author: Gould J.

text:
    The Trustees of the Theological Seminary of Auburn, &c., et al., v. Calhoun.
    The publication of a will established upon the testimony of one of the attesting witnesses in opposition to the other.
    The purpose of requiring the declaration of the testator that the instru - ment is his will, is to make it certain that he is not procured to execute a will under the supposition that it is some other kind of instrument. The fact that he knew it to be his will may, therefore, be established against the testimony of all the subscribing witnesses.
    Appeal from a judgment of the Supreme Court in the fifth district, aifirming the decree of the surrogate of Cayuga county refusing probate to an instrument propounded as the will of Peter Douglass, deceased. The contest related, so far as is material here, solely to the publication of the will. It appeared that the testator was eighty-five years of age when the will was executed; and there was evidence that his hearing was very defective. He had executed at least two wills previous to the one in question — one of them only a few days before. One of the attesting witnesses, Mr. Starr, had several times conversed with the testator in reference to making his will, and with special reference to bequests which he solicited in behalf of the Theological Seminary at Auburn and some institution at Philadelphia called in the case the Presbyterian House. The will made these two institutions legatees in equal parts of thfé residue of the testator’s estate, after satisfying the provisions in favor of his only child and her children. He estimated this residue at about $26',000. The will propounded differed from that executed a few days previously only in the substitution of these residuary legacies for certain other charitable bequests contained in the latter. The last will was transcribed, in the presence of the testator, from the former will, with the alteration just mentioned, by Starr, who remained in the room with the testator from eleven o’clock in the morning until the evening, the testator’s daughter and grandson being occasionally in the room. When the paper was ready for execution, the testator requested his daughter to call in Mary a domestic servant, to witness it. Mary testified that Starr told her it was Mr. Douglass’ will, called her attention to marginal notes upon it in red ink, and asked her to take such notice of the form, &c., of the paper as would enable her to identify it. After the execution of the will, the testator transferred to Starr certificates of bank stock to the amount of $20,000, in trust, to apply upon the residuary bequests. The other facts are sufficiently stated in the following opinion:

      John K. Porter, for the appellants.

      James R. Cox, for the respondent.
   Gould J.

This case comes up on a very narrow question. It is entirely plain, and is, indeed, conceded on the argument, that the deceased, Mr. Douglas, was a competent, energetic man, who, with a full understanding of what he was doing, had made several different wills. And there can be no doubt that, as to the will propounded for probate, he perfectly under- . stood what he was doing in executing it, and that he intended to execute it according to the requirements of the law, and thus make it effectual as a disposition of his property. To do this, he (as is fully proved and not here questioned) signed it himself in the presence of two witnesses; he requested the two witnesses to sign it, and they did so in his presence. There is only one other requisite to due execution, and that is, that he should, in the presence of) or to both witnesses, have declared it to be his will, thus making due publication of his act.

One of these witnesses, Starr, had been, for some hours immediately preceding the execution, engaged in the presence of Mr. Douglas in drawing the will; the. other witness, Mary Fitzgibbon, was a servant in the house, and was called in by Starr to witness the execution. Starr states that Mr. Douglas, in his presence, not merely stated to Mary F. that it was his will, but explained the fact to her at some length. She, on the other hand, says that Mr. D. did not, to her, call it his will; and that she does not remember (what Starr states) that he said it was such a paper as she signed a short time before, and which she knew to be a will. She says that Starr, in Mr. D.’s presence, told her that the paper she was called to sign was Mr. D.’s last will; but that (as Mr. D. was quite deaf) she don’t think Mr. D. “ heard all of what Starr said.” If he did hear it, or so much of it as that it was his will, the execution is fully made out, as there is no pretence of any dissenting by him from what Starr said.

This is certainly reducing the question to a very narrow compass, and it would seem to be too narrow to conform to the well-sanctioned rule that, in regard to the whole matter of wills apd their execution, the substance of the testator’s acts (they being such as the law recognizes) is to govern in preference to any formal or literal following of the words of the statute. (26 Barb., 77; 23 N. Y., 15.)

Take, then, -the whole transactions of the day when the will Was executed, and consider them as a whole, and can there be any doubt that Mr. D. intended that Starr was to see that the will was duly executed, and that, whether or not he distinctly heard every word that Starr said to the other witness, he knew what was going on, and heard enough to keep himself fully aware of what Starr was doing and the substance of what he was saying. This court has no doubt on that point, and we consider the execution of the will fully proved. By adopting such a course in regard to the execution of this or of any will, we incur no danger of failing to carry out the purpose of the statute. That purpose is to make sure that the testator is aware that he is making a will, and that he be not imposed on and procured to sign a will when he supposes it to be some other instrument. The witnesses’ knowing it to be a.will is of no moment, except as their being.then and there, in his presence or by him told so, makes it certain that he knows it to be such an instrument. It is, of course, too late to claim that the facts making due execution must all, or any of them, be established by the concurring testimony of the two subscribing witnesses. -Both of those witnesses must be examined, but the will may be established,* even in direct opposition to the testimony of hoth of them. This is too well settled to call for the citation of authorities.

It would seem that the decision of the Supreme Court, and that of the surrogate, should be reversed; and the surrogate would be directed to admit the will to probate, except that the statute compels this court to remit the case to the Supreme Court for a trial by jury on the one question of fact.

Selden, J., took no part in the case; all the other judges concurring,

Judgment reversed.

       The principal authorities are collected in the followirig opinion delivered at June term, 1862, in the case of Tarrant v. Ware, arising upon the probate of the will of Mrs. Eliza Ware. The whole court concurred in establishing the will upon the testimony of one witness.
      DENIO, J. The only question which admits of argument arises out of the position that the publication of the instrument as the testatrix’s will was not made in the presence of one of the subscribing witnesses, and that the attestation of that witness was”not made at the request of the testatrix. The two attesting witnesses were H. B. Newton and Mrs. Quimby. The former drew the will, and he testified before the surrogate that the testatrix declared it to be her will in the presence of Mrs. Quimby as well as of himself, and that she requested them both to sign it as witnesses. Mrs. Quimby, on the contrary, though she signed her name to a full attestation clause, testified before the surrogate that she was not requested by the testatrix to sign the will as a witness, and that there was no publication of the instrument as her last will and testament. Her account of the matter is, that being at the time on a visit at the house of Mr. Ware, she was called by him in£o the room where Mrs. Ware, the testatrix, (who was her aunt,) was lying in bed; that the will was then placed before the

