author: Denio, Ch. J.

text:
    Harmon Edmunds, Sheriff of Otsego County, v. Russell P. Barton.
    A deputy sheriff may be deprived of authority to act as deputy, upon a notice in writing from the sheriff revoking his appointment.
    Although his appointment must be made under the hand and seal of the sheriff, his dismissal need not be in writing under seal.
    His authority to charge the sheriff with his acts as deputy ceases with his notification of the pleasure of the sheriff to determine his deputyship.
    The plaintiff was elected sheriff of Otsego county, and entered on the duties of his office in January, 1855. Shortly thereafter he appointed one Sidney M. Ballard one of his deputies, the, instrument by which he was appointed being under seal and duly executed according to the requirements of the statute. Becoming dissatisfied with the conduct of Ballard as deputy, in October, 1856, the plaintiff addressed a letter to him stating that his appointment as such deputy made 5th January, 1855, was thereby revoked and annulled, and directing him thereafter to transact no business under such appointment. This letter was received by Ballard in due course of mail, and a duplicate was filed in the clerk’s office of Otsego county. Subsequently and on the 31st day of January, 1857, the plaintiff wrote again to Ballard, among other things saying, “ Will you please to summon Mr. Allen Scrambling as a grand juror to attend court on the 16th of February next, at 10 o’clock a. m., and make return,” &c. This official act was performed by Ballard according to request. On the same day, 31st January, 1857, Ballard having in his hands an attachment seized upon certain property then being in the possession of the defendant. Thereupon, within a day or two thereafter, 2d of February, the defendant gave a receipt to Ballard, acknowledging that the property had been seized by the plaintiff by his deputy Ballard, and undertaking that the goods should be produced to satisfy any execution that might be issued upon any judgment that might be obtained by the attaching creditors. The defendant became a mere custodian or receiptor, claiming no title to the property in himself.

      On the 4th February, 1857, two days after defendant gave the receipt and undertaking, one Charles B. Stever, another deputy of the plaintiff, called upon the defendant with an attachment in favor of other creditors, and demanded possession of the goods. The goods were shown to Stever, but the defendant refused to give him possession. On the 24th of March Stever levied still another attachment, and again claimed possession of the goods, Stever asserting that Ballard had been removed as deputy, and the defendant had no right to retain possession. Possession was again, refused by defendant.
    In June following, the creditors in the first attachment proceedings having obtained judgment against the owners of the goods caused execution to be issued. This execution was placed in the hands of Peter Barton (no relative of the defendant), but another deputy of the plaintiff, who, on receiving a bond of indemnity, given by the judgment creditors to the plaintiff, as sheriff, proceeded and sold the property.
    ' This action having been brought to recover of the defendant the value of the property thus seized and sold, the referee, by whom the cause was heard, ordered judgment in favor of the plaintiff. This judgment was reversed by the General Term of the Supreme Court in sixth district, and from that judgment of reversal an appeal is taken to this court,

      Lyman, Tremain., for the appellant.
   Denio, Ch. J.

I am of the opinion that the authority of the deputy, Ballard, ceased upon the service on him of the written revocation of his appointment signed by the plaintiff or sheriff. The statute directs that the appointment shall be made under the hand and seal of the sheriff, and be filed in a public office (1 R. S., 379, § 74), but it makes no provision as to the form to be used in revoking the appointment. It is very proper that it should be done by some act in writing, and be notified to the displaced deputy; but the formality of a seal is not indispensable unless'it is required by some positive law, and the statute makes no such requirement. The arrangement is now wholly statutory, and the courts cannot add any formalities which the act has not made necessary. Formerly a deputy might be appointed by parol (Holliday v. Boardman., 10 Paige, 232), and undoubtedly the appointment might be revoked in the same way. The appointment was during the pleasure of the sheriff, and any authentic act determining his pleasure ought to be sufficient to determine his authority. The common law doctrine, that an instrument under seal cannot be discharged except by a deed, does not, I think, apply to a case like this. This is an administrative arrangement, and the statute regulates the same.

I am not aware that it has ever been held that the acts of an officer after his appointment has expired, or he has been removed, are valid for any purpose. A deputy sheriff, as I have said, holds -his situation at the pleasure of the sheriff, and the sheriff is responsible for his acts. It is true he takes an indemnity, but that may turn out, as it seems to have in this case, to be insufficient. If a removed deputy can, by persisting in performing official acts, after he and his sureties have become insolvent, affect third parties under the nature of being an officer de facto, the sheriff will be hable for his default in spite of anything he can do to prevent it. With the exception of summoning a single juror, the plaintiff does not appear to have been aware that the deputy in this case was assuming to act after he had been removed. I suppose the sheriff can appoint a deputy to summon a juror without making him a deputy for general purposes. He can depute any person to do a single act.

The sale of this property under the execution of Perego & Buckley does not affect the question. The deputy Barton was procured to do it by the plaintiffs in the execution, or their attorney who indemnified him, and that ought not to prejudice the plaintiff.

I am in favor of reversing the order of the General Term, and affirming the judgment entered on the report.

Porter, Wright, Davies and Davis, JJ., concurring,

Order reversed and judgment on the report of referee affirmed. ■


source: Caselaw Access Project

author: Campbell, J. Denio, Ch. J.

license: Public Domain

text:
    Duncan McDougall v. Jeremiah Cooper.
    A complaint, alleging a mistake in fact in a former accounting, and demanding a new accounting; also, that the mistake be rectified, and that the defendant pay a specific sum; is properly for relief.
    Where there has been an accounting and settlement, if it afterwards appear that a clear mistake occurred by the omission to include a considerable sum of money, an action will lie to correct such mistake and to collect such sum.
    The cases of Goon v. Knapp (4 Seld., 402), and Kellogg v. Richards (14 Wend., 116), each distinguished, per Campbell, J".
    In the month of December, 1847, Addison Gardner, H. F. Sickles and Jeremiah Cooper entered into an arrangement or copartnership for the purchase of a quantity of wheat and flour, and for manufacturing and selling the same. The funds were furnished by Gardner and Cooper, principally by Gardner. In February and March following, the business having been closed, Gardner and Cooper had settlements embracing the moneys paid out for purchase of the wheat and flour, and • expenses attending the same, and receipts of moneys on sales made. The principal business appears to have been done by the defendant Cooper. At or not long after the last looking oyer of the accounts, the defendant Cooper gave to Gardner a due bill as follows: •
    “ Due A. Gardner, on settlement of flour and wheat business, thirty-eight 76-100 dollars, value received May 8th, 1848.
    “ JEREMIAH COOPER.”
    On this instrument was the following indorsement:
    “$38.76. Received, May 27, 1848, of J. Cooper, the within amount in full. ADDISON GARDNER.”
    Gardner afterwards became insolvent, and executed an insolvent’s assignment, and by virtue of two subsequent assignments of his interest, and an assignment also from Sickles, the other partner, the plaintiff became the owner and entitled to the rights and claims of Sickles and Gardner against the defendant, sought to be enforced in this action. The trial was before a referee, who, after a review of the accounts, found that there were errors and omissions in favor of the defendant and against Gardner amounting to $316.60, and for that amount and interest ordered judgment, which was affirmed by the Supreme Court in the sixth district, and appeal taken to this court.
    The case was submitted on written points by the parties,

      B. Franklin Chapman, for the appellant.

      Shoecraft & Snow, for the respondent.
   Campbell, J.

I do not think there is any force in the objections by the defendant that the summons is not for relief, but for the recovery of a specific sum of money. The judgment should not be reversed for that cause if it appears from the evidence that a case for relief was made out. The defendant had answered the complaint, and the referee in court could grant only relief consistent with the case made by the complaint and embraced within the issue. (See Code § 275, and Marquat v. Marquat, 2 Kern., 336.) The complaint alleged that there was a mistake in fact in the former accounting, and demanded a new accounting, and that the mistake be rectified and the defendant pay a specific sum claimed to be due, namely, four hundred dollars. The defendant plead the settlement and claimed that there was nothing due. The real issue of fact was one clearly within the scope of the complaint and answer, namely, was there or not mistakes made in the accounting; and the principal issue of law was, admitting that there were errors, omissions or mistakes on such accounting, was not the plaintiff barred and precluded from opening the account and receiving any balance found due .by reason of such omission or mistake, by the due-bill given and receipt indorsed thereon?

The referee found both questions, in favor of the plaintiff.

