the specific act, or when such charge or liability is incurred. But where the obligation is that the party indemnified shall not sustain damage or molestation by reason of the acts or omissions of another, or by reason of any lia- bility incurred through such acts or omissions, there is no breach until actual damage is sustained. And in such cases a judgment recovered against the party indemnified, on account of the acts or neglect of another for which he is answerable, without payment of the judgment, or some part thereof, docs not entitle him to sustain an action against the indemnitors. A deputy sheriff and his sureties executed to the sheriff a bond, conditioned that the deputy should so demean himself in all matters touching his duty, that the sheriff should not sustain any damage or molestation by reason of any act done or liability incurred by or through such deputy. The sheriff was sued and judgment re- covered against him for a default of the deputy in not returning an execution. Other judgments were also recovered against him and his sureties upon bonds given to discharge himself from arrest under attachments issued against him for not returning other executions in the hands of the deputy. No part of the judg- ments having been paid by the sheriff, and no actual damage being shown, held, that there was no breach of the bond of the deputy and his sureties, and that the sheriff could not maintain an action thereon. THIS was an action of debt instituted in the supreme court by Jabez H. Gilbert against Stephen Luce, Gideon H. Wood- ruff, Truman Wiman and Lucas Van Schaack, upon a bond executed by the defendants in the words following 1 , viz : " Know all men by these presents, that we, Stephen Luce, Gideon II. Woodruff, Lucas Van Schaack, Truman Wiman, are held and firmly bound unto Jabez H. Gilbert, Esqr., sheriff of the county of Oswego, in the penal sum of ten thousand dol- lars, for which payment well and truly to be made to the said Jabez II. Gilbert, his executors, administrators and assigns, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this eleventh day of May, one thousand eight hun- dred and thirty-eight. The condition of this obligation is such, that whereas the said Stephen Luce has been appointed to the ALBANY, DECEMBER, 1848. Gilbert V Wiman. office of deputy sheriff by the above named Jabez H. Gilbert, sheriff as aforesaid Now therefore, if the said Stephen Luce shall so demean himself in all matters touching his duty as such deputy sheriff, that the said sheriff shall not sustain any damage or molestation whatsoever by reason of any act from this date done, or any liability incurred by and through said deputy, then this obligation to be void, otherwise of force. STEPHEN LUCE, (L. s.) G. H. WOODRUFF, (L. s.) TRUMAN WIMAN, (L. s.) L. VAN SCHAACK, (L. s.)" The declaration assigned, as the first breach of the condition of the bond, that Luce as such deputy sheriff neglected to re- turn an execution placed in his hands for collection, and that on account of such neglect the plaintiffs in the execution brought an action against the plaintiff in this suit, as sheriff, and recov- ered judgment against him for $441,18. There was no aver- ment that the plaintiff had paid any part of this judgment. In the assignment of the second breach it was stated that the said Luce neglected to return another execution placed in his hands, and that on account of such neglect the plaintiff, as such sheriff, was attached as for a contempt of court at the instance of the plaintiffs in the execution, and held in custody until he gave bail for his appearance to answer to the attachment; that he failed to appear on the return of the attachment, by reason whereof the bail bond became forfeited and was ordered by the court to be prosecuted ; and that the plaintiff and his sureties in such bond were sued and judgment recovered against them; but there was no averment that any part of that judgment had been paid. The third and fourth breaches were substantially like the second, except that they related to other executions which the deputy had neglected to return. The defendants Wiman and Van Schaack pleaded, among other pleas, that the said Stephen Luce had always well and truly demeaned himself in all matters touching his duty as such deputy sheriff, and that the plaintiff had not sustained any damage or molestation whatsoever by reason of any act done 552 CASES IN THE COURT OF APPEALS. Gilbert v. Wiman. or liability incurred by or through the said Stephen Luce as such deputy. The cause was tried before GRIDLEY, circuit judge, in July, 1845, and on the trial the plaintiff proved the execution of the bond declared upon, and the substantial truth of the matters averred in the assignment of the several breaches. The aggre- gate amount of the judgments recovered against the plaintiff, as such sheriff, mentioned in the several breaches, was shown to be $2948,41, but there was no proof of the payment of those judgments, or any part thereof. It was insisted for the plain- tiff, that he was entitled to a verdict for the penalty of the bond and to have his damages assessed at the amount of the judg- ments. For the defendant, it was insisted that without proof of the payment of the judgments, the plaintiff was entitled to nominal damages only, and so the circuit judge decided. To this decision the plaintiff excepted, and then submitted to a nonsuit with leave from the court and consent from the defen- dant's counsel to move for a new trial. A bill of exceptions was duly signed and sealed, on which the supreme court sitting in the fifth district granted a new trial. The following is the opinion of that court. PRATT, J. The condition of the bond upon which this action is brought, is as follows, " that if the said Stephen Luce shall so demean himself, in all matters touching his duty as such deputy sheriff, that the said sheriff shall not sustain any dam- age or molestation whatever, by reason of any act, from the date of the said writing obligatory, done, or liability incurred by or through said deputy, then the obligation to be void." It is an undertaking to save the plaintiff harmless from all damage or molestation, by reason of any liability which might be incurred by him through the acts of said deputy ; and the question on this obligation is, whether the sheriff, after proving a breach of such obligation, and a fixed liability for a certain sum, in con- sequence thereof against himself, can recover, without proving payment of the judgment, any more than nominal damages. Perhaps there is no branch of law, concerning which the d&- ALBANY, DECEMBER, 1848. 553 Gilbert v. Wiman. cisions of our courts have been more fluctuating, than in rela- tion to damages, especially in relation to the damages arising upon contracts, in the nature of contracts of indemnity. Ac- cording to strict legal principles, a court of law, it would seem, should only give actual compensation for actual loss ; and such is the rule in relation to contracts of indemnity against damages merely. (Aberdeen v. Blackman, 6 Hill, 324 ; Jackson v. Post, 17 John. 482.) So as to covenants in relation to real estate, the courts have adhered to the same rule ; for instance, in a covenant against incumbrances in a deed of real estate, although there should be found an incumbrance to twice the value of the land, nothing short of actual payment or eviction gives the grantee a right to recover any thing more than nominal damages. ( Van Slyck v. Kembal, 8 John. 198 ; Stannard v. Eldridge, 16 id. 254 ; id. 122.) But in personal contracts, when the instrument deviate* the least from a simple contract to indemnify against dam- age, even where indemnity is the sole object of the contract, and where in consequence of the primary liability of other per- sons, actual loss may be sustained, the decisions of our courts, although by no means uniform, have gradually inclined towards fixing the rule to be one of actual compensation for probable loss ; so that in contracts of that character, it may now be con- sidered a general rule, both in this country and in England. ( Thomas v. Alden, 1 Hill, 14G ; Holmes v. Rhodes, 1 Bos. $ Pull. 638 ; Hodge v. Bell, 7 T. R. 93 ; Post v. Jackson, 17 John. 239.) For instance, in an action on a covenant, that a bond or other debt upon which the covenantec is liable shall be paid when due, or on a day certain, it has been long settled that the plaintiff may recover the full amount of his liability, although it is evident, from the terms of the contract, that it was intended merely as an indemnity, and although the par- ties, primarily liable, arc abundantly able to pay. (Mann v. Eckford's cz'rs, 15 Wend. 502 ; Ex parte Negus, 7 id. 499 ; 7 T. R. 97 ; 2 M. R. 181.) Indeed, the late supreme court have gone so far, in some recent cases, as to allow a full recov- ery when it did not appear that the plaintiff was liable at alL VOL. I. 70 554 CASES IN THE COURT OF At PEALS. Gilbert v. Wiman. or could be injured by a breach of the contract, the court de- ciding that they had a right to infer that the plaintiff had some interest in having the debt discharged, or he would not have made the contract. ( Thomas v. Aldcn, 6 Hill, 146 ; Tyler v. Ives, MS. Sup. Court, 1839.) That the plaintiff had some interest in such a case, would be probable ; but that he had an interest to the full amount of the original indebtedness, in the absence of proof, seems to be rather a violent presumption ; such, how- ever, is the effect of those decisions. In the last case cited above, Ives covenanted with Tyler that Raynor should pay up and discharge a bond and mortgage upon certain lands. There was no evidence to show that Tyler had any interest in the lands, or in the discharge of the bond and mortgage, or was in any manner liable upon the same ; yet the court held that he was entitled to recover the full amount of the bond. So in an action on a bond for the jail liberties, the sheriff recovers the whole amount of the debt, on showing that he has been made legally liable, although he may never be called on to pay a penny the creditor having it in his power to collect the amount of the original debtor, who may be perfectly responsible. (Keep v. Brigham, 6 John. 158 ; 7 id. 168.) So a contract of indem- nity against liability is held to be broken when the liability is incurred, and the measure of damages is the full amount of such liability. ( Webb v. Pond, 19 Wend. 423 ; Rockfeller v. Donnelly, 8 Cowen, 623 ; Chace v. Hinman, 8 Wend. 452.) Whether the rule laid down in all these cases is not a depar- ture from strict legal principles, it is not profitable now to dis- cuss. It is said by a late writer on the subject of damages, ; ' Any rule by which actual damages arc given, where no actual loss is sustained, is in truth nothing but an effort to engraft on the courts of common law a species of specific performance, ir- regular and illegitimate, and which neither their forms of pro- cedure nor the general arrangement of their system enable them to exercise without great danger of injustice and abuse. The rule should be considered cardinal and absolute, that actual compensation shall only be given for actual loss.' 1 ' (Sedgwlck on Damages, 311.) However true these remarks may be in die abstract, and we admit their force, the rule is now settled ALBANY, DECEMBER, 1848. 555 Gilbert v. Wiman. by adjudication otherwise, and we are bound to follow it until it shall be changed by a superior court, or the legislature shall interpose. The obligation in this case may be classed among the contracts of indemnity against liability in which cases the plaintiff is entitled to recover the amount of the liability in- curred. ( Webb v. Pond, 19 Wend. 423 ; Rockfeller v. Don- nelly, 8 Cowen, 623 ; Chace v. Hinman, 8 Wend. 452 ; War- wick v. Richardson, 10 Mees. $ Wels. 284 ; 2 Starkie, 167 ; 1 Burr. 574 ; 5 Carr. <$ Payne, 102.) And this is so, even where the contract is in form to indemnify against damages to be incurred in consequence of such liability. Indeed, in the case of Rockfeller v. Donnelly, which was in the court for the correction of errors, the decision of the court went much further than is necessary to sustain the plaintiff's claim in this case. Although the soundness of the principle adjudged in that case has been often questioned, yet it must be deemed to be law in this state, until it shall be overruled by a court of at least equal authority. The case of Chace v. Hinman seems to be directly in point. The condition in that case was, that the obligor should save harmless and indemnify the obligee against all damages, costs and charges to which he might in any way be subjected or become liable by reason, &c. It was objected that the plaintiff should prove payment before he could recover more than nominal damages. But the court held that the plaintiff was entitled to recover the full amount of the liability incurred. Leaving out the word "molestation," (upon which we shall have occasion to remark,) the undertaking in that case, and the one under consideration, appear to be in legal effect pre- cisely the same. The liability in both cases was against the damages arising therefrom. We are unable to distinguish be- tween them. We are aware that the soundness of the principle adjudged in that case was questioned by Chief Justice Bronson, in Aberdeen v. Blackmar, but he admits, and such is the fact, that it only carries out the principle decided in Rockfeller v. Donnelly. We are not aware that either of the cases have been overruled. In this case the plaintiff, by the contract, was not only to be saved harmless from damages, but also from molestation. Now 556 CASES IN THE COURT OF APPEALS. Gilbert . Wiman. whether the commencement of a. suit and the recovery of a judgment against the plaintiff, is molesting him within the strict sense of the term, no one will deny, we apprehend, that nn arrest by an officer, under an attachment, is a molestation of no mild or trifling character, and such seems to have been the holding at the circuit, or the plaintiff could not have recov- ered nominal damages. It becomes us to inquire whether there were no other damages legitimately resulting in consequence of such arrest or molestation. The party is entitled to such damages as naturally flow from the breach complained of, the injury sustained, and that not the actual but the probable loss. The sheriff finds himself under arrest and is taken before the court and fined the amount of the execution, which his deputy neglected to return. It seems to us that this fine is a necessary result of the arrest, and should measure the damages. If there was any excuse for the deputy's negligence, by which the fine might be averted, it was the deputy's duty to interpose it. We assume, therefore, that there was no such excuse. Why then, as the fixed liability was the inevitable and immediate conse quence of the molestation or arrest, should it not be the measure jf damages, as well as in a suit on a bond for the jail liberties ? In both cases there might be a possibility of collecting the debt of the original debtor. It is in the nature of a tort on the part of the dep- uty, and may be likened to a recovery against the principal for the negligence of his agent or servant. The judgment against the principal is the measure of damages in a suit by him against his agent or servant, whether he has paid the same or not. In this case a bond was given, and the recovery against the sheriff was had on that bond. This was only a more circuitous way of arriving at the same result. The ultimate liability of the sheriff is the same, and inevitably follows the arrest, unless* the sheriff should appear, and then he would only escape liabil- ity on the bond, by subjecting himself to a fine for the same amount. As the law now stands we think the plaintiff is en titled to recover the amount of the liability proved. From the decision of the supreme court the defendants appeal ed to this court according to the judiciary act of December, 1847 ALBANY, DECEMBER, 1848. 557 Gilbert v. Wiman. H. A. Foster, for the plaintiff. The plaintiff was entitled to recover the amount of the several judgments recovered against him ; the circuit judge erred in deciding that he was entitled only to nominal damages ; and the supreme court decided right in granting a new trial. When the obligation is to indemnify against damages and expenses, and the obligee has become absolutely bound and liable to pay the expense or damage, he may enforce his remedy on the obligation. (Rock- feller v. Donnelly, 8 Cowen, per Jones, chancellor, 639, 640 ; also per Spencer, senator, 657, 658, 659.) In Rockfeller v. Donnelly, the court for the correction of errors held, on a bond to save, defend and keep harmless the overseers of the poor and inhabitants of a town, of, from and against all costs, charges, rates, assessments, damages or expenses, by reason of the birth, education and maintenance of a bastard child, to be born, and of and from all actions, suits, troubles, damages and demands touching the same, that after the birth of the child and order of the justices directing the weekly allowance, an action could be maintained upon the bond by the overseers, to recover the weekly allowance to the time of the commencement of the suit, without having paid any part thereof. Where a party has an indemnity not only against actual damages and expenses, but against any liability for damages or expenses, he need not wait to commence his suit until he has actually paid such damages ; his right of action is com- plete, for the whole amount, when he becomes legally liable for them. (Chace v. Hinman, 8 Wend. 452; Warwick v. Richardson, 10 Mees. fy Wels. 284 ; Sparks v. Martindale, 8 East, 593 ; Wood v. Wade, 2 Stark. Rep. 146 ; Brougk- ton's case, 5 Coke's Rep. 24 ; Rosse v. Pye, Yclv. 207 ; Cutler v. Southern, 1 San fid. Rep. 116 : 8 Watts, 157 ; 9 Yerger, 20 ; 1 Hen. $> Mun. 459 ; 2 Bay, 145 ; 19 Wend. 423.) In personal contracts, when the instrument deviates the least from a simple contract to indemnify against damage, even when indemnity is the sole object of the contract, where actual loss may be sustained in consequence of the primary liability of others, the decisions have gradually inclined toward fixing the rule to be one of actual compensation for probable loss. 558 CASES IN THE COURT OF APPEALS. Gilbert v. Wiman. (See cases cited in the opinion of the supreme court.) Thus, 10 an action on covenant, that a bond or debt on which the cove nantee is liable shall be paid when due, the plaintiff may recover the full amount of his liability. (Ex parte Negus, 7 Wend. 499 ; Thomas v. Alden, 1 Hill, 146 ; Mann v. Eck- fortfs Etfrs, 15 Wend. 502 ; Hodgson v. Bell, 7 T. R. 97 ; Challoner v. Walker, 1 Burr. 574 ; 5 Carr. # Payne, 102.) When a judgment has been recovered against the principal for the negligence or unskilfulness of the agent, he may main- tain his action against the agent, if he had notice of the suit against the principal. (Mainwarring v. Brandon, 8 Taunt. 202.) And the verdict fixes the amount to be recovered. (Dunl. Palcy on Agency, 7.) The rule is the same between master and servant. Upon an implied warranty of title to per- sonal property, or false affirmation of ownership, by the vendor, when a recovery has been had against the vendee by the true owner, he may sue and recover against the vendor, before pay- ing the judgment. (Barney v. Dewey, 13 John. Rep. 224 ; Blasdale v. Babcock, 1 id. 517.) A sheriff" may recover on a bond for the jail limits, the amount of the debt, without actual payment by him ; and yet it is only a bond to indemnify and save harmless. (Janson v. Hilton, 10 John. Rep. 549 ; Barry v. Mendell, id. 563 ; Kipp v. Brigham, 6 id. 158 ; 7 id. 168.) So he may recover against the debtor, who has escaped on final process, whereby the sheriff has become liable, before he has paid the debt. (Sheriffs of Norwich v. Bradshaw, Cro. Eliz. 53.) He may recover against the keeper of a lock-up-house, for the escape of a prisoner committed to his custody, upon his promise to keep him safely and save the sheriff harmless for any escape ; and this even before suit against himself. (Bark Icy and Gibbs v. Kcmpstow, Cro. Eliz. 123.) He may also recover upon the bond of his under sheriff or deputy, for an escape on execution or for improperly discharging property at- tached on mcsne process ; although lie has not paid the debt to the plaintiff. (Norton \. Simmcs, Hobcrt, 12 (c.) ; Cooper v. IMoicrcy and others, 16 Mass. Rep. 5 ) On a bond by deputy to the mar.shnl " to keep the marshal clear, free and indemnified" a breach that lie failed to return executions ALBANY, DECEMBER, 1848. 559 Gilbert . Wiman. (specifying them) is well assigned. (Lewis v. Crockett, 3 Bibb, 196.) Geo. F. Comstock, for the defendants. The general rule in regard to contracts of indemnity is that courts of law can only give actual compensation for actual loss. The line which separates the jurisdictions of law and equity is here visible. In courts of equity, on the principle of quia timet, a party who is under a liability, and has a counter indemnity, can compel the indemnitor to perform specifically, so as to exonerate him from his liability. (2 Story's Eq. 850 ; id. 815 ; 6 John. Ch. 406.) Courts of law have no jurisdiction of this nature. They can only give compensation for actual loss ; and this distinction between the two jurisdictions is founded in sound policy, and ought to be maintained. In the present case, it would be a specific performance of the defen- dants' contract for them to pay the creditors whose executions have not been returned, and thus exonerate the sheriff from his liability ; but a court of law cannot call before it the neces- sary parties, nor are its powers and functions adapted to that result. The plaintiff may recover the sum demanded, but there is no guaranty that it will go to its proper destination the satisfaction of the execution creditors ; nor would such a recovery prevent the creditors from still enforcing their executions. In all the cases where it is supposed courts of law have gone beyond the rule of compensation for actual loss only, it will be found on a careful examination that the contracts were very different from the one in question. They were affirmative en- gagements for the performance of some specific thing, and not to indemnify against loss or damage by reason of the non performance of the thing specified. Such are the cases referred to in the opinion of the supreme court, and such are all the cases of any authority cited on the other side. In Rockfeller v. Donnelly, the condition of the bond was to save the overseers against all charges, &c. This was construed as a condition that no liability should come upon the town. The decision of that case was also placed very much upon the intent and policy 560 CASES IN THE COURT OF APPEALS. Gilbert v. Wiman. of the statutes under which the bond had been taken. In Chase v. Hinman, the condition of the bond was to indemnify against a liability, and the decision of that case can only be sus- tained upon the ground that the language used amounted to a condition that no liability should occur. But the principle of that case was disapproved in Aberdeen v. Blackmar, (6 Hill, 324,) and the case itself was overruled in Churchill v. Hunt, (3 Denio, 321.) In the cases of the bonds given for the jail liberties, (6 Johns. Rep. 158, 7 id. 168,) the condition was that the debtor should remain a true and faithful prisoner. Of course this was broken the moment the escape took place. The case of Warwick v. Richardson, (10 Mees. fy Welsby, 284,) was in principle very much like Rockfeller v. Donnelly, already referred to. In the case before the court, the condition of the bond is not to save or indemnify against a liability. It is that the sheriff shall sustain no damage or molestation by reason of liability, &c. In other words, it is simply a bond of indemnity against damage or molestation ; and the well established doctrine in such cases is that actual loss must be shown. (Cutler v. Southern, 1 Saund. 116, n. 1 ; Douglass v. Clark, 14 John. 177 ; Aberdeen v. Blackmar, 6 Hill, 324 ; Churchill v. Hunt, 3 Denio, 321 ; Sedgwick on Damages, 311, 31 2, 314, 317, 318.) The word " molestation" adds nothing to the force of the bond. It does not mean a mere mental annoyance occasioned by a suit or attachment. Like the word damage, it refers to some actual pecuniary loss. Such is the construction it has always received in covenants for quiet enjoyment, where it usually occurs. The circumstance that judgments have been recovered against the plaintiff on account of the default of his deputy, does not at all change the question. The sheriff became liable to the execution creditors the moment the deputy was in de- fault, and he was no more than liable after the judgments were recovered against him. The only effect of the judgments was to change the onus of proof. They did not create the liability. If they were obtained upon due notice to the deputy and his sureties, they arc conclusive evidence simply that the deputy ALBANY, DECEMBER, 1848. 