        testatrix, who signed it, and that it was then signed by Newton, who directed her, the witness, to sign under his name, which she did. She testified that during this time nothing was said by any person in the room except what fell from Newton in requesting her to sign, and except that when the testatrix was affixing her signature, her husband, who was standing at the foot of the bed, desired her to hurry. She moreover declared that she did not know that the instrument was a will until after the death of Mrs. Ware. If the facts are as stated by her, the will was not duly executed, and it ought to have been refused probate.
      Prior to any adjudication upon the subject, it might have been argued with some plausibility that the nature and objects of the provisions declaring a certain number of subscribing witnesses necessary to a valid will, required that the number specified should unite in testifying to an execution and attestation of the instrument in the manner required by the act; or at least that the will could npt be established if a part or all of them should deny the existence of facts requisite to show a proper execution. The witnesses were supposed to be persons selected by the testator to bear witness that he had actually executed the paper, with'a knowledge of its contents and in the form prescribed by law, and that he was of suitable age and capacity and was not under restraint. If the persons thus selected could not or would not affirm the existence of these facts, the intention of the law, it might be said, would not be answered. Without the statute the execution of a will could be established by the testimony of persons who knew the facts, though not specially designated as witnesses to them; and who did not sign the paper, or by circumstances without direct testimony. The legislature, thinking this too uncertain a mode of proof, prescribed additional safeguards; but if the testimony of the chosen witnesses, when unfavorable to the will, could be disregarded, a will may be set up and established by testimony not authorized by the statute and which the legislature had not considered perfectly safe in ordinary cases. But.on the other hand it was soon seen that the attesting witnesses might forget the facts to which they had once attested, and that it was not impossible that they might be tampered with by interested parties, and thus be induced to deny on oath’the facts which they had been selected to witness and to depose to. This view prevailed with the courts. The first act which required subscribing witnesses to a will was the statute of frauds (29 Charles II, ch. 3), the fifth section of which enacted that all devises of land should be in writing and should be signed by the party so devising the same, * * * and should be attested and subscribed in the presence of said devisor by three or four credible witnesses, or else should be utterly void. Five years after the passing of the act, in the 34th year of the same reign, Hudson's Case canfe before the Court of King’s Bench. It was a trial at bar, and involved the validity of Hudson’s will. Two of the witnesses swore that Hudson did not publish it as his will, but that A. B. guided Hudson’s hand, and Hudson made his mark but said nothing, nor was he capable. On the other side it was proved, as the report states, how that Hudson had made two former wills and in them had divided his land in the like manner as in this will, and how that he died of a consumption and was sensible to the last; and how that three days after making his last will he was sensible and able to discourse, and so continued until six days of his death; hereupon it was plain to the court that the witnesses had been dealt with; to which the counsel of the other side urged that if the witnesses were not to be believed then there would not be three witnesses to the will, and so no will within the statute of frauds and perjuries. To which Pemberton, Chief Justice, answered that if there were three witnesses to a will whereof one was to his own knowledge a thief or person not credible, yet the words of the statute being .satisfied and he having collateral proof to fortify the will, he would direct a jury to find it a good will; and as in this case he said that it is not probable that a person in his-senses (as they here are not able to disprove him to be) would suffer another to guide his hand to a writing and not say anything, and that therefore they took it that he did publish it; and remembered Diggs' Case in C. B. where the scrivener wrote the will, and two others were witnesses. The sgrivener swore the testator was compos, the two others swore he was not compos. The court stopped these two till the verdict was brought in, which found the will a good will, and then committed the two witnesses to the Fleet, for that if this was suffered it would be in any man’s power to destroy another’s will. So likewise did the court of K. B. here commit the witnesses and took security of the plaintiff to prosecute them for peijury. (Skinner, p. 29.)
      In Rice v. Oatfield (Strange, 1096), a case of Pike v. Badmering is mentioned as having been decided in Lord Chief Justice Pratt’s time, where the three subscribing witnesses to a will were called and denied their hands, but the court admitted the plaintiff to contradict them, and the will was supported against their evidence.
      In Goodlittle v. Clayton (4 Burr., 22, 24), which was ejectment by the heirs of law against one claiming under the will of the ancestor, one of the attesting witnesses swore against his own attestation, and the defendant had a verdict. The Court of King’s Bench ordered a new trial. Lord Mansfield said there were several cases both of bonds and wills where the instrument had been supported against the oath of the attesting witnesses by the testimony of other witnesses. He added, “ It is of terrible consequence that witnesses to wills should be tampered with to deny their own attestation.”

        Windham v. Chetwind (4 Burr., 414), turned upon a question not material to the present case; but Lord Mansfield, to illustrate his argument, put the case of all the witnesses to a will denying that - the testator executed it, yet he said the attestation would answer the necessary form, because the testator meant to comply with the law and might not know the witness to be a bad man.
      Again, in Lowe v. Jolliffe (1 Wm, Bl., .365), upon an issue of devisavit vel non out of Chancery, all the subscribing witnesses to a will swore that the testator was utterly incompetent. But an attorney of unblemished reputation, and other persons, gave evidence to the contrary, and upon the whole, the reporter adds, “ it appeared to be a very 'black conspiracy to set aside the gentleman’s will without any foundation whatever.” The jury found in favor of the will, and the attesting witnesses were after-wards convicted of pequry. (The King v. Nueys, id., 416.)
      I have referred to these cases somewhat at large, because the more modern ones, to be presently mentioned, present only instances of forgetfulness on the part of the attesting witnesses; and my purpose is to show that whether their denial of what they had attested proceeds from perversity or want of recollection, the testament may in either case be supported.
      Since the English statute of wills of 1837, which requires testamentary dispositions of personalty as well as devises of land to be attested, questions like that under consideration have.frequently come before the ecclesiastical courts. In Gove v. Garwm (3 Curteis, 151), one of the witnesses deposed that the will was not signed by the testator in his presence; but the other witness proved a full execution in the presence of both. The will was established upon circumstances showing the stronger probability of the accuracy of the last mentioned witness. In Chambers v. The Queen's Proctor (2 id., 415), and in Blake v. Knight (3 id., 549), wills were established against the testimony, in the first case of two out of three witnesses, and in the other of all the witnesses, upon circumstances showing the strong probability of a proper execution. The facts sometimes relied upon were a full attestation clause, the superior intelligence of the witnesses who swore to a due execution, the greater value of affirmative as contrasted with negative testimony, the circumstance, in one case, that the witness who was favorable to the will had made an affidavit of the facts soon after the execution, while the one who testified against the execution was not examined until two years and a half afterwards. The principle that wills may be sustained under such circumstances has been sanctioned in the courts of this State. In Jauncey v. Thorne (2 Barb. Ch., 40), there were three witnesses, one of whom denied that the testator declared the instrument to be his will, and said he did not know it was of that character until afterwards, but the two others heard him declare it to be his will, but said he did not sign or acknowledge the signature in their presence. The Chancellor, however, came to the conclusion that all the formal requisites were observed in the presence of all • the witnesses, and he laid it down as a settled principle that it was not necessary that every witness should be able to show that all the requisites of the statute were complied with. The points respecting which the difficulty existed were affirmed in. the attestation clause, and there were other circumstances leading to the conclusion which was reached by the court. In Nelson v. McGiffert (3 id., 158), two of the three witnesses could not recollect that the testator requested them to sign, though they had all signed the attestation clause, and the other witness swore to having signed- at the testator’s request. The Chancellor had no difficulty in establishing the will.
      But if, on examining all the witnesses and considering the attending circumstances, a reasonable doubt remains whether one or more of the directions of the statutes have not been omitted, the probate must be refused, although it may appear probable that the paper expresses the testator’s intentions. Such was the result in Noding v. Alliston, in the Prerogative Court (2 Eng. Law & Eq. Rep., 594), and in Chaffee v. The Baptist Missionary Convention (10 Paige, 85). It remains to determine the question of fact in the present case, namely, to which of the witnesses credit should be given.
      The learned judge proceeded to discuss the evidence, and arrived at the conclusion that the judgment appealed from, which established the will, must be affirmed.
      Judgment affirmed.


source: Caselaw Access Project

author:
Allen, J.
      Smith, J.

license: Public Domain

text:
    Forbes v. Waller et al.: The Same v. Logan, Receiver
    Tlie allegation of a defendant, brought in by suppleméntal complaint, of . his ignorance as to a fact admitted by the answer of the original defendant, to whose interest he has succeeded, does not put such fact in issue. It seems that an action in the nature of a creditor’s bill is maintainable upon the return of an execution before the expiration of sixty days from its * delivery to the sheriff.
    It is immaterial that such return was made at the request of the plaintiff. To constitute a defence, the plaintiff must, by collusion with the sheriff, have procured a return of nulla bona, without an attempt in good faith to find goods subject to levy.
    Whether such a defence is available to one claiming as assignee of all the debtor’s goods, before the issuing of the execution, quaere.

