author: Nelson, J.

text:
    Supreme Court of the U. S. At Chambers. Cooperstown, N. Y.,
    May 16, 1866.

      Samuel Nelson, Justice.
    In the Matter of James Eagan, a prisoner in the Albany Penitentiary.
    Martial law is the will of the general who commands the army. It can he indulged only in case of necessity, and ceases when the necessity ends. When called in question, the necessity must he affirmatively shown by the party assuming to exercise the power.
    Where a citizen of South Carolina, a farmer over eighty years of age, who had never engaged in the military service or been connected with the army of the United States, or of the so-called Confederate States, was arrested and tried by a military commission and convicted of murder, alleged to have been committed in September, 1865, and sentenced to the penitentiary for life, and such trial took place in November, 1865, seven months after the suppression of the rebellion, and while the civil local courts of the State were in the full exercise of their official functions, held,, that the proceedings were without jurisdiction and void, and the prisoner was discharged.
    This case came before Mr. Justice Nelson, of the Supreme Court of the United States, at Chambers, on a petition duly verified. A writ of habeas corpus had been allowed, directed to Amos Pilsbury, Superintendent of the Albany Penitentiary. The writ, with the return thereto annexed, were as follows:

      The President of the United States of America, to Amos Pilsbury, the Superintendent of the Albany Penitentiary, Greeting:
    You áre hereby commanded that you have the body of James Eagan, now in prison under your custody, as it is said, under safe and secure conduct, together with the time and cause of his imprisonment and detention, by whatsoever name the said James Eagan shall be called or charged, before Samuel Nelson, Esquire, one of the Justices of the Supreme Court of the United States, at his Chambers, in the village of Cooperstown, in the county of Otsego, in the State of New York, on the fourth day of May, 1866, at two o’clock p. m., to do and receive what shall then and there be considered concerning the said James Eagan,- and have you then and there this writ.
    Witness, Salmon P. Chase, Chief Justice of the Supreme Court of the United States, at the city of Washington, the first Monday of December, 1865, and of our independence the ninetieth.
    A. A. BOYCE, Clerk.

    Amasa J. Parker, Attorney.

    I do heieby Teturn to the within writ that the said James Eagan, now produced as within required, is detained by me by virtue of an authority of which the annexed is a copy.
    AMOS PILSBURY.

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    Hd. Qrs. District of Western South Carolina, Fourth Separate Brigade,
    Columbia, S. C., Dec. 1,1865.
    GENERAL ORDERS, No. 34.
    1. Before a military commission, which convened at Head-quarters, District of Western South Carolina, Fourth Separate Brigade, Columbia, South Carolina, November 20, 1865, pursuant to Special Orders, No. 37, dated Headquarters, District of Western South Carolina, November 11, 1865, and of which Lieut. Col. N. Haughton, Twenty-fifth Regiment, Ohio Veteran Volunteers, is president, was arraigned and tried James Egon, citizen of Lexington district, South Carolina.

      Charge—Murder.

    Specification.—In this, that the said James Egon, citizen of Lexington district, State of South Carolina, did feloniously, and with malice aforethought, Mil and slay, by shooting, one freedman, named General Egon. All this on or about the 24th day of September, 1865, in the district of Lexington, State of South Carolina.
    To which charge and specification the accused, James Egon, citizen of Lexington district, South Carolina, pleaded as follows:
    To the specification—“ not guilty.”
    To the charge—“not guilty.”
    Finding.
    The commission, having maturely considered the evk dence adduced, finds the accused, James Egon, citizen of Lexington district, South Carolina, as follows:
    Of the specification—“ guilty.”
    Of the charge—“ guilty.”
    Sentence.
    And the commission do, therefore, sentence him, James Egon,' citizen of Lexington district, South Carolina, to solitary confinement for life, at the Albany Penitentiary, State of New York.
    • 2. The proceedings and findings in the foregoing case of James Egon, citizen of Lexington district, South Carolina, are approved. The sentence is confirmed, and will be carried into effect at the Albany Penitentiary, State of New York. The district provost marshal will turn the prisoner over, with a copy of the order, to the Provost Marshal General of the Department. The Quartermaster’s Department will furnish the necessary transportation.
    By order of Brevet Major General A. Ames.
    J. A. CLARK, Capt. 15th Maine Vols.,

      A. A. D. C. and Act. Ass’t Adj’t-Gen’l-

    Oppicial :
    J. A. CLARK, Capt. 15th Maine Vols.,

      A. A. D. C. and Ass’t Adj’t Gen’l.

    Approved:
    MAJ. GEN. D. E. SICKLES.
    W. L. M. Bengeb, Ass’t Adj’t Gen’l.

      Amasa J. Parker, for the prisoner.

      William A. Dart (U. S. District Attorney), for the Government.
   Nelson, J.

The petition and return to the writ of habeas corpus issued in this case, present the following facts:

The prisoner, who is a citizen, and by occupation a farmer, in the Lexington district of the State of South Carolina, some eighty years of age, and never engaged in the military service or connected with the army of the United States, or of the so-called Confederate States, has been arrested and tried before a military commission, in pursuance of orders issued at headquarters of the district of 'Western South Carolina, Columbia, upon a charge of murder, convicted and sentenced for life to the Albany Penitentiary.

The specification in the record of the crime is the killing' of a negro boy, by shooting him on or about the 24th of September, 1865. The trial took place on the 20th of November, and the sentence was pronounced on the first of December following. The sentence is approved by the order of Brevet Major General A. Ames, and also of Major General D. E. Sickles. The only paper or evidence before us, on the return to the writ of habeas corpus, is the record or order of committal in the hands of General Pilsbury, the superintendent of the penitentiary, which contains the above facts.

It will be observed that this trial before the military commission, took place some seven months after the termination of hostilities, and the surrender of the rebel army to the authorities of the United States; and, further, that the offense is one which, according to our constitutional system of Government, is cognizable by the judicial authorities of the State, and not of the Federal government. And, also, that the trial was not under the rules and articles of war, as established by the United States, in Congress assembled, as these are limited to the government of the land or naval forces of the United States, and of the militia when in actual service in time of war or public danger.

The trial must have been had under what is known and denominated “martial law,” and the question in the case is, whether or not this conviction and punishment can be upheld by reason of that authority.

All respectable writers and publicists agree in the definition of martial law—that it is neither more nor less than the will of the general who commands the army. It overrides and suppresses all existing' civil laws, civil officers and civil authorities, by the arbitrary exercise of military power; and every citizen or subject—in other words, the entire population of the country, within the confines of its power—is subjected to the mere will or caprice of the commander. He holds the lives, liberty . and property of all in the palm of his hand.

Martial law is regulated by no known or established system or code of laws, as it is over and above all of them.

The commander is the legislator, judge and executioner. His order to the provost marshal is the beginning and the end of the trial and condemnation of the accused.

There may be a hearing, or not, at his will. If permitted, it may be before a drum-head court martial, or the more formal board of a military commission, or both forms may be dispensed with, and the trial and condemnation equally legal, though not equally humane and judicious.

The law officers of the Crown, in England, in giving their opinion in the matter of the insurrection in the Island of Jamaica, observe, that courts martial as they are called, by which martial law is administered, are not, properly speaking, courts martial or courts at all. They are mere committees formed for the purpose of carrying into execution the discretionary power assumed by the government; on the one hand they are not obliged to proceed in the manner pointed out by the mutiny act and articles of war; and, on the other, if they do so proceed, they are not protected by them as members of a real court martial might be, except in so far as such proceedings are evidence of good faith.

Lord Wellington, in one of his dispatches from Portugal, (1810) speaking of martial law, observed that, as applied to persons, excepting' officers and soldiers and followers of the army, for whose government there are particular provisions of law in all well regulated countries, it is neither more nor less than the will of the general of the army. He punishes either with or without trial, for crimes either declared to be so, or not so declared by any existing law, or by his own orders. Subsequently, in a speech in the ■ House of Lords, he expressed the same opinion, and added: “ In fact, martial law means no law at all; therefore, the general who declares martial law, and commands that it shall be carried into execution, is bound to lay down distinctly the rules and regulations, according to which his will is to be carried out.”

This being the nature and extraordinary character of martial law, which, as observed by Sir Matthew Hale, is not law, but something indulged rather than allowed as law, all the authorities agree that it can be even indulged only iii case of necessity; and when the necessity ceases, martial law ceases. When a government or country is disorganized by war, and the courts of justice broken up and dispersed, or are disabled, from the prevalence of disorder and anarchy, to exercise their functions, there is an end of all law, and the military power becomes a necessity which is exercised under the form, and according to the practice and usage of martial law. As stated by a distinguished civilian, “ when foreign invasion or civil war renders it impossible for courts of law to sit, or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the military, which is the only remaining force in the community; and while the laws are silenced by the noise of arms, the rulers of the armed force must punish as equitably as they can those crimes which threaten their own safety and that of society, but no longer.”