The instrument signed by Gardner is nothing more or less than a simple technical receipt for so much money paid; and the consideration of such a receipt could always be inquired into. There was an accounting had, and so much money found due from the defendant. For that amount—reciting how it arose, namely, “on settlement of flour and wheat business”—defendant gave his due-bill or note. On this due-bill was indorsed, simply, received of the maker “ the within amount in fullthat is, the payee acknowledged to have received the full amount of the note or due-bill. I do not see how, by any fair interpretation, any other or different meaning can be gathered from the due-bill and receipt. But were it otherwise, and if we construe it to mean that Gardner had received the money in full of the balance found due him on settlement of the wheat and flour business, it would not preclude Gardner or his assignee from showing that there was a clear mistake made in such settlement; a considerable sum of money, which should have been charged to the defendant, having been omitted from the account rendered by mistake. It might change the burthen of proof, and compel the plaintiff to show that mistake, but would not preclude his recovering if he succeeded in showing that such mistake was made.

The cases of Coon v. Knapp (4 Seld., 402), and Kellogg v, Richards (14 Wend., 116), have no application to this case. There was no mistake pretended or alleged in these eases. Both were cases of compromise—-one for injuries received by the upsetting of a stage; the other, giving up a note of the defendants, and receiving in full, by way of compromise, a smaller note of third parties. In both, there was something more than receipts. There were virtual contracts, reduced to writing; and efforts were made in both cases to show that there were understandings, agreements or conditions outside of these written contracts, and not reduced to writing, upon which the plaintiffs relied.

But I think the referee allowed the plaintiff too much. He finds that, the funds having been furnished by Gardner, and the accounting showing that there were errors in favor of the defendant, against Gardner, for $316.60, he therefore orders judgment in favor of plaintiff, as Gardner’s assignee, for that amount, with interest and costs. But defendant was more than the agent of Gardner. He was partner in the transactions, and the funds furnished by Gardner appear to have gone into the partnership account. When, on a final settlement, there was a balance found in the hands of the defendant, that amount was assets in his hands belonging to the partnership. As partner, the defendant himself was entitled to one-third of such balance. The judgment should have been for two-thirds of §316.60, together with interest and costs. This objection does not appear to have been distinctly raised in the bill of exceptions and case, and was probably overlooked at the General Term of the Supieme Court. It is now distinctly presented by defendant’s points, and I think the judgment should be modified by a deduction of the one-third of the amount found due, and affirmed for the balance, with interest. If the judgment is thus modified, there can be no costs on this appeal to either party.

Davies, Porter, Davis and Brown, JJ., concurred.

Denio, Ch. J.

This action was brought to open a settlement of a partnership transaction, and to recover of the defendant a sum of money claimed to be due to the plaintiff upon a rectification of the alleged errors. The partners were the defendant and Addison Gardner and Hiram F. Sickles; each being interested in one-third of the profits. The plaintiff is the assignee of the two last named partners, and seeks to recover what would have been due to them, or either of them.

The partnership enterprise consisted in the purchase of a particular quantity of wheat, manufacturing a part of it into flour, and selling the flour thus manufactured and the residue of the wheat. There was connected with it the purchase and sale of about two hundred barrels of manufactured flour, which came by boats, and is called in the case canal flour.” The business commenced in December, 1847, and was finished on or prior to February, 1848, and in the last mentioned month an adjustment took place, when it was found that profits had been made to the amount of $316.09, of which the share of each partner would be $105.36. It was also found that there remained in the defendant’s hands, of the moneys of the concern, $91. An arrangement was had between Sickles and Gardner, by which the latter became entitled to the rights and interests of the former in the business. In March following, a settlement took place between Gardner and the defendant, representing Sickles’ interest as well as his own, of which a written statement was made and mutually assented to, which embraced the aforesaid balances of the partnership dealings and other accounts, and which, including a small sum of money paid by the defendant, balanced the respective claims of Gardner and the defendant. It was assumed, on the trial, that neither the adjustment in February, nor this settlement in March, embraced the accounts respecting the canal flour, on which there was eventually a loss to the concern of between one and two hundred dollars.

Soon after these transactions, Gardner became insolvent, and his property was assigned to H. S. Graves, under the insolvent act. He, as the assignee, sold the assets of Gardner by a transfer, embracing, in general language, all his property, to two sisters of Gardner, and they, by an instrument expressing a nominal consideration, transferred their interests in the subject to the plaintiff. He also took from Sickles a transfer of his interest in the partnership concern for a nominal consideration.

Gardner, who was the principal witness for the plaintiff, gave evidence tending to show that, in the adjustment in February, the results of which were carried into the settlement of March, an item of two hundred and fourteen bushels of the partnership wheat, which the defendant had sold to one Parmelee in December, 1847, and for which he had received payment to the amount of $270.31, had, by mistake, been omitted to be charged to the defendant. The omission of this item was the principal error'claimed to exist in the accounting. Gardner testified that he did not discover the error until 1850, after the title to his property had become vested in his sisters.

The defendant proved, and gave in evidence, a due-bill and receipt, in the following words:

“ Due A. Gardner, on settlement of flour and wheat business, thirty-eight 76-100 dollars, value-received. May 8, 1848.
“JEREMIAH COOPER.”
[Indorsed thereon] “Received, May 27, 1848, of J. Cooper, the within amount, in full. ADDISON GARDNER.”

Before the production of these papers, Gardner had testified that he did not recollect the giving of any such note or receipt, or that he had ever settled with the defendant the account of the canal flour. After they had been produced, he was examined to show that thé note was given for the defendant’s share of the loss upon the purchase and sale of the canál flour, and that nothing else was settled or accounted for on that occasion. The defendant’s counsel objected to this evidence, insisting that the contents of the note could not be contradicted by parol, and that the note and receipt, taken together, were evidence that all the partnership accounts had been fully adjusted. The referee overruled the objections, the defendant excepting, and Gardner thereupon swore positively that the adjustment then made,- and for which the note was given, was confined to the loss on the canal flour. The defendant, who was examined on his own behalf, swore with equal positiveness that the account of the wheat sold Par-melee, which had been omitted in the February and March settlements, was then brought in and accounted for; that he then paid Gardner a considerable sum of money; and that the note was given as a final close of the whole matter. There was also produced a paper, in the handwriting of Gardner, showing that, as late as 1852, he claimed that the loss on the canal flour had never been adjusted, and that the defendant was still indebted to him for his part of that loss.

The principal question of law arising upon the case relates to the admissibility of the parol evidence to qualify the effect of the note of May 8, 1848. In terms, it covers the transactions respecting the partnership in buying, manufacturing and selling wheat and flour, as well as the selling of the flour called the canal flour, and it professes to be a settlement of both transactions. It is not alleged that there was any fraud

made use of in inserting that language, but simply that the settlement referred to was limited to the canal flour. The evidence admitted was clearly hostile to the terms and legal effect of the papers; and, if the question arose upon any other instrument than a receipt, it would be a violation of a very familiar' rule of evidence to allow it to be thus contradicted. The note, and receipt of its payment, taken together, do in fact amount to a receipt in full for the subject mentioned in the note. It is very much like the case of a person giving Ms check on a bank payable to the order of Ms creditor, and expressing on its face that it was given on a particular account or for a particular indebtedness. When such a cheek is paid at the bank, the drawer holds it as his voucher for the payment of the indebtedness mentioned in it. The question is, whether it possesses the immunity against parol evidence and the slippery memory of witnesses which the law attributes to other written evidence. It imports, in the present cáse, something more than that Gardner had received of the defendant the sum of money mentioned. It affirms that there had been a settlement between the parties; that such settlement embraced their wheat business as well as their dealings in flour, and that the sum agreed to be paid, and which was afterwards paid, was the balance found due on that settlement. It contains the results of an account stated, and the subjects wMch that account embraced. I think it cannot be contradicted by parol evidence in respect to- the subjects included. The case of Coon v. Knapp (4 Seld., 402), is not, I think, distingmshable from the present. The plaintiff had been injured by the overturning of the defendants’ stagecoach, and she brought an action on the case for negligence. The defendants soon after settled with her, taking her receipt for $40, expressed to be in full for the damages done to her by the stage accident. At the Circuit the plaintiff was permitted to prove, in effect, that the agreement was, she was to have the $40 if her injuries were not of a more permanent character than they then appeared to be, and that she gave the receipt under that agreement, but that in fact her injuries were of a more permanent character, and she recovered a considerable verdict. This court reversed the judgment, holding that the paper was something more than a receipt; that it was written evidence of the satisfaction of the entire claim which she had against the stage proprietors for their misfeasance. In Kellogg v. Richards (14 Wend., 116), the receipt was written on the back of a note for $1,627.44, which the plaintiffs held against the defendants, and it acknowledged that the plaintiffs had received the note of a third person “ as a compromise for the full payment” of the principal note. The plaintiffs offered to prove that the real agreement was that they were to have a further sum which, with the collateral note, would make one dollar on a pound of the original debt. It was excluded; and the ruling was held to be correct. The court considered that the indorsement contained more than a receipt; that it was an agreement for a compromise, and was not subject to be modified by parol evidence. In the case' before us, the receipt is the evidence of an agreement by which the multifarious accounts of the parties were adjusted at a given sum, and it was not competent to show by parol that one of the subjects which, by the terms of the paper, were embraced in that settlement, were not in fact embraced in the real agreement.