    Evidence is inadmissible, in support of the assignment,' that the parties did not agree aliunde that the assignor should retain possession. .
    The,party seeking to impeach the assignment is entitled to inquire of the assignor as to His object and intent in making it.
    Appeal from the Superior Court of the city of Eew York. This action was originally commenced by the plaintiff, as judgment creditor of Robert Waller, against the debtor and his assignee, Thomas Waller, to set aside an assignment made by Robert to Thomas for the benefit of the creditors of the former, and subject the assigned property to the payment of the plaintiff’s judgment. Aftér the commencement of the action, Edward Logan was appointed receiver of the assigned property, in an action at the suit of one of the creditors of the assignor preferred in the assignment, and the assignor and assignee united in a transfer of the assigned effects to the receiver, upon the trusts named in the assignment. Thereupon the receiver was, upon his own application, and pursuant to the order of the court, made a defendant in the action, by a supplemental complaint. The order appointing the receiver expressly saved all the plaintiff’s rights in this action. The plaintiff, in his original complaint, averred the recovery of a judgment in the Supreme Court, against Robert Waller, for $5,764.47, on the 2d day of June, 1856, and the docketing thereof, on the same day, in the city and county of New York, and that immediately thereafter an execution was issued against the property of the debtor to the sheriff of New York, where the debtor then resided, and that the sheriff had returned the execution wholly unsatisfied. He then alleged the making of the assignment to Thomas Waller, on the 28th of November, 1855, and that the same was made with intent to hinder, delay and defraud creditors, and was therefore void; and detailed several facts and circumstances relied upon as evidence of the fraud.' The Wallers answered separately, and in their answers took no notice of the allegations touching the judgment and .execution and its return, or the action of. the sheriff thereon; but denied the imputed fraud, and answered the facts alleged bearing upon the question of fraud. The receiver, in answering the supplemental complaint, alleged a want of knowledge or information sufficient to found a belief of all or any of the allegations in the complaint, except as to the making of the,assignment and his appointment as a receiver, and the proceedings for that purpose; and asserted his belief that the assignment was not fraudulent, but was valid in law. Upon the trial of the action, before Judge Slosson, the plaintiff proved the recovery of his judgment, as alleged, and that an execution thereon was delivered to the sheriff on the 2d of June', 1856, which was returned unsatisfied on the 9 th of the same month. The counsel for the receiver thereupon raised the objection that the execution, having been returned by the sheriff seven days after its receipt by him, this action could not be sustained, and the point was reserved. Evidence was given tending to prove the fraud alleged. Among the assigned effects were goods, or the proceeds of goods, which had been shipped by the assignor to Australia, the returns for which were to be transmitted to John Waller, a brother of the assignor, in London; and he was preferred, in the assignment, as a creditor: The assignor had testified that John Waller was not a creditor at the time of the assignment, and was under no engagement for the assignor, to his knowledge; bat was named as a preferred creditor, for the reason that he did not know but he might have incurred some liability for him, and to protect him in such a contingency. The assignor was then asked, while under examination as a witness for the plaintiff, whether his brother, John Waller, in London, had received money from Australia, being proceeds of goods shipped to Australia. The receiver objected to evidence of what was done in England when neither the witness nor the assignor was present. The objection was overruled, and the receiver excepted; and the witness answered that he had, but he did, not know the amount, and he presumed that the amount was passed to the •credit of the assignee in London, in the usual way. At a subsequent stage of the examination, the witness was asked if it was not his object, in making the assignment, to prevent the sacrifice of his property, and the question was objected to by counsel for the receiver, and the objection was overruled, and an exception taken. The answer was, in substance, that the object in making the assignment was to make the property of the assignor pay his debts. The counsel for the receiver asked of the assignor, as a witness, whether there was any agreement, at the time of. the assignment, that he was to continue in possession of the assigned property; and an objection to the question by the plaintiff’s counsel was sustained by the court, and the counsel for the receiver excepted. The receiver gave in evidence a note from the plaintiff’s attorney to the sheriff of-New York, dated June 5,1856, entitled in the action in these words:
    “ To John Orser, Esq., sheriff of the city and county of New York: 'Sir—Please return the execution issued in the above entitled cause and delivered to you on the 2d day of June, 1856, immediately, as there is probably no personal or real property belonging to the defendant, in your county, out of which the amount, or any portion of the same, can be made. Dated New York, June 5, 1856. - •
    “Yours, &o.,
    “F. E. Sherman, Plaintiff’s Attorney.”

      Evidence was also given tending to prove that the sheriff’s officers had made an investigation, and had learned that there was no property to levy on, unless the sheriff was indemnified; and the sheriff’s officer, to whom the note was delivered, testified that he knew the defendant in the execution had no property that could be levied on, and that he so told Mr. Sherman, the attorney. The judge found the assignment fraudulent in fact; that the execution on the original-judgment was returned at the request of the plaintiff’s attorney, contained in the note; that the attorney applied to the sheriff’s officers to return the execution, and was informed by them (one of whom had the execution), that they had investigated, and ascertained that there was no property on which they could levy, without an indemnity, and that no levy was made upon any property, and that property covered by the assignment was then in the store which had been occupied by the debtor prior to the assignment, and that this suit was commenced on or about the 1st day of August, 1856. As one of the conclusions of law, the judge ruled and decided that the plaintiff could maintain this action notwithstanding the return of the execution, at the written request of his attorney, seven days after its delivery to the sheriff, under the facts as proved; and to this the counsel for the receiver excepted. Judgment was given for the plaintiff, granting the relief asked, from which the receiver appealed to the Superior Court, at general terra, and from the judgment of affirmance in that court he appealed to this court.

      J. Larocque, for the appellant.

      F. R. Sherman, for the respondent.
   Allen, J.

This action is not strictly a creditor’s suit to reach tbe equitable interests and things in action of the debtor, but a suit to reach and subject to the payment of the judgment specific property fraudulently placed beyond the reach of legal process. The plaintiff asks no relief against the property of the debtor which is not the subject of seizure on execution, but confines his claim to the goods or property actually transferred by the fraudulent assignment, and the seizure and sale of which, under the execution, is prevented solely by the fraudulent and collusive acts of the parties to that instrument.

Before resorting to the equitable powers of the court to compel the satisfaction of a judgment out of the choses in action of the debtor, it is fit and proper that the legal remedy should be exhausted, not only in form, but in reality and in good faith. Hence it was held that the debtor could not be subjected to the costs and annoyance of a creditor’s bill, under the statute, until not only an execution against the property of the debtor had been issued to the proper county and been returned unsatisfied, but the return day of the execution had passed. (2 R. S., p. 173, § 138; Cassidy v. Meacham, 3 Paige, 311; Williams v. Hogeboom, 8 Paige, 469; Platt v. Cadwell, 9 id., 386.) It is not denied that a return of an execution is valid, although made before the return day; but the Chancellor, in Cassidy v. Meacham, suggests that it is valid by relation, after the expiration of the time the execution had to run, and adds: Until the return day, however, it would be the duty of the sheriff to seize and sell any property of the defendants, which could be found within his bailiwick. The execution cannot therefore be considered as legally returned unsatisfied until after the return day.” Whether, under the Code of Procedure, the same rule prevails, and the full time allowed for the service and return of an execution must have elapsed, before an action in the .nature of a creditor’s suit in. equity can be brought, will not be considered.

The question, whether the Code hacd or had not affected the rule established under the Revised Statutes—that the legal remedy was not exhausted until the return day of the execution is passed, and regarding the return day as not arriving until .sixty days after the receipt of the execution by the sheriff—was not made upon the trial, and, therefore, is not properly before us upon this appeal. Aside from the doubt' growing put ;of the peculiar position of the appellant, as to his tight to interpose the objection that the legal remedy has not been exhausted so as to entitle the plaintiff to an equitable remedy against the debtor, upon an inspection of the record it will be seen that the question now made was not made in the court below. It is, at least, questionable whether a party interposing a fraudulent claim to shield the property of the debtor from execution and covering all his property, can be heard to object that the legal remedy has not been literally and formally exhausted upon the judgment, the debtor himself taking no exception to the exercise of the equitable powers of the court in enforcing the collection of the judgment. But, passing the consideration of this question, we find it admitted, by the answer of- the original defendants, the judgment debtor and his assignee, that the execution was duly issued and returned unsatisfied; and no objection is taken or allegation made that the legal remedy had not been fully and in good faith exhausted. The plaintiff’s right to proceed by equitable action against the property and things in action of the debtor, was admitted by the record. The order directing Logan, the receiver, to be made a party to the action, directed it to be done without prejudice to. the proceedings already had.' He could not, by his answer to the supplemental complaint, change the issue already formed in the action, or withdraw or nullify admissions already made upon the record. His allegation of ignorance of a fact already admitted by the record did not put that fact in issue, as a like averment in the original answer would have done. The only thing that could properly be put in issue by the answer to the supplemental complaint, was the matter showing the transmission of interest from the original party. The new party was bound by the acts and admissions of the original parties, to whose rights he had succeeded. (Story Eq. PL, § 342; Amer. Life Ins. and Trust Co. v. Sackett, 1 Barb. Ch., 585.) It follows, that all the evidence and exceptions,-and all the proceedings upon the trial, concerning the service and return of the execution, were immaterial, and may be regarded as out of the case. But, if issue had been taken upon the allegations in the complaint touching the return of the execution, still the question principally argued upon this appeal was not taken upon the trial, and is not before us. The objection, and the only objection taken was, that “ the execution having been returned by the sheriff seven days after its receipt by him, this action could not be sustained. ” The question was reserved; and in giving judgment, the judge, in response to this objection, held that the action could be maintained, notwithstanding such return seven days after its delivery. The judge did not decide, and was not called upon to decide, that the full term of sixty days must elapse after the delivery' of the execution to the sheriff before the action could be brought, notwithstanding the execution had been sooner returned by the sheriff. That was the point in Cassidy v. Meacham ; but it was not made here. The bill of exceptions does not show that any evidence was given of the time of the commencement of the action, although the judge has found that it was commenced on or about the 1st day of August, 1856; and the finding is not quite sharp enough to permit us to turn the plaintiff out of court on a point not taken on the trial. On the 2d.of August, which is “ about the first,” the sixty days from the deliverj' of the execution to the sheriff would have fully expired, and the action inight have been commenced within the most rigid rule claimed by the appellant. Had the objection been taken, the plaintiff might have shown the precise day on which this action was commenced ; and that it was after the first of August. It is well settled that the return of the execution before the return day does not affect the right of the plaintiff to his equitable remedy founded upon the return. (Williams v. Hogeboom, 8 Paige, 469; Cassidy v. Meacham, supra; Platt v. Cadwell, 9 Paige, 386.)