561 Gilbert v. Wiman. was in default, and of the amount of the sheriff's liability occa- sioned by such default. (Per Branson, J. in Aberdeen v, Blackmer, 6 Hill, 324.) GARDINER, J. delivered the opinion of the court. The principal question in this case is, whether the bond executed by Luce and his sureties is a mere bond of indemnity, requiring proof of actual damage, or whether it provides an indemnity against the liability of the sheriff on account of the acts done or omitted by his deputy. The cases of Rockfeller v. Donnelly, (8 Cowen, 623,) and Chase v. Hinman, (8 Wend. 452.) have been relied upon, par- ticularly the former, as decisive of this question. In the case first cited, the action was upon a bastardy bond, the condition of which was " to save, defend and keep harmless the overseers of the poor, and the inhabitants of the town, from and against all charges, damages and expenses, taxes, rates and assess- ments, for or by reason of the birth, education and maintenance of the child," then unborn. The two judges who delivered the prevailing opinion in the court of errors, agree that in its legal effect the instrument was a bond of indemnity against the charge to be created by the expected birth of a bastard child. (Id. 653.) The chancellor remarked, " the town was damnified by the ' charge' which was brought upon it by the birth of the bastard. The law imposes on the officers of the town the lia- bility and duty of providing necessaries for the infant, and it was against this legal obligation that the defendants bound themselves to indemnify the plaintiff." Senator Spencer re- marked that ' the condition was broken the moment the child was born, for then it became a charge upon the town." (Id. 653.) The construction given by the learned judges therefore to the bond in that suit was that it provided for an indemnity against a legal liability. The case of Chase v. Hinman, (supra.^) was an action on a bond, the condition of which was that the obligor should " save harmless and indemnify the obligee against all damages, costs and charges, to which he might in any way be subjected, or become liable for '," &c. No money was paid ; and it was held by the court that by the VOL. I. 71 562 CASES IN THE COURT OF APPEALS. Gilbert v. Winian. instrument itself a distinction was obviously taken between damages actually sustained, and a. fixed legal liability for such damages, and that the indemnity was against both. The condition of the bond before us is as follows : " Now therefore, if the said Stephen Luce shall so demean himself in all matters touching his duty as such deputy sheriff, that the said sheriff shall not sustain any damage or molestation what- soever, by reason of any act from this date done or any lia- bility incurred by and through said deputy, then the obligation to be void." The distinction between the bond in question and those above mentioned, consists, I apprehend, in this, that by the former a " charge" or " fixed legal liability" is declared to be the injury from which the obligee is to be saved harmless. By the condition of the latter, the obligor stipulates that the sheriff shall not sustain any damage or molestation by reason of any liability, &c. By the former, he is to be saved from the thing specified. By the latter, from its consequences, or in other words, from the damage or molestation which may result from the liability. The distinction is very important. It is recognized in the cases to which reference has been made, and in others, and will be found to pervade most of the authorities which have been cited. It is the distinction between an affirmative covenant for a specific thing, and one of indemnity against damage by rea- son of the non-performance of the tiling specified. The object of both may be to save the covenantee from damages, but their legal consequences to the parties are essentially different. Thus, in Kip v. Brigham, (7 John. Rep. 168,) the condition of the bond was that the debtor " should remain a true and faithful prisoner and not escape ; and that he should not at any time escape or go without the limits." The prisoner escaped, the very act to which the covenant applied, and it was held a breach, and the liability of the sheriff the measure of damages. The court, in 6 John. Rep, 159, say, it is true that the bond was in effect a bond of indemnity; but they nowhere intimate that the rights and remedy of the obligee in the two cases were identical. So in War- wick \. Richardson, (10 Mecs. $ Wclsby, 284,) trust mo- ALBANY, DECEMBER, 1848. 553 Gilbert v. Wiman. neys were left by the testator in the hands of a co trustee to be used in trade. The latter executed a bond, the condition of which was to save, defend, and keep harmless the obligee from all suits, claims and demands, &c. prosecuted or made against him. A decree was obtained by the cestuis que trust against the plaintiff's testator for the trust money. The court say that the obligor in order to save the obligee harmless from this claim, ought to have invested the trust moneys pursuant to the will. Not having done so, the proper amount of damages is the amount to which the claim subjected the obligee. The obligee was to be saved from any claim. This was the act to be done. Its non-performance was the breach, and the legal lia- bility of the obligor the measure of damages. The cases of Thomas v. Allen, (I Hill, 145,) and Churchill v. Hunt, (3 De- nio, 321,) are to the same effect. Justice Beardsley states the obvious truth in Churchill v. Hunt, that upon obligations of this sort, the right of action be- comes complete on the defendant's failure to do the particular thing he agreed to perform. Non-damnificatus cannot be pleaded in such cases, although it may be where the condition is to acquit the plaintiff of any damage by reason of the par- ticular thing. (1 Sounders, 116, n. ; 1 Hill, 146.) It is be- lieved that all the cases referred to by the learned judge of the supreme court whose opinion is before us, may be reconciled upon the principle above suggested. Here the defendant agreed that the plaintiff should not sustain any damage, which means actual damages, by reason of any liability incurred by the act of the deputy. The case is therefore within the principle stated in the note to Saunclers. The word molestation cannot enlarge the condition beyond what would be implied from the word damage. The former occurs frequently in covenants for quiet enjoyment, and against incumbrances. Nothing short of an eviction, or in the case of the latter covenant, the payment of money on account of the incumbrance, will entitle a party to recover, however much he may have been annoyed, troubled or molested. Indeed damage is much the most comprehensive word of the two ; molestation, if it has any legal meaning, being but a species of damage. 561 CASES IN THE COURT OF APPEALS. Molt r. Palmer. The plaintiff having failed to establish a breach of the con- dition of the bond, was not in strictness entitled to nominal damage. But as the error can work no injury to the parties, a new trial must be denied. New trial denied. 564 '350 '352 283 *381 3 382 '322 26 '251 '254 '481 1 89 *508 '490 '218 3 K '350 3K '352 4 AbD 57 4 AbD 59 ITr 357 ITr 358 MOTT vs. PALMER. The covenant of seisin is broken if the grantor at the time of the conveyance do not own such things affixed to the freehold as would pass to the grantee by a convey- ance of (he land itself. Accordingly where the grantor covenanted in the conveyance that he was the lawful owner of the premises and seised of a good and indefeasible inheritance therein, and a quantity of rails erected into fence standing on the premises was the prop- erty of another person by virtue of a previous agreement made with the grantor; held, that the grantee might maintain an action against the grantor for a breach of the covenant of seisin. (t seems that rails built into fence by a tenant, under an agreement that he may remove them from the land, are, as between such tenant and the owner of the soil, personal property. PALMER brought an action of covenant against Mott in the o o common pleas of Columbia county, in which court the cause was tried in October, 1846. The case was this : On the 25th of December, 1841, the defendant conveyed to the plaintiff certain premises situated in Chatham, Columbia county, covenanting in the conveyance that at the delivery thereof he was the laic- ful owner of the prc?niscs granted, and seised of a good and indefeasible estate of inheritance therein clear of all incnm brancc. A quantity of rails erected into a fence which stood on the premises at the time the deed was executed was not in fact the property of the grantor, but belonged to one Brown, the owner of adjoining lands. Brown had cut the rails from his own land and built the fence in 1810, under an agreement with the defendant by which he was to enclose temporarily a part of the defendant's land and occupy it as tenant, with leave to remove the rails whenever lie saw fit to do .vo. Under this agreement Brown occupied that part of the land in the season of 1811. and it was enclosed by the fence in question when tho above deed was executed. The plaintiff, after his purchase ALBANY, DECEMBER, 1848. 555 Mott v. Palmer. the premises, went into possession, and in the year following took the rails and converted them to his own use, and for this he was sued by Brown in a justice's court, and judgment re- covered against him for the value of the rails. The defendant Mott was present on the trial of that suit and was sworn as a witness. It was claimed on the part of the plaintiff that these facts constituted a breach of the covenant of seisin, inasmuch as the fence in question was at the time the conveyance was executed the personal property of Brown. The defendant's counsel requested the court to charge the jury, that if the fence was the personal property of Brown at the date of the deed, the plaintiff could not recover for a breach of the covenant of seisin, but that his remedy would be an action on the case. The court refused so to charge, and instructed the jury that if they found the facts to be as they are above stated, the plaintiff was entitled to recover the value of the rails. The defendant ex- cepted. The jury found a verdict for the plaintiff, on which judgment was rendered. The supreme court sitting in the third district affirmed the judgment, and the plaintiff brought error to this court. N. Hill, Jim. for the plaintiff in error. To entitle the plain- tiff below to recover, it must be shown that there was, at the time of giving the deed, an outstanding estate in some third person of freehold at least, so as to interfere with the grantor's power of conveying and transmitting by descent. (4 Kent's Com. 386, 7 ; 1 Hill Abr. 104, note ; 2 Wend. 166.) It can- not be pretended that Brown had such an estate. His right was that of a tenant, for a short period, with the privilege of taking away, when he left, the rails he had placed upon the Land to enable him to use it. Neither this outstanding tenancy, nor any of the incidental privileges connected with it, interfered with the estate of the grantor, so as to divest his seisin. The action is unprecedented and anomalous. No trace of any thing like it can be found in the books. It proceeds upon a course of reasoning which finds no countenance in the cases hitherto decided. The declaration itself is necessarily incon- gruous and absurd. It admits that the grantor was properly 566 CASES IN THE COURT OF APPEALS. Mott v. Palmer. seised of the land described in the deed, and then asserts that the rails in question were part and parcel of and attached to the soil and freehold. If this allegation is true, the plaintiff below acquired a valid title to the rails ; and his right of recov- ery, therefore, must be established, not by proving what he has thus far alleged, but by disproving' it. The declaration, however, alleges further, that the grantor, though duly seised of the soil and freehold, was not seised of an indefeasible estate of inheritance in the rails, and then proceeds to show that they were the personal property of Brown a species of property which the deed does not purport to convey. It is not true that the covenant of seisin extends to every thing which would pass under the deed as between vendor and vendee where no right of a third person intervenes. As between vendor and vendee, a deed like the one in question purports to transfer not only the unqualified property in the soil, but the exclusive right of using it. And yet it is settled that a public highway over the land, which implies an outstanding right to cut down trees, dig up the soil, and exclude the grantee from the beneficial enjoyment of it, is no breach of the covenant of seisin. (15 John. Rep. 481.) Outstanding rights of this na- ture, as the right to pasture cattle on the land, (5 Conn. Rep. 508,) to take water from it, (15 Pick. 66, 68,) to dig turf, &c. upon it, (5 Conn. 508, 9,) are within the covenant against incumbrances, but are not reached by the covenant of seisin. (See 1 /////. Abr. 394 ; 2 Mass. Rep. 97 ; 3 New Hamp. Rep. 335 ; 10 Conn. 422 ; 19 Maine Rep. 313.) So as to every thing constituting a burthen upon the estate, and affecting its value, without changing its essential character ; as an out- standing right to have dower in the land, (22 Pick. 447, 8; 10 John. Rep. 266,) or to occupy it as tenant for years. (2 Speeds Rep. 649.) It may be said that if this action is not maintainable, pur- chasers may be misled and defrauded, without the means of redress. If this were so, it would not furnish an adequate reason for extending the covenant of seisin beyond its appropriate limits. Upon the principle of the cases above cited, the covenant against ALBANY, DECEMBER, 1848. 557 Mott . Palmer. incumbrances seems to be the only one applicable to an out- standing right to enter and remove rails or other things from the land. But conceding that no remedy exists upon the cove- nants in the deed, this does not prove that the purchaser would be remediless. If he has been misled through mistake or fraud, a court of equity would set aside the transaction and compel a restoration of the purchase money. (2 Paige, 84, 91, 2 ; Sto- ry's Eq. 140 et seq.} And in cases of fraud, even a court of law would furnish adequate redress in an action on the case fov damages. (1 Day, 250 ; 2 Cain. Rep. 193 ; 2 BibVs Rep. 583 ; 13 Johns. Rep. 325 ; 5 Day's Rep. 439 ; 6 Shepl 419, 424 ; 23 Wend. 260 ; 17 id. 193 ; Georgia Rep. part 2, p. 112.) J. H. Reynolds, for the defendant in error. The rails being made into fence, on the premises covered by the deed, were as between Mott and Palmer a part of the realty, and would have passed by the deed had Mott owned them. ( Goodrich v. Jones, 2 Hill, 142 ; 2 Wooddeson's Lee. 379 ; 2 Rents Com. 346, n. ; Walker v. Sherman, 20 Wend. 639 ; Middlebrook v. Corwin, 15 id. 169.) And Mott having assumed by the deed to convey them av real estate, is estopped from denying that they were a part of the realty as between him and his vendee. (McCarty v. Leggett, 3 Hill, 134 ; Abbott v. Allen, 14 John. 248 ; Green- ly v. Wilcox, 2 id. 1 ; Hamilton v . Wilson, 4 id. 72 ; Sinclair v. Jackson, 8 Cowen, 553 ; Jackson v. Bull, 1 John. Cas. 90 ; Jackson v. Stevens, 16 John. 110 ; Dezell v. Odell, 3 Hill, 215 ; 2 Atk. 228, 383, 558.) There being no reservation in the deed, of the fence in question, every thing appurtenant to the soil prima facie passed by the deed as between Mott and Palmer. It was as between them treated as real estate, and the rails or fence in question would have passed had Mott owned them. Mott covenanted that he owned the premises and every part thereof. These rails made into fence were a part thereof, as between grantor and grantee, and the covenant of seisin ope- rated as much upon them as upon the soil itself. (Austin v. Sawyer, 9 Cowen, 39 ; Holmes v. Tremper, 20 John. 30 ; Mil- ler v. Plumb, 6 Cowen, 665 ; McClintock v. Graham, 3 Me- 568 CASES IN THE COURT OF APPEALS. Mott v. Palmer. Cord, 553 ; Fair is v. Walker, 1 Bailey, 540 ; Isharn v. Mor- gan, 9 Conn. R. 374 ; 2 KenCs Com. 342.) If Mott had cov enanted in express terms that he owned the particular fence in question, there could be no doubt that an action for the breach of that covenant could have been maintained if the title had failed. By the deed from Mott to Palmer the fence in question was as much embraced in it and as much a part of the prem- ises conveyed as if it had been conveyed in express terms ; for there being no reservation in the deed, every thing appurtenant to the premises was covered by the deed as between vendor and vendee. (Platton Cov. 306 ; 11 East, 012 ; Holmes v. Trcm- per, 20 John. 30 ; Isham v. Morgan, 9 Conn. 374 ; Kittredgc v. Woods, 3 N. Hamp. R. 503 ; Parsons v. Camp, 11 Conn. 525 ; 5 Grcenl 222 ; 15 Wend. 169 ; 21 Pick. 367.) The defence set up by the defendant and the evidence offer- ed to sustain it was in its effect an effort to vary by parol the legal import of the deed ; to restrict its terms so that it should riot operate upon what in fact and in judgment of law was a part of the premises described in the conveyance. The cove- nant operated upon every thing which would have passed by the deed if Mott had been the owner. The effort therefore to show that the fence was mere personal estate, and that in con- sequence of its being personal estate was not covered by the deed or embraced in the covenants, was in effect contradicting its terms, and limiting and restricting its legal effect by parol. and was therefore inadmissible. (Austin v. Sawyer, supra; Isham \. Morgan, 9 Conn. 374 ; Suydam v. Jones, 10 Wend. 180; Stevens \. Cooper, 1 John. CIi. 429; Champion v. Storm and White, 5 Cowcn, 509 ; Jackson v. Croy, 12 John. R. 427 ; Child v. Wells, 13 Pick. 121.) RUGGLKS. J. In December, 1841, Mott conveyed to Palmer a farm of land in Columbia county, by a deed containing the following covenant : " And the said Philander Mott doth hereby covenant and igree that at the delivery hereof he is the lawful owner of the ALBANY, DECEMBER, 1848. 559 Molt v. Palmer. premises above granted, and seized of a good and indefeasible estate of inheritance therein clear of all incumbrance." This action was brought by Palmer, the grantee, on the cov enant in the deed, to recover the value of a rail fence which stood on the land when the deed was executed, but which did not belong to Mott the grantor. The facts were, that the fence was erected on Mott's land in 1840 by one Brown, (who owned the adjoining land,) under an agreement between him and Mott, by which Brown was to fence in, temporarily, a part of Mott's land with his own, and to cut and take away the grass grow- ing on Mott's land ; with leave to take away the fence when- ever he liked. After Mott conveyed to Palmer the land on which the fence stood, Palmer removed the fence and converted it to his own use. Brown thereupon sued him before a justice for the fence and recovered, Mott being a witness on that trial against Palmer. Although the evidence to prove these facts was at first offered by Palmer on the trial of this cause in the court below and rejected by the court, it was afterwards given by the defendant Mott. The question now is whether in this action brought by Palmer the grantee against Mott his grantor, on the covenant of owner- ship and seisin in the deed, Palmer is entitled to recover the value of the fence. A grantor who executes a conveyance of land undertakes to convey every thing described in his deed ; and by a covenant of seisin he assumes to be the owner of all he undertakes to convey. The deed in question purported to " grant and convey all that certain lot or farm of land situate in the town of Chatham, county of Columbia, bounded &e. with the appurtenances," &c. The word land, when used in a deed, includes not only the naked earth, but every thing within it, and the buildings, trees, fixtures and fences upon it> (Goodrich v. Jones. 2 Hill, 143; Walker \: Sherman. 20 Wend. 639, 640, 646 ; Green v. Armstrong, 1 Denio, 554 ; Com. Dig. Grant, E. ; Co. Litt. 4 a ; 2 Roll. 265.) A deed passes all the incidents to the land as well as the land itself, and as well when they are not expressed as when they are. Fixtures belonging to the owner of the land, being part of the VOL. I. 72 570 CASES IN THE COURT OF APPEALS. Molt v. Palmer. land, cannot be reserved by parol when the land is conveyed ; the deed conveys them to the grantee unless the reservation be in writing. (Noble v. Bosworth, 19 Pick. 314.) If the fence had belonged to Mott, it would have passed by his deed ; not by force of the word appurtenances contained in the deed, but without that word, and as part of the land. Trees, buildings, fixtures, and fences on a farm, are corporeal in their nature, and the subjects of seisin, like the land itself of which they are re- garded in the law as a part. Fences are perishable by the effect of time, and so are trees and houses ; but indestructibility is not one of the essential attributes of real estate. Fences are not only indispensable to the enjoyment of real estate, but they are, in their nature, real estate, to the same extent that houses and other structures on the land are so. A rail, before it is used in the construction of a fence, is personal property, and so is a loose timber before it is used in the construction of a house. When either is applied to its appropriate use in building a fence or a house, its legal nature is changed. It becomes real estate, and is governed by the law which regulates land, descending to the heir as part of the inheritance, and passing by a deed as part of the freehold. A fence may be easily detached from the earth, but not more easily than the stones which lie on its sur- face, and both are part of the land, and therefore it is that a building or fence belonging to the owner of the land will pass by his deed of the land without being expressed or designated as part of the thing granted. But the earth within specified boundary lines may be owned by one man, and the buildings, trees and fences standing on it by another. A man may have an inheritance in an upper chamber, although the title to the lower buildings and soil be in another. (Shep. Touch. 206; 1 List. 48, b.) And it is a cor- poreal inheritance. (10 Vin. 202.) Buildings and fixtures erected by a tenant for the purposes of trade belong to him, and are removable without the consent of his landlord. (Holmes v. Trcmper, 20 Jo/ui. 30 ; Miller v. Plumb, 6 Cowen, 665 ; Doty v. Gorham, 5 Pick. 489.) HerldkendevH s case. (4 Co. R. 63,) affords an instance in which one man owned the land ALBANY, DECEMBER, 1848. 57] Mott . Palmer. and another the growing trees upon it. In Rogers v. Wood- bury, (15 Pick. 156,) Putnam, J., in speaking of a house which a man had erected on land which did not belong to him, said <; it might or it might not be parcel of the realty. If the owner of the land owned the buildings, it would be so. If he did not, and the owner of the building had no interest in the land, the building would be personal property." Smith v. Benson, (1 Hill, 176,) was the case of a dwelling house and grocery be- longing to one man, although standing on the land of another; and in Russell v. Richards, (1 Fairf. 