It may be said that the defendant had, in his evidence, gone into the parol arrangement, and had given his version of it, and that Gardner, the other party, should have the like liberty. But the defendant’s evidence was not objected to; and, besides, it was in harmony with the paper, while that of Gardner was in hostility to it.

I do not perceive upon what theory the referee could have reported the whole amount of $316.50 against the defendant. It consisted of the $270.31 for the money which the defendant had received of Parmelee; $38 which had been credited to the defendant for money paid by him to a bank over and above the money actually paid; and $8.36 for some miscalculation in ascertaining the profits. If the two first mentioned of these items had been brought in and accounted for, the profits of the concern would have been something more than $300 more than they were found to be, and the defendant would have been entitled to retain one-third of that sum; and he should, in this action, have been compelled to pay only two-thirds of these increased profits; instead of which, the report and judgment are for the whole amount, with interest.

I am in favor of reversing the judgment appealed from, and ordering a new trial.

Judgment affirmed, deducting one-third of the amount without costs to either party.


author: Wright, J.

text:
    Retire F. Crocker v. Stephen Crocker and others.
    Where a plaintiff, by his own voluntary act, has, through misplaced confidence, conferred the apparent right of property in bank stock upon- a third party, a Iona fide purchaser of such stock from such party will be protected against any secret trust in favor of the plaintiff.
    But where a party, having notice, actual or constructive, of the plaintiff’s equi. ties, has dealings in respect to such stock, he will hold subject to the plaintiff’s rights.

      H. S. McKay, for the appellant.

      Martin Smith, for the respondent.
   Wright, J.

We must apply the law to the facts found •by the judge at Special Term, and cannot look into the evidence (as it was the province of the court below on appeal to do) and affirm or reverse the judgment, as we shall agree or disagree with the original tribunal as to the facts. The reversal of the judgment at the General Term not being stated in it to be on the facts, is deemed to have been on the law alone, as applied to the facts found by the judge; and the questions of fact are not, therefore, open to review here. (Code, § 268.)

This disposes of the question so elaborately argued by the defendants’ counsel, principally by a reference to the evidence, vizi, the fraudulent purpose of the plaintiff in the transaction in August, 1846, respecting the stock. Upon the facts, as found by the judge, no fraud can be predicated, even were the defendants in a position to allege it, and had by the pleadings raised any such issue. There is a distinct finding that the arrangement by which the stock was purchased at the public sale, by his brother, for the plaintiff’s benefit, was not made to hinder, delay or defraud the creditors of the latter. But besides this, the defendants were in no position to allege that the transaction was fraudulent. They were not creditors of the plaintiff, nor did they make title or claim through any proceedings instituted by his creditors. Other parties had filed a creditors’ bill against the plaintiff, and obtained an injunction which was pending at the time the stock was purchased, but these parties do not complain (if they could have complained), arid the defendants were in no way connected with them. The principal defendant was the mere agent of the plaintiff, in effecting the purchase, and any rights which the others had were -derived through such agent.

What then was the case ? In 1846, and before that time, the plaintiff owned 400 shares (of $25 each) of the capital stock of the Union Manufacturing Company of Horwalk, in the State of Connecticut. He had paid upon such stock $9,000, and owed the balance, $1,000. He had a claim against the company equal to such balance. Hot being able to pay the balance on his stock, the company notified- him that he must pay, and to compel payment advertised the. stock for sale at auction at Horwalk. After notice of the sale the plaintiff settled his claim against the company by which they were to allow him $900, and it was arranged, that on the sale of the stock, $900 should be credited to him on account of the $1,000 due by him on the stock, and he-should be entitled to the stock on paying the balance. The plaintiff and his brother, the defendant Stephen Crocker, both resided in the city of Hew York, and an arrangement was made between them, that Stephen, who knew of the arrangement with the company, should attend the sale at Horwalk, and purchase the stock for the plaintiff’s benefit, the latter then being in embarrassed circumstances, and not being able to buy it himself by reason of an injunction having been granted against him. On the 27th August, 1846, the stock was sold at auction" pursuant to advertisement, and bid in by Stephen Crocker in his own name, .at $2.55 per share; huí in consequence of the before mentioned agreement, made previous to the sale, he paid to the company no more than $104. The auctioneer at the sale gave a certificate of the transfer of the 400 shares to Stephen, and in conformity with the laws of Connecticut, the same was duly recorded in the office of the town clerk of Horwalk; thus vesting him with the legal title. The substance of the transaction then was, that the plaintiff’s stock being about to be sold at public auction for the balance of $1,000 which he owed upon it, and having agreed with, the company that on the sale he should be credited with $900, being the adjusted amount of the company’s indebtedness to him, and be entitled to the . stock on paying $100, he arranged with his brother Stephen to attend the sale, and buy in the stock for his benefit. Stephen attended the sale and bid in the stock in his own name for the sum of $1,020, but in accordance with the agreement between the company and the plaintiff to credit the latter on the sale the sum of $900, he paid but $104 of his bid, being the balance due after such credit with some trifling expenses of, the sale. Stephen Crocker then purchased the stock as the agent of the plaintiff, in his own name, with the funds of the plaintiff, and for the benefit of the latter. By the purchase, he acquired, in equity, no title to the stock as his own; but as between him and the plaintiff was the mere trustee of the latter, who was the equitable owner of it. When a purchase is made by an agent, in his own name, with the funds of the principal, a trust arises or results in favor of the latter by the implication of law. The judge at Special Term was therefore right in the conclusion that as between the plaintiff and his Brother Stephen, the latter, although clothed with the legal title, was not in equity the owner of the stock, but held it from the time of its transfer to him in August, 1846, as the trustee for the benefit of the plaintiff. As between these parties, the plaintiff in equity was the owner, and Stephen Crocker the nominal purchaser, who had the indicia of title, held it in trust for him. So far, then, as the defendant Crocker was concerned, the trust, which was not invalid by our law, a court of equity will enforce.

Any interest or right which the other defendants acquired in the stock was derived through Stephen Crocker, by a transfer from him. If they had knowledge or notice of the trust they could not claim protection as bona fide purchasers. It would unquestionably be different, .if, without notice, they became the purchasers, Stephen Crocker holding the stock in his own name for years, and dealing with it as his own, without objection by the plaintiff. In April, 1851, Foster & Livingston advanced their own note to Stephen Crocker for $3,000, and took as security 100 shares of the stock, with a power of attorney to one of their clerks to transfer it. They paid this note at maturity with means furnished by Crocker, and at the same time gave him a new note for the like amount, and also three notes for $1,000 each. These transactions were merely a continuance of the first loan, and were made without any knowledge of the trust in favor of the plaintiff. The last notes were paid by that firm when they fell due. On the 20th August and 10th September, 1851, Stephen Crocker lodged other 100 shares of the stock with Francis Skinner & Co., with power to transfer it, as collateral security, for an advance to him of $3,000 .by their two acceptances of $1,500 each, which they afterwards loaned and paid; which loan was never paid. This advance was made on the faith and security of the stock, and without knowledge or notice of the trust. With respect to these defendants, I entirely concur in the conclusion of the judge at Special Term that they were entitled to hold the several parcels of stock transferred to them, and .be reimbursed their advances by a sale of it. The plaintiff had, by his own voluntary act, caused Stephen Crocker to be invested with the legal title to the stock, and suffered him to deal with it as his own for years. Having, through misplaced confidence, conferred on him the apparent right of property as owner, a bona fide purchaser of the stock from him, in the course of commercial dealing, without notice, would be protected in his title against any latent equities of the plaintiff. Foster & Livingston and Skinner & Co. lent their notes and acceptances to Stephen Crocker on the credit of the stock transferred to them without notice of the secret trust in favor of the plaintiff, and were bona fide purchasers; for the term “ purchaser,” in this connection, includes one who advances money or incurs responsibility upon credit of property.