It is also urged that the return of the sheriff was collusive, ' and made under the direction of the plaintiff’s attorney, and without a bona fide attempt to execute the process. It is a good defence to a creditor’s bill to obtain satisfaction of a judgment out of the equitable interests and choses in action of the debtor, that such debtor had property out of which the judgment might have been satisfied in whole or in part, and that the sheriff omitted to levy on such property by collusion with the plaintiff. (Stevens v. Badger, 8 Paige, 130.) Such defence would be

clearly- available to the judgment debtor; but whether a fraudulent assignee, who had conspired with the debtor to shield the property from execution, and had, by his false claim, made the process at law ineffectual, could take the same objection, without, at least, alleging that there was property of the debtor, other than that purporting to be assigned, subject to execution, is questionable. But the defence, whether interposed by the debtor or his assignee, or other person claiming under him, is an affirmative defence to be set up in the answer and found upon the trial. Before the Code, and in the Court of Chancery, it was the subject of a plea in bar, and was not available, except when specially pleaded, either by a plea in bar or by proper allegations in the answer. It is a defence which the plaintiff must have an opportunity of meeting and controverting. (Stevens v. Badger, supra; Storrs v. Kelsey, 2 Paige, 418.) Ho objection was taken in the answer, or upon the trial, to the sufficiency of the complaint; and there is no allegation in either of the answers impeaching the sheriff’s return or setting up collusion between the sheriff and the plaintiff, or any omission of duty on the part of the former, nevertheless, the question was tried in the court below, as if the same was in issue; but the facts found by the judge exonerate the sheriff from all imputation of failure to perform his whole duty, and relieve the plaintiff from the charge of collusion with the sheriff, or of improperly procuring the return of the process without a bona fide attempt to execute it. The request of the plaintiff’s attorney to return the execution was made at the suggestion of the sheriff, and. after he had made an investigation and learned there was nothing subject to levy unless it was the property which had been assigned, and which is the subject of the controversy in this action, and which the sheriff properly refused to levy upon without indemnity, and gave this information to the attorney. The receiver, now representing the' assignee in the fraudulent trust, cannot insist, as a defence to this return, that the plaintiff should have indemnified the sheriff and contested the validity of the assignment at law in án action of trespass, rather than resort to the more appro-' priate equitable action to try the fraud alleged. The mere omission of duty on the part of the sheriff in the collection of the execution would be no bar to the equitable action, even against the debtor. Such omission of duty only constitutes a bar when it is the result of a collusion with the plaintiff. The court will not set aside, or interfere with, the return of an execution, unless there be collusion between the plaintiff and the sheriff, to the prejudice of the debtor. It is the fraudulent act of the plaintiff which vitiates the return of the execution, and deprives him of his equitable action in the nature of a creditor’s bill. (Evans v. Parker, 20 Wend., 622; Storrs v. Kelsey, supra; Stevens v. Waddell, 2 Sandf. Ch., 494.) That a return has been made by the sheriff at the request of the plaintiff, does not affect the ulterior proceedings by action, unless the debtor has property which could have been reached by execution. So far from alleging this, the claim and ground of defence to the action was that the debtor had no property which could in any way be subjected to the payment of his debts. The judge has found facts which are inconsistent with the charge' of collusion, and in favor of the Iona fides of the return of the sheriff.

There was no error in permitting the witness, Robert Waller, the assignee, to give evidence of the receipt by John Waller, in London, of the proceeds of the assigned goods which had been shipped to Australia. The dealings of the parties with the assigned goods after the assignment were relied upon as evidence of the colorable character of that instrument, and were competent as tending to show that the transfer was not actual, but colorable, and in order to delay and hinder creditors. John Waller was received as a preferred creditor, when he was not a creditor, or entitled to participate in the fund; and the complaint charged that remittances from Australia on account of the merchandise sent there for sale had been and were expected to be forwarded to John Waller in London; and the answers of the Wallers admit that such remittances had been made, and alleged that the amounts were held by John Waller, subject to instructions of the assignee. The objection was that the fact sought to be found transpired when neither the assignee nor assignor was present; which was, clearly, not tenable.

It was not competent for the defendant to prove that there was no agreement, at the time of the assignment, that the assignor should retain possession of the assigned property. The assignment spoke for itself, and must be judged by its terms and in the light of the contemporaneous and subsequent acts of the parties. The use that was made of the assignment, and the acts of the parties under it, must furnish the data to judge of the intent and motives with which it was executed. The assignee cannot- give evidence of agreements not contained in the assignment, to uphold it or change its legal effect. In terms, the assignment gave the assignee the right of immediate possession; and whether he exercised that right seasonably, was a fact to be established by evidence like other facts, and not by evidence of what the parties to the instrument privately agreed should or should not be done.

The inquiry as to the nature, object and intent of the party in making the assignment, was competent. In Seymour v. Wilson (14 N. Y., 56), it was held, upon the "issue of fraud, competent to inquire of the assignee whether, in making the assignment, it was intended to delay or defraud creditors; and this in support of the assignment, and to repel the charge of fraud. In Griffin v. Marquant (21 N. Y., 121), testimony by the assignor that he made the assignment for the purpose of gaining time to pay'his creditors and to protect his indorsers, was held proper evidence as tending to prove a fraudulent intent, although not conclusive. The attempt here, by the questions objected to by the receiver, was to prove by the assignor that his intent in making the assignment was to prevent sacrifice of -his property. The evidence was clearly competent within both of the cases decided by this court (supra).

The question of fact was well decided by the court below upon the evidence ; and the judgment cannot be disturbed, but should be affirmed, with costs.

Smith, J.

The complaint in this action alleges the reco: very of the plaintiffs’ judgment and due issuing and return of an execution thereon unsatisfied. The answer contains no allegation impeaching the sheriff’s return, and, therefore, admits the allegations of the bill by not denying them. The regularity of the return upon the execution should, therefore, be deemed waived by such omission, if the question of the • regularity of the sheriff’s return in such case’s can be properly raised in an action in equity, or in proceedings supplemental to the execution, to reach the equitable property of the judgment debtor, based upon the sheriff’s return of nulla bona.

The statute (3 R. S., p. 173, chap. 1, § 38,) declares that, Whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied in whole or in part, the party suing out such execution may file a bill in Chancery against such defendant, to compel a discovery of any property or thing in action, belonging to the defendant,” &c.

Supplemental proceedings under an order of a judge in the same case, are provided for and authorized in section 292 of the Code.

The suit and proceedings supplemental to execution, are based upon the sheriff’s return of the execution unsatisfied in whole or in part. This is the warrant of the statute for the institution of the creditor’s bill or the granting of the order of the judge.

It seems to me that it is entirely improper and inadmissible to go back of the sheriff’s return in either case. In the creditor’s suit, based upon such execution and its return unsatisfied, and in the proceedings supplemental to execution, the return should be held entirely conclusive. With just as much propriety, so far as I can see, an inquiry and issue might be made ■ on the correctness of the judgment or the regularity of the execution. If there is an irregularity or mistake or misconduct in the return of the sheriff, let the defendant in the execution, if injured thereby, sue him for a false return, or move to set aside the return in the proper mode and form.

Under the Revised Statutes, the writ of fieri facias was “ returnable sixty days from the receipt thereof by the sheriff.” Under this provision it was held that the sheriff was not to return the execution till the sixtieth day, and that the remedy of the party at law could not be sooner exhausted so as to allow the filing of a creditor’s bill.