This necessity must be shown affirmatively by the party assuming to exercise this extraordinary and irregular power over the lives, liberty and property of the citizens, whenever called in question. As explained by the Judge Advocate General of England, before a committee of the House of Commons, in case of martial law declared in Ceylon (and which explanation has been approved by the law officers of the Crown), in answer to a question put by Sir Eobert Peel, he observed, “I believe the law of England is, that a Governor, like the Crown, has vested in him the right, where the neóessity arises of judging of it, and being responsible for his work afterwards, so to deal with the laws as to supersede them all, and to proclaim martial law for the safety of the colony.” And, again, in answer to a question by Mr. Gladstone: “I say he is responsible just as I am responsible for shooting a man on the king’s highway, who comes to rob me. If .1 mistake my man, and have not, in the opinion of the judge and jury who try me, an answer to give, I am responsible.”.

Applying these principles to the case in hand, we think the record fails to show any power on the part of the military officer over the alleged crime therein stated, or jurisdiction of the military commission appointed by him to try the accused. No necessity for the exercise of this anomalous power is shown; For aught that appears, the civil, local courts of the State of South Carolina, were in the full exercise of their judicial functions, at the time of ' this trial, as restored by the suppression of the rebellion some seven months previously, and by the revival of the laws and re-organization of the State government in obedience to, and in conformity with its constitutional duties to the Federal Union.

Indeed, long previous to this a provisional governor had been appointed by the President, who is Commander-in-Chief of the Army and Navy of the United States, (and whose will, under martial law, constituted the only rule of action) for the special purpose of changing the existing state of things and restoring civil government over the people. In pursuance of this appointment, a new constitution had been formed, a governor and legislature elected under it; and, the State in the full enjoyment, or entitled to the full enjoyment, of her constitutional rights and privileges.

The Constitution and laws of the Union were thereby acknowledged and obeyed, and were as authoritative and binding over the people of the State, as in any other portion of the country. Indeed, the moment the rebellion was suppressed, and the government growing mut subverted, the ancient possession, authority and laws resumed. their accustomed sway, subject only to the new re-organization or the appointment of the proper officers to give to them operation and effect.

This re-organization and appointment of the public functionaries which was under the superintendence and direction of the President, as Commander-in-Chief of the Army and Navy of the country, who, as such, had previously governed the people of the State from imperative necessity by force of martial law, had already taken place, and the necessity no longer existed.

We have not deemed it necessary, if proper, to look into ■ the merits of the offense charged against the prisoner, although it is insisted that it occurred in self-defense, and in resisting a violent assault upon himself.

Let the prisoner be discharged.


source: Caselaw Access Project

author: Woodruff, J.

license: Public Domain

text:
    In the Court of Appeals of New York. September Term,
    1868.

      Hunt, Mason, Grover, Woodruff, Gierke, Miller, Bacon and Dwight, Judges.
    Thomas Paige, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
    A judgment of the Supreme Court, on writ of error, reversing a judgment of the Court of Oyer and Terminer sustaining a demurrer to an indictment, is not a final judgment, reviewable by writ of error in this court.
    An indictment charging the forgery of a deed, is sufficient, without a formal allegation of the sealing. The word “deed,” ex vi termini, imports an instrument under seal.
    An averment that the party charged uttered the forged instrument, by causing the deed to be recorded in the office of the county clerk as genuine and true, is a sufficient averment of uttering the forged instrument.
    An averment of uttering by setting up the same as genuine and true, in a complaint in an action in the Supreme Court, in which the party indicted was plaintiff, &c., and the parties intended to be defrauded were defendants, is a sufficient averment of uttering.
    The plaintiff in error was indicted in the Oyer and Terminer of Washington county, for forgery, &c. The indictment contained nine counts. The first three charged that the plaintiff “ falsely and fraudulently and feloniously did forge and counterfeit, and cause and procure to be forged and counterfeited, a certain deed, purporting to be the act of one Thomas Eoch, by which a right or interest in real property purported to be transferred and conveyed, the tenor of which said forged and counterfeited deed is as follows, that is to say:
    “ ‘Whereas, I, Thomas Eoch, of Whitehall,’ &c., ‘in consideration/ &c., &o\, ‘I do hereby bargain, sell, and assign unto my said sister, Ann 'Colar owich, and to her heirs and assigns forever, all my rights, titles and interest, claims and demands, both at law and in equity, of all that certain lot situated/ &c., ‘ known as the Phoenix Hotel property, now leased to Alex. Proudfit, by ah agreement in writing signed by my mother, Ann Eoch, myself and Alex. Proudfit, dated in January or February, 1826, with all and singular hereditaments/ &c., &c.
    “ ‘In witness whereof, I have hereunto set my hand and seal, this 7th day of January, in the year of our Lord, .1827. “ ‘ THOMAS ROCH. [l. s.]
    “ ‘ Signed, sealed and delivered ) in the presence of )
    “ •' Michel Thepahí.’ ”

    In the first count, this is averred to have been done with intent to defraud Harriet B. Williams, Cornelius L. Allen and E. T. Thompson, executors, executrix and trustees of the last will and testament of John Williams, to whom the interest of Alex. Proudfit, by mesne conveyance, had come, &c.
    In the second count, it is averred to have been done with intent to defraud John M. Williams, Harriet M. Williams and Fanny M. Williams, to whom, through John Williams, the interest of Alex. Proudfit, by several mesne conveyances, had come, &c.
    In the third count, it is averred to have been done with intent to defraud the heirs of the said Thomas Eoch, whose names are unknown. That' said Thomas Eoch is dead, leaving heirs who had title-to the property. In each of the first two, it is averred that the said John Williams was in possession of the property, and in the receipt of the rents and profits, and the right of possession was to secure the payment of certain charges upon the property. That Thomas Eoch had title to the premises, and that the plaintiff makes claim to the rents and profits, and to the property under and by virtue of the said false, forged and counterfeited deed.
    The other counts charge that the plaintiff “falsely, fraudulently and feloniously uttered and published as true, a certain false, forged and counterfeit deed, purporting to be the act of one Thomas Eoch,” setting it out as in the previous counts, averring a scienter.
    And in the fourth, fifth, sixth, seventh and ninth counts, that it was done with intent to defraud Harriet B. Williams and others, in the various forms and with the title particulars before mentioned. In the eighth count, that it was done with intent to defraud the people of the State of .New York, to whom the property escheated, the said Thomas Eoch having died without heirs.
    In the fourth, fifth, sixth, eighth and ninth counts, the falsely, fraudulently and feloniously uttering and publishing is averred to be by causing the deed to be recorded in the office of the clerk of Washington county, as genuine and true; and, in the seventh count, “by setting up the same in a certain complaint in a certain action in the Supreme Court, wherein the plaintiff in error is plaintiff, and Harriet B. Williams and others are defendants.”
    The plaintiff in error demurred, first, “to each and every of the nine several counts in the said indictment contained,” as insufficient in law; and, second, to the whole' indictment, as insufficient, &c.
    The Court of Oyer and Terminer sustained the demurrer, and ordered, adjudged and determined that the said indictment, and the matters therein contained, in manner and form, &c., are insufficient in law, and that the said Thomas Paige is not bound by the law of the laid to answer the same, and that the said Thomas Paige be dismissed and discharged from the .said premises in the said indictment set forth. .
    Upon writ of error brought by the people, the record was removed to the Supreme Court, in which, at a general term in the third district, the judgment of the Oyer and Terminer was reversed.
    The said T-homas Paige, thereupon, by writ of error, brought the record to the Court of Appeals.

      S. W. Jackson, for the plaintiff in error.

      W. A. Beach, for the defendants in error.
   Woodruff, J.

The whole indictment is claimed to be defective, because in neither count is it in terms alleged that the forged instrument was, or purported' to be, sealed; and that, if not sealed, it could not operate as a deed. Therefore, it is claimed that the. ability to perpetrate a fraud thereby is wanting. (People v. Shell, 9 Cow., 778.) If void, it is no forgery. (17 Wend., 542; 8 Barb., 560.)

The words of the instrument set out in the indictment import a transfer of an interest in real estate. To the validity and efficiency of a grant in fee of a freehold estate to pass the title, a seal is necessary. (1 Rev. Stat., 738, § 137.)

The argument in support of the demurrer assumes that the instrument set out in the indictment purports to be a grant in fee of a freehold estate, and that, therefore, it is void if there be no seal.

Our statute declares that every person who shall be convicted of having forged, certified or falsely altered any deed or other instrument, being or purporting to be the act of another, by which any right or interest in real property shall be, or shall purport to be, transferred, conveyed, or in any way changed or affected, * * * with intent to defraud, shall be adjudged guilty of forgery in the first degree. (2 Rev. Stat., 679, § 22.)