431,) the owner of land on which another man had erected a saw mill by his consent, executed a deed for the land and the mill, but it was held that the conveyance passed no title to the mill, because it was the property of him who built it. The conclusion derived from these cases against the plaintiff's right of recovery on the cov- enant is, that the defendant's deed purports to be a grant of real estate only, and the fence in question being personal property was not a part of the premises granted, and therefore not within the scope of the covenant which relates to the realty only. If this be a sound conclusion, a grantor could not be made lia- ble on the covenants in his deed, although he had previously and privately sold, with a view to removal, all the houses, buildings, mills, fences, and growing timber on the land conveyed. In- deed, if this doctrine prevails, the gravel, clay, stone and loam, might also be converted into personal property by such a sale, and carried off the land ; without violating the grantor's covenant. Let us test the correctness of this conclusion in a few words. It is true the fence in one sense was not a part of the thing granted. It did not pass by the deed. In the same sense, if some stranger had been the owner of one half the farm, that half would not have been part of the thing granted, because it would not have passed by the deed. But the fence was within the description of the thing granted as clearly as the land it- self; and being within the description, it was a part of that which the deed purported to convey, and of which the grantor covenanted that he was the owner. If it be yet doubted wheth- er the fence (being in fact the personal property of Brown) was 572 CASES IN THE COURT OF APPEALS. Mott v. Palmer. within the description of what the grantor professed to convey, that doubt can be solved in a moment, by reflecting that it would undeniably have passed by the deed if the grantor had been the owner of it ; although it could not have so passed if it had not been within the description. It all comes to this : The grantor undertook to convey it as part of the realty by a deed which would have been effectual for that purpose if he had been the owner of it, as by the deed he professed to be, but was not. It is therefore a case in which the covenant of seisin affords a remedy ; and although the amount in controversy is trifling, the right is clear ; and it seems to be perfectly just that the grantor should pay for the fence, because there is nothing in the case to show that Palmer, when he accepted the deed, was informed by Mott or other- wise knew that it belonged to Brown. The judgment of the supreme court must therefore be affirmed. BRONSON, J. The fence in question stood on the land which the defendant conveyed to the plaintiff; and, as between ven- dor and vendee, was a part of the thing granted. (Goodrich v. Jones, 2 Hill, 142 ; Thayer \. Wright, 4 Dcnio, ISO ; Green v. Armstrong, 1 id. 554.) There is no more doubt of this, than there is that the trees, herbage and buildings on the land, or the mines and quarries in it, passed by the deed. It is undoubtedly true that the soil may be owned by one man, and the fences and buildings by another ; and as between such owners, those structures will be regarded as personal prop- erty. But in their nature, fences and buildings, like every thing else attached to the earth, are real estate, and will pass with the soil to the heir or grantee. It is truly said that rails are not in their nature icai property. But a fence, though con- structed of rails, is in its nature real property. It is just as plainly so as is a house. Both are made of materials which were once personal property ; but they become real when formed into a structure attached to the soil. The word land includes not only the soil, but every thing attached to it, ALBANY, DECEMBER, 1848. 573 Mott v. Palmer. whether attached by the course of nature, as trees, herbage and water, or by the hand of man, as buildings and fences. This is but common learning ; and there is no more room for question that a grant of land, eo nomine, will carry buildings and fences, than there is that it will carry growing trees and herbage upon, or mines and quarries in the ground. This is probably the first time the suggestion was ever made, that the purchaser of a farm must have the fences mentioned in the deed, either for the purpose of acquiring a title to them, or having that title secured by the covenants in the conveyance. The fact that buildings and fences may be owned by a differ- ent person from the one who owns the soil, has no tendency to show how much the defendant attempted to convey. That must be settled by the deed ; and the deed just as plainly goes to the structures attached to the land, as it does to trees, mines and quarries. It is said that the fence was not included in the grant, be- cause the defendant did not own it. That argument proves too much. It proves that nothing was granted, if the defendant owned nothing which he professed to convey. And it turns the covenant of seizin into nonsense ; for it will have no operation, except where it is of no use, to wit, where the grantor owned the thing granted. It is true that ejectment cannot be brought for a fence after it has been severed from the freehold, and become personal property. And it is no less true that ejectment cannot be brought for trees, buildings or ores under the like circumstan- ces. But the argument does not. prove but that all these things are real property before the severance takes place. The covenant of seizin, when in the usual form, goes to the <.itle ; and is broken the moment it is made, if the vendor had not the lawful title to the property granted, and to every part of it. In this case the defendant covenanted, that he was " the lawful owner of the premises above granted, and seized of a good and indefeasible estate of inheritance therein." The cov- enant extended to the whole of " the premises;" and included the fences, as well as the trees, buildings, mines, quarries, and 574 CASES IN THE COURT OF APPEALS. Mott v. Palmer. other things which were granted by the deed. As to the fence, and the rails of which it was composed, the defendant had no title ; he was not the owner ; the property belonged to Brown. The covenant was as plainly broken, as it would have been had Brown owned the house and barn, or a coal mine or ore bed in the land. Notwithstanding the zeal with which the contrary doctrine was urged, no authority was produced in support of it. Cases were cited to show, that a mere lien or incumbrance, as a judgment or mortgage ; or an easement, as a way over the land ; none of which divest the title ; do not constitute a breach of the covenant of seizin. (Sedgwick v. HoHcnback, 7 John. 376 ; Whitbeck v. Cook, 15 id. 483.) Such cases are very far from proving, that the covenant is not broken where a part of the thing granted was not owned by the covenantor, but was owned by another. It was a matter of no importance how Brown acquired title to the rails. It was enough that lie owned them. That parol evidence was inadmissible to control the legal effect and operation of the deed, is too plain a proposition to be disputed. If the plaintiff had been told at the time that Brown owned the rails ; and more, if the rails had been expressly ex- cepted by parol from the operation of the grant and covenant, it would have been no answer to the action. (Townsendv. Weld, 8 Mass. R. 146; Noble \. Boswort/i, 19 Pick. 314; Suydam v. Jones, 10 Wend. 180 ; Champion v. White, 5 Cowcn, 509 ; Jackson v. Russell, 12 John. 427.) A deed can- not be contradicted in its legal effect, any more than it can in its terms. I am of opinion that the judgment is right, and should be affirmed. JOHNSON, J. There is no reservation of the fence or rails in question in the deed. It purports to convey the entire premises ; every thing that usually passes with the land and as part of it as well as the land itself. The covenant alleged to have been broken is as broad as the grant, and by it the grantor covenant- ed with his grantee that ho was ki\\ fully seized of an estate of ALBANY, DECEMBER, 184b. 575 Mott v. Palmer. inheritance in and had good right to convey every thing which the grant purported upon its face to operate upon. Prima facie the rails which were then lying in a fence upon the land were part of it and passed by the deed as land, with the seizin in fee in the vendor guarantied by the covenant. But it is said that this fence in fact was not part of the free- hold ; that having been built by a tenant under an agreement that it might be removed, it was mere personal property and did not pass by the deed : and the argument assumes that if it was not a part of the realty and would not therefore pass by the deed, the covenant of seizin did not extend to it. But it is no answer to say that because the grantor had no title, and could grant none, to what upon the face of his deed he under- took to convey, the covenant of seizin does not therefore apply to it and is not broken. The same answer might be given with equal force in regard to the title to the soil itself. It is not so much a question as to whether the title to the rails did actually pass under the deed, as it is conceded that they did not : and if they had there would clearly have been no breach. But it is more properly a question what upon the face of the instrument and by its terms the grantor undertook to convey and to covenant that he was seized of, The under- taking is one thing and its effect upon the subject matter of the undertaking aud the rights of the parties under it quite another. And it is precisely because the grantor undertook to convey and (o be the owner of that to which he had no right, and could convey none, that the action lies if it can be sustained at all. If the covenant of seizin shall be found to apply to things of this nature in ordinary cases between grantor and grantee, it seems to me quite clear that the defendant in error must recover. It was strenuously urged by the counsel for the plaintiff in error that the covenant of seizin does not apply to any thing in the nature of fixtures or appurtenances which may or may not belong to the freehold, according to extraneous facts or circum- stances ; that by it the grantor only covenanted that he w r as seized of a freehold estate in the premises, and that no other person had such an estate therein ; ana that the covenant had 576 CASES I1N THE COURT OF APPEALS. Mott v. Palmer. no application to any estate or interest in the premises less than a freehold. Before we adopt this doctrine as applicable to such things as usually pass by a conveyance as part of the realty, we must be careful to see the consequences to which it might lead. It has been well held that a highway regularly laid out run- ning across land at the time of the grant was no breach of the covenant of seizin, because notwithstanding the easement the grantor was well seized of the title to the land and had good right to convey. ( Whitbeck v. Cook, 15 John. 483.) But that is not this case. The want of seizin, of a right to convey, (which did not exist in that case,) is the very cause here alleged. It must be quite obvious, I think, that if a party under the cir- cumstances of this case has no remedy under his covenant of seizin he must remain entirely remediless as regards his deed, because no other covenant is at all applicable. Under the cov- enants of warranty and for quiet enjoyment there must first be an eviction ; and I think no one will seriously contend that the covenant against incumbrances has an application in any sense. Even conceding which I do not that the existence of a pub- lic highway or other easement is an incumbrance, it would not affect this case. Were the rule contended for the true one, it might and doubtless often would happen that a party holding premises under a deed with full covenants would have his premises stripped of buildings, fences, and every thing valuable belonging to the estate, and yet have no remedy against his grantor upon any covenant in the conveyance. No one, I believe, has ever yet thought it necessary to require the grantor to insert a special covenant in his conveyance that lie was seized and had good right to convey the buildings, fences, standing trees and growing grass upon the premises covered by the grant, and for the obvious reason that the cove- nant of seizin has hitherto been regarded as a sufficient protec- tion against a want of title in the grantor, to any of these essen- tial and often by far the most valuable portions of the premises purchased. The novelty of such a special covenant in a deed at this day would be a strong argument against its necessity. These personal covenants in our conveyances of real estate ALBANY, DECEMBER, 1848 577 Mott v. Palmer. have been framed with great care and proved by long expe- rience ; and it can hardly be conceived that they have hitherto failed to protect parties or to give them a sufficient remedy in case of the loss of such valuable interests. The ordinary covenant that the grantor is seized in his own right and has power to convey the premises granted must, it seems to me, be construed to extend to every thing attached to the soil that usually passes by deed as real estate, as fully as though the specific thing were named, or a covenant framed for it by itself; and such, I think, has been the general under- standing of courts and conveyancers. WRIGHT, J. and GRAY, J. were also for affirming the judgment. GARDINER, J. dissenting. The argument by which the rails in question are converted into real estate, in order to bring them within the purview of the grant of the defendant, is sub- stantially as follows. Rails made into fence and attached to the freehold become part of the land. The rails in question were made into fence and attached to the land conveyed to Palmer. Therefore as between vendor and vendee, Brown's rails were a part of Mott's land : and it being admitted that Mott the defendant neither owned the rails nor " was seized of an indefeasible estate of inheritance therein," at the delivery of the deed, he is liable for breach of his covenants. This is plau- sible. The infirmity of the syllogism consists in what logicians call the petitio principii. It assumes the very point in issue, namely, that the rails in question were attached to the land so as to become parcel of the premises. This proposition, which is indispensable to the maintenance of the action, is not only unsupported by proof, but was conclusively disproved by the evidence. Brown, the tenant, swore " that he cut the rails upon his own lands, and put them in fence upon Mott's land for the purpose of cutting a piece of grass upon the premises, under an agreement with Mott that if he would build the fence there he might move it off whenever he pleased." VOL. I. 73 578 CASES IN THE COURT OF APPEALS. Molt v. Palmer. The question is, were these rails, under the circumstances, attached to the freehold ? Is there not something of an absurdity in asserting that the property of one man placed upon the land of another with the unlimited right of removal becomes thereby a part of the inheritance ? The assumption, it is believed, has no foundation in principle or authority. Rails upon a fence are constructive fixtures. (3 Kents Com. 347, w.) They are in their own nature personal property, and become parcel of the realty, as the term fixture imports, in virtue of their annexation to the land. (Id. 345, .) The annexation which will con- vert personal into real estate, is not affected by placing the chattel upon or even by affixing it to the land : it must be fixed to the freehold perpetui usus causa. (Id. 347 and note; Walker v. Sherman, 20 Wend. 647, 655 ; 3 Dane's Abr. 156 ; 4 Adol. $ Ellis, 884.) Hence, if the annexation is made by virtue of a contract with the owner of the land for the purposes of trade, (3 Kent, 345 ; 2 R. S. 83, 6, 7, 8,) or of agriculture, ( Whiting v. Brastow, 4 Pick. 310,) the chattel does not become a part of the freehold, but remains personal property. In this case, the fence was built for the purpose of cropping a part of the land under a contract with the owner which secured to the tenant the right to remove it at pleasure. The rails of which it was composed were never attached to the freehold, and were conse- quently personal property at the time of the conveyance to the plaintiff. And the covenant of seizin could have no more ap- plication to them, than to the vehicle by which they were trans- ported to the premises. Again, it was urged that the grantor was estopped from de- nying that the fence which was upon the premises in question and apparently attached thereto, was parcel of the land con veyed. This was the view taken by the judge at the trial, who vuled accordingly. If the defendant was estopped, it must be upon the ground of his grant or his covenant, or both. But the grant is of land, and the defendant covenants that he owns the land described, and is seized of an estate of inheritance therein. He declares by his covenant, that all the land, in other words all that is land within the bounds given in the ALBANY, DECEMBER, 1848. 579 Mott v. Palmer. deed, he owns and has in it an estate of inheritance. It is a palpable perversion of such a contract to turn it into a war- ranty that every thing upon the land (which would pass with it if attached) is in fact a part of the freehold. No authority sanctions such a principle. We have been referred to cases in which it has been held that crops growing pass to the vendee as incident to the land, and that the vendor is not permitted to contradict the effect of his deed by setting up a parol exception at the time of the conveyance. But in all these cases, the property sought to be exempted from the operation of the grant was the property of the vendor attached to or appurtenant to the land. Crops will thus pass ; so also will a right of way ; but if either be severed from the land prior to its conveyance, by sale or release, the vendor is not estopped from showing the fact, nor is he liable upon his covenant of seizin. He is owner of the land and seized thereof notwithstanding the severance. The ownership of the property determines its character, whether it is part of the freehold, or an appurtenance, or a mere chattel. (4 Kent, 468.) It has been held in effect that a grant of liberty to dig turf, or of the herbage, (Com. Dig. tit. Grant,} or of an ease- ment, as the right of way, (2 R. S. 90,) or of particular trees, (4 Coke, 63,) although made prior to the sale of the land, is not a breach of the covenant of seizin. The reason is assigned by Coke " for these passed to the first grantee but a particular right." In these cases the turf, herbage, trees, and road (if opened) would apparently be annexed to the land, or as Coke expresses it in reference to trees, in property they are divided from the land although in fact annexed. (4 Coke, 63.) The same is true a fortiori of a constructive fixture. (Ropp v. Ba- ker, 4 Pick. 243.) But the plaintiff in his declaration avers that the rails were attached to the freehold and premises described in the indenture, and were part and parcel thereof." This was a question of fact, the affirmative of which the plaintiff was bound to establish. Until this was done, the fence was not within the grant, and of course the deed could not be relied upon as an estoppel. It was in 580 CASES IN THE COURT OF APPEALS. Mott v. Palmer. fact a question of parcel or no parcel, upon Wiiich both parties were at liberty from the necessity of the case to give evidence, in order to identify the subject of the conveyance. And finally, no precedent from the earliest period can be found of an action of this character. The books are full of controversies between vendor and vendee as to the effect of a grant upon property claimed as fixtures. But this is the first attempt to extend the covenant of seizin to personal property, upon the ground that the vendee probably supposed that it was part of the freehold. There are substantial reasons for this silence. The covenant of ownership and of seizin are bro- ken, if at all, upon the delivery of the deed. If at that time the supposed fixture is really such, it passes by the grant ; if it is not a fixture, it remains a mere chattel, and cannot be the subject of covenants which are restricted to the land only. In neither case, consequently, can there be a breach of the covenants. Hence the declaration in this cause is a felo de se, and must be so in every case of a similar character. For example, the plaintiff avers, 1st. That the rails were attached to the freehold, and are parcel of the premises. This averment was necessary in order to bring the subject within the grant. And 2d. by way of breach, " that they were not at the time of the conveyance the property of the defendant." The two propositions are utterly repugnant. For if the rails were owned by a person having no interest in the land, they were for that reason personal property, and therefore could not be a part of the freehold. If on the contrary they were parcel of the land, they could not be the property of a person having no interest therein, and of course would pass by the grant. In Rogers v. Wood- bury^ (15 Mass. 158,) the action was trover for a fish house ; and it was held by the court, (: if the owner of the land did not own the building, and if the owner of the building had no interest in the land, the building was personal property." In the case before us, the owner of the land did not own (he fence, and the owner of the fence had no interest in the land. (Smith v. Benson, 1 Hill, 176 ; 4 Coke, 63 ; 3 McCord, 553 ; 8 Mass. 411 ; 1 Fairf. R. 429.) ALBANY, DECEMBER, 1848. 53 1 Trustees of Hamilton College v. Stewart. I am of opinion that the charge of the judge was erroneous and that there should be a new trial. JEWETT, C. J. and JONES, J. also dissented, and concurred in the opinion of GARDINER, J. Judgment affirmed. THE TRUSTEES OF HAMILTON COLLEGE, appellants, vs. AL- VAN STEWART, respondent. 112 112 112 The endowment of a literary institution is not a sufficient consideration to uphold a 167 subscription to a fund designed for that object. And although there is annexed to the subscription a condition that the subscribers are not to be bound unless a given amount shall be raised, no request can be im- plied therefrom against the subscribers that the institution shall perform the ser- vices and incur the expenses necessary to fill up the subscription. Accordingly, where the defendant subscribed $800 to a fund for the payment of the- salaries of the officers of Hamilton College, and a condition was annexed that the subscribers were not to be bound unless the aggregate amount of subscriptions and contributions should be $50,000 ; held, that there was no consideration for the un- dertaking and that no action would lie upon it, although there was evidence tending to show that the whole amount had been subscribed or contributed according to the terms of the condition. THIS case was before the late court of errors, and is reported in 2 Dcnio, 403. After the decision of that court as there re- ported, the plaintiffs again brought the cause to trial at the Oneida circuit, before GRIDLEY, Cir. Judge, in September, 1846, and by consent the facts were read to the jury from the error book upon which the cause had been argued in the court of errors. There was some additional testimony not material to the question on which the case was decided in this court. The circuit judge nonsuited the plaintiffs, and his decision was affirmed by the supreme court. The plaintiffs brought error to this court. 581 e!2 h!2 12 e!2 44 582 CASES IN THE COURT OF APPEALS. Trustees of Hamilton College v. Stewart. C. P. Kirkland, for the plaintiffs in error. Luther R. Marsh, for the defendant in error. GARDINER, J., delivered the opinion of the court. The conclusive objection to the maintenance of this action is the want of consideration for the undertaking of the defendant. This is not a case of mutual promises where the underta- king of one party is the consideration for the promise of the other. (Livingston v. Rogers, 1 Caines 1 Rep. 534 ; Chit. PL 296.) This was so adjudged by the supreme court when the case was before them upon demurrer to the declara- tion. As I read the agreement, there is no engagement what- ever upon the part of the plaintiffs, or any other person, to do or forbear to do any thing as a consideration for the promise of the defendant. The clauses in the instrument to which we are re- ferred by the counsel for the plaintiffs, are mere conditions lim- iting the liability of the defendant, or designating the purpose to which his money, when paid, is to be applied. The subscri- bers say that they will not pay any thing unless the sum of $50,000, including their subscription, shall be invested, and the interest shall be applied to the payment of the salaries of the officers. But the corporation do not undertake that that sum shall be subscribed, or that any other person will endeavor to procure subscriptions, or that they will make the investment or appropriate the income of the fund to the purpose designated. The corporation have not executed the agreement, and there is no evidence that they knew of its existence until after the sub- scription of the defendant. The first count of the declaration, which is founded upon mutual promises, is not therefore sus- tained by the agreement. The second count, upon which the chief reliance is placed, seqms to have been framed with a view to the suggestions of C. J. Nelson contained in his opinion attached to the case. This count proceeds upon the supposition that the agreement furnished evidence of a request to the plaintiffs by the defendant to perform certain services, in consideration of which he prom- ALBANY, DECEMBER, 1848. 