By the Code, section 290, the execution is now returnable “ within sixty days after its receipt by the officer.” Under this provision it is held, properly, that the sheriff may return the execution at any time within the sixty days. When actually returned by him it is a consummated official act, and any further proceedings may be based thereupon. The request of the plaintiff’s attorney to the sheriff to return the execution sooner than the sixty days, does not affect the question. It is his duty to enforce and collect the execution, to levy on the property of the judgment debtor, if he has any within his bailiwick. If he notoriously has no property liable to levy "and sale on execution, the sheriff, as we have seen, may properly, at his risk, return the execution immediately upon its receipt. 'The request of the plaintiff or his attorney cannot affect or alter his duty, or change the force or validity of his official return. That is made upon his official responsibility, and must be so made in all cases.'

The request of the plaintiff or his attorney to return the execution immediately, upon the advice that the defendant has no property subject to levy, will exonerate the sheriff from any liability to the plaintiff for a neglect of duty, or a false return, and will not affect his liability to the defendant for such false return. The sheriff’s return, in all cases, should be deemed conclusive evidence that the plaintiff in the execution had exhausted his remedy at law. If this, rule is adopted by this court it will save much controversy on this question, and is, I consider, the only safe and sound rule on the question.

As this is the only question upon which there was any diversity of opinion in the court below, and the only point dismissed here, it is not necessary, I think, to consider any other question; but I am entirely satisfied that the case, upon the facts and upon all the questions raised on the trial, was properly decided at special term, and that the judgment of the general term affirming the same should be affirmed, with costs.

The décision was upon the reasons given by Allen, J., with the exception that all the judges, except him, concurred with Smith, J., in the opinion that an action in the nature of a creditor’s bill is now maintainable .before the expiration of sixty days from the delivery of the execution to the sheriff. They did not concur, however, with Smith, J., as to the conclusiveness of the sheriff’s return, especially where collusion is alleged, and did not pass on that question.

Judgment affirmed.


author:
      Gould, J.
      Selden, J.
      Smith, J. Denio, Ch. J., (dissenting.)

text:
    Bissell v. New York Central Railroad Company.
    A common carrier, in consideration of an abatement in whole or in part of his legal fare, may lawfully contract with a passenger that the latter will take upon himself the risk of damage from the negligence of agents and servants, for which the carrier would otherwise be liable.
    Public policy is satisfied by holding a railroad corporation bound to take the risk when the passenger ch'ooses to pay the fare established by the legislature. If he voluntarily and for any valuable consideration waives the right to indemnity, the contract is binding.
    So held, where a cattle dealer paid no independent consideration for the .conveyance of himself, but accompanied his cattle, under a contract stating them to be carried at a reduced rate, and providing that “the persons riding free to take charge of the stock do so at their own risk of personal injury from whatever cause.”
    If he paid, as passenger, the usual fare, without reduction on account of his engagement to assume such risk, the contract would, it seems, not be binding, as without consideration.
    The provisions of the general railroad law (ch. MO of 1850, § 36) do not add to the general responsibility as carriers of the corporations subject to it, nor. deprive them of the power to make contracts in regard to such responsibility. Its object was to bring them within the general principle of common carriers.
    Appeal from the Supreme Court. The plaintiff sued as administratrix for the negligent killing of her husband while a passenger on the defendant’s railroad. Bissell, the decedent, made in the name of his firm, Taylor & Bissell, a written contract with the defendant, at Buffalo, which recited that, in consideration that the defendant would transport certain stock, at what the contract styled the reduced rate of $70 per car-load, the freighters agreed to take upon themselves the risk of injuries the cattle might receive by escaping, maiming themselves, and other risks therein enumerated. Taylor & Bissell, by the contract, undertook to load, tranship and unload the cattle at their own risk, the defendant furnishing necessary laborers to' assist. It was further agreed “that the persons riding free to take charge of the stock do so at their own risk of personal injury from whatever cause.” Two car-loads of cattle were shipped under this contract, and Bissell took passage in a car attached to the stock or cattle train which carried them. He was furnished with a ticket headed, “ Cattle-Dealer’s Ticket on Passenger Train,” by which the defendant directed its conductors to “ pass Taylor & Bissell, owners of two cars of live stock, from Buffalo to Albany.”' On the back of this ticket was printed: “ Notice. The owner of stock receiving this ticket assumes all risk of accident, and expressly agrees that the Company shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for any loss or injury to the stock of said owners shipped by stock or freight trains.”
    There was a motion for nonsuit, which was denied, under exception by the defendant. The judge charged that, if the jury should find that the death of Bissell was caused by the gross or culpable negligence of the defendant, their verdict should be for the plaintiff; to which the defendant took an exception. The plaintiff had a verdict for $5,000. The judgment thereon having been affirmed at general term in the seventh district, the defendant appealed to this court.

      Sidney T. Fairchild, for the appellant.

      Chauncey Tucker, for the respondent.
   Gould, J.

It is fully conceded that, in this court, there is no question that the contract for carrying the cattle at reduced rates, in consideration that the owner assume certain risks as to them, is a valid contract. And this court (Wells v. N. Y. C. R. R. Co., and Perkins v. Same), has this year decided that a contract by a passenger, to take the risk of injury to his person in consideration of riding free, is a valid contract.

In the case before us, the ticket upon which the deceased was riding is a free ticket, a pass without paying. And in consideration thereof, the passenger assumed all risks, &c. The same person at the same time made another contract, that, in consideration of the carrying of his cattle at reduced rates, he assumed certain risks in regard to them; and in that contract he provided that the person riding free to take care of the cattle should assume certain risks. Calling these two contracts (together) one contract, makes no difference with the reason of the ruling applicable to each of them separately.

-Do contracts, of which each separately is good, become invalid because combined, or contained in one instrument? Is a passenger’s contract to assume risks on one consideration (riding free) good; but bad when you add the other consideration, that his cattle are carried at a reduced price? Further, if he may make a contract by which he shall ride free, may he not, by contract, say that he is riding free, although he has paid for the transportation of his goods ? How has the court any right to alter his contract, and say that he is not riding free ?

Again, if he may by contract assume certain risks, in con- . sideration of riding free, why may he not make a contract to assume the same risks, in consideration of being carried at half price, as he does for his stock ? When we once hold that assuming these risks is within his power as matter of contract, the court has no power to interfere with his contract on the score of quantum of consideration, or on any ground but illegality of consideration.

The judgment of the Supreme Court should be reversed, and a new trial ordered.

Selden, J.

The following positions appear to be settled in regard to the duties and responsibilities of railroad corporations engaged in the transportation of persons and property in this State:

1. In regard to the transportation of goods, they are subject to the absolute responsibility which rests upon, common carriers, and are, therefore, insurers of the safe carriage and delivery of the goods, except against accidents towards the production of which no human agency has contributed.

2. In the transportation of living animals they are relieved from responsibility for such injuries as occur in consequence of the vitality of the freight, so far as such injury could not, by the exercise of diligence and care be prevented: in other respects, their responsibility in regard to stock is the ■ same which rests upon them in regard to goods. (Clark v. Rochester and Syracuse R. R. Co., 14 N. Y., 570.)

3. In regard to the transportation of passengers, they are not in any respect insurers, but are answerable for any injuries to their passengers, against which the utmost skill and foresight could guard. (Bowen v. N. Y. Central R. R. Co., 18 N. Y., 408.)

4. This responsibility embraces not only any want of care and foresight on the part of the immediate agents of the corporation, but also any defects arising from want of care or skill in the manufacturers of the machinery or materials used in the structure or operation of the road, whether discoverable by any exercise of care and skill on the part of the immediate agents of the road or not. (Hegeman v. The Western R. R. Co., 3 Kern., 9.)

5. The companies cannot limit their responsibility by any notice, though expressly brought to the knowledge of those whose persons or whose property they carry; but they may secure such limitation by express contract with those persons. (Dorr v. N. J. Steam Navigation Co., 1 Kern., 485.)

6. Such limitation may be agreed upon in relation to the safety of property under any circumstances, whether carried gratuitously or for reward; and in relation to the safety of persons, when they are carried gratuitously. (Wells v. N. Y. C. R. R., 24 N. Y., 181; Perkins v. Same, id., 196.)