The indictment set out the instrument, and it concludes: “In witness whereof, I have hereunto set my hand and seal,” &c. It purports to be signed by the grantor, “Thomas Roch,” and in brackets annexed to his name are the letters “l. s.,” employed to indicate that the instrument is sealed.

But, averring the forgery of an instrument which contained the words, “ in witness whereof, I have hereunto set my hand and seal,” does not amount to an averment that a seal was in fact affixed to the name.. (Moore v. Jones, 2 Stra., 815; 2 Ld. Raymond, 1538; Van Sand-burn v. Sandford, 12 J. R., 197; Macomb v. Thompson, 14 J. R., 207.)

So in regard to the letters “l. s.” (Hanlon v. Camp, 4 Barb., 274); although, in certifying a copy to be a true copy of an original, if such letters were affixed to the name of the signer, it would be ordinarily inferred that the original had a seal, and that the letters “ l. s.” were the language of the certifying officer, and placed there by him as an assertion that in that place there is a seal. Still this is too loose to satisfy a requirement in the rules of pleading that a seal shall be averred. ■ •

As to this, and also as to the attestation clause, a conclusive test of their sufficiency as averments is this: Would they be fully satisfied, by proof on the trial, should an instrument be produced and given in evidence which had no seal? If they would, then they do not amount to an averment of sealing. It is plain that if the plaintiff in error had gone to trial, and a paper had been produced in the precise words set out in this indictment, and having the professed, signature of Thomas Eoch, with brackets and the letters “l.-s.” annexed, the terms of .the indictment in this respect would be fully proved, and yet the instrument is not- sealed. As the matter is stated in this indictment, the letters “l. s.” are not the language of the pleader, nor his abbreviation of an averment that there is the place of a seal.

If, therefore, nothing in this indictment purported to aver the sealing except the giving of what is averred to be the tenor of the instrument, it could not be said that the indictment sufficiently charged the forging of an instrument under seal.

But the indictment does, in express terms, charge that the plaintiff in error did falsely and fraudulently and feloniously forge and counterfeit a certain deed purporting to be the act of one Thomas Eoch, by which a right or interest in real property purported to be transferred and conveyed.

Now, there cannot be a deed without a seal. This is true at the common law, as it is by our statute. Indeed, the plaintiff in error insists upon this as the very ground of his argument, while at the same time he insists that, averring the forgery of a deed does not aver a sealing. I do not perceive the consistencey of the proposition.

Our Legislature, when they defined the crime and presented the penalty of forging a deed, did not think it necessary to add the words under seal, or any other terms, to show that they meant by the word to describe a sealed instrument. The word imported that. The indictment here follows the statute, and if it was necessary to be more specific in giving details, the giving of the copy was quite sufficient to furnish such particulars. And hence, the indictment being read, states the forgery of a deed, and the copy, with the locus sigilli pointed out, is in perfect harmony with the legal import of -the averment. The averment cannot be proved, except by evidence showing that an instrument having a seal was forged.

The whole object of the pleading is satisfied. The charge is absolutely definite and certain. It apprises the party indicted precisely what it is proposed to prove against him. The giving of the copy identifies the transaction in all its particulars, so that he has full opportunity to know what is charged, and prepare for trial, &c., so that a judgment upon the indictment will be an effectual bar to another prosecution for the same cause.

If, therefore, the question were entirely novel, and no guide could be found in adjudged cases, I should have no hesitation in saying the indictment was in this respect sufficient.

But I perceive no reason why the rule on this subject, well settled as to pleading in civil actions, should not be applied to an indictment. It is sometimes said, that in criminal prosecutions greater strictness should be observed. All that fian properly be intended by this is that, out of regard to human life and liberty, no rule designed to promote the fair conduct of a prosecution to fully apprise the party charged of the precise offense, to enable him to prepare for trial and to protect him from being twice vexed for the same cause, should be relaxed. It is not intended, to use the simile of an ancient law writer, that subtleties should be spun to such cobweb fineness that justice should fall through.

Every substantial object of a pleading, useful to the party charged, is secured in the present case.

The case of Fenton v. The People (4 Hill, 126), furnishes a striking analogy, and an example in which, in an indictment, it was held that the employment of a word which, ex vi termini, imported a material fact not expressly averred, was held. sufficient. There the indictment was for obtaining the signature of another to a mortgage by false pretense, and followed the words of the statute. It was claimed that no offense was charged, because it was not averred that the mortgage, though signed, was ever delivered by the signer. The court held that the charge that the prisoner “ obtained ” the signature by false pretense, &c., imported that it was delivered to him.

The rule in civil actions, stated in the note to Cabell v. Vaughan (1 Williams’ Saunders, 291): “ There are some words of art, such as 1 indenture,’ ‘ deed,’ or ‘ writing-obligatory,’ which, of themselves, import that the instrument was sealed by the party, without the averment of sealing,” sustained by numerous cases there cited, quoted by Spencer, J., in Van Santvord v. Sandford (12 J. R., 197), does not appear to have been questioned"in modern times; and I perceive no reason why a charge of forgery and counterfeiting a deed should not import the falsely making of a sealed instrument, as truly as the charge of making a deed imports the execution thereof by seal. (See Francis Englefield’s Case, Leonard, 175; Heaton v. Wolf, 2 Roll. R., 228; Benson v. Nodger, Cro. Eliz., 737, “per scriptum obligatum;” Ashman v. Rypley, Cro. Jas., 420.) “ Sealing” is intended by the words “per scriptum obligatum.” (Bond v. Moyle, 2 Vent., 107; Woodcock v. Morgan, 6 Mod., 306; Atkynson v. Cratsworth, 1 Stra., 512.) I cannot regard the hesitating conclusion of the judges in Rex v. Norton (3 Keble, 356), as sufficient ground for rejecting the analogy of these cases, or the conclusion which, I think, good sense and sound reason compels.

Another view of the subject is entitled to some consideration, though not suggested on the argument. The whole argument for the appellant rests upon the assumption that the indictment could not be sustained, if the instrument be not sealed. That is doubtless true, if the averment that the plaintiff in error forged a deed is an averment of sealing, and that is the conclusion above stated; but that is fatal to the demurrer.

Let it be supposed, then, for a moment, that such is not the force of the averment, does it follow that the instrument-is void? The statute requires a seal to the grant in fee of a freehold. Nothing in the indictment shows that the interest of Thomas Eoch was a freehold. An interest in real estate may be created by writing, without a seal. (2 Rev. Stat., 135.) The forgery of an instrument creating or transferring an equitable interest, is within the statute, 11 a deed or other instrument, by which any right or interest in real property shall be, or shall purport to be, transferred, .conveyed, or in any manner charged or affected.” (2 Rev. Stat., 738.) An instrument intended as a deed of bargain and sale, made upon sufficient consideration, may operate • as an agreement, though defective; and especially it may • when the right, title and interest to be affected thereby is merely equitable.

I am not prepared to concede that the instrument set forth in this indictment is void, if not sealed, and if not, then the whole argument on this point fails. For, if ' averring the forgery of a deed imports forgery of a sealed instrument, then the indictment is sufficient for that reason; . and, if averring the forgery of a deed does not ex vi termini import the forgery of a sealed instrument, then the indictment is sufficient because the instrument, even if not sealed, is effective to create an interest in real estate.

Another objection, urged to this indictment, relates to the fourth, fifth, sixth, seventh, eighth and ninth counts, and is, that they do not sufficiently aver the offense of uttering and publishing. It is not denied, that they follow the words of the statute, which is: “ Every person who shall be convicted of having uttered and published as true and with intent to defraud, any forged, altered, or counterfeited instrument, * * * knowing such instrument * * * to be forged, altered or counterfeited, shall suffer,” &c.

This is charged in terms; but it is said, that it is not enough that the indictment follows the words of the statute, it must state in other terms, what the party did, and that must appear to be an uttering and publishing of the instrument, or at all events, if the party state the act claimed to be an uttering and publishing, it must amount thereto in law.

Here, in five of the counts, the allegation is that the plaintiff in error uttered and published the forged.deed, by causing it to be recorded in the office of the clerk of Washington county, as genuine and true.

I cannot doubt that this was uttering and publishing, within the just meaning of these terms. That act must be judged of in the light of our statutes, which authorize and give effect to the recording of deeds. They make the recording notice to all the world of the claim, or apparent title conferred by the instrument, and make the record itself evidence in courts of justice. Of necessity, then, the placing upon record an instrument apparently conveying title per se, creates a doubt of the title of the pretended grantor, and is an assertion of the right of the pretended grantee. It is made to operate usefully to the apparent grantee, prejudicially to the apparent grantor, by the very act of placing on record.

The case of an instrument having no operation in the hands of the forger, and, not made nor offered to be made efficient in any manner, may be be different. The discussion of this subject, in the People v. Rathbone (21 Wend., 509), and the cases there cited, show not only that a deed of real estate may be uttered, within the meaning of the statute, and that the term uttering is not used in the restricted sense of selling or negotiating, which would be wholly inappliable to such an instrument.