5Q3 Trustees of Hamilton College v. Stewart. ised to pay them the sum of $800. If this is the true construc- tion of the writing, the right of the plaintiffs to the subscription money is unquestionable. The cases referred to by the chief justice, and others cited upon the argument, are quite conclusive to show that the value of the services, or the amount of the con- sideration, is of no importance where a stipulated sum is agreed to be paid for the performance of a specific service. (Sturlyn v. Albany, Cro. Eliz. 67 ; Id. 469 ; 1 Sel 32 ; Saund. PL $- Ev. 147.) In looking at the contract, however, we meet with the same difficulty, in another form, to which I have alluded in reference to the first count of the declaration. There is no re- quest by the subscribers that the plaintiffs shall do any thing. They agree to pay the trustees of Hamilton College the sums by them severally subscribed, and then add, " that we shall not be holden to pay the sum subscribed by us, unless the aggregate of our subscriptions and of contributions to this object shall, by the 1st of July, 1834, amount to $50,000," &c. The trustees are made, by the subscription, the mere depositories of the money, and nothing more. If any other person had been de- signated, the agreement would have been as effectual for all the purposes contemplated, as in its present form. There certainly is no express request to the plaintiffs, or the trustees as their representatives, to procure subscriptions or contributions. Nor can a request be implied from the agreement. The endowment of the college was, in legal contemplation, no benefit to the sub- scribers. The public advantage arising from the diffusion of knowledge and the advancement of science, however important in themselves, have not been held a sufficient consideration alone to uphold an agreement of this character. (2 Pick. 580.) We cannot therefore imply a request from the beneficial nature of the services to the subscribers. Nor is it to be inferred from the object to be obtained by the subscription. The purpose, as stated by the plaintiffs in their declaration, " was to endow the in- stitution, by providing a fund for the payment of its officers." In effect, it was to add $50,000 to the permanent funds of the college, without abstracting any thing from those already accumulated, How then are we authorized to imply a request by the subscii 584 CASES IN THE COURT OF APPEALS. Trustees of Hamilton College v. Stewart. bers, that the plaintiffs should, as they allege, " at great labor and expense," procure these subscriptions ? Every dollar thus expended required an equivalent sum to be raised, in order to put the institution upon the footing contemplated by the subscribers. In truth, when carefully examined, the agreement of the de- fendant amounts to a promise to give $800 on certain condi- tions. When these conditions are fulfilled, no matter by whom, or at whose procurement, the donor, according to the letter of his promise, is to pay. It cannot be doubted that if an indi- vidual or an association had, subsequent to the subscription of the defendant and prior to July, 1834, without the request or knowledge of the plaintiffs, invested $50,000 for the purpose mentioned in this contract, and obtained the certificate of Mr. Hunt, the letter and spirit of the conditions precedent upon which the gift depended would have been complied with. If the plaintiffs subsequently accepted the money or securities, they of course would take them subject to the trust annexed by the donors to the gift. If they declined, the money would re- vert, and the depositary, whoever he might be, would hold it ir. trust for the use of the subscribers. These remarks, if well founded, dispose of the case. The principles involved in the case are, however, of general interest, and I will therefore advert to some of the principal authorities that have been pressed upon our consideration. In McCauley v. Billinger, (20 John. R. 89,) a committee was appointed at a church meeting to receive subscriptions, and to contract for the repairs of the church in the manner set forth in the subscrip- tion. The subscription is not given, but the court held " that the consideration for the defendant's promise, was the repairing of the church. That the defendant by signing the paper, sanc- tioned the acts of the meeting" According to the view of the court, it was in effect a written request to the committee to make repairs, in consideration of which the defendant under- took to pay. This is the strongest case for the plaintiffs in our reports. In the case of the Amhcrst Academy v. Coivles, (G Pick. R. 427 to 438.) the action was upon a note payable to the plaintiffs, given for a subscription to a fund for the use of a ALBANY, DECEMBER, 1848. 585 Trustees or Hamilton College v. Stewart. college which, at the time of the subscription, had not been incorporated. The plaintiffs were to have the property of the fund, and the management thereof according to the provisions of the constitution subscribed by the defendant, and when the institution was incorporated, it was provided that the plain tiff should transfer to the college the whole fund and the evidences thereof. These duties were performed, and subsequently the defendant gave his note, and thereby acknowledged that he had received value, and that it was given in pursuance of his previ- ous covenants. It was a manifest instance of services performed at the request and by the direction of the defendant, for which an action might have been sustained upon the subscription itself, independent of the note. It resembles in this particular the case of R. Society of Whitestown v. Stone, (7 John. R. 113,) which was referred to by the court in their decision. Limerick Academy v. Davis, (11 Mass. R. 114,) was an action upon a subscription very similar to the one before us. Judgment was given for the defendant. The court held " that it was a prom- ise to give, connected with a similar promise of others to give for the same purpose ; at most it was a donation to come into operation at the will of each subscriber." In Bridgewater Academy v. Gilbert, (2 Pick. 579,) the subscription upon which the action was brought was as follows: " We the subscribers, being desirous that the academy edifice should be rebuilt imme- diately, do hereby promise to pay to the committee which may be chosen by the trustees of the B. Academy, the sum set opposite our names for the above purpose." The edifice was rebuilt. And the court held, "that the subscription paper would not sustain the action. That providing materials upon the faith of the subscription, was not sufficient to show that the expenses were incurred at the implied request of the de- fendant." If a request could not be inferred from that paper, it is impossible to say that it can be implied from the one under consideration. Indeed, all the authorities, it is believed, will be found consistent with the result to which we have been led by the terms of the agreement. If, with C. J. Nelson, we find that the defendant agreed to VOL. I. 74 586 CASES IN THE COURT OF APPEALS. Wilkos v. Harper. pay $800 provided the plaintiffs would procure subscriptions, and should afterwards invest the money, &c. ; this, according to the cases, would amount to a request to perform those servi- ces, and the defendant would be liable. With all our anxiety to sustain this contract, we do not think it susceptible of that construction. And our conclusion upon this point renders it unnecessary to examine the other objections to the action sug- gessed upon the argument. Judgment affirmed. 4 177 232 JANET WILKES and others, appellants, vs. JAMES HARPER, 586 and others, respondents. Co-legatees in no sense sustain to each other the relation of surety in respect to the testator's debts, each being liable only in proportion to the amount of his legacy. One who pays a debt for which he is not personally bound, and which is not a charge upon his property, is not entitled to be subrogated to a lien which the creditor had upon the estate of the debtor. Legatees, whose shares of the personal estate of the testator have been wasted by the executor, have no lien upon the real estate devised to such executor tc make good their loss. An executor, who was also a devisee and legatee, died insolvent, having wasted a large portion of the estate, and leaving unpaid a debt against the testator, and also a judgment against himself for a debt in no way connected with the estate, which judgment was a lien on his share as devisee in certain real estate of the testator. His co-devisees and legatees were his heirs at law, and as such took his share in the real estate ; and having paid the whole debt against their testator, they filed their bill against the judgment creditor of the deceased executor, claiming to be substituted to the lien of the creditor whom they had paid, upon the executor's share in such real estate, and to restrain the sale thereof by the judgment creditor ; also claiming a lien thereon in consequence of the devastavit of which the executor had been guilty. Held, that the bill could not be sustained. APPEAL from chancery. The appellants filed their bill in the court of chancery against the respondent, stating in sub- stance as follows : Charles Wilkes died in 1833, possessed of personal estate of ALBANY, DECEMBER, 1848. 537 Wilkes v. Harper. the value of about $280,000, and also of a very large real estate, a part of which, consisted of the house and lot No. 28 Laight- street in the city of New- York. He left his widow, Jane Wilkes, and six children, George, Hamilton, Horatio, Anne, Charlotte, the wife of Lord Jeffrey of Edinburgh, and Frances, the wife of D. C. Golden, surviving him, and appointed his widow executrix, and his three sons executors of his will. By that will he bequeathed to his widow his house and lot No. 28 Laight-street for life, giving her the right to elect between that and another house and lot in the same street, he also gave to her the use of his furniture, plate, pictures, and carriages and horses for life. In addition to this, he gave to his executrix and executors $50,000 in trust to invest the same and pay over the interest thereof to his widow for life, with power to her to dispose of $30,000 of the capital thereof at her death by will, and the other $20,000 was then to sink into his residuary estate; and after giving $6000 in legacies to his nephews and niece, he disposed of the residue of his real and personal estate among his six children in equal shares ; the sons to take their shares absolutely and directly, and the share of one of the daughters was vested in his executrix and executors, to sell the same and pay the proceeds to her or her representatives. The shares of the other two daughters he devised and bequeathed to other persons as trustees in trust to sell and convert the same into money, and to invest the proceeds in permanent securities for the separate use of those two daughters respectively for life ; with power to the daughters to dispose of the same by will, and in default of such disposition, then he gave the same to the heirs or assigns of such daughters forever. The widow and all the sons proved the will of the testator, and took out letters testamentary thereon, but they permitted Horatio Wilkes, one of their number, to have the principal con- trol and management of the funds of the estate. Out of the funds which came to his hands he paid for debts due from, and moneys held in trust by, the testator, about $130,000, and he set apart and invested $50,000 for the legacy to the widow, in ad- dition to the furniture, &c., specifically bequeathed to her. He 588 CASES IN THE COURT OF APPEALS. Wilkes v. Harper. also paid the legacies to the nephews and niece of the testator. Portions of the real estate had also been sold, either by the de- visees or by Horatio Wilkes, as their agent, to the amount of about $95,000 ; the proceeds of which sales, with the exception of $26,000, received by his brother Hamilton, came into his hands for convenience of distribution. He also received about $30,000 for the interest and income of the personal estate which had come to his hands as one of the executors, and for rents and profits of real estate which the devisees had suffered him to collect and receive, and for interest on the proceeds of real estate in his hands for distribution. Out of these proceeds of the real and personal estate, in December, 1838, Horatio Wilkes distributed between himself and his brother George, and the trustees of his three sisters, about $100,000, in equal propor- tions. Hamilton Wilkes retained in his hands the $26,000, on account of his share of his father's real and personal estate ; leaving in the hands of Horatio Wilkes between $50,000 and $60,000 of the proceeds of the personal estate, and of the real estate that had been sold as a fund to pay the residue of the debts of the testator, and for future distribution among those who were entitled to the same. This sum, with the exception of $2,400, as the respondents alleged in their bill, Horatio Wilkes wasted or appropriated to his own use, previous to the recovery of the respondents' judgment against him, in January, 1837. He also wasted or appropriated to his own use about $27,000' of the trust fund, which he had previously set apart and invest- ed for the legacy to his mother. In January, 1837, the respon- dents in this suit recovered a judgment against Horatio Wilkes and two other persons, in the superior court of the city of New- York, for $2, 838, for a debt in no w ay connected with the estate of tlic testator ; which judgment became a lien upon the legal title of Horatio Wilkes, in one-sixth of the remainder in fee of the house and lot, No. 28 Laight-street, devised to him by the will of his father. In March, 18-10, Horatio Wilkcs died un- married and intestate, leaving his mother, his two brothers, and three sisters his only heirs at law. All his estate and property of every kind, with the exception of his interest in the Laiglit- ALBANY, DECEMBER, 1848. 539 Wilkes v. Harper. street lot, had, previous to that, been applied to the payment of his debts, leaving the judgment of the respondents in this suit and the debts due from him on account of his father's estate unpaid. At the time of his death there also remained due from the estate of the testator, to Fanny Garnett and Har- riet Garnett, a debt of about $12,500 for moneys received in trust by the testator in his lifetime, and invested by him in his own name, which fund came to the hands of the acting executor, and was wasted by him previous to the recovery of the judg- ment of the respondents. In May, 1840, Hamilton Wilkes ap- plied the $2400 of the proceeds of the estate of his father which had not been wasted by the acting executor, to the payment of a part of the debt of the Misses Garnett. And being advised that the surviving executor and the executrix, and the residuary legatees and devisees were liable to pay the balance of that debt, he paid it out of his own funds, upon his and their ac- count, and with their assent. The respondents afterwards sued out a scire facias against one of the surviving judgment debt- ors, and against the assignee of the other who had been dis- charged under the bankrupt act, and against the brothers and sisters, and the mother of Horatio Wilkes, as his heirs at law, to revive their judgment, and have execution thereon against the estate upon which it was a lien. The appellants, the widow and surviving children of Charles Wilkes, with the husbands and trustees of the daughters, thereupon filed their bill, stating these facts, and also stating that other claims were made against the estate of Charles Wilkes, the validity of which, however, they did not admit, and claiming the right to have the residuary real estate which was devised to Horatio by the will of his father, applied to pay the balance due to them, and the amount which Hamilton Wilkes had paid for them to the Misses Garnett, and any other debts of the testator which they might be compelled to pay. They also prayed for an injunction to restrain the re- spondents from proceeding upon the scire facias to revive their judgment, or from commencing any other suit or proceeding to enforce the lien of their judgment against the interest which Horatio Wilkes had under the will of his father in the house 590 CASES IN THE COURT OF APPEALS. Wilkes v. Harper. and lot No. 28 Laight-street. The injunction was issued ac- cordingly, upon the certificate of one of the vice chancellors, acting as an injunction master. The chancellor, on the re- spondents' motion dissolved the injunction, on the ground that there was no equity in the bill. And the complainants ap- pealed to this court. W. M. Evarts, for the appellants. I. The bill claims an equitable lien in favor of the complainant, Hamilton Wilkes, upon the estate of Charles Wilkes, devised to Horatio Wilkes and of which Horatio died seized, on account of a debt of the testator, paid in solido by said Hamilton, and to which said Horatio's share of the testator's estate is bound to contribute ; and that such equitable lien is superior to the lien at law of the defendants' judgment. (1.) The lands devised were liable to contribute ratably to the payment of this debt of the testator. (2 R. S. 369 to 372, 26, 28 to 32, 36 to 48, 52, 53, 60.) (2.) The payment of this debt in solido by one of the de- visees, entitles him to be subrogated to all the rights, remedies and liens which the creditor had, before such payment, upon or against the testator's estate in the hands of the other devisees, for their contributory share towards the payment of the testa- tor's debt. (1 Stor. Eq. 499 ; Cuyler v. Enswort/i, 6 Paige, 32 ; Eddy v. Traver, id. 521 ; tSchermerhorn v. Barhydt, 9 id. 28, 42, 43, 47 ; Buclian v. Sumner, 2 Barb. Gh. Rep. 165.) (3.) The rights and liens of such creditor of the testator, and therefore of such subrogated devisee, are paramount and supe- rior to any lien which any individual creditor of any other de- visee can obtain upon the devised estate in the possession of his debtor. (In re Iloiue, 1 Paige, 128 ; Aforris v. Afowatt, 2 id. 586; Kiersted v. Avery, 4 id. 9; 2 Stor. Eq. 1228; Finch v. Earl of Winchelsea, 1 P. Wms. 278 ; 4 KenCs Com. 154.) (4.) At the time of the payment by Hamilton Wilkes, the share of Horatio in the house in Laight-street had de- scended to his brothers and sisters, and they were liable in re- spect to that share, to make good to the creditors of Charles Wilkes, the contributory share of Horatio as the devisee of ALBANY, DECEMBER, 1848. 591 Wilkes v. Harper. Charles Wilkes, to the payment of such testator's debt. The payment by Hamilton was a payment by them all, and as it included Horatio's contributory share, they have an equitable lien upon his share of the testator's property for their indemnity. (5.) The payment by Hamilton Wilkes thus made after the death of Horatio, and with the knowledge and assent of his heirs and administrator, as including Horatio's contributory share, (if necessary to sustain the equity claims against Hora- tio's share of his father's estate,) entitles Hamilton Wilkes to be considered the equitable assignee of the Misses Grarnett's claim. (6.) The complainant, Hamilton Wilkes, therefore, has an equitable lien to the amount of $2200, or thereabouts, with in- terest, upon Horatio's estate in remainder in one-sixth of the house in Laight-street, superior to the lien at law of the de- fendant's judgment. II. The bill sets forth that Horatio Wilkes was the sole act- ing executor (though others qualified) of the estate of Charles Wilkes ; that there were abundant assets of said estate in his hands to pay all the debts of the same ; that Horatio was guilty of a devastavit before the recovery of the defendant's judgment ; and upon an accounting made up between him and his father's estate, as of Jan. 1, 1840, he was found to be indebted to his father's estate in the sum of $59,112.26, upon such devastavit so committed prior to the recovery of the defendant's judgment. (1.) The co-devisees of Horatio, as against him are entitled to have the real estate which was devised to him by his father subjected to the payment of the debts of the estate of Charles Wilkes, before they shall be called upon to contribute, and they would have an equitable lien to that effect upon Horatio's share of his father's estate in his hands, or in the hands of his heirs or devisees. (2.) A judgment creditor's lien upon the property of his debtor is always subject to every superior equitable lien upon the same, whether latent or otherwise. III. The co-devisees of Horatio have also an equitable lien upon their testator's estate in the hands of Horatio to make good the whole sum of $59,112.26 and interest from January 1, 1840, lost to them by reason of the devastavit of Horatio, and 592 CASES IN THE COURT OF APPEALS. Wilkea v. Harper. if there were no debts of the estate of the testator to be provided for, the co-devisees of Horatio would have a better lien upon his estate derived from their testator, tban any individual cred- itor of Horatio could have. (1.) Horatio will be deemed to have taken his full share of the testator's estate in the sum which lie wasted, and any devised property found in his possession after the devastavit will be treated as a residuum of the testa- tor's estate for distribution among the other devisees. (2.) The equitable claims of the creditors and co-devisees of Horatio were fixed anterior to the recovery of the defendant's judgment, and are therefore prior in time, as well as superior in equity. S. A, Foot, for the respondents. I. The personal assets of Charles "Wilkes, the testator, being not only sufficient, but vastly more than sufficient to pay all his debts ; and notwithstanding the large amount wasted by Horatio Wilkes, his son and act- ing executor, there yet remaining unwasted and actually appli- ed to the payment of the testator's debts and distributed among Ids legatees, specific and residuary, sufficient to pay all his debts and no creditor of the testator, after due proceedings before the proper surrogate's court, or at law, having been una- ble to collect his debt, or any part thereof, from the personal representatives of the testator, or from his next of kin or lega- tees neither the appellants, nor any creditor of the testator, nor any person standing in the place of and having the rights of such creditor, has any claim, legal or equitable, on the real estate devised by the testator to his son, Horatio Wilkes. (2 It. 8. Bd ed. 547, 33 ; id. 550, 60. See also id. 548, 36 . 