7. In such contracts the companies may lawfully be relieved

from all responsibility for the negligence or misconduct of their subordinate servants and agents; the question being as yet unsettled, what servants or agents, if any, are to be regarded as so directly representing the company, that a contract relieving the company from responsibility for their negligence or misconduct may not lawfully be made. (Cases cited above.) • •

8. Whenever the companies are authorized to relieve themselves by contract from liability for the negligence of their agents, no distinction is made in regard to the degrees of negligence against which they may stipulate. (Same cases; also Wells v. Steam Navigation Co., 4 Seld., 875.)

The questions which arise in this case are:

1. Did tjie contract on which Mr. Bissell was traveling when the accident occurred, in its tórms throw upon him the risk of personal injury, from such circumstances as caused his ■ death?

2. If the contract embraced such a case, was it valid and binding?

In regard to the first question, I think he must be regarded 1 as traveling by virtue as well of the ticket as of the contract. They were both delivered at one time, and together constitute the contract. Each may be referred to in arriving at the terms of the whole contract, which was, in effect, but one, and not two.

That which is called the ticket was a part of the contract which Bissell might, or might not, have entered into. The effect of it was to .give him the privilege of riding on the stock train, or on the passenger train, at pleasure; and when he made that a part of the contract, he was bound by all its terms, as well as the Company. The conditions as to personal risk, under the head of “ notice,” on that ticket, are not confined to such risk, when riding on the passenger train, but extend to all personal risks when riding on any train, under the contract, treating it as one. The language is, “ the owner of stock receiving this ticket assumes all risk of accidentand that risk, as stated, covers all injury to stock or person, without reference to the train by which the person should be carried.

I do not, however, regard this as material, because the terms of the other portion of the contract appear to me equally broad. The expression, “ at their own risk of personal injury from whatever cause,” in connection with the other words of the contract, cannot be held to exclude any injury' which the party might receive, however occasioned, while riding or acting under the contract, and against which the company had a right to protect itself by contract.

The remaining question is, was the contract valid ?

And, first, was .Bissell “ riding free, to take charge of the stock,” within the meaning of those terms as used in the contract? It is not claimed that he paid anything for his passage, aside from the $70 per car-load which he paid for carrying the cattle. He was, therefore, doing exactly what the parties intended when they used the terms “ riding free,” and was bound by the contract .to ride at his own risk as to personal injury. So far as the parties to the contract were concerned, he was “riding free;” whether, in view of the law, he was carried by the company gratuitously, so as to authorize the company to relieve themselves from the consequences of negligence in his transportation, if their power to do so was limited to passengers thus carried, is another question. If it were necessary to decide that question, I am not prepared now to say what my conclusion would be. • But I do not regard it as necessary. The principle being established that railroads may, by contract, relieve themselves from the negligence of their servants in the carrying of passengers when carried gratuitously, I can discover no rule of law or public policy to prevent their doing it on any other terms which may be agreed upon between them and their passengers, and which shall furnish a consideration to the passengers for the risk which they assume.

All the arguments which have been urged against the propriety and safety of allowing carriers to make such contracts, apply with as much force to cases where passengers are canned gratuitously as where they are carried for reward. So far as the public are concerned, the question of reward is one of indifference; and so far as the parties are concerned, if they are allowed to-make the contract at all, they are the judges of the amount of consideration which will compensate them for assuming the risk, whether the whole fare, or half, or an eighth or any other proportion, or other consideration. I apprehend it is entirely safe to leave them to fix the terms. (1 Kern., 192.) I refer, of course, to actual contracts, and not to attempted limitations of the carriers’ responsibility, by means of indorsements upon tickets, not assented to by the passengers who receive them.

If there was no limitation to the power of railroad companies in making such contracts, there would be great danger of public inconvenience in the establishment of such rule; but even then, after finding the law to be settled that such companies could protect themselves against liability by express contract, I should doubt the propriety of attempting to prescribe, by judicial decision, how great the consideration should be to render such contracts valid.

The legislature, however, has not left the matter at large, but has probably done all which is required for the protection of the public, or of individuals, in this respect, by guarding them against the ■ necessity of negotiating with any railroad company on this subject. On the offer, by a passenger, of the fare prescribed by law, the company is bound to transport him, and to assume all the risks which fall within the appropriately stringent rules above adverted to; and in case of refusal, such company is made liable for all damages resulting from such refusal. (Laws of 1850, ch. 40, § 36.) But if any one wishes to travel with greater economy than by paying the fare which the legislature has prescribed (or, in the absence of legislation,' which usage has established, 3 Paige, 75), as the reasonable compensation for the transportation and risk, and prefers to pa/ less, or to pay nothing, and to assume the risk himself, I do not think there is either danger or impropriety in allowing it toobe done; and there is no principle upon which my mind can rest to justify the position that courts shall recognize such a contract as valid, when the company, in consideration of the passenger’s assuming the risk, agrees to carry such passenger without fare, and declare it void, when, for the same consideration, the company agreed to carry him for half fare. The two cents a mile which the defendant is allowed by law to charge for carrying way passengers, and three cents a mile for other passengers, is what the law adjudges (in the absence of usage fixing a less sum), to be a reasonable compensation for the expense of carrying the passenger, including the risk imposed by law, of his qualified insurance against injury. To .hold that the defendant and the passenger may lawfully agree that the former Shall be relieved' from the risk, and the latter assume it, and then to add that no such agreement shall be valid unless the defendant gives to the passenger for assuming the risk the full compensation which the law allows it to receive for risk and transportation united, would not seem to be reasonable. I should regard it as far more rational, to deny to the parties all power to contract on the subject.

Like -all contracts, to render such a one valid it is indispensable that it have some consideration which it would not have if the passenger paid the full fare fixed by law. That is all which the company is allowed to receive for the service and the risk united, and it can no more demand the full com-. pensation of both, for the service alone, than it could demand the fare for a hundred miles for carrying a passenger fifty miles. If the service is reduced, the amount of reward must be reduced in proportion; and if the company is relieved from the risk, it must make compensation for that relief by the reduction of fare or otherwise. The amount of such compensation, like the consideration for all contracts, must be left to the agreement of the parties. The law has wisely, for the protection of passengers, guarded them against any necessity for negotiation, on this subject. If they choose to do it voluntarily, I can discover no ground for saying that they may not make such terms as they please. I entertain no doubt, therefore, that the contract in this case was valid.

It appears from the case that the defendant’s superintendent testified on the trial that “ the price of fare for cattle freight was uniform, all one rate.” From this it has been argued by the plaintiff’s counsel that Bissell was neither “riding free,” nor at a reduced rate of fare, at the time of the accident. I have already given my interpretation of the contract in this respect, which does not accord with this position; but whether such interpretation is correct or not, the position of the counsel cannot be made available now, it not having been presented on the trial. The trial appears to have proceeded on the ground that the intestate was traveling on a free ticket, and that the only question in doubt was, whether the negligence of the defendant’s agents was such as to render the defendant liable notwithstanding the intestate was “riding free” under an engagement on his part so to ride “ at his own risk of personal injury from whatever cause.” If he in fact paid as a passenger the full fare allowed by law, or the usual fare, if - less than that allowed by law, without reduction on account of his engagement to assume such risk, in my opinion the engagement would be without consideration, and not binding upon him or his representative. That question will doubtless be open to the plaintiff on a new trial, but as it was not presented, so far as the case shows, at the former trial, it cannot be considered here.

It is insisted that, if the contract was valid, it only relieved the defendants from responsibility for the negligence of the persons having charge of the train on which Bissell was riding. This is a mere question of interpretation of the contract. The question is, what did the parties intend by the words which they have used ? The principle being established that parties may lawfully enter into contracts of this nature, there is no limit to the extent and variety of modification which may be given to such contracts. The passenger may assume all risks arising from the condition of the track, or from the condition of the locomotives, or of the cars, or all risks from the negligence of the agents, of all of them, or of any class of them. There is no danger which the party may encounter, resulting from the journey, which he may not assume the responsibility of, and he may assume all or any portion of it.

This contract in itself exemplifies all this. In regard to the stock the owner assumes certain defined risks, confined to a very narrow circle, and all the risks beyond those are still charged upon the company. On the other hand, with regard to his “ own risk of personal injury,” he assumes it by words as comprehensive as the language affords, “ from whatever cause;” and he “ expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person.” I can imagine no injury which the passenger could receive as the consequence of his journey, against which the company has power to protect itself by contract, which is not embraced by these terms, and which he has not assumed. The terms of the contract in this case supply what was wanting in the case of Wells v. The Steam Navigation Company (supra), to exempt the carrier from responsibility for the negligence of agents.