The suggestion that the plaintiff in error did not commit the offense, that, if recording be uttering, the county clerk is the offender and the plaintiff a mere accomplice, is entitled, I think, to but slight consideration. For all legal purposes, delivering to the county clerk for record completes the act. The clerk is the mere instrument by which the deed is spread upon the books of record, and the moment it was lodged for record in the office it became operative.

And, if this view be correct, it is not less clear that the charge in the seventh count, that such uttering was by setting up the same as genuine and true, in a complaint in an action wherein the party charged is plaintiff, and the parties intended to be defrauded are defendants, is sufficient.

In the language of the court below, in which I fully concur, the setting up of the instrument in the suit, and the founding of a right thereon in a court of justice, was an assertion, in the most solemn manner, of its genuineness and value. This was a very emphatic use and employment of it, for the purpose of maintaining and enforcing an asserted right.

The remaining objection is, that it does not appear by the indictment how the persons named were to be defrauded by the instrument. The answer is, that this is matter to be proved.

The felonious forging and uttering and publishing, with intent to defraud parties named, are stated. They are persons shown to have an interest in the property. They were in a situation in which they could be prejudiced by giving faith and credit to the instrument. But it is an elementary rule, that the intent to defraud being duly averred, it is not necessary that the pleading should state the manner in which the party was to be defrauded. (2 Russ. on Crimes, 383, and cases cited.)

And Mr. Justice Bookes, in the opinion below, has collected numerous cases which show that it is wholly. unnecessary in pleading to enter into the details by which the intent to defraud is to be or may be established.

These are matters to be given in evidence on the trial in support of the averment of fraudulent intent. (The People v. Stearns, 21 Wend, 409; Commonwealth v. Mc Donald; 5 Cush., 365; 4 Allen, 311; 9 Allen, 274; 2 Carr. & Kir., 293; Russ. & Ry., 154; Bard. Cr. L., 109.)

I have thus considered the points discussed in this case by the counsel, relating to the sufficiency of the indictment, being uncertain what view my brethren, on our final consultation, would take of the question, whether in the present state of the record we can review the order of the Supreme Court, reversing the judgment of the Oyer and Terminer sustaining the demurrer.

The consequences of our decision, to the plaintiff in error, whether we affirm the order of the Supreme Court or dismiss the writ, are not.widely different.

In either case, the Court of Oyer and Terminer must proceed upon the matter to a final judgment. Nevertheless, if the record does not show that the proceedings below are in a condition proper for review here, we ought to dismiss the writ.

The judgment below is not a final judgment. The reversal which has been had in the Supreme Court, in effect, overrules the demurrer to the indictment, and in such case there is no judgment until' the Court of Oyer and Terminer proceed therein.

After final judgment for the people in the Oyer and Terminer, such judgment being affirmed in the Supreme Court, the plaintiff is entitled of right to come to this court (2 Rev. Stat., 740, § 15) for a review of the judgment, and it is not proper, nor, as I think, permissible to the plaintiff in error to enter into this court for a review of the same matter.

I find no warrant for his coming here to review any other than a final judgment. That is the term employed in the statute, and where similar questions have arisen in this court, the ruling here excludes the idea that any other can be reviewed.

In the People v. Nestle (19 N Y., 583), the construetion of the act of 1852 (chap. 82), authorizing the people to bring a writ of error to this court was considered1, and was held to warrant such writ only after final'judgment .had been entered in favor of the defendant, and in Hill v. The People (10 N. Y., 463), it was held that, under the practice of the former court of errors and the judiciary act of 1847, this court could not review a.record of conviction which did not show that judgment had been pronounced.

If these views are correct, the writ of error should be dismissed and the record be remanded.

All the judges, except Miller, J., concurred in the opinion of Judge Woodruff that the indictment is sufficient. The court were unanimous in the opinion that the writ of error must be dismissed.

Writ of error dismissed.


author: By the Court, Hogeboom, J.

text:
    Supreme Court. Columbia Special Term.
    August, 1868.

      Hogeboom, Justice.
    The People v. George W. Cole.
    In deciding upon an application to bail, on an indictment for murder, the fact that the prisoner has been once tried, with a failure of the jury to agree, is a proper one to be shown, as bearing upon the question of the probable guilt or innocence of the prisoner.
    A party applying to be bailed is not confined to what appears upon the record. He may show extraneous facts, such as those relating to the presentation of the indictment, the payment or discharge of a fine, his suffering by imprisonment, and its effect upon his health, &c.
    The object of imprisonment before conviction is not to punish the prisoner, but to secure his attendance at the trial. If that can be effected as certainly by bail as by imprisonment, the prisoner, in almost any case, should be bailed.
    In the case of an indictment for murder, as in other cases, whether bail shall be taken rests entirely in the discretion of the court. While, as a general proposition, in cases of murder, the temptation to flee from justice is supposed to outweigh all inducements to remain, growing out of pecuniary obligation, yet circumstances showing a want of consciousness of guilt or of probability of conviction, may properly be shown as reasons for admitting to bail.
    On an application to bail, the affidavits of jurors are competent evidence to show the disagreement of the jury on a former trial.
    In a case where it appeared that on a trial for murder the jury had disagreed, six being in favor of acquittal and six for conviction of murder, the latter being willing to find a verdict of manslaughter in the third degree, it appearing that a second trial could soon be had, and that the health of the prisoner was not suffering materially by imprisonment, the court, after reviewing, in connection with these facts, the other circumstances of the case, refused to admit to hail.
    . The prisoner, who had been indicted for murder, and once tried, when the jury did not agree upon a verdict, was brought up under a writ of habeas corpus for the purpose of being bailed. Oh the return of the writ, it was objected, by the public prosecutor, that copies of the affidavits on which the writ of habeas corpus was allowed had not been served upon the district attorney, and the hearing of the application was postponed one week tó enable the counsel for the prisoner to serve such papers.
    At the adjourned day, it was objected that the affidavits could not be read, on the ground that no evidence was admissible except the indictment, and the proofs on which it was found, or the evidence taken under it, and it was further objected that the affidavits of jurors were not admissible to show that they had failed to agree on a verdict.
    In deciding upon the objections made, after the questions had been discussed by counsel, the judge said as follows :
    The cases to which the district attorney has referred do not seem to me to be entirely parallel to the present case. They are cases occurring before indictment, or after indictment and before trial. It may be, it probably is, true, that in reference to the abstract question of either the guilt or the innocence of the person involved in the trial of the indictment itself, there may be no other evidence admissible except the indictment and depositions which lie at the foundation of it. But, I think, this is a different question, and depends, at least to some extent, upon different considerations. Now, the prisoner has had a trial— at least that is a proposition which the party proposes to prove. The prisoner has had a trial. If that trial had , eventuated • in a verdict, of course it would be admissible to show the character of that verdict, either by record evidence, or, if that were incapable of being produced, by such other evidence as the nature of the case allows.
    It is said there has not been a verdict, and the jury have disagreed upon the merits of the case—have failed to unite in a verdict of guilty or a verdict of acquittal. And the first question is, whether that fact has any bearing whatever upon the question of bail. If it has, some means ought to be allowed to bring the evidence before the court. I think, upon several adjudged cases, the fact itself is of some importance in its bearing upon this question now before the court. It bears upon the question of the probable guilt or innocence of the prisoner. Presumptively, for the purpose of bail and before trial, that is established by the indictment, although, I think not even then, absolutely so, so as entirely to preclude an inquiry into the propriety of bail. After all, it seems to me to be the law, as well as just, that in cases of that kind, the matter should be left to the sound discretion of the court.' But here a trial has been had, and it is proposed to prove that a conviction was unable to be ' had, after twenty-four or forty hours’ effort on the part of the jury; and that, at. the end of that time, and finally, the jury stood six for acquittal and six for a verdict for a crime which would entitle a party ordinarily to bail.
    Now, it seems to me that fact should be permitted to be brought before the court. If it had been entered upon the minutes of the court, I do not see why the prisoner could not avail himself of it. That has not been done. But these extraneous facts of various kinds are allowed to be introduced in evidence, as bearing upon applications of this kind, as has been referred to. Facts in regard to the presentation of the indictment, the fact of payment or discharge of a fine; the fact of suffering by imprisonment, the effect "upon the health of the prisoner; the probability upon the whole that a crime has been committed. It is said, and it is true, that an indictment is presumptive, and perhaps, for the time being, conclusive evidence that a crime had been committed. But this case has been subject to the test of judicial investigation, and it has resulted in an inability, upon the part of the jury, to. arrive at a unanimous verdict. Now, "ought that to have any bearing upon the question of bail? . I can conceive that in many cases it should.have. I "recollect, that in several cases, it has been thought to be a fact bearing upon the question of the propriety of bail. :If there is an unlikeli- . hood of a conviction, there would be an improbability of his attempting to escape trial. The object of the imprisonment is not to punish the prisoner, but to secure his attendance at the trial. If that could be effected as certainly by bail—as well by bail as by imprisonment—almost any prisoner should be bailed. Now, that should have a bearing. If a jury are unable to agree upon a verdict of guilty, is" there not some probability that the party may not ultimately be convicted of the high crime for which he stands charged, and may be more likely to be only con- • victed of a crime for which bail may be properly taken. I think" so; I think evidence of this kind is admissible. The' greater doubt that I had, arose upon the mode by which the fact was intended to be proved; and that is the greater difficulty in my mind; that is, whether the affidavits of the jurors themselves are admissible. This question is whether they may not be said to be of a character like those which tend to impeach their own verdict. Those are inadmissible ordinarily, that is, those affidavits of jurors which tend to impeach their own verdict, for irregularity or misconduct in the jury themselves. This may be said not to be entirely analogous, for here was no verdict. As I understand it, the object is not to go, at length, at least, into the details of the discussion before the jury, to see upon what grounds they favored a verdict of acquittal or conviction, but, generally to see the fact of how the jury stood, one way or the other, upon this general question of guilty or not guilty—not necessarily to call names, not necessarily to enter into the views of the jurors, further then to express the general result, but simply for the purpose of declaring how they stood, so as to vindicate the probability of conviction or acquittal upon a future trial. To that extent, I think the evidence admissible. If proved by a constable or some officer, I think, the mode would be admissible. I am not entirely clear that it is susceptible, with propriety, of being proved by jurors themselves. I shall, therefore, admit the evidence for the present, reserving the question till hereafter, whether the affidavits of jurors may be received, of this kind, or whether evidence, such as can be got from the constable or other parties, are the means by which such facts can be shown. I will, therefore, hear the affidavits, subject to the objection, and reserve the question of admitting or excluding them, to be decided hereafter. Affidavits were then read on both sides, and the case was argued by