On the 27th of October, 1851, the firm of Lounsberry, Bissell & Co. (of which firm Stephen Crocker was then a member) lent and advanced to Crocker $6,000, by their two drafts on F. Skinner & Co. for $3,000 each, for the benefit of Crocker, who, at the same time, lodged with them as security the remaining 200 shares of the stock, and also 100 shares of St. Lawrence Mining Company stock. The latter they surrendered to him after this action was commenced. They paid the two drafts; and the loan of $6,000 is still unpaid. One of the findings of fact by the judge is, that the firm of Lounsberry, Bissell & Co. took the assignment of the 200 shares of stock, with notice of the facts and circumstances under which Stephen Crocker purchased and held the same. Knowing that Stephen Crocker held, not in his own right, but as trustee for the plaintiff, they are not entitled to be protected. They are not bona fide vendees, having taken with knowledge that Stephen Crocker was violating a trust reposed in him. As against the cestui que trust they took nothing by the fraudulent transfer.

It is insisted that the finding is not that the firm had actual notice of the trust, but that the knowledge of Stephen Crocker, being a member of the firm, operated as notice to the defendant Bissell, and other members of the firm. If this were so, I should hesitate some upon the question, whether the knowledge of Stephen Crocker operated as notice to the other members of the firm, so as to deprive them of the character of bona fide holders of- the stock. But the finding cannot be construed in any other way than that, as matter of fact, the firm knew of the trust. It is found as distinctly by the judge as any other fact in the case, that the firm took the assignment of the 200 shares of stock with notice of the facts and circumstances under which Stephen Crocker purchased and held the same. That is, that they knew that Crocker had purchased the stock for and on account of the plaintiff, and held it in trust for him.

Upon the whole, I am of the opinion that the correct disposition was made of the case at the Special Term. The leading question was, whether the defendant Stephen Crocker owned the stock in his own right, or held it in trust for the plaintiff. If in the latter character, he was bound to account to the plaintiff for the stock, or the value of so much of it as he had, in fraud of the plaintiff’s rights, disposed of to bona, fide purchasers. Two hundred shares of the stock he had hypothecated with Foster & Livingston and Francis Skinner & Co., as collateral security for loans made to him. These firms advanced to him on the credit thereof, in each case, $3,000, without notice of the claim or interest of the plaintiff, and had a lien on the stock to the extent of their several advances. The remaining 200 shares were hypothecated with Lounsberry, Bissell & Co. (who are represented in the action by the defendant Edward C. Bissell), as collateral security for the payment of two drafts of $3,000 each, lent by them at the time to Stephen Crocker. This firm had notice of the claim of the plaintiff, and the character in which the defendant Crocker held the stock. They were not-innocent purchasers, or deceived as to the rights of their assignor, or of the plaintiff; and as against the plaintiff the assignment of Crocker gave them no title to the stock. This firm were properly decreed to transfer the 200 shares to the plaintiff.

The Supreme Court at General Term affirmed, with costs of the appeal, so' much of the judgment of the Special Term, as related to the defendants, Francis Skinner & Co. and Foster & Livingston; and reversed the residue of it, affecting the defendants Stephen Crocker and Edward C. Bissell, and dismissed the complaint with costs. I am in favor of reversing the judgment of the General Term, and affirming that of the Special Term, with costs of this appeal, as against Stephen Crocker and Edward C. Bissell, but if this cannot be done, there should be a new trial ordered-. In case the judgment of the Special Term is affirmed, the plaintiff should pay F. Skinner & Co.’s, and Foster & Livingston’s costs of the appeal to this court, and the judgment be so modified as to permit the plaintiff to redeem the 100 shares of stock from Skinner & Co., by paying to them within thirty days from the entry of our judgment, the sum of $3,000, with the interest thereon from the 19th of July, 1852, and their costs in the courts below and in this court; and also to permit him to redeem the 100 shares of stock from Foster & Livingston, by paying to them, within the time above specified, the sum of $3,000, with interest thereon from the 11th of April, 1852, together with their costs in the courts below, and in this court.

Judgment of the General Term reversed, and that of the Special Term affirmed, in accordance with the views suggested in the opinion by Wright, J.


author: Porter, J.

text:
    Johh Lounsbery, Respondent, v. Jacob L. Snyder and James H. Vandemark, Appellants.
    An act of the lessor, amounting to a mere trespass, and not interfering with the substantial enjoyment of the demised premises by the lessee, is not equivalent to an eviction.
    It is not necessary that there should be an act of expulsion by physical force, to constitute an eviction; but there must be an actual or constructive exclusion of the tenant, from the possession or beneficial use and enjoyment of the whole or some portion of the property demised.
    An oral agreement, by which the tenant, under a written lease for five years, relets a portion of the premises to his landlord for the same term, inures under the statute of frauds, as a demise from year to year.
    Appeal from a decision of the Supreme Court, at a General Term in the third judicial district, affirming a judgment in favor of the plaintiff, rendered at the Ulster Circuit, on the trial before Mr. Justice Gotjld.
    The action was on a lease, for rent of the demised premises. The defense was, that the defendants had been evicted from a portion of the premises by the plaintiff, before the rent in question accrued. The facts sufficiently appear in the opinion of the court.

      T. R. Westbrook, for the appellants.

      Erastus Cooke, for the respondent.
   Porter, J.

In the spring of 1857, the defendants were in possession of the entire premises embraced in the lease. It was executed in Pebruary, 1856. The term was five years, and the rent reserved was $200 for the first year, and $250 for each succeeding year. The property consisted of a store, dwelling house, hay-scales, barn, and the lots on which these buildings were erected. The plaintiff desiring to use a portion of the demised premises, and the defendants wishing to be relieved from so large a rent, a verbal agreement was concluded between them on the 10th of April, 1857, by which, in consideration of an agreed allowance by the plaintiff of $112.50 on the .annual rent, thus reducing the amount to $137.50, he was to resume the occupancy of the dwelling house and lot, the harn, and the adjacent portion of the store lot, with the privilege of ingress and egress over the store lot, and the further privilege of depositing firewood temporarily on a portion of the lot. The plaintiff accordingly took possession, with the express permission and consent of the defendants, of the part of the premises thus relinquished; and the defendants continued their occupation of the residue of the property demised. The plaintiff subsequently drew firewood on a portion of the store lot adjoining the house lot, and kept fuel there, more or less, from the ensuing summer down to the commencement of this action. In January or February, 1858, one of the defendants forbade the further exercise of this right, but the plaintiff paid no heed to his objection.

In April following, the plaintiff sued in the Supreme Court to recover the rent due on the portion of the demised premises which the defendants continued to occupy. He alleged in his complaint the modified arrangement, and recovered judgment for the amount due on the basis of such modification.

The present suit was commenced in June, 1859, to recover, on the same basis, the sum of $137.50 for rent accruing in the year commencing on the 10th of April, 1858. The facts alleged in the complaint were controverted in the answer, but established on the trial. The only affirmative defense interposed, was the eviction of the defendants from a portion of the demised premises. Ho such eviction was found by the referee, and no facts are found which amount to eviction in law.

It is claimed that the exercise by the plaintiff of the privilege of piling his firewood on part of the store lot, after notice to discontinue the practice, was equivalent to an eviction. There is nothing in the findings to justify this conclusion. The act, at most, was a mere trespass, and amounted neither to an actual nor a constructive eviction. It is true that this defense may be established without proof of physical expulsion of the lessee from the premises; but it is equally true that an entry does not amount to an eviction, if the act, though wrongful, he in the nature of mere trespass, not interfering with the substantial enjoyment of the premises. The remedy, in such a case, is by action against the lessor for the wrong. To work a suspension of the obligations of the tenant, under the lease, while his rights under it remain in full force, there must be an exclusion of the occupant from some portion of the premises demised, or a substantial and effectual deprivation of the beneficial enjoyment of the property in whole or in part. (Edgerton v. Page, 18 N. Y., 281, 284.)

If the law were otherwise, the most trivial trespass by the landlord would involve a forfeiture of his rights. By crossing the field of a neighboring lessee, or drawing water from his well, he would absolve his tenant from all obligations, leaving him in the unimpaired enjoyment of his rights for the term. The act complained of in the present case was of so trivial a character, that though an objection' was made on a single occasion it was never repeated. Ho action was ever brought for the nominal damages resulting by legal presumption, and, though the alleged trespass preceded the commencement of the former suit on the same lease, it was not then interposed as a defense. If it were necessary, the respondent might properly invoke the application of the familiar maxim, “ de minimis non curat lex.” But it is well settled that the wrongful' acts of a lessor do not, in law, amount to an eviction, where.there is neither an actual nor a constructive expulsion of the lessee from any portion of the premises demised. (Harrison's Case, Clayt., 34; Roper v. Lloyd, 1 Th. Jones, 148; Bushell v. Lechmore, 1 Lord Raym., 369; Bennett v. Bittle, 4 Rawle, 339; Campbell v. Shields, 11 How., 565; Cram v. Dresser, 2 Sandf., 120; Mortimer v. Brunner, 6 Bosw., 653; Edgerton v. Page, 18 N. Y., 284.)