The 36th section of the general railroad law, which has already been adverted to, has been relied upon as establishing rhe defendant’s liability in this case. That section is in the iollowing words: “ Every corporation shall start and run their cars for the transportation of passengers and property at regular times, to be fixed by public notice; and shall- furnish sufficient accommodations for the transportation of all such passengers and property, as shall within a" reasonable time previous thereto be offered for transportation at the place of starting and the junctions of other railroads, and at usual stopping .places established for receiving and discharging way passengers and freights for that train ; and shall take, transport and discharge such passengers and property at,, from and to such places, on the due payment of the- freight or fare. legally authorized therefor; and shall be liable to the party aggrieved in an action for damages for any neglect or refusal in the premises.”

The argument based upon this statute, if it proves anything, proves too much. If that section is applicable to this case to sustain the position for which it is cited, notwithstanding the terms of the contract under which the intestate was carried, I do not see why it would not render railroad companies absolutely “ liable to the party aggrieved in an action for damages for any neglect ” in the transportation of persons or property. It would seem to make them insurers of the safety of passengers, as they were at common law of the safety of freight, against all dangers not arising from the act of God or the public enemies, and to superadd to that stringent rule of liability a prohibition against the modification of it by contract. Such an application of the statute would show all the decisions of this court, sustaining the right of railroad companies to reduce the extent of their liability by express contract, to have been erroneous. But if the statute should receive an interpretation more favorable for the carriers, as not increasing their liability, it can have no force in support of the argument in aid of which it is invoked, unless it is- held to prohibit contracts by carriers reducing their liability; which would render it equally in conflict with the decisions before mentioned. The true object of this section of the statute has, as it appears to me., been correctly declared in this court, viz., “ to bring these railroad lines within the general principle of common carriers, with such variations as the nature of the business required.” (2 Kern., 250.) I do not think it was any part of that object to add to their general responsibility as carriers, or deprive them of the power which they possessed prior to its passage, of making contracts in regard to such responsibility. .

There are several exceptions in the case which properly present the principal points which I have considered, and which are well taken., ' «

The judgment should be reversed and a new trial granted.

Smith, J.

In the cases of Wells v. The New York Central Railroad Company, and of Perkins v. Same Defendant, this court decided—six judges concurring—that the carriers of passengers, as well as other common carriers, might restrict their common-law liability by express contract. In each of those cases, the passenger was riding on a free ticket. In this case, in like manner, the plaintiff’s intestate was riding ostensibly also upon a similar free ticket. I do not see why this case is not precisely within the rule established in those cases, and why the doctrine of stare decisis does not require us to reverse the judgment in this case. The fact that the plaintiff's intestate was riding in defendant’s cars, to accompany his stock, carried as freight, and for which the customary charges were paid and received, cannot, as I see, affect the question. The ticket which Bissell received, and which he used as a voucher to show his right to ride in a passenger car, was, in fact, a free ticket. He received it as a free ticket. Besides the indorsement on the ticket, he signed an express agreement, in which he engaged to take his risk in respect to all accidents or injuries to his person from the negligence of the defendant’s agents, or whatever cause. The argument that the rule in the Wells and Perkins cases cannot apply in this case, because there was, in fact, a consideration received by the defendant for the carriage of the plaintiff’s intestate, is not, I think, sound. It disregards the force of the ticket which he received, and on which he was, in fact, riding at the time of the accident, and which he received and used as a free ticket, and for which he professedly paid no fare separately from the price paid for the transportation of his stock. But it is undoubtedly true that he received such free ticket, and it was given him by the defendants in consideration of the business and profits received from him from the freight of the stock which he accompanied. So, in all cases when free tickets are given, I suppose there is some consideration of interest, or profit, or advantage, received or expected, which constitutes the inducement to the giving of the ticket. In this sense, there would probably seldom, if ever, be given by a railroad company a strictly free ticket. Nor does the liability of the carrier depend upon the question whether he received any actual pecuniary or other consideration for the transportation of a person over their road. Receiving a passenger into their cars for transportation, binds the carriers to carry him safely—as much so with a passenger who has paid no fare as with one’ who has paid full fare and purchased the customary ticket; and subjects them to an action for damages for any injury resulting from the negligence of themselves or their servants and agents. The exemption from such liability rests solely upon the ground of express contract. The fact that Wells and Perkins, in the cases referred to, applied for and received respectively a free pass, was doubtless the reason why they made the agreement to take their own risks. The Company, for the same reason, made that a condition of giving them a free pass. It could not have made or imposed any such terms or conditions upon a person paying his fare; for, upon the payment of the customary fare,' they were bound to carry such passenger at their own risk in respect to all injuries resulting from the negligence of the Company, its agents or servants.

It cannot be material, as I conceive, whether a person who receives a free pass- and agrees to take his own risk of accidents, and to become, in effect, his own insurer against the casualties of the trip, receive such free ticket to enable him to accompany his property, or for any other reason or consideration. If he takes the free ticket and assents to the agreement indorsed thereon, or otherwise expressly agrees to take his own risk, he must, in either case, abide by his contract, and is bound thereby.

In the decision of this case at the general term of the Supreme Court, I expressed the opinion that the action could be sustained'on the ground that the negligence of the brakeman was. the negligence of the corporation, for the reason that he was improperly employed, and was unfit for his station. This view, I am satisfied, was erroneous. The case was not tried upon this theory. I think the judgment should be reversed, and a new trial granted, with costs to abide the event.

Davies and Allen, Js., were also for reversal.

Denio, Ch. J., (dissenting.)

We have already decided that a railroad corporation may lawfully agree with a passenger who is carried gratuitously in its cars, that it will not be responsible for injuries resulting from the negligence of its servants. (Perkins v. The N. Y. Central R. R. Co., 24 N. Y., 196.) If the plaintiff’s intestate, in the present case, was by agreement to be carried, and was in fact carried, by the defendants, wholly without compensation, the judgment referred to is a precedent for the decision of the appeal now under consideration, and the judgment appealed from ought to be reversed. But I do not consider the deceased, in this case, to have been a free p'assenger, in any proper sense. The firm of which he was a member contracted with the company for his passage by the written agreement which was given in evidence. That agreement contained mutual stipulations by each of the contracting parties. On the part of the company, the contract was to transport certain live stock belonging to the deceased and his partner, and also to carry the members of the firm or such other persons as the firm should employ to take charge of the stock during the transit, for a specified compensation, namely, seventy dollars for each car load of the cattle, which sum the contract obliged the firm to pay; and the contract to pay that compensation was the equivalent for the whole service which the Company had undertaken on its part to perform. If there had been no other stipulation in the written agreement, no one could doubt that the price of the passage of the person riding to take charge of the stock was embraced in the amount to be paid by the firm. It could not be determined what portion of the seventy dollars per car load of cattle was the equivalent for the transportation of the property, nor what part of it went to pay for carriage of the person in charge; but it would be entirely clear that the whole of the money paid by the firm was the compensation for all the services which the railroad company were to perform. But the contract also contained stipulations that the owners of the cattle were to take certain risks respecting them upon themselves, some of which risks would probably have otherwise devolved upon the Company; but with these we have no present concern. There was, however, a stipulation in these terms, that “the persons riding free to take charge of the stock do so at their own risk of personal injury, from whatever cause; ” and it is stated in the instrument, in effect, that a smaller compensation was received by the Company, on account of the assumption of the risks mentioned, than that which would have been required, if they had not assumed these risks. I do not perceive that the portions of the contract which relate to the risks affect its construction upon the point under immediate consideration ; namely, in determining what stipulations on the part of one of the parties are the consideration of the undertakings of the other party. It remains evident that, in consideration of the money which the owners of the stock were to pay, the cattle were to be transported to their destination, and the persons riding on the train to take care of them were also to have their passage without any additional payment. The contract calls this “riding free,” and it is so in a certain sense; that is, they get their passage in consideration of the other provisions of the contract, and free from the payment of the fare which is exacted of other passengers. The persons who were to travel in consideration of the contract respecting the cattle, were not obliged to go in the cars attached to the cattle train, but were presented with passage tickets, admitting them to seats in the ordinary passenger cars, without further payment; but these tickets contain, on one side, a very distinct statement that the Company is not to be liable for injuries to the person arising out of t'he negligence of the company’s agents. If such a stipulation is legal, the passenger receiving the ticket must be deemed to have assented to it, as one of the terms of his contract with the Company.