      Wm. J. Hadley and Amasa J. Parker, for the prisoner.

      Henry Smith (District Attorney), for the people.
   By the Court, Hogeboom, J.

The prisoner was, on a previous day, brought before the court on a writ of habeas corpus, sued out on behalf of the defendant, to inquire into the cause of his detention, and to procure his discharge on competent bail. He is now held before this court by the officer having him in charge, awaiting a decision upon this application. By the return to the writ and other papers, it appears that the prisoner, in June, 1867, was indicted, in Albany county, for the wilful murder of L. Harris Hiscock; that the indictment was moved for trial at the Albany Oyer and Terminer, held in November, 1867; that the trial was postponed on the motion of the defendant, was again moved at the Oyer and Terminer, held in January, 1868, but the prisoner not being ready, the court was adjourned until the 20th day of April, 1868, at which time the trial commenced, and was concluded on the seventh day of May afterward, resulting in a disagreement of the jury. At the Albany Oyer and Terminer, held on the third Monday of May, 1868, both parties appear to have been ready for, or willing to go to trial, but for reasons not very fully disclosed, and apparently growing out of the convenience of the court, the trial was not then proceeded with, nor an adjourned Oyer and Terminer appointed, as had been suggested, and was apparently satisfactory to both sides. Since that time, some effort has been made, thus far unsuccessful, to procure a judge who should be able to hold an extraordinary session of the court, under appointment from the Governor, prior to the next regular session of the court, on the second Monday of November next, and the district attorney expresses the belief that such efforts will yet be successful, but the counsel for the prisoner intimate that he will probably now not be ready for trial until the November Oyer' and Terminer, and mainly, as I understand them, for the reason that the brother of the prisoner, Senator Cole, of California, is just about going home, and cannot conveniently return until near the time of • the re-assembling of the United States Congress.

This recital of facts tends to show that there has been no lack of due diligence on the part of the prosecuting officer in moving the trial of the prisoner, and that he is even now.ready to aid in procuring the appointment of an extraordinary session of the court, if it shall be desired by the prisoner, or deemed necessary for the purposes of justice. I have the same disposition, and though originally disinclined, on account of temporary ill-health and other engagements, to undertake the extraordinary labor of such a court, and much preferring that another judge should be assigned to that duty, yet, as the one who is appointed to hold the November Oyer and Terminer, I should not feel at liberty to decline presiding at an earlier and extraordinary session of the court, if the Governor should deem it most proper to appoint me to that duty. There will, therefore, in all probability, be no difficulty in-procuring an early trial of the indictment, if it shall be desired by the prisoner, or be consistent with his proper preparation of his case. Hence, so far as his application is grounded upon the great lapse of time which has taken place since his original arrest, and will take place before he can possibly be retried, I do not think it ought to be granted, because, beyond what is inevitably incident to all judicial proceedings, it has arisen and is likely to arise, for the most part, from his own action. If it should hereafter become apparent that any undue delay is caused by the public authorities, it may furnish reason for a favorable consideration of a renewed application to be discharged on bail.

It is further claimed that the physical condition of the prisoner requires his liberation on bail. But I do not see that this condition is substantially different from what it has heretofore been, or that his imprisonment has resulted of itself in any serious detriment to the prisoner’s health. This part of the application is not very strongly supported. It rests mainly on a single allegation in the petition of the prisoner for this writ, that in or about the year 1862, while serving in the army, he received a severe and dangerous internal injury, from which he has ever since suffered and is still suffering, and that, in his judgment, his physical condition renders his discharge from imprisonment upon bail absolutely necessary. The latter clause of the sentence is the mere expression of an opinion, which, however sincerely entertained or carefully formed, must, I think, yield to the preponderating evidence that his confinement has not seriously affected his health or so decidedly impaired the same beyond what it otherwise would have been, as to give cause for serious apprehension, or to demand as a matter of humanity or duty the entertainment of the application, especially upon that ground.

The only remaining question for consideration, and it is that upon which the application is principally founded, is,' whether the occurrences or the result of the previous trial give such a character to the transaction as justify or require the admission of the prisoner to bail. The right in the court to admit to bail, even in cases of murder, must be conceded. It is a matter left to the discretion of, the court. . The object of imprisonment previous to trial is not punishment, but the security of the person of the alleged offender to await the judgment of the law. In ordinary cases this object is supposed to be attainable by the exaction of sufficient and reasonable bail. But, as a general proposition, in cases of murder, as conviction of the offense results in taking the life of the offender, the temptation to flee from justice is supposed to outweigh all inducements to remain growing out of pecuniary obligation, no matter to what amount. And often, perhaps generally, though not always, in the case of consciousness of guilt or of probability of conviction, this is so. This probability may be naturally supposed'to decrease, though it is not always so, as the efforts to convict prove unavailing. Hence, the result of a previous trial is very proper to be considered in determining the probability of a future conviction, and in determining also the probability of the' prisoner’s guilt. It is proper, therefore, to take into consideration all the circumstances—the circumstances of the transaction, and the legitimate inferences to be derived from them, the evidence and proceedings upon the trial, the disagreement, as reflecting' probable light upon the real character of the offense, and the ultimate result of a new trial.

In this we start with an indictment against the prisoner,deliberately presented and perseveringly prosecuted for one of the very highest crimes known to the law. This, of itself, is usually regarded before trial as presumptive evidence of guilt, sufficiently strong to justify a refusal to bail. Then we have, in the conceded or undenied facts of the transaction, not only strong evidence of the act of killing, but that the act was done with premeditation, provided the prisoner was not insane, or under the temporary dominion of a sudden and uncontrollable frenzy. The prisoner having previously provided himself with a pistol and loaded the same, proceeded to the office of a principal hotel in Albany, and, without any previous admonition or conversation, or any provocation at the time other than such as might be supposed to arise from the sight of the alleged destroyer of his domestic peace, shot the deceased instantly dead. I,have examined the testimony taken on the trial, with the care required by its importance. As I may possibly be required to preside' on the trial hereafter to be had, I will not venture to express an opinion upon its legitimate, effect. It is not, however, improper to say that the charge of the able and learned judge who. presided on that trial (which I have also read with the attention due to the source from which it proceeded), tends strongly to the conclusion that the prisoner is guilty of murder, unless saved therefrom by irresponsibility for his act growing out of mental aberration.

This, in substance, must be the main defense on the trial, for whatever sympathy a properly constituted mind must necessarily and inevitably indulge in reference to. the prisoner, growing out of circumstances alleged by popular rumor to be connected with his domestic history, the very existence of these circumstances is a matter of controversy, and, even if true, they probably, so far as gathered from the case as to the period of their supposed occurrence, can never be legitimately introduced in evidence, as in themselves an entire and absolute justification for the act of killing, or otherwise than in reference to the effect which a belief in their supposed occurrence produced, or would naturally produce, upon the conduct of the prisoner. It is true, the defense of insanity or insane impulse was not wholly founded upon evidence of this character, but upon a' supposed hereditary or family tendency in that direction, and upon a derangement of bodily and mental health and functions, occasioned by injuries received and sufferings endured during service in the late war.