639, 5 to 10.) If that provision was still in force, the defendant should have followed it, and given a bond on bringing the appeal. ( 7.) But that is not the only difficulty. The deci- sion appealed from was made after the code of procedure took effect, and after the right of appeal in such cases was at an end. The llth section of the code (see also 282) gives this court jurisdiction upon appeal in certain specified cases, " and no other ;" and the order appealed from is not among the specified cases. The provisions of the judiciary act of 1847 giving the appeal are inconsistent with the llth section of the code, and are consequently repealed. (Code, 388.) This point was, in effect, decided at the last November term. (G rover v. Coon, ante, p. 536. See also Selden v. Vermilya, id. 534.) The ap- ALBANY, DECEMBER, 1848. Clickman v. Clickman. peal must be dismissed ; but as it was brought since the code took effect, we cannot give costs of the motion to the moving party. (Code, 270. And see Lyme v. Ward, ante, p. 531.) Appeal dismissed. CLICKMAN vs. CLICKMAN. Motion papers should be entitled in this court, notwithstanding 214 of the code declaring that "the title of the action shall not be changed in consequence of an appeal." Papers not so entitled cannot be read. J. J. Tyler, for the respondent, moved to dismiss an appeal. Judgment for the plaintiff, Lawrence Clickman, was entered on the 22d of July last ; and on the 19th of August following, the defendant gave notice of an appeal. The appellant had not caused the return to be filed ; nor had he furnished copies of the case. N. Hill, Jun., for the appellant, objected that the affidavit on which the motion was founded, and the notice of motion, both mentioned the wrong court. They began thus: "Supreme court. Lawrence Clickman 2d, respondent, v. Frederick Click- man, appellant," when they should have stated the proceeding to be in the court of appeals. Tyler, in reply, said the entitling of the papers was right, according to the 274th section of the code of procedure. BEONSON, J. The section referred to declares, that after an appeal the parties shall be known as appellant and respondent; " but the title of the action shall not be changed in consequence of the appeal." This goes only to "the title of the action," and not to the name or style of the court ; and clearly these 612 CASES IN THE COURT OP APPEALS. Clickman v. Clickman. papers should have mentioned the proceeding as being in the court of appeals, instead of the supreme court. True, the no- tice states that a motion will be made in the court of appeals ; but the notice is given in the supreme court, and as would be proper if the motion was intended to be made in that court. The court may amend pleadings and proceedings; (Code, 149 ;) but this cannot extend to an affidavit. In certain cases, an affidavit may be good without a title*, or with a defective title. ( 367.) But this provision relates, I suppose, to the naming of the parties, and not to the name of the court in which the matter is pending, or the proceeding is to be had. And besides, this section does not help the notice. The papers are not sufficient, and the motion must be de- nied on that ground. Motion denied. [Remainder of December cases in the next volume.] INDEX. A. ABATEMENT. Ou the death of the plaintiff in replevin the action abates, and cannot be re- vived by scire facias. Burkle v. Luce, 163 See CHANCERY. ABORTION. See INDICTMENT, 3, 4. ACKNOWLEDGMENT. See EVIDENCE, 1,2. ACTION. A postmaster, who assumes to charge letter postage on a newspaper, in con- sequence of an initial being on the wrapper,does not act judicially in such a sense as to protect him from an ac- tion for improperly detaining such newspaper,although no fraud or malice be alleged or proved. Teall v. Fdton, 537 See BILLS OP EXCHANGE AND PROMISSO- RY NOTES, 1. FRAUD, 1. G, 7. MONEY HAD AND RECEIVED. ANIMALS. COVENANT. ACTION ON STATUTE. See LIMITATION OF ACTIONS. ACTION ON THE CASE. 1. In an action on the case for an injury to real property, the plaintiff must show either title or actual possession in him- self at the time the injury was com- mitted. Gardner v. Heart, 52S 2. And if no one was in the actual pos- session, it will not be sufficient proof to authorize a recovery, to show that the premises were conveyed to the plaintiff at some period prior to the in- jury by a person not shown to have been'in possession or to have title, id See NUISANCE ANIMALS. ADYERSE POSSESSION. Where A. being in possession of lands and claiming to hold under a contract from the Holland Land Company, ex- ecuted to B. an instrument purporting to grant the absolute right to flow the lands by means of a mill dam, B. knowing the manner in which A. claimed to hold ; held, in an action on the case for flowing the lands, that such instrument was not admissible in evidence to lay the foundation of a user adverse to the plaintiff who had acquired the title of tho Holland Land Company. Pills \. Wilder, 525 614 INDEX. AGENT. A ratification of part of an unauthorized transaction of an agent, or one who assumes to act as such, is a confinna tion of the whole. The Farmers Loan and Trust Co. v. Walworih, 43c See INSURANCE, 1, 2. MORTGAGE, 3, 4. OFFICE AND OFFICER, 4. AGREEMENT. See CONTRACT. OFFICE AND OFFICER, 1, 2, 3. ALLEGIANCE. See CRIMINAL LAW, 1, 2, 3, 4. AMBIGUITY. See PAROL EVIDENCE, 1. AMENDMENT. See APPEAL, 16, 24. ANIMALS. 1. The owner of a domestic animal is not in general liable for an injury com- mitted by such animal, unless it be alleged and shown that the defendant had notice of its vicious propensity. Van Leuven v. Lyke, 515 2. But if the animal is unlawfully in the close of another, and commits the mis- chief there, the owner is liable without alleging or proving a scienter. Per JEWETT, C. J. id 3. And in such cases tho declaration should be for breaking and entering the close, and the particular mischief, e. g. the killing of another domestic animal, should be alleged in aggrava- tion of the trespass. id 4. Tho declaration in a justice's court alleged that the defendants' sow and pigs mangled and tore a cow and calf of the plaintiff so that they died. The evidence tended to show that the injury was committed as alleged, and that it was done while the sow and pigs were trespassing in the plaintiff's close. Held that the plaintiff could not re- cover for the reason that there was no allegation or proof of a scienter, and nc allegation of a breach of the plaintiff's close. ' id APPEAL. 1. An appeal will not lie from a decision of the court of chancery upon a ques- tion of practice addressed to the dis- cretion of that court. Fort v. Sard, 43 2. Where a defendant in the court of chancery suffered the bill to be regu- larly taken as confessed by him, and then, upon affidavits and papers excu- sing his default and shewing, as his counsel claimed, a good defence on the merits, moved that court to set aside the default and for leave to an- swer, and the chancellor denied the motion ; held, that no appeal would lie in such a case, and the appeal brought by the defendant from such a decision was accordingly dismissed on motion. id 3. "Where a bill was regularly taken as confessed in the court of chancery, and the chancellor, on motion before him, refused to open the default, on the ground that the answer which the de- fendant sought to put in was not a good defence to the suit on the merits; held, that the decision of the chancellor was not the subject of appeal. Schermer- horn v. The Mohawk Bank, 125 . The defendant to a bill in equity put in a demurrer thereto which was over- ruled by the vice chancellor. On ap- peal to the chancellor the order was affirmed. The defendant then appeal- ed to this court, and afterwards an- swered the bill. Held, that by answer- ing the appeal was waived. Brady v. Uonnelly, 126 An appeal will not lie to the court of appeals from a decision made in the supreme court, by one justice, at a special term. Grade v. Iceland, 228 Where tho decree or order appealed from was made before the 1st of July, 1848, when the code of procedure took effect, the right of appeal, the time within which it must be brought, and the form of bringing and prosecuting it, depend upon tho law as it stood when the decision was made; but where the decision was after that day, whether in a suit pending on that day, INDEX. 615 or commenced subsequently, the righ of appeal, the time within which it must be taken, and the mode of pro- cedure, are regulated by the code. The Mayor, &c., of New- York v. Schermer- horn, 423 . An interlocutory order was made by the supreme court in equity, and notice thereof served 19th May, 1848. An appeal was taken July 24th, 1848 ; held, that such appeal, being barred by the lapse of fifteen days, according to the statute in force before the code of procedure took effect, was too late, id . An order of the supreme court at gen- eral term, denying an application for a rehearing, is interlocutory within the meaning of the statute requiring an appeal to be brought within fifteen id 9. An order was made by the chancellor on the 23d of June, 1848, denying a motion to vacate a decree and for leave to take proofs. An appeal was brought in the mode prescribed by the code of procedure, on the llth of July, 1848 ; held, that such appeal should have been made in the form prescribed by the statute and rules in force before the code of procedure took effect. Spaulding v. Kingsland, 426 10. Held further, that the code of proce- dure gives no new right of appeal from an order made before it took effect, and that the chancellor's order in question, being upon a matter addressed to his discretion, was not the subject of ap- peal, according to the previous rule in such cases. id 11. When an appeal under the judiciary act of December, 1847, (Slat. 1847, p. 639,) was brought prior to the 1st day of July, 1848, from a decision of the supreme court granting a new trial on a bill of exceptions ; held, that the ju- risdiction of the court to hear and de- termine such appeal was not taken away by the code of procedure. But- kr v. Miller, 428 12. "Whether appeals may still be brought from the decisions of the supreme court on bills of exceptions in cases where the action was pending prior to the first day of July, 1848, quere. id 13. It seems, that the code does not take away a right of appeal which had at- tached before it went into operation, id 14. The judiciary act of December, 1847, (Stat. of 1847, p. 639,) authorizing appeals from decisions of the supreme court on bills of exceptions, applies only to cases where the supreme court grants or refuses a new trial before any judgment in the cause ; and not to cases where that court reverses or affirms the judgment of a subordinate court. Brown v. Fargo, 429 15. "Where an appeal is brought under the code of procedure from two orders, an undertaking in the sum of $250 id not sufficient, although one of the or- ders embraced in the appeal is made at a special term of the supreme court, and therefore is not appealable to this court. Schermerhornv. Anderson, 430 16. The appellant allowed to amend his undertaking on terms. id 17. It rests in the discretion of the court of original jurisdiction to grant, con- tinue, or dissolve a temporary injunc- tion: and therefore a determination upon such a matter is not the subject' of appeal to this court. Van Der water v. Kelsey, 533 18. Under the provisions of the code of procedure, there is no-right of appeal to this court from an interlocutory de- termination of the supreme court, e. g. an order dissolving a temporary in- junction. Selden v. Vermilya, 534 19. An appeal will not lie to this court from an order of the supreme court in general term, denying an application to rehear an order made at a special term, where the order of the special term would not be the subject of appeal to this court, if it had been affirmed by the general term. Marvin v. Seymour, 535 20. A motion to compel a party to appear before a master and submit to an ex- amination is addressed to the discre- tion of the court of original jurisdiction, whose decision, therefore, cannot be reviewed in this court. id 21. "Where a writ of error was pending in the supreme court when the code of procedure took effect, and that court afterwards rendered judgment of af- firmance, there is no right of appeal to this court, the determination of the su- preme court being final under the pro- visions of the code. Graver v. Coon, 536 616 INDEX. 22. A statute, which takes away the right to a future appeal in an action pending and undetermined when the statute takes effect, is not unconstitutional, id 23. To render an appeal effectual for any purpose, an undertaking to pay costs and damages, pursuant to the 283d section of the code of procedure, must be executed. An undertaking under the 284th section to pay the sura re- covered in the court below and all damages awarded on the appeal, al- though necessary in order to stay pro- ceedings in the cases mentioned in that section, will not sustain the appeal. Langky v. Warner, 606 24. The court cannot amend an under- taking without the consent of the sure- ties, id 25. A final judgment was rendered in the supreme court in May, 1848, before the code took effect. After the code took effect, an appeal was brought accord- ing to its provisions. Held, that the judgment could be reviewed only by writ of error according to the old law. Appeal dismissed. Rice v. Floyd, 608 26. No appeal will lie to this court from a decision of .the supreme court grant- ing or refusing a new trial on bill of exceptions, whore such decision was made after the first day of July, 1848, when the code of procedure took ef- fect ; although the suit may have been commenced prior to that time. Tilley v. Phillips, 610 See COSTS, 1. CONSTITUTIONAL LAW, 3. APPOINTMENT. See HUSBAND AND \VIFK. 1. 4, 5, 6. / ARBITRAMENT AND AWARD. See CONTRACT, 2. ASSIGNMENT. 1. An assignment by a debtor, who is in- solvent, of hia property in trust for the benefit of a single creditor or surety, containing no provision for the benefit of creditors penenilly. is not \Vithinl the act of roiirrrrss \v!ik h ilcclnres the! United States entitled to priority o: payment, " in cases where a debtor not having sufficient property to pay all his debts shall make a voluntary as- signment thereof for the benefit of his creditors." Bouchavd v. Dias, 201 2. Accordingly, where a debtor made such an assignment of his property, and his surety in certain custom house bonds filed a bill, claiming that the United States had acquired a right to be first paid, and to be subrogated to that right on the grouned that as such surety he had been compelled to pay the bonds ; held, that the bill could no't be sustained. id See NON-IMPRISONMENT ACT. ATTORNEY. "Where the attorney for the plaintiff in error removed from the state, and no- tice had been given to the party to ap- point another attorney pursuant to the statute (2 R S. 287, 67,) held nev- ertheless, that a motion to quash the writ of error could not be made, with- out notice thereof to the plaintiff iu error. Jewell v. Schouten, 241 B BAILMENT. See PLEDGE. BANKRUPTCY. 1 . The bankruptcy of the husband, al- though it extinguishes the debt as to him, and suspends the legal remedy UM to her during the coverture, does not afford any ground for proceeding in equity to charge her separate estate. Vanderheyden v. MaUory, 45'2 2. The creditor in such a case may prove his debt and share in the distribution of the bankrupt's estate. id 3. Where the form of the pleadings is such that a party has had no opportu- nity of setting up fraud in avoidance of a. bankrupt's discharge, he may give the fraud in evidence on the trial with- out having pleaded it. Itnckmart v INDEX. 617 4. Accordingly, where a party who was sued in trespass for taking goods, pleaded not guilty and gave notice of justification under a judgment and ex- ecution against the plaintiff, and on the trial the plaintiff proved his discharge as a bankrupt obtained after the judg- ment was rendered ; field, that tho de- fendant might give fraud in evidence so as to avoid the discharge. id 5. In pleading a bankrupt's discharge, the facts on whichjurisdiction depends must be averred ; but when the dis- charge is offered in evidence, jurisdic- tion will be presumed until the con- trary appears. Per BROXSON, J. id Q. A. valid discharge in bankruptcy ex- tinguishes a judgment, so that the creditor who seizes the bankrupt's goods by virtue of the judgment and execution thereon, may be charged as a trespasser, even if he have no know- ledge of the discharge. Per BRONSON, J. id 7. But otherwise as to the officer making the levy. He is protected by the pro- cess regular on its face. id See HUSBAND AND WIFE, 4, 8. BETTING AND GAMING. 1. The losing party in an illegal bet or wager may recover from the stakehold- er the sum deposited by him, although the stakeholder by his direction, given immediately after the wager is deter- mined, has paid the money over to the winner. Ruckman v. Pitcher, 392 2. An action to recover money deposited on an illegal wager may be main- tained without demand. id 3. A wager upon the result of a horse race in Queens county is unlawful, notwithstanding the statutes autho- rizing and regulating the racintr of horses in that county. id 4. A party who stakes a sum of money on an illegal wager may recover so much thereof as belongs to himself without joining in the action other persons who contributed specific por- tions of the fund. id VOL. I. 7 BILL OF EXCEPTIONS. A bill of exceptions will not lie to review the exercise of the discretion of a cir- cuit judge on the trial of a cause, in disregarding a variance between the declaration and the proof. Conover v. Insurance Company of Albany. 290 BILLS OF EXCHANGE AND PROMISSORY NOTES. 1. One of two partners drew, in the name of his firm, a bill upon the plaintiff, payable to the order of B., and having forged the name of B. as endorser upon the bill, presented it to the Bank of Central New- York, had it discounted in the regular course of business, and applied the proceeds to his private use. The cashier of the bank endorsed the bill and transmitted it to the de- fendants for collection, and the plain- tiff accepted and paid it to the defend- ants. After discovering that the payee's endorsement was forged, he sued to recover back the money so paid. Held, that the action could not be maintained. Coggill v. The Ameri- can Exchange Bank, IK! 2. B. the payee, being a stranger to the transaction, and having no interest in tho draft, his endorsement was not necessary in order to transfer a good title to the party discounting the pa- per, or to entitle such party to receive the money upon it. id 3. The plaintiff, having accepted and paid the bill under these circumstan- ces, would have a right to charge the amount against the funds of tho draw- ers in his hands, or, if there were none, to maintain an action against them for money paid to their use. id 1. The case of The Canal Bank v. T), Bank of Albany, (1 Hill, 287,) com- mented upon and approved ; but dis- tinguished from this case, inasmuch ;w there, tho endorser whoso name w:is forged, was the owner of the draft, and the only person entitled to receive the money upon it. Per BROXSOX, J. id 5. It seems that the drawers, after hav- ing passed the draft with the payee's name endorsed upon it. and received the avails of it, in an action against them would be estopped from contro- vertingthe genuineness of the endorse- ment, id 618 INDEX. 6. Where a bill is put in circulation by the drawer, with the endorsement of the payee forged upon it, a bona fide holder may treat it as a bill payable to bearer. Per BRONSOX, J. id 7. In a strict and technical sense, the term protest, when used in reference to commercial paper, means only the for- mal declaration drawn up and signed by a notary, but, in a popular sense and as ased among men of business, it includes all the steps necessary to charge an endorser. Coddington v. Davis, 186 8. Therefore, where an endorser of a note, before its maturity, wrote to the holder, saying : " Please not protest T. B. C.'s note due, &c. &c., and I will waive the necessity of the protest thereof," held, that this dispensed with a demand of the maker and notice to the endorser. id 9. A demand of payment from the ma- ker of a note, and notice to the en- dorser, are sufficient to charge the en- dorser, without a technical and for- mal protest. id 10. Where a note, specifying no place of payment, was made and endorsed in the state of New-York, but the maker and endorser resided in a for- eign country, and continued to reside there when the note fell due, their place of residence being known to the payee and holder, both when the note was given and when it matured ; held, that presentment of the note to the maker, demand of payment from him, and notice to the endorser, were necessary in order to charge the en- dorser. Spies -v. Gilnwre. 321 11. F. being indebted to S., in order to obtain further time for payment, exe- cuted to him a note payable to the order of S. Before the note was deliv- ered to 8., G. endorsed it. The pur- pose for which the note was made being known to him, and it being part of the arrangement that he should become security for F. Held, that G. was liable only as endorser, and not as a joint maker, or as a guarantor, id 1 2. The case of Ifall v. Ntwcomb, in er- ror. (7 //('//, 41 G.) referred to, and the doctrine there established, reaffirmed. id 13. Due presentment fur payment and notice of non-payment are conditions precedent to the liability of an endor- ser of a promissory note. Cayuga County Bank v. Warden, 41IJ 14. No precise form of words is neces- sary in giving notice. It is sufficient if the language used is such as to convoy, either in express terms or by necessary implication, notice to the endorser of the identity of the note, and that payment, on due present- ment, has been neglected or refused by the maker. id 15. Where a notice misdescribes the note in some particular, it may be shown in aid of the defect that there was no other note in existence to which the description contained in the notice could be applied. id 16. A notice of protest need not in terms state that a demand has been made upon the maker. It is sufficient if it state that the note has been protested for non-payment. id 17. The defendants were endorsers upon a note for $600, payable to their joint order at the plaintiffs' bank. The no- tices of protest were dated at the bank on the last day of grace, and were ad- dressed to the defendants severally. They had the character and figures "$GOO" in the margin. In the body they ran thus : " Sir, take notice that >S. Warden's note for three hundred dollars, payable at this bank, endorsed by you, was this evening protested for non-payment, and the holders look to you for the payment thereof." It was proved that there was no other note in the bank made by S. Warden and endorsed by the defendants. Held, that the notice was sufficient to charge the endorsers. id See INSURANCE, 5, 6, 7. BONDS. See OFFICE AND OFFICER, 1, 2, 8. INDEMNITY. CERTIORARI. See LANDLORD AND TKNANT, 4. INDEX. 619 CHALLENGE OF JUROR. See JUROR. CHANCERY. Where a party, claiming an estate by inheritance, files a bill for the purpose of setting aside a will, and dies pend- ing the suit, his devisee may file an original bill in the nature of a bill of revivor and supplement, and if his right as devisee be admitted or estab- lished, he will be entitled to the bene- fit of the proceediags in the original suit. Brady v. McCosker, 214 See APPEAL. PLEADINGS IN EQUITY. PARTIES TO ACTIONS, 1. MONEY HAD AND RECEIVED. COVENANT, 3. MORTGAGE, 1, 2, 3, 4. MARSHALLING SECURITIES. HUSBAND AND WIFE, 1, 2, 4, 5, 6, 9, 10, 11. CITIES AND VILLAGES. See SALE FOR TAXES AND ASSESSMENTS. CLERK IN CHANCERY. See MORTGAGE, 1, 2, 3, 4. CONSIDERATION. See CONTRACT, 3, 4, 5. INSURANCE, 7. COVENANT, 3. CONSTITUTIONAL LAW. 1. Under the new constitution of this state, it is the right and the duty of a judge of the court of appeals to take part in the determination of causes brought up for review from a subordi- nate court, of which he was a mem- ber, and in the decision of which he took part in the court below. Pierce v. Ddamater, 17 2. The judgment of the supreme court in this case, determining that the act to extend the exempt ion of personal prop- erty from sale under execution, passed April 11, 1842, is unconstitutional and void as to debts contracted before its passage, affirmed. Danks v. Quack- enbush, 129 3. A statute which takes away the right to a future appeal in an action pend- ing and undetermined when the stat- ute takes effect, is not unconstitu- tional. Graver v. Coon, 536 CONSTRUCTION OF INSTRU- MENTS. 1. Where two instruments are executed on different days, relating to the same subject matter, and the one last exe- cuted refers to and is based upon the former one, in arriving at the inten- tion of the parties in the latter instru- ment, both should be read and con- strued together; and the general words, used in the last, should be restricted so as to conform to the in- tention of the parties as derived from an examination of both instruments. Coddington v. Davis, 186 2. Accordingly, where the maker of a note made an assignment to one of the holders for the benefit of his creditors, in which the endorser was named and preferred as a creditor to the amount of the note, and the holders were named and preferred as creditors on another account, but were nowhere set down as creditors in respect to the note, and the holders, in conjunction with other creditors, afterwards exe- cuted to the maker an instrument re- ferring to the assignment, and agree- ing, in consideration thereof and of one dollar, to discharge the maker from all claims and demands existing in their favor respectively against him, over and above what they might real- ize under the assignment, on his agree- ing at the same time to pay the bal- ance of their debts in seveu years, and. the maker at the same time gave to the holders his written promise to pay such balance in seven years ; held, that the claim of the holders to recover the note of the maker was not dis- charged or suspended, the instrument being regarded as only applicable to their other demand against the maker; and therefore farther h?ld, that their right to recover against the endorser was not ati'ected by such instru- ment, id 620 INDEX. See DEED. LEGACY AND LEGATEE, 3, 4. LANDLORD AND TENANT, 3. CONTRACT, 1, 2. CONTRACT. 1. S. contracted with the corporation of the city of New- York to furnish all the materials and labor necessary to com- ' pleto the excavation, re-filling, and re- paving of a trench of specified dimen- sions for water pipes. The corporation agreed to pay, as a " compensation for auch excavation, re-filling, and re-pav- ing," as follows : "For executing the digging" and re-filling, seven cents per \ cubic yard ; for re-paving, &c., four I cents per square yard. A considera- ble portion of the trench was exca- vated through hardpan, and this was ! proved to be worth 75 cents per cubic | yard. Another portion was through ! rock, worth $1.00 per cubic yard. It was also shown that seven cents (the contract price) per yard was the low- est price lor excavating common earth. JMd, nevertheless, that S. could re- cover nothing beyond the contract price, and that extrinsic evidence was not admissible to prove the value of excavating hardpan and rock. Sher- man v. The Mayor, &c., of New- York, 31G 2. The contract provided that, as the work progressed, the engineer of the corporation should, upon the request of the contractor, make estimates of the work done, which estimates were to be paid on tho next pay day, less ten per cent ; also that when the work was done, tho engineer should make a final estimate of all moneys due lo tlic contractor, and then the whole \ to be paid. The engineer accordingly \ made a final estimate. It seems, how- over, competent in such a case, to re- sort to other proof of the amount of the work. X The endowment of a literary institu- tion is not a sufficient consideration to uphold a subscription to a fund de- signed for that object. Trust* >* of Hamilton Colleger, Stewart. 