. These considerations lead me to the conclusion that the deceased, when he received the fatal injury, was not traveling as a free passenger on the defendant’s road so as to bring the case within the reason of the case of Perldns against these defendants. The price of his passage was paid for by the other stipulations of the agreement. In The Philadelphia, &c., Railroad Company v. Derby (14 How. U. S., 468), and again in The Steamboat New World v. King (16 id., 469), passengers in the defendants’ vehicles who did not pay anything, but the conveyance of whom was considered incidentally advantageous to the proprietors of the line, were held not to be gratuitous passengers. It seems to me, therefore, that the condition of the deceased, and the right of his representatives to recover damages on account of his death, are precisely the same as though he had paid his fare in money; and that the defendants are liable in this action, unless the agreement contained in the contract, and repeated on the passenger ticket, to assume the risk of injuries caused by the negligence of the Company’s servants, is a lawful and valid stipulation. It must be admitted that the owners of the cattle were enabled to contract for the services which the Company agreed to render, at a less price than they would have been obliged to pay if they had not assumed the risks mentioned ; for it is so expressly stated in the agreement.

" But I am of opinion that the defendants had no right, even by contract, to exonerate themselves from the consequences of the negligence of their own servants, and to cast these burdens upon passengers who paid a compensation for their passage. The maxim, modus et conventio vincunt legem, is not of universal application, but is subject to certain limitations in cases where the interests of the public, or of morality, are affected by a contract. The general railroad act, the provisions of which are binding upon the defendants’ corporation, after enacting that every railroad corporation shall start and run their cars for the transportation of persons-and property at regular times and shall furnish sufficient accommodation for the transportation of all such passengers and property, and shall transport and discharge such passengers and property “ on the due payment of the freight or fare legally authorized therefor,” declares in terms that the corporation “ shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premises.” (Laws of 1850, p. 231, § 36.) The plaintiffs’ intestate entitled himself to the benefit of this provision by the payment of such fare as was required of him by the defendants. ' But he waived, if it was competent for' him to do so, the- liability of the defendants to respond to him in an action for damages imposed by this provision and by the general rules of law; and the general rule certainly is that one may, at his pleasure, renounce the benefit of a provision introduced into a contract or a law entirely in his own favor. But to this rule there is also a limitation of the same general nature as that to which I have just referred. The law will not allow parties by their contracts to subvert its own policy. If the public has an interest thát railroad corporations should in all cases be and continue liable for injuries to passengers paying fare, occasioned by the negligence of their servants, and if the provision cited from the general railroad act was enacted in furtherance of that policy, it is not in the power of parties to change the rule in individual cases. The defendants claim a right to exempt themselves from the liability imposed by law, by special contracts with passengers. As to one class of passengers, that to which the deceased in this case belonged, they have a standing- form of a contract by which the responsibility for the negligence of .their servants is shifted from their own shoulders to those of the passengers. If this arrangement shall be sustained, I do not see why it might not be applied to all cases. Suppose they should prepare a set of passenger tickets for which only one-half or three-fourths or any other proportion of the usual price should be asked, and which should contain a stipulation similar to the one printed upon the back of the passenger ticket furnished to the deceased in the present case. No passenger expects, in his individual case, to be injured or destroyed in the course of his journey, but the pecuniary advantage held out to him by such a ticket as I have supposed is direct and immediate. I have no doubt but that a large proportion of the persons traveling by railroad would purchase the cheaper tickets and agree to become their own insurers. To the precise-extent to ( which this arrangement should prevail, the pecuniary inducements of the corporation to the exercise of the high degree of care and vigilance which the peculiar nature of this mode of transit requires, might be expected to be relaxed. If we assume, as I think we reasonably may, that the provision of the statute declaring the liability of the corporation for the neglect of their servants was introduced for reasons of public policy and in order to secure the greatest degree of caution on the part of the managers of the railroads, such a practice as I have supposed would frustrate the intentions of the legislature.

I concede that there is no direct authority for the conclusion to which I have arrived. But the subject itself is of recent origin, bio arrangement in the whole range of modern civilization can compare with that by which many hundreds of people are carried at the same time, at an unprecedented rate of speed, by the power of steam, from one part of the country to another, by various and complicated contrivances, where a very slight neglect would be likely to prove extensively fatal to life or limb. The circumstances were well calculated to call for the most careful provisions on the part of the legislature in order to secure the utmost degree of care and circumspection. Railways are constructed and operated for purposes of pecuniary gain. The damages or compensation paid to parties injured, and to the representatives of such as are killed, constitute, unfortunately, a considerable deduction from the profits of such enterprises. The liability of the corporation to make such compensation is established by a public law. One object of the enactment was, no doubt, to enforce the rendering of justice to such persons as might suffer from the neglect of the corporations or their agents. If this were all, persons engaging passage on a railroad might waive their rights by a prospective arrangement; but if it be true, as I believe it to be, that there was a further motive such as I have suggested, namely, to secure the greatest degree of perfection in the mechanical arrangements, and of skill and caution on the part of the operators'concerned in the management, then the provision was made in aid of a public policy in which every citizen of the State is interested, and which no one, nor any number of persons, by a private bargain with a railro.ad corporation, can weaken or subvert.

It is laid down in all systematic treatises on contracts, that stipulations in violation of public policy are void, and the rule is exemplified by numerous adjudications. The familiar instances in which agreements in restraint of trade have been declared illegal, fairly exemplify the principle. The party thus binding himself' does not thereby undertake to do anything wrong in itself; and it is not on his account that the contract is considered invalid. But the public at large have an interest in encouraging industry and enterprise, and in preventing monopolies. Although the principle referred to is a general one, it is not often that a court can be properly called upon to apply it to a new case. Men’s minds may well differ as to what may or may not accord with public policy in a given case; and whether the performance of a particular undertaking would be hostile in an appreciable degree to a principle of public law, may present a question of difficulty. The laws enacted to enforce care and attention in the management of railways and the engines and carriages by which such immense numbers of people are conveyed, are intended to sub-serve a policy which looks to the security of the community; and I think we cannot err in holding that any contract, the tendency of which is to impair the efficiency of such laws, is illegal within the principle which has been mentioned.

. I have looked carefully at the cases respecting the ability of common carriers to limit their responsibility by special contract, or by general notice brought home to the owner of the goods.' It was once supposed to be settled in this State that an agreement that the carrier should not be responsible, according to the common law, would be void, as being against public policy (Gould v. Hill, 2 Hill, 623); but the point was reconsidered and the question settled the other way. (Dorr v. The New Jersey Steam Nav. Co., 1 Kern., 485.) We adhere, however, to the rule that the carrier cannot avoid liability by giving notice to that effect, even though it be brought home to the party sending forward the goods. (Hollister v. Nowlen, 19 Wend., 234; Cole v. Goodwin, id., 251.) In thus holding, we assume that such contracts are, to a certain extent, hostile to sound public policy; for we reject evidence which would be competent to prove an agreement in any other case. But these decisions do not relate to carriage on railroads, nor do they concern the transportation of passengers. As to the carriage of property, the English courts, it must be conceded, do hold that railroad companies may, by special contract, avoid responsibility for negligence of their own servants, though of the degree called gross negligence. (Carr v. The Lancashire, &c., Railway Co., 14 Eng. Law.and Eq., 340; Austin v. The Manchester, &c., Railway Co., 70 id., 434.) It is not necessary to determine whether we should decide in accordance with that doctrine; for there is a manifest distinction between the case of property and that of persons. As to the former the carrier is an insurer against all accidents, except in two well known cases, and may often be held liable without any actual fault on his part or on that of his servants; while a carrier of passengers can only be made responsible for actual negligence of himself or of those for whose acts and omissions he is responsible. It is quite consistent to allow one who, in the absence of a contract, is a general and almost a universal insurer, to qualify his liability by an agreement with the other party, and still to hold that, where the law for the better protection of life and member has attached a certain consequence to actual negligence, that the parties cannot, by convention, dispense with so salutary a rule.

These considerations have led me to the conclusion that the judgment appealed from ought to be affirmed.

Wright and Sutherland, Js., also dissented.

Judgment reversed, and new trial ordered.