The precise effect of these upon the mind of the pris-' oner was the subject of grave controversy on the trial, as well as was his actual mental condition at the time of the commission of the alleged murder and immediately previous thereto. In the most favorable aspect of this evidence for the prisoner, it may, I think, be said to have left the case not wholly free from doubt. Assuming this to be so, and looking at the clear and unqualified evidence to which I have heretofore referred upon other facts of the case, will not public justice be better subserved and the certainty of the execution of the judgment of the law be more effectually secured, by keeping the prisoner in confinement for a short time longer?

The jury on the previous trial disagreed, and this is put foward as a strong reason for bailing the prisoner. The circumstances and mode of their disagreement are sufficiently established. I ■ admit the affidavits of the jurors heretofore conditionally read upon that subject. From •them it is apparent that throughout (unless possibly upon the last ballot), six of the jurors were in favor of acquittal, and six in favor of conviction of the crime of murder, though the latter were willing to adopt a verdict of manslaughter in the third degree, if it could be unanimous. The opinions of all these jurors, arrived at after a protracted trial, after great deliberation, and under the charge of an enlightened court, are entitled to great respect, but are nevertheless not conclusive. Taking them as they are, they leave the matter in great doubt. If six of them were in favor of acquittal, six of them were also in favór of conviction, and if the result of another trial should, as it may possibly do, support the opinion of the latter, it might well be doubted whether a discretion, exercised in favor of bailing the prisoner, was judiciously exerted.

As to the probable result of the trial which is hereafter to take place, or as to what its actual result should be, it is unbecoming in me, perhaps, to express an opinion. On the question of bailing the prisoner, that does not seem to me to be precisely the question. It is not precisely whether a second jury is likely to convict, for a jury may be swayed from their duty of conviction or acquittal; nor precisely whether the prisoner is guilty of the offense charged, for a judicial tribunal on such an occasion as this cannot be asked to make so critical an examination of the evidence in the case; nor precisely whether, judging from the mental and moral characteristics of the prisoner, he is likely, notwithstanding the very grave character of the accusation, to submit himself, if allowed his freedom, to the judgment of the law; but whether, on the whole, the line of safe precedent is not better followed, and the cause of public justice more securely protected by refusing than accepting bail, by confining than discharging the prisoner—whether the gravity of the accusation is not such, supported as it is by an indictment deliberately found, and by much evidence on a trial already had, as well as by the opinions of six jurors, after half a month’s protracted investigation, as to make it safer and better, on the whole, for the general interests of justice and the protection of the whole community, that the defendant should submit to a little longer confinement, which is inseparable, to a greater or less extent, from all criminal accusations, than that a temptation to escape from the vengeance of the law in a possible contingency should be afforded, and, at the least, a possible misconstruction of an act of judicial discretion should occur.

It is proper to do all in. my power to prevent such misconstruction, and, therefore, to say that, while a decision to admit to bail would furnish no just ground for an inference in favor of the acquittal of the prisoner, so a contrary conclusion should not be construed as evincing any opinion of the court in favor of conviction, but simply as a precautionary measure to guard the just rights of the public, while productive of no real detriment to the legal rights of the accused party.

On the whole, after the best consideration I have been able to give to the case, I am of opinion that the application to admit the prisoner to bail should be denied, and that he should be remanded to the custody of the sheriff of the county of Albany.


author: King, President. —

text:
    Lanning v. Smith.
    A mortgagor wbo files his hill against a mortgagee, is not entitled to a decree for redemption of the mortgaged premises under a prayer for general relief.
    It is indispensable in a redemption bill, that the mortgagor offer to pay all the debt, interest, and costs, and if he does not, he lays no foundation for a decree to redeem.

      Jan. 2.

    This was a bill in equity brought by Samuel Lanning, against Juliann Smith, widow, and others, heirs-at-law of John George Smith, deceased. It set forth that on the 12th day of September, 18BB, the complainant was seised in fee of a house and lot in Philadelphia (describing it), and being so seised, he mortgaged to John George Smith to secure the payment of $2500 thereon as expressed in the mortgage, a copy of which was attached to the bill, and that the transaction was a mortgage, and nothing else. It was further stated in the bill that on the 26th day of September, 1839, the complainant was in arrear for interest on said mortgage, by reason of his poverty; but being willing to put the said J. G. Smith into possession of the premises, so that he might collect the rents, made to him a conveyance of the premises, which was duly recorded and a copy annexed to the bill: that, at the time of the execution of the deed of conveyance, there was no money paid but the mortgage-debt of $2500, and the interest amounting to the sum of $375, was the sole consideration.
    It was also averred in the bill, that on the same day the said Smith executed to Lanning a deed of covenant, in which, after reciting the mortgage, describing it as intending to secure to him the payment of the said sum of $2500, with interest, and the said Lanning being unable to him the interest annually upon said mortgage, he had conveyed the premises 'which were mortgaged to said Smith, absolutely in fee-simple; and that said Smith, being willing and anxious to befriend and accommodate said Lanning, agreed and covenanted, for himself, his executors, &c., and heirs, that if the said Lanning should at any time, within twelve months from the date thereof, pay or cause to be paid to said Smith, his heirs, executors, &c., the whole of the aforesaid debt of $2500, together with all the interest then due, and which should accrue thereon to the time of payment, and the expenses incurred in the conveyance, then the said Smith, his heirs, &c., should and would immediately, thereupon, at the proper cost of the said Lanning, make and execute such proper and sufficient deed or deeds, conveyances, or assurances in the law, for the reconveying of the said premises, as his counsel should reasonably advise or require; which said covenant was one of the exhibits attached to the bill.
    It was then averred that J. G-. Smith was dead, and that the defendants were his widow and heirs.
    The bill then set forth that on the 26th day September, 1840, the said Lanning was ready to pay the said mortgage-debt, with the interest due thereon, and the expenses according to the said deed of covenant, and went to the known and accustomed place of business of the deceased, and there saw William H. Smith, the eldest son of the deceased, told him his business, and that he was then prepared to pay off the said mortgage, and whatever else he was bound to pay, provided he could be reinstated in said estate; when said William declared he had no power in the matter, and could not do anything. The bill averred that further proposals were made as to the business, but said William would not do anything, and told the complainant that he must see his counsel, and that he should call again in the afternoon. The bill averred that he did call, when he was told it was too late, and that he could and would do nothing; that there were so many heirs in various parts of the country it was impossible to do anything. The bill charged that the complainant was entirely defeated in his efforts to pay off said mortgage-debt on the 26th day of September, 1840: The bill prayed for general relief at the hands of the Court.
    The answer admitted that complainant was seised of the jrre-mises in 1883, and mortgaged them to J. Gr. Smith; and that on the 26th day of September, 1889, he conveyed the same to said Smith, and that there was no other consideration paid therefor than the mortgage-debt and interest due thereon; and that said J. Gf. Smith executed the covenant for a reconveyance mentioned in the bill, and that said Smith was dead. The defendants in their answer stated they did not know that, on the 26th day of September, 1840, the said complainant was ready to pay said mortgage-debt and interest due thereon, and the expenses according to said deed of covenant; but that Lanning did not make to them, the defendants, or any of them, a tender of money, or exhibit any, nor did they see any in his hands or possession that day; that true it was he came to the place of business mentioned in the bill, and said William IT. Smith recollected that Lanning said he was prepared to pay as soon as the papers were ready, but that he did not make to them, or either of them, a tender of any money, or show them any, nor did they at that time see any money in his possession; and the said William H. Smith did say that he and his brother were only two parties, and could do nothing, and desired said complainant to call again, or in the afternoon, and they would see their attorney, which they did, and when he called again they told him their lawyer said it was too late, and added that they could do nothing; also that there were numerous heirs in the western country and many other places, or words to that effect.. The defendants stated in their answer that the said J. Gr. Smith, in his lifetime, did not consider the premises worth more than $3000; there was also a statement of the rents received and expenses incurred annexed to the answers.
    The case was set down for hearing, and argument on bill and answer alone.
    The cause was argued by Mr. Wheeler, for the plaintiff,
    who contended that his client had the right to redeem, and cited 7 John. O. R. 40; Coke Litt. 205; 4 Kent Com. 88, 143.
    Mr. Kennedy, for defendant,
    contended it was not a mortgage: cited 15 S. & R. 135; 2 Kent, 129; 2 John. C. R. 34; 15 Yes. 418.
   The opinion of the court was delivered by