581 4. And although there is annexed to the subscription a condition that the sub- scribers are not to be bound unless a given amount shall be raised, no re- quest can be implied therefrom against tho subscribers that tho institution shall perform tho services and incur the expenses necessary to fill up tho subscription. id . Accordingly, where tho defendant sub- scribed $800 to a fund for the payment of the salaries of tho officers of Hamil- ton College, and a condition was an- nexed that the subscribers were not to bo bound unless tho aggregate amount of subscriptions and contribu- tions should be $50,000; held, that there was no consideration for the un- dertaking and that no action would lio upon it, although there was evi- dence tending to show that the whole amount had been subscribed or con- tributed according to tho terms of tho condition. id See CONSTRUCTION OP INSTRUMENTS. OFFICE AND OFFICER, 1, 2, 3. INDEMNITY. WITNESS, 1, 2. CONVEYANCE. See DEED. CORPORATIONS. Where tho charter of an incorporated company provides that tho stockhold- ers shall bo liable for its debts, and that a creditor may, after judgment obtained against the corporation, and execution returned unsatisfied, sue a iv stockholder and recover his do- i) and, such stockholders are liable in a i original and primary sense, liko partners or members of an unineorpo- led association, and their liability U >t created by tho statute of incorpo- tion. Corning v. Me Cullough, 47 2. It seems, that on the dissolution of a corporation, the title to real estate held by it reverts back to it original grantor and his heirs, unless there is some provision in the charter, orsomo other statutory provision to avert that consequence. Ui/igham v. Weider- u-ax, 500 See LIMITATION" OF ACTIONS, 1. SALK FOR TAXES AND ASSESSMENTS. INSURANCE, 1, '2. JURISDICTION, .>, 4, 5. INDEX. 621 COSTS. 1. Costs on an appeal to the court of ap- peals are in the discretion of that court, and when the decree of the court below is reversed, it should be without costs. Bouhaudv. Lias, 201 2. A defendant in error, who was prose- cuted in the court below for an act done by him as a public officer, is en- titled to double costs in error, on the affirmance of the judgment. Burkle v. Luce, 239 3. Where the action was commenced be- fore the code of procedure took effect, this court may grant costs on a special motion ; and the amount is to be set- tled by taxation. Lyme v. Ward, 531 4. But where the suit is commenced af- ter the code took effect, this court cannot grant costs to the party who makes a special motion. id See PARTIES, 1. DEFAULT. COURT OF APPEALS. See CONSTITUTIONAL LAW, 1. COURT OF A JUSTICE OF THE PEACE. The defendant, in a justice's court, claimed the property by virtue of a personal mortgage, which was read in evidence without objection. It also ap- peared that the mortgage had been filed ; but the return of the justice did not show that there was any evidence that such filing was ill the town where the mortgagor resided, or where the property was situated, as required by the statute, (Laws 0/1833, chap. 279,) nor did it appear, from the return, that the plaintiff', who claimed the property as purchaser under an exe- cution against the mortgagor, made any objection on the ground of such defect in the evidence ; held, that such an objection could not be taken in the court of common pleas on certiorari. Jtncks v. Smith. 90 COURTS OF THE UNITED STATES. Sea JURISDICTION. 6, 7, 8. COVENANT. 1. The covenant of seisin, if the grantor has no title, is broken as soon as the deed is executed, and the grantee's right of action upon such covenant becomes immediately perfect. Bing- ham v. Weiderwax, 509 2. Nor is it any defence, either at law or in equity, to such an action, that the premises have been sold and the gran- tee dispossessed under a mortgage which the grantee assumed to pay. and subject to which he took the con- veyance, id 3. In the action upon the covenant of seisin, for the purpose of ascertaining the measure of damages, the true con- sideration, and the fact that only part of it has been paid, may be shown by parol, although the deed expresses a different consideration, and acknowl- edges that the whole of it has been paid ; and there is therefore no occa- sion, in such a case, to resort to a court of equity for relief. id 4. The covenant of seisin is broken if the grantor at the time of the convey- ance do not own such things affixed to the freehold as would pass to the grantee by a conveyance of the land itself. Mott v. Palmer, 564 5. Accordingly where the grantor cov- enanted in the conveyance that he was the lawful owner of the premises and seised of a good and indefeasible inheritance therein, and a quantity of rails erected into fence standing on the premises was the property of another person by virtue of a previous agree- ment made with the grantor; held, that the grantee might maintain an action against the grantor for a breach of the covenant of seism. id CRIMINAL LAW. A. was indicted in the city of New- York for obtaining money from a firm of commission merchants, in that city, by exhibiting to them a fictitious re- ceipt signed by a forwarder in Ohio, falsely acknowledging the delivery to him of a quantity of produce for the use of and subject to the order of the firm. The defendant pleaded that he was a natural born citizen of Ohio. had always resided there, and had never been within the state of Now 622 INDEX. York; that the receipt was drawn and signed in Ohio, and the offence waa committed by the receipt being presented to the firm in New- York, by an innocent agent of the defendant, employed by him while he was a res- ident of and actually within the state of Ohio ; held, that the plea was bad, and that the defendant was properly indicted in the city of New-York. Adams v. The People, 173 2. "Where an offence is committed within this state by means of an innocent agent, the employer is guilty as a prin- cipal, though he did no act in this state, and was at the time the offence was committed, in another state, id 3. In such case the courts of this state have jurisdiction of the offence, and if the offender comes within the limits of the state, they have also jurisdic- tion of his person, and he may be ar- rested and brought to trial. id 1. Where an offence is committed with- in this state, whether the offender be at the time within the state, or be with- out the state and perpetrates the crime by means of an innocent agent, it is no answer to an indictment that the offender owes allegiance to an- other state or sovereignty. id 5. Under the revised statutes (1 R. S. 665, 28) it is a misdemeanor to pub- lish in this state an account of a lottery to be drawn in another state or territo- ry.although such lottery be authorized by the laws of the place where it is to be drawn. Charles v. The People, 180 G. Accordingly held that a demurrer to an indictment which charged the de- fendant with publishing, in the city of New- York, an account of a lottery to be drawn in the district of Columbia, was not well taken. id See INDICTMENT. CUSTOM HOUSE. See MONEY HAD AND RECEIVED. D DAMAGES. See FuAri). 2. 4, 5. DEBTOR AND CREDITOR. See NON-IMPRISONMENT ACT. ASSIGNMENT. DECREE. See APPEAL, 8. > DEED. 1. Where a deed given in 1829 contained a clause by which it was made subject to a reservation contained in a convey- ance of the same premises given in 1793, between other parties, and the question was upon the construction of the deed of 1829; held, that it was to be construed in the same manner, as though the language of the reservation as contained in the original deed were incorporated into and formed a part of the one in question. French v. Car- hart, 96 2. In the construction of deeds and other instruments the intention of the parties is to govern, and where the language used is susceptible of more than one interpretation, courts will look at the surrounding circumstances existing when the contract is entered into, such as the situation of the parties, and of the subject matter of the contract, id 3. A conveyance of real estate contained a clause referring to and adopting the reservations and conditions in a former conveyance of the same premises, and the reservation in such former convey- ance was in these words: " Saving and always excepting to the said parties of the first part, their heirs and as- signs, out of this present grunt and release, all mines and minerals, that are now, or may bo found within the premises hereby granted and released, and all the creeks, kills, runs and streams of water, and so much ground within the same premises, as they, the said parties of the first part, their heirs and assigns may think requisite and appropriate at any time hereaf- ter, for the erection of the works and buildings whatsoever, for the con- venient working of the said mines, and also all such wood, firewood atnl timber as they may think proprr to use in building, repairing, airom modating. and working the sai-1 niiiu's, with liljfrty to them, their heir*, and assigns, and their and each of their INDEX. 623 servants to dig through and use the ground, for either of the said purposes, and to pass and repass through the premises, with their and each of their horses and cattle, carriages and ser- vants, and to layout roads therefor," and the habendum clause contained a condition that the grantee, his heirs, &c., should not erect, or permit to be erected, any mill or mill dam upon the stream of water on the premises grant- ed ; held, that the reservation of the stream was for all purposes and not for mining purposes merely. id 4. And in aid of this construction ; held also, that it was proper to consider the evidence, which showed that when the deed in question was given, the grantor owned the premises immediately be- low, on which were situated and used a mill and dam, which set the water back onto the land conveyed, and that the grantee knew of the existence of such mill and dam, and of the manner in which the stream was affected by their use. id 5. Held also, that the reservation was not merely of the natural bed of the stream, but of a right to use the stream in the same manner, and to set back the wa- ter to the same extent, as when the grant was made. id 6. Whatever is necessary to the fair and reasonable use of the thing excepted,is also reserved as incident to the excep- tion, id 7. A reservation, in a deed, of a right or privilege should be construed in the same way as a grant by the owner of the soil, of a similar right or privilege. Per JEWETT, C. J. id See EVIDENCE, 1, 2. COVENANT. DOWER. ESTOPPEL. PAKOL EVIDENCE. DEFAULT. Where a default is regularly taken in a calendar cause, the court will impose the payment of counsel fee, besides taxable costs, as one of the conditions of setting it aside at a subsequent term. Slade v. Warren. 431 DEMAND. An action to recover money deposited on an illegal wager may be maintained without demand. Ruckman v. Pitcher, 392 See SPECIAL VERDICT, 3, 4. TROVER. DEPOSITION. See EVIDENCE, t, 8. DEVASTAVIT. See EXECUTOR, 3. DEVISE. DOWER. 1. In ejectment for dower against a gran- tee of the husband by quit claim deed, or a person holding under such grantee, the defendant is not estopped from showing that the husband was not seized of such an estate in the premises as to entitle his widow to dower. Sparrow v. Eingman, 242 2. The cases of Sherwood v. Vanden- lurgh, (2 Hill, 303,) Bown v. Potter, (17 Wend. 164,) and other similar cases in the supreme court, considered, and in this respect overruled. id E EASEMENT. See ADVERSE POSSESSION. EJECTMENT. S:-s DOWEH. 624 INDEX. ELECTION. See MORTGAGE, 4, 5. EXTINGUISHMENT, 3. ENTAILS. See ESTATES TAIL. EQUITABLE CONVERSION. See EXECUTORS, 1, 2. ERROR. J. An error in the court below, which on its face could do no possible injury, is no cause for reversing a judgment. But where the error is in the admission of illegal evidence which bears in the least degree on the result, it cannot be disregarded. Per JEWETT, C. J. Wor- rall v. Par melee, 519 '.'. Accordingly, where illegal evidence tending to establish a certain fact was received after objection duly made ; held, that the error could not be disre- garded, although the party objecting afterwards introduced evidence which tended to establish the same fact, id See COSTS, 2. ESTATES. See WILL. ESTATES TAIL. 1 . A remainder in fee limited by will to the eldest son of the first taker to whom j an intermediate life estate is given, is contingent until the birth of such son ; but on the happening of that event be- fore the termination of the life estate it becomes a vested estate in remainder. Wendell v. Crandall, 491 2. And where an estate tail in remainder was so limited, and became vested by the birth of a son prior to the act of | 1780, abolishing entails; held, that by j the operation of that act, the estate tail ' in remainder was converted into a fee 1 4, simple in remainder, which, on the) death of the remainderman without issue in 1809, and before the termina- tion of the intermediate life estate, de- scended to his father as hishoir at law. 3. One who has a vested remainder in fee simple, expectant on the determination of a present freehold estate, has such a seisin in law, where the estate was ac- quired by purchase, as will constitute him a stirps or stock of descent. id ESTOPPEL. See DOWER. EVIDENCE. 1. The act of 1833, (Laws of 1833, ch. 271, 9,) in relation to the proof and acknowledgment of written instru- ments, has not changed the provision of the revised statutes which requires a certificate of the county clerk in order to entitle a conveyance of real estate, proved or acknowledged before a com- missioner of deeds or county judge not of the degree of counsellor, to be read in evidence or recorded in any other county than that in which the commis- sioner or judge resides. Wood v. Wei- ant, 77 2. Accordingly held, that a conveyance of real estate, acknowledged before a commissioner in and for the county of Orange, in 1836, could not be read in evidence at the circuit in Roekland county, without the certificate of the clerk of Orange county. id 3. Where the original execution upon which a levy had been made was lost, and the supreme court from which it issued ordered, on motion, that a new one like the original be issued as a sub- stitute therefor, that the sheriff's certi- ficate of the levy be endorsed thereon, and that such substituted execution and certificate have the same force and effect as the original would have, and a new execution was issued and en- dorsed accordingly ; held, that the same was admissible as primary evi- dence to prove and justify the levy without showingthc loss of the origin- al Jlurkle v. Luce, 1G3 It seems that where one party receives money from another, and there is no INDEX. 625 explanation of the fact, the presump- tion is that he receives it because it is his due, and not by way of loan. JBo- gertv. Morse, 377 5, But where a witness testified, that he asked the defendant if he had had any money of the plaintiff, and the defen- dant replied that he had had twenty dollars of him, and the ivitness then told the defendant that the plaintiff had re- quested the. ivitness to speak to him about it, to which the defendant modi no reply, but turned away ; HELD, that a jury might infer from this evidence that the money was received by way of a loan, and the jury having so found, that their verdict in a justice's court was conclusive. id G. "Where the cross-examination of the principal witness for the people was conducted in a manner tending to im- pair her credibility, and to show that the prosecution was the result of a con- spiracy in which she was concerned ; held that it was competent to sustain the witness, by showing that another person, to whom the facts had become professionally known, wrote to the public authorities, and was the cause of the prosecution being instituted. Lohman v. The People, 380 7. The deposition of a witness taken in a criminal case pursuant to the statute relating to certain offences committed in the city of Now- York, (Stat. of 1844, p. 476, 11,) may be read in evidence on the trial of the indictment, on proof that the witness is a non-resi- dent of the city at the time of the trial, and was so when the deposition was taken. Barron v. The People, 386 3. Where, however, the only proof pre- liminary to reading the deposition was the evidence of a person employed by the district attorney to serve subpoenas, who testified that a subpoena was is- sued to him for the witness whose de- position was offered to be read, that he called at two hotels in the city, where, as he was informed by the district at- torney, the witness stopped when he was iu the city, that he inquired of the bar-keepers at each of those places, and was informed that the witness was not at either of those places, and did not live in New-York to their knowl- edge, that he could not find the wit- ness in the city, and did not know where he resided ; held insufficient toi authorize the deposition to be read. id\ VOL. I. 79 9. The declarations of a former owner of personal property are not admissible in evidence to prove a sale of such property to a party claiming under him. Worrall v. Parmelee, 519 10. And where such evidence was duly objected to, and the party objecting afterwards called as a witness the per- son whose declarations had been given in evidence, and examined him in re- gard to the alleged sale; held, no waiver of the objection. id 11. The declarations of a person in pos- session of lands are competent evi- dence against himself and all persons claiming under him, for the purpose of showing the character of his pos- session, and by what title he claims. Pitts v. Wilder, 525 12. In an action for slander, it is not competent for the plaintiff to intro- duce evidence of his good character in reply to evidence introduced by the defendant tending to prove the truth of the charge. Houghtaling v. Kilderhouse, 530 See ACTION ON THE CASE. ADVERSE POSSESSION. BANKRUPTCY, 3, 4, 5. CONTRACT, 1, 2. ERROR. INDICTMENT, 4. INSURANCE, 2. JURISDICTION, 3, 4. JUROR. PAROL EVIDENCE, 1, 2. SLANDER. TROVER. WITNESS. EXCEPTION. See BILL OF EXCEPTIONS. ERROR. TRIAL. EXECUTION. See BANKRUPTCY, 6, 7. CONSTITUTIONAL LAW, 2. EVIDENCE, 3. EXTINGUISHMENT, 3. MoRTfJACK OF CHATTELS, 1, 2. PLKUGE. IlilPI.EVIX. 1. 626 INDEX. EXECUTORS. 1. Where a testator devised and be- queathed all his real and personal es- tate to his executors, in trust, to sell the same whenever they should see fit ; also with authority to lease the same, and directed the executors to divide the whole trust estate into nine equal parts, and pay over and convey one of said parts to each of his four chil- dren who were of age, and to hold the remaining five parts until his minor children should respectively become of age, and to pay over and convey to them their shares as they should be- come of age ; held, that the executor could be compelled to account before the surrogate, not only for the personal estate bequeathed to him, but also for the rents and profits of the real estate, and for the proceeds of such real es- tate as he had sold pursuant to the directions contained in the will. v. Jackson, Stagg 206 2. It seems, upon the doctrine of equita- ble conversion, that under such a will the whole estate is to be considered as personal estate from the death of the testator, so that the rents and profits of the real estate received by the exec- j 3 utor, and the proceeds of a sale there- of made by him, become legal assets in his hands, for which ho is bound to account as personal estat,'. id 3. An executor, who was also a devisee and legatee, died insolvent, having wasted .a large portion of the estate, and leaving unpaid a debt againt the testator, and also a judgment against j himself for a debt in no way connected | with the estate, which judgment was| a lieu on his share as devisee in certain real estate of the testator. His co- devisees and legatees were his heirs at law, and as such took his share in the real estate ; and having paid the whole debt against their testator, they filed their bill against the judgment creditor of the deceased executor, claiming to be substituted to the lien of the cred- itor whom they had paid, upon the ex- ecutor's share in such real estate, and to restrain the sale thereof by the judg- ment creditor; also claiming a lien thereon in consequence of the deuas- tavit of which the executor had been guilty. Hdd that the bill could not be sustained. Wilkes \. Harper, 5SG See Po\vi:n. LKI;.\CV AND LI-X;ATKK, 7. EXECUTORS AND ADMINIS- TRATORS. See JURISDICTION, 6. EXEMPTION ACT. See CONSTITUTIONAL LAW, 2. EXTINGUISHMENT. . A judgment confessed by the mort- gagor to the mortgagee for the same debt secured by a personal mortgage, does not merge or extinguish the mortgage, where by agreement the judgment is taken as collateral mere- ly. Butler v. Miller, 496 . And even where there is no agree- ment that the judgment shall bo held as collateral, quere ; whether a judg- ment for the debt can work an extin- guishment of the mortgage. The case of Butler and Vosburgh v. MiUer, (1 Denio, 407,) referred to and questioned in this particular. id But where execution upon a judgment confessed for the mortgage debt was issued, and levied upon the chattels mortgaged, which were advertised for sale thereunder, and after the same property was sold upon another exe- cution against the mortgagor, the mortgagees moved the supreme court for an order directing the sheriff to apply the proceeds of the sale upon their execution ; held, in an action of trover by the mortgagees against the sheriff who made the sale, that these acts were repugnant to any claim un- der the mortgage, and precluded the plaintiffs from so claiming the prop- erty, id See BANKRUPTCY, 6. F FALSE PRETENCES. See CRIMINAL LAW, 1. FIXTURES. It pcems that rails built into fence by a tenant, under an agreement that he INDEX. 627 may remove them from the land, are, as between such tenant and the owner of the soil, personal property. Molt v. Palmer, 564 See COVENANT, 4, 5. FORGED ENDORSEMENT. See BILLS OP EXCHANGE AND PROMIS- SORY NOTES, 1, 2, 3, 4, 6, 6. FORMER SUIT. See INDICTMENT, 4. JURISDICTION OP CHANCERY, 6, 7. FRAUD. 