It is urged in support of the appeal, that the oral agreement, under which the plaintiff resumed possession of a portion of the premises, was void under the statute of frauds. This objection is unavailing to defeat the plaintiff’s recovery. The control of the defendants over the premises during the term of their lease, was perfect and absolute. They could rent them at pleasure, in whole or in part, to the plaintiff, or to any one else. They chose to relet a portion of the property to him, for a full and fair consideration. The agreement was oral, and it therefore operated, under the statute, as a lease from year to year. They might perhaps have terminated it, by a proper notice, at the expiration of the first year; but they made no such election. They chose to continue it in full force; and having derived the benefit for which they had stipulated, in the reduction of their own rent, remitted the plaintiff to his action. The answer in the previous suit ignored the alleged prior eviction, now interposed as a defense. The judgment in that action is conclusive as to their then existing rights; and the facts found by the referee leave them equally without defense in the present suit.

The judgment should be affirmed with costs.

Denio, Ch. J., Davies, Wright, Campbell and Brown, JJ., concurred.

Davis, J., delivered an opinion for reversal, in which Potzer, J., concurred.

Judgment affirmed.


text:
    Orestes Hubbard v. Samuel S. Briggs.
    526jia]ae affirmations made by the defendant with intent to defraud the plaintiff, and by which the plaintiff is damnified, are a foundation for an action.
    To lay the foundation for such action—in the nature of an action on the case for deceit—it is not necessary that the defendant should be benefited by the deceit, or in collusion with the party that is benefited.
    To 'sustain this action, it is enough for the jury to find that the plaintiff was moved by the false representations of the defendant, so that without them, he would not have acted in the premises whereby he was damnified, although representations made by others had some influence upon his mind.
    Where the plaintiff had-thus been induced to subscribe to the capital stock of an insolvent bank, and to give his bond and mortgage to secure the payment of his subscription, he had been damnified, although the subscription had not actually been paid.
    Such bond and mortgage being assigned to, and deposited with, the comptroller as security for circulating notes of the bank, the plaintiff would be estopped from denying its validity in his hands.
    So, likewise, where the bond and mortgage had been sold by the comptroller in the presence of the plaintiff, and without any objection on his part, the plaintiff would be estopped from denying its validity in the hands of such purchaser.
    This was an action on the case, commenced in 1843, to recover damages for an alleged fraud, which consisted in making false representations concerning the soundness and solvency of the Millers’ Bank of Clyde, whereby the plaintiff was induced to subscribe $5,300 to the stock of that institution, and to give his bond and mortgage for the amount of his subscription. The declaration contains several counts, in which the defendant is charged with representing, or causing to be represented, to the plaintiff, that said bank was then, &c., sound and solvent, &c.; that the plaintiff was induced thereby to take the stock; and that the representations were false and fraudulent. The plaintiff alleged that he had sustained injury, in consequence, &e., alleging, in one count, that he lost the money secured by bond and mortgage; in another count, that he was likely to lose it; in another, that he paid for the stock, and that it was of no value; and in another, that he took the stock at the price of $5,300 to be paid, and it was of no value. The plea was the general issue.

      This cause was tried, for the seventh time, at the Wayne Circuit, in April, 1863, and a verdict for the plaintiff was obtained, on which a judgment was entered. This judgment was affirmed by the General Term; and an appeal was taken to this court by the defendant.

      George F. Comstock, for the appellant.

      T. R. Strong, for the respondent.
   Wright, J.

The case, in some of its features, is interesting. It was an action commenced in 1843, to recover damages for an alleged fraud, which consisted in making false representations concerning the soundness and solvency of the “Hillers’ Bank of Hew York” (an association at Clyde, formed under the general banking law), whereby the plaintiff was induced to subscribe $5,300 to the stock of that institution, and to give his bond and mortgage for the amount of such subscription. In the several counts of the declaration the defendant was charged with representing, or causing to be represented to the plaintiff, that the bank was in a good, safe, sound, solvent and prosperous- condition; that it had done, and was doing a good and profitable business, and had made profits by its business, &c., and that the plaintiff was induced thereby to take the stock, and that the representations were false and fraudulent. As to the injury to the plaintiff, it was alleged in one count that he lost the money secured to be paid by the bond and mortgage, and the value of the mortgage, and the land conveyed thereby, and the nominal price and value of the fifty-three shares of stock; in another, that he was likely to lose the $5,300, the price agreed to be paid for the stock, and secured by the bond and mortgage; in another, that he paid for the stock, and the stock was of no value; and in another, that he took the stock at the price of $5,300 to be paid, and it was of no value.

The case has been twice in this court on appeal, and was tried for the seventh time in April, 1863, when the plaintiff had a verdict. This trial seems to have proceeded with great deliberation and care. Ho exception was taken to the charge of the judge; and every request of the defendant’s counsel to charge, having any materiality or application to the case (except the request to instruct the jury that their verdict should be for the defendant), was complied with. Unless, therefore, upon the merits the plaintiff ought to have been nonsuited, or a verdict directed for the defendant, or there was some ruling as to the admission or rejection of evidence prejudicing the defendant, the judgment should be affirmed.

The case will be better understood by an allusion to the leading facts dedueible from the evidence. The Millers’ Bank of Sew York was organized under the general banking law, about the 1st of December, 1838, the association consisting originally of five persons with a declared capital of $300,000. Each of these persons subscribed for six hundred shares of the stock, but paid no considerable part of their subscriptions in cash. In fact, the bank started oh credit. One hundred thousand dollars of Arkansas stocks were bought on credit from one Beers, a broker, at six per cent premium, to be paid for in monthly installments of $10,000 each; and all the payments ever made for them were in the circulating notes of the bank, or by turning out customers’ notes which the bank had discounted. The association deposited with the comptroller $70,000 óf these stocks, and $50,000 of bonds and mortgages taken from subscribers to its capital, in May and June, 1839, and received circulating bills for them. Thirty thousand dollars of the stocks were returned to the broker in the winter of 1840, and for the amount retained, the bank at that time owed Beers $28,000, and in the summer of 1840, when it failed, it had paid but $46,000 in all of the purchase. In August, 1839, the bank received from Ford & Sons, and others, $40,000 of Michigan stocks as security for their notes thereafter given to it. For part of their notes the bank issued .time drafts on the Uorth American Trust and Banking Company, payable to Ford & Sons, and Ford & Smith, to pay for part of the stocks. The testimony as to the amount of these time drafts, is quite indistinct, one of the directors estimating the amount at from $10,000 to $15,000. The bank deposited the Michigan stocks with the comptroller, and received circulating notes for them. In the summer of 1839, it had a suspended debt of over $50,000, which was afterwards increased. The principal debtors were William Ford & Sons, Ford & Smith, Chapman & Frisbie and B. S. Bedfield, the cashier. The three firms seem to have had large control of the bank in the spring and summer of 1839, and were the heaviest borrowers. All of them were original directors, and were all reelected in September, 1839. The time drafts and suspended debts, in the fall of that year, embarrassed the institution. In December, 1839, for the purpose of getting circulating bills, the bank bought $28,000 of Illinois stocks on credit, and deposited them with the comptroller. The bills were used for discounting paper, and some of the discounted paper was assigned to those who indorsed notes to pay for the stock. But little money, comparatively, seems ever to have been paid into the bank; and in order to raise money through the summer of 1839, it sent its bills east, and redeemed them with the flour of Ford & Smith, two of the directors, and who were carrying on the flouring business in the county of Wayne. In July, 1839, it sold $7,000 or $8,000 of its bills in Hew York, at a discount, to get funds for redemption. In December, 1839, it deposited some $15,000 or $16,000 of its bills with a broker at Albany, and got therefor $4,000 in specie, and a certificate of a specie deposit for the balance, and paid a bonus of three-fourths of one per cent. In January, 1840, the bank had a circulation of over $170,000, without means for redeeming bnt a small part of it. As early as December, 1839, it had assigned most of its available securities to the defendant and others, to secure them against liabilities incurred for the bank. The Beers debt embarrassed the association to the last. In July, 1840, the bank failed. Through the spring, and up to the time of the failure, various ineffectual efforts were made to sustain its credit, meet its pressing liabilities, and provide for its redemptions. In the spring and summer of 1840, the State stocks held by it depreciated some fifty per cent; a large portion of the suspended debt was ldst; and about the middle of July, some $30,000 of notes being presented for redemption in one day, the institution failed to redeem. On the 18th of July, the bank assigned to the defendant and others, some $39,000 of securities held by it, to secure them against their liabilities for it; and in the following December, it assigned all its effects to a receiver. There was a total loss of the capital, and the securities lodged with the comptroller paid the bill holders but ninety-four per cent.