King, President. —

Whether we agree with the complainant and consider the mortgage of 1833 as a subsisting instrument in full force, or whether we consider the deed and defeasance of the 26’tli -of September, 1839, as a substituted mortgage, and not a conditional conveyance, still the only relief the complainant is entitled to, is the right of redemption: M’Donough v. Strawbridge, 2 Ball & Beatty, 555; Drew v. O’Hara, Ib. 562. This he does not ask in his prayer for special relief; nor has he asked for it on the hearing under the, comprehensive operation of the prayer for general relief: Cook v. Martin, 2 Atk. 3. It is doubtful, however, even if the complainant at the hearing had under the prayer for general relief asked to redeem, we could have made such a decree under this hill. Although, in the case of Cholmley v. Countess of Oxford, 2 Atk. 267, Lord Hardwicke seemed to consider that whenever a mortgagee is made a party to a bill by the mortgagor, praying relief, it is the same thing as praying to redeem, because redemption in such a bill is the proper relief; yet in all the precedents of bills to redeem the plaintiff is made to offer to pay debt, interest, and costs, and in the case of Beekman v. Frost, 18 John. Ch. Rep. 554, it is expressly ruled that such an offer is essential and indispensable in a redemption bill. The plaintiff cannot be compelled to redeem on the terms of payment: it is at his election to do so or not. If he makes no offer to pay, he does not lay the foundation for a decree to redeem. Indeed, the complainant here puts his case on other grounds, which are clearly not tenable. He asks the court to decree “that the mortgage is still in being,” and “that the defendants be ordered to convey the mortgaged premises to him, subject to the mortgage-debt, or to so much of it as is due.” Now such a decree is against everything like equity principles and practice. Where, as here, there is no dispute as to the legal and bond fide character of the mortgage (considering it at present to be a mortgage), the plaintiff cannot ask the intervention of a Gourt of Equity to aid him in obtaining the legal title to his land until he offers to do equity by paying the defendant the mortgagee his debt, interest, and costs: Smith v. Valence, 1 Rep. in Ch. 170; Cowp. 601; 2 Vern. 536; 9 Ves. 71; 5 Price, 319; 15 John. 515. It is however admitted, that, in reference to costs, a mortgagee may subject himself to their payment where he resists redemption merely for the sake of opposing the mortgagor, where a clear equity to redeem can be proved against him: Baker v. Wood, 1 Ves. 461; Broughton v. Davis, 1 Price, 224. In a case like the present, where the alleged mortgagee has been in the possession of the mortgaged premises and in the receipt of its profits, although the mortgagor is entitled to an account, yet where, from his own showing, these profits can amount to but little more than interest on the mortgage-debt, he must offer to pay the mortgagee the difference between the profits of the land and the principal and interest of the mortgage-debt before he can claim relief. Here is a case in which the complainant admits himself to be a debtor to the defendant to a large amount; concedes, that, to secure the payment of this sum, he executed to Mm an absolute deed of his real estate, accompanied, however, with an instrument which he, the plaintiff, considers a defeasance operating to change his absolute conveyance into a mere mortgage; the money secured by which he does not pretend he has paid or satisfied. In the face of these admissions, and without exhibiting a single fact to justify so novel a procedure, he asks us to compel the defendants to reconvey to him the legal title to the land, which he conveyed to Smith for the security of his money, and this without doing or offering to do what equity, natural as well as artificial, manifestly requires; viz. offering payment of what he justly owes as a condition precedent to any interference with the existing legal rights of the defendants. The proposition is one so manifestly unsound, that its simple statement carries with it its own refutation.

I have said that not a single fact is stated to justify the extraordinary interference required of us. It is to be borne in mind that the plaintiff has set down this case for argument on bill and answer, without going into any proofs of his case. Under such circumstances, the plaintiff admits the answer to be true in all points, and no other evidence is admitted unless it be matters of record, to which the answer refers. All the averments in the answer are to be taken as true; and even where the defendant states he hopes to be able to prove such and such matters, they must be considered as proved, as the plaintiff, by not replying, has excluded the defendant from the opportunity of proving his averments: Brekenhoff v. Brown, 7 John. C. R. 217. The effect of a plaintiff setting down a cause for hearing on bill and answer would seem to be analogous to a common-law demurrer to evidence; where the party tendering the demurrer not only concedes the correctness of the testimony as given, but admits every reasonable conclusion a jury might fairly draw from such testimony. The plaintiff’s bill is dismissed with costs. But as this is a case on which we only determine that the plaintiff has no title to the relief sought by his bill, the dismissal will be without prejudice, the effect of which is that this decree will not be a bar to another bill seeking appropriate relief: 1 Atk. 571; 1 Cha. Ca. 155; Cooper Plead. 270. In that event, the question will properly arise whether the deed and agreement of the 26th of September, 1839, are to be regarded as a mortgage, or an absolute purchase, subject to a re-purchase by the vendor within a limited period, which is the true question between the parties. This will involve the inquiry as to who are the proper parties in a redemption bill in Pennsylvania; whether the reconveyance is to be executed by the heir at common law of the mortgagee, or all the heirs under the intestate laws; and how a reconveyance can be ma.de, where, as here, there are infant trustees and heirs, and no statutory provision for such a conveyance.


author: King, President,

text:
    Stevenson’s Estate.
    On the reference to an auditor to settle and adjust an account of executors or administrators of an estate, he has no authority to adjust disputed claims among the executors as to the proportions of commissions among themselyes. He should simply decide upon the aggregate of commissions with which the whole estate can be charged.
    Where a testator said in his will, “H. S. will be indebted to my estate at my demise, as will be seen by my ledger; the payment of said debt to be made when entirely convenient to him, free from any charge of interestHeld, that this does not mean an ability to pay in the legal acceptation of the phrase; but when it was convenient to malte the payment without producing severe pecuniary embarrassment. The period for such payment as to time, is left to the discretion of the legatee, but must be exercised bond, fide; and if it can be shown at anytime, that, regard being had to the pecuniary means of II. S., payment ought to be convenient, then the period for coercing the payment of the debt has arrived. Such is a question of fact, and ought to be affirmatively shown by those who seek to enforce it. When it can be shown that the refusal to pay the debt is merely colourable, and he has the means ample for payment, then such refusal would be mala fide, and he should be coerced to pay.

      Nov. 20.
    This case arose in the Orphans’ Court, on exceptions filed to the report of the auditor, on the settlement of the account of the executors.
    The statement of a few clauses in the will sufficiently presents the points in the case, with the facts referred to in the opinion delivered by the court. The will was executed in 1829, and contained this clause: “ Item 17. I give and bequeath unto Henry Seaton a legacy or sum of ten thousand dollars.” In March, 1832, the testator annexed a codicil, and, among other items in it, this: “ I give to Henry Seaton an additional legacy or sum of five thousand dollars. I also give to the said Henry Seaton the right of removing with his family to Bloomsbury, New Jersey, and occupying, free of rent, during the term of his natural life, my messuage and lot of ground thereunto belonging, which for some time’ was under rent and occupied by Mr. Stephenson, provided that he, within twelve months from and after my demise, shall decide to remove, and occupy the same.” Subsequently, on the 24th of August, 1832, the testator made another codicil in the following words: “ Whereas, I have by codicil to my will bequeathed to Henry Seaton the sum of five thousand dollars, I now revoke said bequest, and in lien thereof give him, his heirs and assigns, my late purchase of house No. —, in Chestnut street, and lot of ground thereunto belonging, and now also, for some time past, occupied by him as a residence for his family. The said Henry Seaton will be indebted to my estate at my demise, as will appear by my ledger; the payment of said debt is to be made entirely convenient to him, free' from any charge of interest.”
    The testator constituted the said Henry Seaton and three others his executors. It would seem that Samuel Grant, one of the other executors, was most active in the settling of the estate. An account was filed and referred to an auditor for settlement and adjustment as well as distribution. When the report was filed, exceptions were taken to the same. The important one is so fully stated in the opinion of the Judge, that it is not necessary to insert it.
   King, President,

delivered the opinion of the Court, which is as follows:—

So much of the exceptions filed by the accountant as complain of the inadequacy of the commissions, allowed by the auditors, I consider answered by tire decision of this Court on the settlement of the first account filed by the exceptants, and the affirmance of that decision by the Supreme Court in Stevenson’s Estate, 3 Whart. 98.

In the conclusion of the auditors as to the inadequacy of their powers, under a general reference of an account for adjustment, to apportion the whole commissions earned among the respective executors, we fully concur. The account in effect was a joint one. The duty of the auditors, as regards commissions, was to determine what was a just compensation to be paid from the estate, for the whole services rendered by the executors : Walker’s Estate, 9 S. & R. 236. How the aggregate compensation ought of right to be apportioned between the executors, having regard to their relative services and responsibilities, was a question not referred to the auditors. It was purely collateral, and, if mixed up with the main question between the legatees and executors, could only tend to produce complication, and retard the final close of the estate. The true business course for executors, administrators, guardians, or other accounting trustees, is to prefer their charge for commissions as an entire, claim against the estate. If there exists any difference between such trustees, as to the proportions in which the aggregate commissions ought to be divided, these differences should be settled amicably or adversely among themselves. We do not say that this Court would not, under appropriate proceedings, settle such a question among executors or other trustees. All that is meant to he said is, that, under a general reference to auditors to settle an administration account, such auditors possess no authority to apportion commissions among joint accountants; their duty under such a reference simply being, among other things, to decide what aggregate sum should he allowed to the accountants, as a whole, for their care and trouble in administering the estate.