1. Where one conveys or leases to an- other his right in real estate, an action will lie for a fraudulent representation as to the territorial extent of such right. Whitney v. Allaire, 305 2. And in such a case the proper mea- sure of damages in favor of the lessee is the sum which in good faith he is obliged to pay a third person to ob- tain what the lease would have given him if the representation had been true. id 3. A demise for a term commencing in futuro passes a present interest in the term to the lessee. id 4. And the lessee by taking possession at the commencement of the term, and after having discovered the fraud waives thereby only his right to re- scind the contract, but not his right to recover the damages occasioned by the fraud. id 5. The defendant, in February, executed to the plaintiff a writing under seal, stating that he had hired of the plain- tiff a certain water lot and his right to a wharf in the city of New- York, for one year from the first of May next, at $1000 rent. He was induced to make the contract through the fraudulent representations of the plaintiff, that the right mentioned in the lease com- prehended a parcel of land which in fact belonged to the corporation of the city of New-York. The defendant dis- covered the fraud before the first of May, and obtained from the corpora- tion a lease for that parcel at an an- nual rent of $1000. On the first of May he took possession of the whole and occupied during the year. In covenant for the rent ; held, that he was entitled to a deduction by reason of the fraud, of the sum which he was obliged in good faith to pay for the corporation lease. id 6. It seems, that an action will lie for a fraudulent representation by which a party is induced to enter into a con- tract which is executory merely. Per GARDINER, J. id 7. It seems also, that where one conveys or leases real estate, an action will lie for a fraudulent representation as to the title. id 8. It seems, that the question of fraud in a personal mortgage should be sub- mitted to the jury, although no change of possession accompanies the mort- gage, and the verdict of the jury in favor of the bona fides of the transac- tion will be as conclusive as upon any other question of fact. Butler v. Mil- ler, 496 See PARTIES TO ACTIONS, 1. FRAUDS, STATUTE OF. 1. Plaintiff and defendant bargained re- specting the sale, by the former to the latter, of a quantity of lumber, piled apart from other lumber, on a dock and in view of the parties at the time of the bargain, and which had before that time been measured and inspect- ed. The parties having agreed as to the price, the plaintiff said to the de- fendant, " the lumber is yours? The defendant then told the plaintiff to get the inspector's bill, and take it to one House, who would pay the amount. This was done the next day, but pay- ment was refused. The price was over fifty dollars. Held, in an action to re- cover the price, that there was no de- livery and acceptance of the lumber, within the meaning of the statute of frauds, and that the sale was therefore void. Shindler v. Houston, 261 2. It seems that to constitute a delivery and acceptance of goods, such as the statute requires, something more than mere words is necessary. Superadded to the language of the contract, there must be some act of the parties, 628 INDEX. amounting to a transfer of the posses- sion, and an acceptance thereof by the buyer. The case of cumbrous articles is not an exception to this rule. id G GROWING CROPS. See PROPERTY. GUARANTY. See BILLS OP EXCHANGE AND PROMISSO- RY NOTES, 11, 12. SUBROGATION, 2, 3. H HUSBAND AND WIFE. 1. The separate estate of a married wo- man is not liable at common law for her debts contracted before marriage ; and the only ground on which it can be reached in equity, is that of ap- pointment, i. e. some act of hers after marriage indicating an intention to charge the property. Vandkrheyden v. MaUory, 452 '2. The bankruptcy of the husband, al- though it extinguishes the debt as to him, and suspends the legal remedy as to her during the coverture, does not afford any ground for proceeding in equity to charge her separate es- tate, id Ii. The creditor in such a case may prove his debt and share in the dis- tribution of the bankrupt's estate, id 4. A feme sole, having contracted a debt, and owning some shares of bank stock, married. After marriage, the stock, with the consent of the husband, was transferred to a third person for the purpose of having it transferred back to her for her sole and separate use, which was accordingly done. She also held other shares of bank stock which had been transferred to her separate use by the executor of her father's es- tate. The creditor sued the husband and wife at law, and being nice by a plea of the husband's bankruptcy. anri is sold. th<- | TOO < nal property, INDEX. 629 belong to the husband, subject only to the equitable right of the wife to a support therefrom; and equity will not interpose in such a case in her favor, where suitable provision is oth- erwise made for her, or where she is living in a st ate of unjustifiable sepa- ration from her husband. id 11. Accordingly, where the wife owned a dower interest in four-sixths of cer- tain real estate of which her former iiusband died seized, and owned in fee the remaining two-sixths, and the husband and wife united in a sale, and out of the proceeds of such sale the sum of $3,000 was paid, without the husband's assent, upon a mort- gage which encumbered the wife's separate estate : held, that the hus- band had a claim upon such separate estate to that extent. id 12. But another sum of $2,000 out of such proceeds appearing to have been paid upon the same mortgage with the husband's unqualified assent; held, that such payment was a valid appro- priation of that sum to the wife's sepa- rate use, and that in respect to it the husband had no claim upon the sepa- rate estate. id ILLEGAL CONTRACT. See BETTING AND GAMING, 1, 2, 3. OFFICE AND OFFICER. WITNESS, 1. 2. IMPRISONMENT FOR DEBT. See N INDEMNITY. 1. In contracts of indemnity, where the obligation is to perform some specific thing or to save the obligee from a charge or liability, it seems the con- tract is broken when there is a failure to do the specific act, or when such charge or liability is incurred. Gil- bert v. W a man, 550 damage or molestation by reason of the acts or omissions of another, or by reason of any liability incurred through such acts or omissions, there is no breach until actual damage is sus- tained, id , And in such cases a judgment recov- ered against the party indemnified, on account of the acts or neglect of an- other for which he is answerable, without payment of the judgment, or some part thereof, does not entitle him to sustain an action against the indemnitors. id , A deputy sheriff and his sureties exe- cuted to the sheriffabond, conditioned that the deputy should so demean himself in all matters touching his duty, that the sheriff should not sus- tain any damage or molestation by rea- son of any act done or liability incur- red by or through such deputy. The sheriff was sued and judgment recov- ered against him for a default of the deputy in not returning an execution. Other judgments were also recovered against him and his sureties upon bonds given to discharge himself from arrest under attachments issued against him for not returning other executions in the hands of the deputy. No part of the judgment having been paid by the sheriff, and no actual damage being shown, held, that there was no breach of the bond of the deputy and his sureties, and that the sheriff could not maintain an action thereon. id INDICTMENT. 1. "Where the indictment charged the defendant with publishing an account of an illegal lottery, and set forth in hcec verba the lottery scheme, which showed that the prizes consisted of sums of money ; held good, although it was not otherwise averred that the lottery was set on foot for the purpose of disposing of money, land. &c. Charles v. The People. 180 2. Mere surplusage in an indictment will not vitiate, and therefore where an indictment alleges facts which consti- tute a misdemeanor, it will be good for that offence, although it state other facts which go to constitute a felony, provided all the facts alleged fall short of the charge of fel< >:iy ii: < onsequeiico of some other fhrts c-^.ri.iial to that change, c. g. tiie ii:U'i:l of the party ac- 630 INDEX. cused not being averred. Lohman v. The People, 379 3. By statute (Laws of 1845, ch. 260, 2) it is a misdemeanor to administer drugs, &c., to a pregnant female with intent to produce a miscarriage ; and by statute (Laws of 1846, ch. 22, 1) it is manslaughter to use the same means with intent to destroy the child, in case the death of suoh child be thereby produced. The indictment charged all the facts necessary to con- stitute the crime of manslaughter, ex- cept the intent with which the acts were done, and in its conclusion it characterized the crime as manslaugh- ter ; but the only intent charged was an intent to produce a miscarriage : HELD, that the indictment was fatally defective for the felony, but good for the misdemeanor, and that the ac- cused was properly convicted of the latter offence. . id 4. A conviction for a misdemeanor under such an indictment would, it seems, be a bar to a subsequent indictment for the felony. The record would be conclusive evidence that the acts were done with the intent alleged in the in- dictment, and therefore the people could not allege a different intent, so as to constitute a different offence, id See CRIMINAL LAW. INJUNCTION. See APPEAL, 17, 18. INSOLVENT CORPORATIONS. See JURISDICTION, 3, 4, 5. INSURANCE. 1. Where a policy of insurance prohibit- ed an assignment of the interest of the assured, "unless by the consent of the company manifested in writing," and the secretary, on an application to him at the office of the company, endorsed Upon the policy and subscribed a con- sent, it scorns that his authority to do so, in the absence of evidence to the contrary, should be presumed. Con- over v. Insurance Co. of Albany, 290 2. But if it were necessary to prove his authority, a formal resolution of the board of directors need not be shown, Evidence that the secretary, he being the sole agent of the company in trans- acting business at their office, has been in the uniform habit of giving such consent, in writing, and made regular entries of his acts in the books of the company, without any objection or re- pudiation on the part of the company, is enough at least to carry the question of authority to the jury. id 3. A mortgage given by the insured upon the property covered by the policy, is not an alienation by sale or otherwise, within the meaning of the seventh section of the charter. (Laws of 1836, p. 315 and 44.) id 4. And notwithstanding such mortgage, and an assignment of the policy to the mortgagee, with the consent of the company, a suit upon the policy to re- cover for a loss must be brought in the name of the insured. id 5. Where the charter of a mutual in- surance company authorized such company, "for the bettor security of its dealers," to receive premium notes in advance, of persons intending to take policies, and to negotiate such notes for the purpose of paying claims or otherwise, in the course of its busi- ness, and to pay to the makers of such notes a compensation not exceeding five per cent per annum, on so much of the notes as exceeded the premi- ums on policies actually taken ; held, that a note taken by the company in pursuance of its charter for premiums in advance, was valid and effectual for the whole face thereof, although the premiums on insurances actually received by the maker, amounted to only a part of such note. Deraismes v. The Merchants' Mutual Ins. Co. 371 6. It seems, that a notice so given is valid by force of the statute authori/.ing it to be taken, and therefore that a par- tial faih're of consideration cannot bo set up to defeat a recovery of the full amount. id 7. But if a consideration is necessary, the concurrence of others in giving similar notes for the purpose of giving a credit to the company in pursuance of an agreement entered into by all the ma- kers; the contemplated advantages of insurance in such company, and the compensation authorized to bo paid to the makers on such an amount as tho INDEX. 631 notes should exceed the premiums on insurances actually taken, constitute a sufficient consideration to uphold such a note id JUDGMENT. See EXTINGUISHMENT. JURISDICTION. 1. The court of appeals does not lose ju- risdiction of a cause brought up by writ of error, until the remittitur is actually filed with the clerk of the court below. Burkle v. Luce, 239 2. Where after affirmance of the judg- ment of the court below, a remittitur has been sent to and filed with the clerk of that court, this court loses ju- risdiction of the cause, so that it can- not open a default therein. Martin v. Wilson, 240 3. By statute (2 R S. 464, 41, 42 ; id. 469, 67, 68, 72 ; id. 43, 12) whenever a receiver of an insolvent corporation "shall show by his own oath or other competent proof" that any person is indebted to the corpo- ration, or has property of the corpo- ration in his custody or possession, the officer to whom the application is made shall issue a warrant to bring such person before him for examination. Under this statute it is sufficient for the receiver, who applies fora warrant, to swear to the facts, on information and belief. Noble v. Halliday, 330 4- Accordingly held, where the receiver of an insolvent corporation applied for a warrant under the above statute, and showed the facts only by his own oath on his information and belief, and a warrant was issued upon which the person proceeded against was taken and brought before the officer; held, in an action brought by such person against the receiver and others acting under the warrant for an assault and battery and false imprisonment, that the warrant was a good justification, id 5. Under the above statute, a person having in his custody as administrator of a deceased person, effects of the cor- poration, or indebted as such adminis- trator, is liable to be proceeded against ; and whore tho sworn petition, on which the warrant was granted, stated that such person had property of the corporation in his custody, either indi- vidually or as administrator, &c., held good. id 6. The circuit and district courts of the United States, though of limited juris- diction, are not inferior courts in the technical sense of the term. Per BEON- SON, J. Ruckman v. Cowell, 505 7. Trover may bs maintained in the courts of this state against a postmas- ter for improperly detaining a news- paper, although such detention is un- der color of the laws of the United Slates and the regulations of the post office department. Teall v. Felton, 537 8. The question, when the jurisdiction of the federal courts is exclusive and when concurrent with that of the state courts, considered. id See BANKRUPTCY, 5. CRIMINAL LAW, 1, 2, 3, 4. EYECUTORS, 1. JURISDICTION OF CHANCERY. JURISDICTION OF CHANCERY. 1. A court of equity will not entertain jurisdiction to set aside a will of real estate for fraud, or on the ground of the testator's incompetency, where there is a perfect remedy at law, and the objection to the jurisdiction is taken in due season. Brady v. McGosker, 215 2. But where the party, claiming in hos- tility to the will is not in possession, and an impediment exists which would prevent a recovery at law of the whole or any part of the estate devised, a bill in equity will be entertained to have the will declared void and delivered up to be cancelled. id 3. Accordingly, where a bill was filed for the purpose of setting aside a will on the ground of fraud and undue in- fluence, and it appeared that, at the filing of the bill, the complainant was not in the actual possession of the es- tate, and that a trust term, in such es- tate, which vested tho legal title in trustees, was yet unexpired, so that no recover}' could be had in ejectment ; held, that a demurrer to the bill for 632 INDEX. want of jurisdiction was properly over- ruled, id 4. So also it is a good answer to an ob- jection for want of jurisdiction, that a part of the estate devised is subject to an unexpircd lease, under which the I lessee or his assignee is in possession, j id\ F>. And where the bill distinctly showed the existence of an unexpired trust j term, and that a part of the estate was occupied by the assignee of an un- expired lease, and the other parts were occupied by persons under an agent, who had assumed the control . and management of the property for j the benefit of such party as should be ; entitled thereto, when the question upon the validity of the will should be : settled ; held, that an objection for want of jurisdiction would not lie, aK though the bill in another place alleged that the complainant was entitled to j the whole estate by inheritance in fee i simple, and that he ' ; held and ivas in ' lawful possession thereof,'' this allega- lion being regarded as a formal legal : conclusion from the facts specifically sec forth in the other parts of the bill. id 6. The complainants were sureties for C. upon a note given to J. for a usurious loan of money. An action at law was J brought upon the note against the com- plainants, and C. in the name of P., as endorsee. The complainants pleaded the general issue, and gave notice of the defence of usury, but, did not ver- ify the notice as required by the usury act of lft.'57, so as to entitle them to examine the plaintiff as a witness. ( )u thetrial they callcdasa witness, J.. the payee of the note, who stated, on iiis roire dir<', that he was the owner of the note and the plaintilf in interest, and objected to teMilying in the cause, and his objection was sustained by the court. A verdict was taken for the amount e<;'i:ial>!v due on the note, and judgment was perfected against the complainants and t '. ; Ac//, that a bill filed by the complainants, (ifltr jmlij- 'iiu'.nt at h'n:. fur the purpose of obtain- ing the testimony of ('.. and for relief iigain.-t the judgment on the ground of I usury, eeiild not lie .-iHMined. lY/./.vi mid Jtwi'L v. ./',7- laire, >.") :;. A. executed to B. a lease of certain premises for one year, containing a. clause in these words: ' 15. to have the privilege to have the premises for one year, one month and twenty da\> longer, but if he leaves lie is to gi\- four months notice before the ox pirn- lion of tins lease." }/!>. that ll li'a--e (Teatt d a ti nn fiir tin -full [> ri."l r f:\vo vars. (>!!< in. MI!I ai.d tueii 1 -. INDEX. 633 days, defeasible at the eletcion of the tenant, after one year, by giving no- tice of his intention to leave the prem- ises, four months previous to the expi- ration of the year. Chretien v. Do- ney, 419 4. Where the landlord obtains possession of the demised premises by summary proceedings which are reversed in the supreme court upon certiorari, that court should not award restitution to the tenant, if the term has expired be- fore the judgment of reversal is ren- dered, id See FIXTURES. FRAUD, 1, 2, 3, 4, 5, 6, 7. LEASE. See FRAUD, 1, 2, 3, 4, 5, 6, 7, LANDLORD AND TENANT, 2, 3. LEGACY AND LEGATEE. 1. The general rule is, that the personal estate of a testator is the primary fund for the payment of legacies, and a tes- tator is presumed to act upon this legal doctrine, unless a contrary intent is distinctly manifested by the terms and provisions of the will. Hoes v. Van Hoesen, 120 2. Where the personal estate is not in terms exonerated, and is not specifical- ly given away by the will, it will be deemed the primary fund for the pay- ment of legacies,notwithstanding such legacies, by the terms of the will, are expressly charged upon the persons to whom the real estate is devised. The charge upon the devisees in such a case will be deemed in aid, and not in exoneration of the primary fund, id \ i 3. A testator gave to his wife the use of his real and personal estate during her widowhood ; to two of his sons he de- vised the reversionary interest in his real estate, and directed them to pay legacies to his other son and to his daughters ; but made no disposition of the reversionary interest in the person- al estate ; held, that such reversionary interest in the personal estate was the primary fund for the payment of the legacies. id 4. A testator by his will, made in 180-1, j VOL. I. gave all his real and personal estate to his wife during her life, and after her death to his grandson. To his granddaughter he gave a legacy, to be paid by his grandson, "out of the estate," in one year after he should become of age. The grandson became of age in 1820, but the widow's life estate did not terminate till 1832 ; held, that the legacy was not payable until the latter period, and therefore that a bill filed soon afterwards, to recover the legacy, was not liable to a pre- sumption of payment from lapse ol tune. Dodge v. Manning, 298 5. The grandson, in 1826, mortgaged the real estate which he took undei the will, and portions of it were pur- chased by the respondents, with notice of the legacy, at a sale upon the fore- closure of the mortgage. Upon bill filed by the legatee against the re- spondents and the grandson, furtJier held, that the grandson, by accepting the estate, became personally liable for the legacy, that the legacy was an equitable charge upon the real estate, but that the respondents should not be charged in respect to the real estate in their hands, except in case of a de- ficiency after the remedy should be exhausted against the grandson, id 6. Co-legatees in no sense sustain to each other the relation of surety in respect to the testator's debts, each being lia- ble only in proportion to the amount of his legacy. Wilkes v. Harper, 586 7. Legatees, whose shares of the personal estate of the testator have been wasted by the executor, have no lien upon the real estate devised to such executor to make good their loss. id LIEN. See EXECUTOR, 3. LEGACY AND LEGATEE, 7. LIMITATION OF ACTIONS. 1. A suit against a stockholder of a cor- poration, to charge him individually with a debt contracted by it, pursuant to a provision in the act of incorpora- tion, is not an "action upon a statute, for a forfeiture or caute, the benefit and suit whereof, id limited to the par- ty aggrieved," and therefore is not 634 INDEX. barred by tho throe years' limitation prescribed in the statute, (2 R. S., 298, 31,) for actions of that class. Cor- ning v. McCuttough, 47 2. The period of six years is the only lim- itation provided for suits of this de- scription, id 3. It seems that the short statute of lim- itations above referred to, is intended only to embrace penalties and forfeit- ures, properly so called, and other causes of action penal in their nature, and where both the cause of action and the remedy are given by statute ; but does not extend to cases where the ac- tion is partly given by the common law and partly by statute. id LOAN. See EVIDENCE, 4, 6. LOTTERIES. See CRIMINAL LAW, 6, 6. INDICTMENT, 1. M MANSLAUGHTER. See INDICTMENT, 3. MARRIED WOMAN. See HUSBAND AND WIFE. MARSHALLING OF SECURITIES. The equitable doctrine in regard to mar- shalling securities is applicable only where one party has a lien upon or in- terest in two funds, with a right to re- sort to either or both,and another party has a lien upon or interest in only one of those funds. The Farmers 1 Loan and Trust Co. v. Walworth, 433 MERGER. See EXTINGUISHMENT. MISDEMEANOR. See INDICTMENT, 2, 3, 4. MONET HAD AND RECEIVED. 1 . The defendant imported into the city of New- York goods on which the col- lector of customs exacted and received duties. The goods were by law en- titled to a drawback of the duties in case they were exported within thre^ years. The defendant sold the goods to the plaintiff at the " long price," which by custom and agreement in- cluded the amount of duties paid, and carried to the purchaser the right to the drawback. Afterwards, and while the plaintiff yet owned the goods and could export them so as to get the drawback, or could sell them in market at the " long price," the secretary of the treasury decided that goods of that kind were duty free, and thereupon the duties were refunded to the im- porter. In consequence of such deci- sion the right to a drawback was ex- tinguished, and the market price of the articlo was immediately reduced by about the amount of duties which had been exacted. Held, on bill filed to recover the amount of duties returned to the defendant, there being no fraud in the case, and no warranty that the goods were dutiable, and no allegation that the plaintiff intended to export the goods, that the plaintiff could not re- cover. Moore v. Des Arts, 359 2. Quere, whether, in case the plaintiff had a right to recover the money, the remedy would not be at law. id See OFFICE AND OFFICEB, 3. MONEY LENT. See EVIDENCE, 4, 6. MONEY PAID. See BILLS OF EXCHANGE AND PKOMIS- SOBY NOTES, 1. MORTGAGE. 1. Where moneys deposited in the court of chancery, in a suit for the partition of lands, have been invested by the INDEX. 635 clerk upon bond and mortgage exe cuted to him in his official character such clerk has no power to dischargi the mortgage without the order of thi court. The Farmers' Loan and Trus Co. v. Wcdworth, 433 2. And it seems, that where the clerk executes such a discharge without actual payment, and without the or- der of the court, it is void even as against bona fide purchasers of the property encumbered by the mort- gage, id 3. But the unauthorized act of the clerk, in executing such discharge, may be ratified by the owners of the fund se cured by the mortgage. id 4. One of the clerks in chancery loaned upon bond and mortgage the sum o! $29,000, which had been paid into that court to secure a widow's dower, in pursuance of a decree in partition. Afterwards, the borrowers executed to the clerk another bond for the same sum, and another mortgage upon dif- ferent property. These securities were intended as a substitute for the first bond and mortgage, and were so re- ceived by the clerk, who, thereupon, without any direction of the court, ex- ecuted a satisfaction of the first mort- gage, which was entered of record. The owners of the fund, (after the death of the widow,) with notice of all the circumstances, foreclosed the sec- ond mortgage, in the name of the clerk, and had the property sold. Held, that although the discharge of the first mortgage was void, and might have been treated as a nullity, yet the elec- tion of the owners of the fund to pro- ceed upon the substituted security, was a ratification of the acts of the clerk, and therefore, that a bill filed to fore- close the first mortgage, for the pur- pose of collecting the residue of the money not realized by the first fore- closure, could not be sustained. id 5. It seems, that if the owners of the fund had elected to proceed upon the first mortgage, the appellants, who were bonafide purchasers of the prop- erty covered thereby, would have been entitled to the second mortgage for their indemnity. id 6. Where real estate is incumbered by two mortgages, and the holder of the junior one forecloses aud purchases in the property, the presumption is that he bids to the value of the equity of redemption only; and the land be- comes from thenceforth the primary fund for the payment of the debt se- cured by the senior mortgage. Ma- thews v. Aikin, 595 See SUBROGATION, 3. MORTGAGE OF CHATTELS. 