Thus, it very clearly appears that the institution was embarrassed from the beginning. It started upon a borrowed capital, and that debt oppressed it throughout all its existence. ISTo stock was really subscribed for until April, 1839, when, in that and the two succeeding months, there was a subscription of $60,300; the sum of $5,400 being paid in cash, $3,500 in notes, and $55,400 in bonds and mortgages. Up to January, 1840, it had no other capital except $40,000 of Michigan State stocks brought into the concern, in the summer of 1839, by Ford & Son, Ford & Smith, and Chapman & Frisbee. These parties were the principal borrowers from the bank, and continued to be up to January or February, 1840. Before these stocks were added to the capital the firms borrowed with indorsers, and afterwards, to a large amount, without indorsers; and a part of the stocks were paid for ($15,000) by the bank issuing time drafts, as stated, payable to their order. At the close of the year 1839, the bank was in this condition: It owed $58,000 to Beers for Arkansas stocks; $28,000 for Illinois stocks; it had a suspended debt of $55,000; $29,000 of its assets were pledged to the defendant and others as collateral security; had outstanding time drafts to .the amount, say of $15,000; and a circulation of $170,000; and the only available means to redeem this circulation was cash in bank and with their agent at Albany, $28,000, and a margin on State stocks deposited with the comptroller of $28,000 more. On the 1st of January, 1840, two-thirds of the capital of the'bank paid in was in the suspended debts and outstanding time drafts; and it" had only $56,000 of available means for redeeming $170,000 of circulating notes.

There is no room for pretending that the bank, at that date, was not in a most unsound and critical condition. A public disclosure of its affairs, then, would have produced an immediate disruption. And so, evidently, some of its directors thought, and accordingly set about procuring new stockholders to carry it along. Meetings were held in at least two places in the county of Wayne, in the interest of the bank, and with the view of procuring additional subscribers to its stock. An effort in this direction, both in concert and singly, was made by the directors, and at a meeting of the board on the 15th January, at the banking house, a resolution was formally adopted (the defendant being present) to meet on the 8th February, at a public house in the town of Wolcott, “to receive subscriptions for stock.” A meeting had been held a week or two previously at Bed Creek, at which several of the directors attended (including the defendant), having the object in view of inducing persons to subscribe. The plaintiff attended the meetings at Bed Creek and at Wolcott. At both these meetings, it was not questioned that three of the directors present, Wells, Chapman and Ford, and others in the interest of the bank, represented to the persons assembled that the bank was in a sound, solvent and prosperous condition. And there was evidence tending to show that before the meeting at Bed Creek, the defendant, in urging persons to take stock, represented the bank to be solvent; that he requested one of these persons to see the plaintiff and* have, him attend the meeting at Bed Creek; that at the Bed Creek meeting, upon the plaintiff expressing a willingness to go into the bank, provided it was safe and prudent to do so, the defendant represented the bank to be sound and solvent, and in good condition; that it had paid for its stocks and the expenses of getting up the association, and they were making money, and that after all these expenses there was a dividend; that at the Wolcott meeting, although the defendant spoke principally of getting up a flouring association in connection with the bank, he then stated publicly that the "bank was in good condition; they wanted more stockholders; had State stocks with the comptroller, and wanted mortgages to match the State stocks; that shortly after the "Wolcott meeting, a rumor having got abroad that the Arkansas stocks were not good, the plaintiff and one or two other persons that had subscribed at the Wolcott meeting, called to see the defendant on their way to Clyde to make inquiry, when he stated that he did not know that the bank had any Arkansas stocks, but that they had better go down to the bank, and he would meet them there; that he considered the bank good, and was intending in the spring to increase his stock $1,000; that they did go to the bank, where they met the defendant, and Smith, Ford and Chapman, three others of the directors; Smith was the principal spokesman; he said they had Arkansas stocks, and he considered them the best they had; that the expenses of starting the bank were all paid; that there was a dividend of per cent in bank; that the condition of the bank was good, and they wanted mortgages to match stocks in the comptroller’s hands; that the State stocks were all paid" for; that after paying all expenses and throwing out bad debts there would still be a dividend of 2J per cent; that Mr. Dezeng had made an investigation into the affairs of the bank, and that his investigation showed the bank good.

The plaintiff had subscribed at the Wolcott meeting for $3,000 or $4,000of the stock, but had not, at this last interview, given his mortgage to the bank. He concluded to increase his subscription to $5,300, and execute his bond and mortgage for that amount, which was accordingly done a few days afterwards. The bank deposited this bond and mortgage with the comptroller as security for its circulating notes. When the bank failed to redeem, this and other securities with the comptroller were sold by that officer. The sale took place on the 1st April, 1841, both plaintiff and defendant and other parties interested being present, and the plaintiff’s mortgage was sold to Harmon Pumpelly. The same day the comptroller executed an assignment to Pumpelly. Before the sale (the defendant being present) the plaintiff saw Pumpelly, and requested him to buy in his mortgage and give him time to pay, and Pumpelly agreed to do so. The agreement was that Pumpelly was to bid off the mortgage, and the plaintiff to pay to him seven per cent of the whole amount, and have time to pay the balance. Pumpelly purchased the mortgage under this agreement, and the plaintiff paid down some $300 or $400.