But, although the auditors have in the abstract correctly defined their own powers, yet in their report they have practically transcended them. They have treated one-half of the commissions allowed the accountants as if actually earned by Mr. Seaton, and in the hands of Mr. Grant for payment over to him; and added this one-half of the commissions, viz. $2075.98, to the final balance in the hands of Mr. Grant, who holds all the funds of the estate. This appropriation of what is thus supposed to belong to Seaton, as his share of commissions, is made in satisfaction of a debt of $2466.86 due by Seaton individually to the testator before his decease. This is certainly deciding on the very question previously repudiated by them as not within, their proper functions. Before one-half of the whole commissions earned could be employed in paying a debt due by one of the accountants individually to the estate, it must be affirmatively shown, that such is of right the debtor executor’s proportion of such commissions. And this could only be accurately done after going into the question, submitted by Mr. Grant, and overruled by the auditors, viz. how, and in what proportions, the aggregate commissions allowed, should be divided between him and his co-executor, Mr. Seaton. In this there is error. The true mode of bringing this debt of Seaton into account would be, to charge it as assets in the hands of the executors. If Seaton had been sole executor, and this was a debt due and payable by him to the estate of his decedent, it would of course be assets. And if Mr. Grant, through whose hands the funds of the estate passed, paid over the moneys of the estate to Seaton, whether claimed by Seaton as commissions or otherwise, when at the same time Seaton was a debtor of the estate, such a debt would under such circumstances be properly chargeable against both the executors, settling a joint account, as assets. This mode of charging Seaton’s debt, while it would make it enure equally advantageously to the legatees, would leave the question as to commissions between the co-executors untouched. The legatees would receive all that pertained to them; while the accounts between the executors, either as to commissions or any other transaction connected with the estate, would remain as it properly ought, for adjustment between themselves. On the contrary, were we to arbitrarily divide the commissions between the executors, and set off the debt due by the debtor executor against his supposed share of commissions earned, we might satisfy the debt from a fund in which the debtor had either a partial, or no real interest at all.

In thus varying the manner of introducing the debt due by Sea-ton into the assets in the hands of-the executors for distribution, no change would be produced in the amount payable to each of the legatees, except the difference between the amount of the debt due by Sea-ton, $2466.86, and the sum of $2075.98, the amount' of the half commissions supposed to be due to him, and added to the final balance in the hands of Mr. Grant, on which the dividend among the legatees is struck. A difference of course favourable to the legatees, as it would increase the fund for distribution by the difference between $2466.86. the debt, and $2075.98, the half commissions.

■But, although I do not consider the case as free from embarrassment, yet the result of" my reflections is, that there are no facts disclosed by the report which will at present justify the introduction of Seaton’s debt into the assets for present distribution in any form. The language of the testator’s will is peculiar. In the ninety-fifth item, after revoking a former legacy of $5000 to Mr. Seaton; and giving him in lieu of it a house in Chestnut street, the testator proceeds thus: “ The said Henry. Seaton will be indebted to my estate at my decease, as will be seen by my ledger; the payment of said debt is to be made when entirely convenient to Mm, free from any charge of interest.” What are we to understand by this phrase, “when entirely convenient?” Does it mean entire ability, or something more or less ? That it can mean no less than entire ability, can hardly be seriously contended. And under such a limited construction of the words used by the testator, any tribunal, beforé charging Mr. Seaton with the present payment of the debt, ought to have “strong and convincing proof of his ability Willing v. Peters, 12 S. & R. 182. But I am of opinion that the words “when entirely convenient” mean more than mere ability to pay, as that phrase is legally understood, and were intended by the testator to submit to the conscience, provided it is exercised bond fide, of the debtor during Ms lifetime, the determination of the question of entire convenience to make the payment. Otherwise I cannot see how the intentions of the testator, influenced as they were by a manifest and anxious kindness for Mr. Seaton, can be justly carried out. And his intentions ought of right to> prevail, unless manifestly impracticable. Does simple ability to pay, in the legal acceptation of the phrase, square with paying “when entirely convenient” to the debtor? Certainly not. A man is legally able to pay when he has the pecuniary means of doing so, although such payment should absorb all his means. But would such a payment be considered as made with the entire convenience of the debtor? The abstraction of all, or the greater part of a man’s pecuniary means, may be, nay, must be, the source of the greatest personal discomforts. Can a payment producing such results be fairly said to be a payment made with his entire convenience? Supposing Mr. Seaton to be a man of advanced years, out of business or employment, having little or no productive estate, and having the charge of a family dependent upon him, I can well imagine that in such a state of things the wringing from him so considerable a sum as $2400 would be entirely inconvenient; and, searching for the feelings and intentions of this testator towards him, “in the four corners of his will,” I am convinced that a construction leading to such results would be altogether violative of those feelings and intentions. I am aware that the construction I ha.ve adopted is subject to the objection that, if the time of payment is submitted to the conscience of Mr. Seaton, that that time • may never arrive during his lifetime. But if such was the intention of the testator, what right have we to interfere with it ? It is his will that we are construing. He could do with his owrn as he pleased, and could adopt any standard of obligation to be applied to his debtor that he thought proper. To us this may seem an absurd one; but in him, who knew his man, and who had his own motives and reasons for so directing, it may be the result of gratitude, affection, and well deserved confidence. But a stronger answer to the objection will be found in this principle, that the discretion as to the time of payment, vested in Mr. Seaton, must be exercised bond fide, and if those interested in the payment can at any time show that, regard being had to his pecuniary situation, payment ought to be convenient, then the time for coercing such payment, if refused, has arrived. The true meaning of the will I therefore take to be, that “ entire convenience” means a state of things in the debtor’s circumstances and relations when such payment ought to be convenient. This is a question of fact, and of course, ought to be aflinnatively established by those who require immediate payment. Into this inquiry the auditors manifestly did not proceed, but, adopting the theory that Seaton was entitled to one-half the commissions earned, they considered this fund furnished means to pay the debt, and at once applied it to that object.

Now, to my mind, here was no adequate testimony exhibited tending to prove either ability or convenience to pay the debt. In the first place, it is yet a moot question, whether Mr. Seaton is entitled to any, and if any, what part of the commissions earned, the principal part being claimed by Mr. Grant. And even if it had been shown that Mr. Seaton was justly entitled to one moiety of the commissions, it does not follow of consequence that a claim such as this against his creditor’s estate, conclusively evidenced either his ability or convenience to make payment of his debt. Like the bequests and devises in the testator’s will, such a state of things would be a fair item to be united to the aggregation of all the circumstances, from which it might be inferred that the time had arrived when it ought to be entirely convenient for him to. make payment. That the testator did not consider the legacies and bequests to Mr. Seaton would make it entirely convenient for him to pay this debt, is plain. Otherwise he would either have been silent on the subject, or have directed the debt to be deducted from the legacies. Instead of so doing, in the very instrument on which he makes the donations which are now supposed to furnish the means to his debtor to pay, he forbids payment to be demanded until it accords with his debtor’s “entire convenience.”

The case of French v. Davidson, 3 Madd. Chan. Rep. 396, is illustrative of the principle upon which the liability of Mr. Seaton to present payment of this debt must be placed. There it was held by Sir John Leech, that a direction by a testator that his executors should pay a certain annuity unless circumstances rendered it inexpedient, unnecessary, and impracticable, meant, unless, in the opinion of the executors, circumstances so rendered it. And that the judgment of the executors, in this respect, was uncontrollable by a Court of Equity, unless they acted mala fide. This is the key to the present question. If it can be made to appear that the refusal of Mr. Seaton to pay this debt on the alleged ground of inconvenience, is merely colourable, and that his means are ample for that purpose, then his refusal would be mala fide, and under such circumstances he ought to be coerced to do right. But, until such a state of things is made to appear, we cannot, consistent with the true intent and meaning of the will of William Stevenson, compelpayment by charging this money as assets in the hands of executors, subject to distribution among the residuary legatees.

So much of the report of the auditors as distributes the sum of $2075.98, being one-half of the commissions allowed to the executors, among the residuary legatees of William Stevenson, is disallowed, and the clerk is directed to state' a new distributive account, deducting this sum from the net balance charged against the executors. In all other respects the report of the auditor is confirmed. If the residuary legatees are prepared to substantiate their claim for this sum against Mr. Seaton, it can be introduced in the third account of the executors, about to be presented for confirmation and allowance.