1. Where, in a mortgage of personal prop- erty, it was provided that the mortga- gor should permit the mortgagee to "have, possess, occupy, and enjoy," the mortgaged property, whenever he should demand the same, and after the mortgagor had absconded, the mort- gagee took possession of the property by virtue of the mortgage ; held, that the interest of the mortgagor was not the subject of levy upon execution, al- though the debt secured by the mort- gage had not, at the time of the levy, become due. Mattison v. Baucus, 295 2. It seems that the interest of a mortga- gor of personal property, even before forfeiture, where he has not the right of possession for a definite period, is but a right of redemption merely, which is not the subject of levy and sale upon execution. id 3. It seems, that a personal mortgage transfers to the mortgagee the whole legal title to the thing mortgaged, subject only to be defeated by the performance of the condition. Sutler v. Miller, 496 See EXTINGUISHMENT. FRAUD, 8. PROPERTY. MOTION. See PRACTICE, 3. MULTIFARIOUSNESS. See PLEADINGS IN EQumr. N NON-IMPRISONMENT ACT. . The assignment, which a debtor, pro- ceeded against under the non-impris- 636 INDEX. onment act, executes pursuant to the provisions of that act, (Stat. 1831, 16, 17,) is for the benefit of the credi- tor who institutes the proceeding, and not of the creditors generally. Spear v. Wardett, 144 2. And a voluntary assignment, exe- cuted by such debtor, while the pro- ceeding is pending against him, of all his property for the benefit of all his creditors without preference, is a fraud upon the act and the rights of the prosecuting creditor. id 3. Where a judgment creditor instituted a regular and valid proceeding under the non-imprisonment act, and the debtor, while the proceeding was pending, executed a voluntary assign- ment of all his property for the bene- fit of his creditors generally without preference, so that no property passed into the hands of the statutory as- signee under the statutory assignment subsequently made ; held, upon a bill filed by the creditor against the debtor and the voluntary assignee, that the voluntary assignment should be al- lowed to stand, but the assignee should bo decreed to hold the proper- ty assigned, as a trustee for such cred- itor to the extent of his demand, id 1. Held, also, that the title to the prop- erty having passed to the voluntary assignee, the statutory assignee had no interest, which made it necessary to join him as a party to the bill, id NOTICE. See ANIMALS. NUISANCE. /. In the common law action by writ of nuisance, as retained and regulated by the revised statutes, it seems that the declaration must show that the plain- tiff has a freehold estate in the premi- ses affected by the nuisance. This is a real action. Corner v. Harris, 223 2. But in an action on the case for dam- ages merely, sustained in consequence of the erection of a nuisance, it is enough that the plaintiff is in posses- sion of the premises affected thereby. id 3. The plaintiff commenced hia action by writ of nuisance pursuant to the stat- ute. (2 R. S. 332.) The formal com- mencement of the declaration waa ap- propriate to that action and referred to the writ ; but the declaration con- tained no averment that the plaintiff had a freehold estate in the premises affected by the nuisance. It showed, however, a good cause of action on the case, and concluded thus, " to the nuisance of said dwelling house and premises of the plaintiff and to las damage of five thousand dollars:" held, that it was a good declaration in an action on the case, although it showed no ground of recovery in the action of nuisance proper ; and there- fore, that the supreme court was right in denying a motion made after ver- dict in arrest of the judgment. id o OFFICE AND OFFICER. 1 . The policy of the law in declaring void bonds, agrooments, &c., taken by sher- iffs and other officers colors officii not in conformity with statute, is to guard against official oppression on the one side, and a lax performance of duty to the injury of the plaintiff in the process on the other. Winter v. Kinney, 365 2. An agreement made with a sheriff by which a party under arrest is permit- ted to go at large upon any terms other than those proscribed by statute is void. And so is any agreement taken from a party in custody intend- ed as an indemnity to the sheriff for a breach of duty. id 3. But the prohibition extends only to the officer, and not to the plaintiff in the process. Therefore, where a party un- der arrest was permitted to go at large, upon depositing witli a third person the sum of money for which he was arrested, under an agreement, that if he did not surrender himself at a given time, the money might bo paid over to the plaintiff in the process ; held, in an action to recover back the money from the person with whom it was do- posited, that the question was, wheth- er the agreement was made with the officer, or with the plaintiff at whoso suit the arrest was made ; and upon the evidence, that question directed to be submitted to the jury. id INDEX. 4. The act of a public officer exceeding the authority conferred on him by law may be adopted by the party for whose benefit it is done. Per BRON- SON, J. The Farmers' Loan and Thrust Co. v. Walworth, 433 See BANKRUPTCY, 7. COSTS, 2. JURISDICTION, 1. MORTGAGE, 1, 2, 3, 4. POSTMASTER. ORDER. See APPEAL, 8. PAROL EVIDENCE. 1. In the construction of deeds and other instruments, the intention of the par- ties is to govern ; and where the lan- guage used is susceptible of more than one interpretation, courts will look at the surrounding circumstances exist- ing when the contract is entered into, such as the situation of parties and of the subject matter of the contract. French v. Carhart, 96 2. In the action upon the covenant of seisin, for the purpose of ascertaining the measure of damages, the true con- sideration, and the fact that only part of it has been paid, may be shown by parol ; although the deed expresses a different consideration, and acknow- ledges that the whole of it has been paid ; and there is therefore no occa- sion, in such a case, to resort to a court of equity for relief. Bingham v. Weider wax, 509 See CONTRACT, 1, 2. PARTIES TO ACTIONS. 1 . A person, who is charged with fraud- ulently procuring the execution of a will in favor of an infant, is a proper party to a bill filed for the purpose of setting aside such will, although he has no interest. He may be charged with the costs. Brady \. Me Coster, 2 14 2. The party who stakes a sum of money on an illegal wager, may recover so much thereof as belongs to himselt without joining in the action other per- sons who contributed specific portions of the fund. Ruckman v. Pitcher^ 392 See INSURANCE, 4. NON-IMPRISONMENT ACT, 4. PARTITION. See PLEADINGS IN EQUITY. PAYMENT. See EVIDENCE, 4, 5. PENALTIES AND FORFEITURES. See LIMITATION OF ACTIONS. WITNESS, 2, 3. PLEADINGS. The form of an action is dotormincd by the matter set forth in the declaration, and not by the name which the plain- tiff may give it. If, therefore, the pleader, in the commencement of a declaration, gives the action a wrong name, it will do no harm. Comes v. Harris, 223 See BANKRUPTCY, 5. NUISANCE. PLEADINGS IN EQUITY. The complainant claimed half of the estate by inheritance from his father, and the other half by inheritance from his brother, and alleged that the will of his brother was void for fraud, &c. ; but in case the will should be adjudged valid, then he still claimed one-half of the estate, and insisted that he was entitled to a partition ; and the prayer of the bill was, that the will might be declared void, or that a partition might be had ; held, that the bill did not make a case of partition, and therefore that it was not liable to objection for nmltifariousness. Brady v. Me Cos- ker, 214 See CHANCERY. JURISDICTION OF CHANCERY, 5. 638 INDEX. PLEDGE. 1. The judgment of the supreme court, determining that a sheriff holding an execution against a pledgor, may by virtue thereof take the property pledged out of the hands of the pledgee into his own possession, and sell the right and interest of the pledgor therein, affirmed, the judges being equally divided upon the ques- tion. Stiefv.Hart, 20 2. After a sale by the officer in such a case, the pledgee is entitled to the possession of the property until the purchaser redeems it from the pledge. id POLICY. See INSURANCB. POSTMASTER. A postmaster who assumes to charge let- ter postage on a newspaper in conse- quence of an initial boing on the wrap- 2. per, does not act judicially in such a sense as to protect him from an action for improperly detaining such news- paper, although no fraud or malice be alleged or proved. Teatt v. Felton, 537 POWER. 1. A testator, by his last will and testa- ment, appointed three persons his ex- ecutors, and authorized them, or the survivor of them, to sell and convey any part of his real estate, " in case they should find it proper or most fit in their opinion," to sell the same for the purpose of paying his debts. Two of the executors neglected to qualify, and never acted as such. The other executor duly qualified, and took out letters testamentary in his own name only, and subsequently sold and con- veyed a portion of the testator's real estate for the purpose specified in the will; held, that the power contained in the will was well executed, and that the conveyance was valid. Taylor v. Morri, ' 341 2. It seems, that the statute, (2 P. S. 109, sj 55.) which provides, that, whore , real estate is devised to executors to be I sold by them, or is ordered by any last will to be sold by them, and any of the executors neglect or refuse to qualify and act as such, the sale may be made by the executor or executors who take upon themselves the execution of the will, applies as well to discretionary as to peremptory powers of sale, id POWER AND AUTHORITY. See JURISDICTION, 3, 4, 6. SALE FOR TAXES AND ASSESSMENTS. STATUTES. PRACTICE. It is irregular to serve an assignment of errors before one has been filed ; and where the assignment was not filed until the next day after it was served, the rule to join in error and all subsequent proceedings set aside. Lyme v. Ward, 531 Where the judgment of the court be- low is reversed by default in not join- ing in error, the remittitnr should not be sent to the court below until ten days have elapsed. id Motion papers should be entitled in this court, notwithstanding 274 of the code declaring that " the title of the action shall not be changed in consequence of an appeal." Papers not so entitled cannot be read. Click- man v. Clickman, 611 See APPEAL. ATTORNEY. COSTS. DEFAULT. JURISDICTION, 1, 2. REHEARING. SPECIAL VERDICT. PRESUMPTION. See EVIDENCE, 4, 6. PRIMARY FUND. See MORTGAGE, 6. INDEX. 639 PRINCIPAL AND AGENT. See AGENT. INSURANCE, 1, 2. MORTGAGE, 3, 4. OFFICE AND OFFICER, 4. PRIORITY. See ASSIGNMENT. NON-IMPRISONMENT ACT. PRIVILEGE OP WITNESS. See WITNESS. PROCESS. See JURISDICTION, 3, 4, 5. PROOF AND ACKNOWLEDGMENT OF WRITTEN INSTRUMENTS. See EVIDENCE, 1, 2. PROPERTY. Where A. occupied land under H., and by the terms of their agreement the grass belonged to A. ; held, that A. might transfer such grass, while yet growing, by a personal mortgage. Jencks v. Smith, 90 See FIXTURES. PROTEST AND NOTICE. See BILLS OF EXCHANGE AND PROMIS- SORY NOTES, 7, 8, 9, 10, 13, 14, 15, 16, 17. R RACING. See BETTING AND GAMING^ 3. RATIFICATION. See AGENT. MORTGAGE, 3, 4. OFFICE AND OFFICER, 4. RECOUPMENT. See FRAUD, 5. REHEARING. A party complaining of any order made at a special term has a rigid to have the matter reheard and passed upon by the supreme court, at a general term. Grade v. Freeland, 228 REMAINDER. See ESTATES TAIL. REMITTITUR. See JURISDICTION, 1, 2. PRACTICE, 2. REPLEVIN. 1. After a sheriff had levied upon prop- erty which belonged to the defendant in the execution, another person brought replevin, and had the same property delivered to him upon the writ, and died pending the action; held, that the sheriff might retake the property and sell it to satisfy the exe- cution. Burlde v. Luce, 163 2. On the death of a plaintiff in replevin the action abates and cannot be re- vived by scire facias. id 3. In such a case the defendant has no remedy upon the replevin bond. id RESCISSION OF CONTRACT. See FRAUD, 4, 5. RESERVATION. See DEED, 3, 4, 5, 6, 7. RES JUDICATA. f See INDICTMENT, 4. REVIVOR AND SUPPLEMENT, BILL OF. See CHANCERY. 640 INDEX. SALES. See FRAUDS, STATUTE OF. SALE FOR TAXES AND ASSESS- MENTS. I . Where three persons were authorized to estimate the expense of a public improvement in the city of New- York, and to assess the same upon the own- ers and occupants benefited, and one of the three persons was not consulted and did not act in making such esti- mate and assessment ; held, that the proceeding was void, and that no title could be deduced through a sale made for the non-payment of such assess- ment. Doughty v. Hope, 79 '2. Where an assessment is signed by two of the persons so authorized, it seems the legal presumption is, that the third was present and acted in the business ; but it may nevertheless be shown that ho was not consulted and did not act. id 3. One of the assessors who signed the certificate is a competent witness to prove that the third assessor was not consulted. id 4. The ratification by the common coun- cil of the city of New-York, of a void assessment, does not aid the proceed- ing. To make out a title there must be a valid assessment duly ratified, id '>. The publication of the redemption no- tice required by Slat. 1816,^. 114, 2, as amended by Slat. 1840, .p. 274, jj 10, after a sale for a tax or assessment, must be fully completed before the commencement of the last six months of the two years succeeding the sale, and an omission in this respect will invalidate the purchaser's title. id 6. Where the redemption notice is not published according to law, a regular notice served after the execution of the lease given upon the sale, pursuant to Stal. 1841,;). 211, 3, and the cer- tificate by the street commissioner, re- quired by $ 7 of the same act, do not confirm the title. id 1. The statute which declares that the lease given upon a sale for taxes or assessments in the city of New-York " shall be conclusive evidence that the sale was regular," Ac. (Slat. 1816, p. 115, 2,) refers only to the notice of sale, and the proceedings at the auc- tion, id SCIENTEB. See ANIMALS. SCIRE FACIAS. See ABATEMENT. SEISIN. See COVENANT. ESTATES TAIL, 3. SHERIFF. See INDEMNITY, 4. OFFICE AND OFFICER, 1, 2, 3. SLANDER. In an action for slander it is not compe- tent for the plaintiff to introduce evi- dence of his good character in reply to evidence introduced by the defendant tending to prove the truth of the charge. Houghtaling v. Kilderhouse, 530 SPECIAL VERDICT. 1. A special verdict should state facts and not merely the evidence of facts, so as to refer to the court only the consideration of questions of law. Hill v. Covdl, 522 2. To authorize a judgment for the plain- tiff upon a special verdict in an action of trover, the verdict should either find a conversion of the propeity, or state such facts as to leave the ques- tion of conversion one of law merely. id A demand and refusal are only evidence of conversion, and may be repelled by proof showing that a com- pliance with the demand was impos- sible, id INDEX. 4. Therefore, where in trover the special verdict stated a demand and refusal, but did not show that the property was in the possession of the defendants at the tune of such demand, there being also other evidence stated in the verdict tending to show that the prop- erty was not then in their possession ; held, not sufficient to entitle the plain- tiff to judgment on the verdict, id 5. And although the special verdict also found that the defendants had sold the property, yet it appearing that they had authority to sell it on account of the plaintiff, and the fact not being nega- tived that the sale was for the purpose and in the manner authorized; fold, that the court could not adjudge that there had been a conversion. id STAKEHOLDER. See BETTING AND GAMING, 1. STATUTES. 1. Whenever a power is given by statute, every thing necessary to make it ef- fectual, or requisite to attain the end in view, is implied. Per JEWETT, C. J. Stiefv.Hart, 20 2. So when the law commands a thing to be done, it impliedly authorizes the performance of all acts necessary to the execution of the command. Per JEWETT, C. J. id 3. Where property is taken under a stat- ute authority, without the consent of the owner, the power must be strictly followed ; and if any material link is wanting, the whole proceeding is void. Doughty v. Hope, 79 See CONSTITUTIONAL LAW. EVIDENCE, 7. LIMITATION OP ACTIONS. NON-IMPRISONMENT ACT. SALE FOR TAXES AND ASSESSMENTS. STATUTE OP FRAUDS. See FRAUDS, STATUTE OF. STATUTE OP LIMITATIONS. See LIMITATION OP ACTIONS. STOCKHOLDER. See CORPORATIONS, 1. LIMITATION OP ACTIONS, 1, 2. SUBROGATION. 1. One who pays a debt for which he is not personally bound, and which is not a charge upon his property, is not en- titled to be subrogated to a lien which the creditor had upon the estate of the debtor. Wilkes v. Harper, 586 2. The right of a surety to be subrogated, on payment of the debt, to the securi- ties held by the creditor, does not de- pend upon contract, but rests upon principles of justice and equity. Ma- thews v. Aikin, 595 3. A. owed a debt to B., who was indebt- ed to C. At the request of B. and m pursuance of an arrangement between B. and C., A. executed a bond and mortgage for the amount of his debt, directly to C. The complainant D., on the solicitation of B., but without any request from the mortgagor, guar- antied the payment of the bond. The holder of the bond and mortgage, who had also become the owner of the equi- ty of redemption under a junior mort- gage, sued D. upon his guaranty and compelled him to pay the debt. Held, on bill filed by D., that he was entitled by substitution to the benefit of the mortgage for his indemnity, id See ASSIGNMENT. EXECUTOR, 3. SUBSCRIPTION. See CONTRACT, 3, 4, 5. SUMMARY PROCEEDINGS. See LANDLORD AND TENANT, 4. SUPPLEMENTAL BILL. See CHANCERY. INDEX. SURETY. See JURISDICTION OF CHANCERY, 7. LEGACY AND LEGATEE, 6. SUBROGATION. USURY. SURROGATE. See EXECUTORS, 1. T TRESPASS. See ANIMALS. TRIAL. 1. A request for instruction to a jury should rest upon undisputed facts or a hypothetical case ; and if the proposi- tion which the party submits be not right in all its parts, both as to fact and law, the judge may refuse to give the instruction asked for, and need not qualify such rerusai oy pointing out the good and the bad parts of the prop- osition. Doughty v. Hope, 79 2. Where a witness objected to testifying on the ground that his testimony might subject him to an indictment, or pros- ecution for a penalty, it is not, in a court of review, an answer to the claim of privilege, that the statute of limita- tions has run against the offence, un- less it appear that such answer was suggested on the trial. Per BRONSON, J. Pierce v. Bank of Salina, 83 3. Where upon a trial there is opportu- nity for objection, and the party whose duty it is to object, remains silent, all reasonable intendments will bo made, in a court of review, to uphold the judgment. Jencks v. Smith, 90 See BILL OF EXCEPTIONS. COURT OF A JUSTICE OF THE PEACE. ERROR. EVIDENCE, 9, 10. JUROR. TROVER. 1. A demand and refusal are only evi- dence of conversion, and may be re- pelled by proof showing that a compli- ance with the demand was impossible. Hill v. Covell, 522 2. Therefore, where in trover the special verdict stated a demand and refusal, but did not show that the property was in the possession of the defendants at the tune of such demand, there being also other evidence stated in the ver- dict tending to show that the property was not then in their possession ; held, not sufficient to entitle the plaintiff to judgment on the verdict id See JURISDICTION, 7. SPECIAL VERDICT, 1, 2, 6. TRUST. See EXECUTORS, 1, 2. u UNDERTAKING. See APPEAL, 15, 16, 23, 24. UNITED STATES, PRIORITY OP. See ASSIGNMENT. USURY. 1. Per BRONSON, J. and JEWETT, C. J., an agreement made by a creditor with the principal debtor, to forbear the pay- ment of the debt in consideration of a usurious premium paid for such for- bearance, is void, and therefore cannot operate to discharge the sureties. Vi- las v. Jones, 274 2. Whether a mere surety is a borrower, within the moaning of the usury act of 1837, (Laws 0/1837,^.487, 4,) quere. id See JURISDICTION OF CHANCERY, 6, 7. WITNESS, 1, 2. VERDICT. See SPECIAL VERDICT. INDEX. 648 1 OLUNTARY PAYMENT. Set SUBROGATION, 1. W WAGER. See BETTING AND GAMING. WAIVER. See BILL OF EXCEPTIONS. COURT OF A JUSTICE OF THE PEACE. ERROR, 2. EVIDENCE, 9, 10. FRAUD, 4, 5. WARRANT. See JURISDICTION, 3, 4, 5. WILL. 1. Where, by a will made prior to the re- vised statutes,lands are devised in gen? eral terms without words of limitation or inheritance, the devisee takes a life estate only. Harvey v. Olmsted, 483 2. And such introductory words as these : "I order and direct my real and per- sonal estate to be divided and distri- buted as follows," do not enlarge the devise into a fee. id 3. A charge, to carry a fee by implica- tion, where the devise is without words of limitation, must be upon the person of <7r devisee in respect to the lands devised. Where this exists, it gives to the devise the character of a purchase. id 4. A testator, by his will made in 1821, gave a part of his real estate to his wife during her widowhood, and after her decease to two of his children. To his son Nathaniel he gave two parcels, one designated in the will as the Powers lot, the other as the mountain lot. To another son he gave a legacy of $1000 to be paid out of his personal estate, if sufficient after paying debts and other legaeies,but if not sufficient, then to be paid in land " from the Powers lot, so called." There were no words of inheritance in any part of the wilL Introductory to all the devises and be- quests were these words : " I order and direct my real and personal estate to be divided and distributed as follows." In the concluding part the testator declared, that in case any dispute should arise upon the will, the same should be referred to three men, to be chosen for that purpose, who should " declare their sense of the testator's intentions, unfettered by law and the niceties of legal construction." Held, that Nathaniel took only a life estate in the mountain lot. id See EXECUTORS, 1, 2. JURISDICTION OF CHANCERY, 1, 2, 3, 4, 5. LEGACY AND LEGATEE, 1, 2, 3, 4, 5. POWER. WITNESS. 1. A plaintiff on tKo rooorcl, or plaintiff in interest, when called upon to testify under the usury act of 1837, cannot be compelled to disclose facts tending to show that the promissory note, to recover which the suit is brought, was discounted by him in violation of the statute (1 R S. 595, 28) concerning the discounting of notes, &c., by offi- cers and agents of banking corpora- tions. Pierce v. Bank of Salina, 83 . A note discounted by the teller of a bank, for his own benefit, in violation of the statute above cited, is void; and where the note alleged to have been so discounted was in suit for his benefit, and in opening the defence to the jury. this was stated as one ground of de- fence, and usury as another ground, such teller, although ostensibly called as a witness to prove the usury, can- not be required to disclose the trans- action for the reason that his testimony might subject him to a loss of the note upon a ground distinct from the de- fence of usury. id , A witness, or party called as a wit- ness, may not only object to testifying to the main fact which would subject him to a penalty or forfeiture, but may also refuse to disclose anv one of a 644 INDEX. series of facts which together would expose him to such penalty or forfeit- ure, id 4. A witness is privileged from answer- big a question when the answer would tend to disgrace him, unless the evi- dence would bear directly upon the issue ; and therefore, where the answer could have no effect upon tlie case except as it might impair the credibil- ity of the witness, field, that he was privileged. Lehman v. The People, 380 See EVIDENCE, 6. END OP VOLUME ONE.