The evidence bearing on the question of the defendant’s connection with and knowledge of the • condition of the bank, and the motive for the alleged misrepresentations, were of this character: He was a director from its organization until its failure. He subscribed originally for $8,000 of the stock. In Hay, 1839, he gave his bond and mortgage to the bank for $4,500 of this subscription. He was elected vice-president in September, 1839. His residence was some five miles from the bank, but during 1839 he attended frequent meetings of the board of directors, and often conversed with co-directors respecting the condition of the association. Ford, Chapman and Smith, in concert with Eedfield, the cashier, who lived in the village of Clyde, in a great degree, managed the bank, in the spring and summer of 1839, and largely for their own accommodation, until they had rolled up the large suspended debt. It would seem that the defendant, although a director, interfered but little in their operations or in the affairs of the institution until the fall of 1839. He knew, however, of their operations and of the suspended debt, and expressed his fears that it would turn out bad, and that the bank could not live under such management. He thought Ford, Smith and Chapman could ruin the bank, and that they would ruin it if stringent measures were not taken against them. He was told some three months after the bank went into operation, by one of the directors, that the Arkansas stocks were bought on credit. He knew of the time drafts havitig been issued in the summer of 1839, and also that a messenger had been sent west for produce assigned by Ford and Smith, the largest debtors, and had been unsuc-, cessful. In December, 1839, at a meeting of the board of directors, he moved the purchase of $28,000 of State stocks, with further resolutions that the obligations or notes of the association be given in payment therefor; that, the president and cashier sign such notes, and request individuals to sign with them as sureties of the bank; and that the board pledge the bills receivable and other available means of the bank to such persons as should sign the notes as security. The Illinois stocks were purchased pursuant to these resolutions; the defendant, with others, became liable on the notes given for them; and the bank assigned to them, for their protection, about $29,000 of its securities. About this time, he expressed great uneasiness as to the condition of the bank, and suggested to Griswold, a co-director, to induce others to put in bonds and mortgages, and Griswold declined, saying that he had lost all confidence in banking operations. In December, 1839, the defendant and William Ford proposed to William S. Dezeng, of Geneva, to become the president of the bank, but he did not accept or enter upon the office until about the 8th March, 1840, desiring previously to examine into and endeavor to arrange its affairs, so that it might be carried on. This examination was had in the months of December and January, and before it was completed the meetings were held at Eed Greek and Wolcott. When Dezeng took the presidency the bulk of the new subscribers to the stock had been obtained; in fact they were mostly obtained whilst Dezeng was endeavoring to secure the suspended debt and put the bank on such a footing-as that it could be continued. Although a year had intervened from the organization, and Beers was to have been paid $10,000 monthly, the bank still owed him $58,000 on the Arkansas stocks, and he was pressing for payment of his debt. The suspended debt was a subject of investigation by Dezeng; he examined the books of the bank and .got what information he could from the directors in respect to it, and took-fresh securities from some of the debtors. He reported to the directors about the middle of January that he thought the suspended.debt secured; and this seems to have been the opinion entertained by the directors, including the defendant, at the time he made his report; although all was eventually lost, except the debt of Eedfield, the cashier. Nothing was done in respect to the outstanding time drafts, except to consult counsel who advised that the hank was not liable upon them ; nor was anything done .in respect to the Beers debt, except to induce him to take back $30,000 of the Arkansas stocks, reducing his claim to $28,000, and arranging that that balance should not at once press down the institution. The proof is strong that in December and January the defendant knew all about the unsound and crippled condition of the bank, and that from December, 1839, if not before, up to its failure, he was one of its principal managers. He had been always a director; was vice-president from September, 1839; met frequently with the board of directors; moved resolutions in December to purchase Illinois stocks to relieve the bank temporarily from its embarrassments; became security with others for these stocks, and took by assignment to himself most of the available securities then held by the association; he knew that the bank owed the debt to Beers for the Arkansas stocks; he knew also of the outstanding time drafts, and of the suspended debt, and was quite as well able to judge, as Dezeng, a stranger, whether the debt had been made secure or otherwise. He was made a member of the discount and renewal committee on the 6th January, 1840, and whilst he and others were urging persons to become stockholders, and before any final or definite arrangement had been made in respect to the Beers debt, without the consummation of which, giving him credit for ordinary intelligence, he must have known the bank could not go on. After the new stockholders had been procured, and during Dezeng’s administration (a period of four and a half months), he was acting steadily, in concert with him and others of the directors, in an endeavor to reheve the institution from pressure for liabilities existing before January, 1840, and to relieve himself from individual responsibility. At a meeting of the board on the 31st March, 1840, he moved a resolution repudiating the time drafts that had been issued by the cashier. The board, at a meeting on the 5th June (when he was present), adopted a resolution to release him from his unpaid subscription ($3,500) in consideration of his paying his mortgage in cash that season; and subsequently, on the 6th of August, the condition was removed, and he was released without paying. At the same meeting, in June, the board authorized the president and cashier, at any time, to transfer to the defendant and others any securities or funds of the bank to indemnify them for becoming security to Beers for $10,000. On the 10th July, the board directed to be placed in the defendant’s hands, securities to indemnify him for having become bond to Lewis Benedict for the bank in $3,000, this debt being one of the time drafts which the board had previously voted, on the defendant’s motion, the bank was not liable to pay. At the same meeting, on the defendant’s motion, and on the ground that a large amount of loans due from persons who could not and did not pay, and the bank was owing debts to Beers and others, for which some of the directors were individually liable, the board directed that all interest due on mortgages given before the 1st January should be collected. On the 13th August, the board, by resolution, appropriated to the defendant and Wells each $200, on the ground that they had from the first organization of the bank devoted much of their time to its business. At each of these meetings the defendant was present, and if not voting in the affirmative did not dissent. On the 18th July (after the failure to redeem) the bank executed an assignment to the defendant and others of some $39,000 of its securities, to indemnify them for individual liabilities assumed for the bank: 1st. To protect and save harmless the defendant from having become individually liable to Lewis Benedict for $3,000; 2d. To apply the. assets to the payment of notes, amounting to $24,500, given by the defendant and others on the purchase of the Illinois stocks in December, 1839, the bank having used a considerable amount of the securities, as the assignment recites, pledged to them at the latter date; and 3d. The residue to constitute a fund to indemnify the: defendant Wells and Dezeng for a liability of $10,000 to Beers. All these assets went into the hands of the defendant, and he collected them. He never paid anything to the receiver. He testified himself that he settled with the receiver, hut in what way does not appear. It is probable that he lost, eventually, the amount of his bond and mortgage ($4,500), although the fact is"not distinctly shown. It was not among the securities sold by the comptroller, although it had been deposited with him.

In the celebrated case of Pasley v. Freeman (3 Term, 51), it was held "that a false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action on the case in the nature of deceit; and that in such action it is not necessary that the defendant should be benefitted by the deceit, or that he should collude with the party who is. That case, as was said by the court, in Upton v. Vail (6 Johns., 181), “went not upon any new ground, but upon the application of a principle of natural justice, long recognized in the law, that fraud or deceit, accompanied with damage, is a good cause of action.” The doctrine of the case has been since repeatedly recognized, and is well settled in English and American jurisprudence. (Haycraft v. Creary, 2 East, 92; Russell v. Clarks Exr’s., 7 Cranch, 69; Upton v. Vail, 6 Johns., 181; Allen v. Addington, 7 Wend., 10; S. C. on error, 11 id., 375; Patten v. Gurney, 17 Mass., 182; Urn v. Wilcox, 1 Day, 22; Hart v. Tallmadge, 2 id., 381; Ewing v. Calhoun, 7 Vt., 89; Weeks v. Burton, 7 id., 57.) Indeed, it is not controverted now, as it could not be, that where a person asserts a falsehood with a fraudulent design, and damage results therefrom, though he may have no interest in the deception, nor colludes with the party who has, it is ground for a civil action. It is not necessary to adopt this doctrine to the fullest extent, in order to maintain the present action. The defendant, if he made the assertion in respect to the solvency, business and condition of the bank (and the jury by their verdict have found that he did, and that they were false), he had an interest in so doing. He was a stockholder and director of the bank, and was also, by his express agreement, individually liable for its debts to a large amount. He was to be personally benefitted by getting in new stockholders, and the evidence justified the conclusion that he concurred in the efforts to do so. As has been said, however, it was •not important for the purpose of maintaining the action, if his affirmations were false, and made with an intent .to deceive, and effected the object to the plaintiff’s injury, whether he had any interest in making them or not.

The general questions in the case, then, were: 1st. Did the defendant, in January, 1840, represent to the plaintiff that the bank was sound and solvent, and in good condition; that it had p’aid for its stocks and the expenses of getting it up, and was making money; and that after all the expenses there was a dividend ? 2d. "Were these representations false, and did the defendant know them to be untrue ? 3d. Did the plaintiff act upon the representations in taking the stock, and giving his bond and mortgage? 4th. "Was the plaintiff damaged ?. These were purely questions of fact, and the jury, by tlieir verdict, have answered them against the defendant. They have found that he did make the represent ations alleged; that they were untrue, and he knew them to be so; and that the plaintiff, in reliance upon them, subscribed for the stock (mortgaging his farm to the bank in payment for it), and that the stock was then, and afterwards, utterly valueless. In short, that a gross fraud was practiced upon the plaintiff, by which he was damaged to the extent of his subscription.

One of the grounds on which a nonsuit was urged was, that the evidence showed that whatever representations the defendant was proved to have 'made, were made in good faith; there was no evidence that they were made in bad faith. If the defendant ignorantly asserted a lie in his effort to induce the plaintiff to become a subscriber to the stock of the bank, and honestly believed that its condition was as he 'represented it to be, he would not have been liable. But if his affirmations in respect to its soundness, solvency and business were knowingly false, there could have been no good faith or honesty in uttering them. There was quite enough evidence in the case to go to the jury, both on the questions of the unsound and insolvent condition of the association, and of the defendant’s knowledge of it. If he and other of the directors believed that the suspended debt (equal to half the amount of the then capital of the bank) had been made reasonably secure, this fact would not have relieved him from the imputation of bad faith in representing the condition of the bank as sound, solvent and prosperous, having paid for its stocks and the expenses of getting it up, and was in a condition to declare a dividend to its stockholders. There was abundant evidence to go to the jury of the falsity of these assertions, and that the defendant knew they were false.

After a charge to which no exception was taken (and which was certainly extremely liberal to the defendant), his counsel requested the jury to be instructed that their verdict should be given for him: 1st. On the ground that upon all •the evidence the bank was to be deemed solvent when the alleged representations were made; 2d. On the ground that if the bank was then insolvent the defendant had no knowledge of the fact; 3d. On the ground the plaintiff did not give his bond and mortgage relying on the representations of the defendant. This was, in effect, requesting the judge to direct a verdict against the plaintiff for the reason that there had been no fraud or deceit on the part of the defendant occasioning damage to him. The jury had just been instructed to answer the three propositions embraced in the request; and it was certainly, under the evidence, for them to do so, and I think it would have been clear error to have taken the questions from them. The truth is, the request was too narrow and inapplicable to the issues under the pleadings. The defendant represented the bank to be not only solvent, but to have been doing a good business, and as being in good condition, and as having made money. If, upon the whole evidence, the bank was to be deemed solvent in January, 1840, or if it was then insolvent and the defendant was ignorant of the fact, those circumstances would not necessarily have led to a verdict in his favor. The questions were, not alone, was it solvent, but was it in good condition for banking; had it been doing a good and prosperous business, and had it made money. But had the questions been simply as to its solvency or insolvency and the defendant’s knowledge in that respect, the proof was abundant to carry the case to the jury upon those issues. The fact is, that the evidence was conclusive as to its insolvency in January, 1840. It made no bad debts of any amount after that period, yet its whole capital, including that which was obtained after January, was gone the middle of July following, and no considerable part of its debts had been in the meanwhile paid. As to whether the plaintiff subscribed, and gave his bond and mortgage, relying on the representations of the defendant was eminently for the jury to settle. On this point the evidence was conflicting. The plaintiff himself testified that he relied wholly upon the defendant’s representations ; whilst, on the other hand, there was evidence tending to show that he was influenced by Chapman and other directors of the bank, and that it was an afterthought to charge the fraud upon the defendant. It was enough to have sustained the action against the defendant, for the jury to have found that the plaintiff was moved by his representations, so that without them he would not have subscribed for the stock, although representations made by others had also influence upon his mind. It could not be affirmed, as matter of law, upon the proof in the case, that the defendant’s affirmations were not the inducing cause of the plaintiff’s subscription ; and if not, the question properly belonged to the jury to determine.

Another ground, and the principal one, on which the motion for a nonsuit was based was, that no legal damage had resulted to the plaintiff from the fraudulent declarations of the defendant, he having paid nothing for the bank stock in question, but covered-the amount of his subscription by a bond and mortgage that was void in the hands of the bank or of the comptroller, or his assignee. I think this ground more ingenious than sound. It assumes facts, and jumps at the conclusion that, as between the bank and the plaintiff, the original parties to the securities, they were absolutely void by reason of the defendant’s fraud. The securities were not void, but voidable, at the election of the plaintiff, and then only if obtained by the fraud of the bank, as a corporation. It certainly cannot be pretended that if by fraudulent statements of the defendant (the corporation not being implicated in the fraud), the plaintiff was induced to subscribe for the stock and give his bond and mortgage therefor, the securities would not be legally valid as between the parties to them. I admit this would be otherwise if the bank, as a corporation, were the party guilty of the fraud, or had notice of it, or if the defendant, in making the representations or procuring subscriptions for stock, acted as its agent. But there was nothing implicating the board of directors in the fraud practiced by the defendant. He made the alleged false declarations, not as a member of the board, but as an individual. I think it extremely doubtful, as the proof stood, whether the defense of fraud was available as against the bank. But, assuming that the plaintiff might have avoided the bond and mortgage in the hands of the bank, I am clearly of the opinion that in a suit by the comptroller, or his assignee, under the facts shown, he would be estopped from setting up their invalidity. The evidence authorized the jury to find that the plaintiff executed the bond and mortgage with the view of having them assigned to the comptroller as security for bank notes; that he consented that they should be so assigned for that purpose; that they were accordingly so assigned with his assent; and that upon their security the comptroller issued circulating notes to the bank. The case is, therefore, the same, in point of law, as though the plaintiff had personally participated in depositing the bond and mortgage as security for circulating notes, and had asserted to the comptroller that they were valid securities. If he had done this, even in good faith, not having discovered the fraud which he now asserts, it is clear from the authorities that he would have been precluded from setting up that the securities were invalid. (Petree v. Feeter, 21 Wend., 172; Watson, Executor, v. McLaren, 19 Wend., and cases cited; Lamoroux v. Visscher, 2 Comst., 278; Kensly v. Vernon, 4 Sandf., 361.) The rule need not be denied that choses in action of this nature are prima facie impeachable, as well in the hands of an assignee as of the original party, but the conduct of the obligor or mortgagor may be such as to preclude him from the benefit of the right. The plaintiff, after consenting to the assignment of the mortgage to the comptroller as security for circulating notes, and asserting that it was a valid security and would protect the bill-holders to the extent of the amount purporting to be secured by it, could not afterwards defend himself against the comptroller in an action on the security. Under such circumstances, it would be unjust and inequitable that the bill-holders, for whom the comptroller was the trustee, should suffer the loss rather than the mortgagor by whose act an invalid security was taken. In McMullen v. Warner (16 Serg. & Rawle, 21), in speaking of a bond which had been assigned, the court laid down the rule with precision. It said: Although prima faeie the obligor may make every defense against the assignee, which at the time of the assignment, or notice of it, he could have made against the obligee, yet he may, by his own conduct, preclude himself from the benefit of that right. Thus, it has been held, that if the assignee calls on the obligor and informs him that he is about to take an assignment of the bond, and the obligor acknowledges that it is due, without any allegation of defense, he shall not be permitted to take defense against the assignee; and this, whether his silence proceeds from ignorance or design. It would be most inequitable and unjust if he should; because if any loss afterwards occur, it arises from the negligence or folly of the obligor, and not the default of the assignee, who has taken every pains to inform himself of the real situation of the parties. If any injury accrues, it is right that he who causes it should bear the loss.” Again, in view of the circumstances of the comptroller’s sale and assignment of the bond and mortgage to Pumpelly, there can be no doubt, in a suit by Pumpelly, the plaintiff could not defend himself against the latter in an action on the securities. The plaintiff stood by, in silence, and saw Pumpelly purchase the bond and mortgage and pay value for them. Hay, he did more than to stand by in silence. He urged Pumpelly to become the purchaser, and agreed with him, if he did so to pay him down seven per cent of the whole mortgage. It is said there is no proof that Pumpelly paid anything beyond the one dollar expressed in the written assignment. If this were so, it would be of no importance on the question we are considering ; but it is not so. The evidence tends to show that Pumpelly paid the full amount of the mortgage. The agreement was for him to bid it off, and upon the plaintiff paying down seven per cent of the whole mortgage, he should have time to pay the balance. The plaintiff paid him $300 or $400 (which was not one year’s interest, as is claimed, but seven per cent of $5,300). Most clearly the conduct of the plaintiff at the comptroller’s sale, his standing by in silence, and his connection with Pumpelly, who became the purchaser at his instance, estopped him, notwithstanding he acted in good faith and had not then learned that the representations which the defendant had made to him were false.

If it were conceded, then, that the bond and mortgage were void as between the original parties (which I am by no means willing to concede), the plaintiff could not have avoided them in the hands of the comptroller or Mr. Pumpelly. It is incorrect, therefore, to say that he never paid, and is not bound to pay his mortgage, and hence sustained no damage from the defendant’s fraud. The jury have found that he was induced by the false and fraudulent affirmations of the defendant, to take fifty-three shares of worthless bank stock, and give a mortgage lien on his lands for $5,300, as the consideration for the purchase. As he is bound to pay the mortgage, and cannot defend himself against it, it would seem to be reasonably plain that he has been injured. It is not denied that if, at the comptroller’s sale, and before he discovered the fraud, the plaintiff had paid his mortgage, the action would have been sustainable against the defendant, as then the party defrauded would have been legally damnified; but the distinction seems to me exceedingly thin, between damages arising from actual payment, and having a mortgage Hen for the consideration money on the defrauded party’s lands, admitted to have been worth some two thousand dollars more than the amount of the lien.

The defendant’s counsel took over seventy exceptions during the progress of the trial, many of them of the most trivial nature, and but few were urged on the argument. Some of them will be briefly noticed.

1. It seems that in 1841, proceedings were commenced in-chancery by certain parties against the bank to have their mortgages delivered up to them and canceled. Depositions were taken before an examiner in 1842. Elias T. Munson was one of the persons examined. On the present trial, the plaintiff testified that he did not find out that the defendant had knowledge of the bad condition of the bank, until the testimony in chancery was taken; he found it out from the testimony of all the witnesses; he thought Munson testified to it. When the case was about closing, the defendant offered in evidence the deposition of Munson, and also all the depositions taken in chancery, for the purpose of contradicting what the plaintiff swore to in regard to the depositions, and to show that there was nothing in the evidence to charge the defendant with fraud. This batch of chancery depositions were properly excluded. It is impossible to see upon what principle the testimony of third persons, taken in a chancery suit in 1842, to which the plaintiff was not a party, was material or competent evidence in the case. If it was at all important to contradict the plaintiff as to the time he said he found out that the defendant had knowledge of the condition of the bank, it could not be done in that way.

2. Pursuant to a stipulation of the parties, the testimony of Munson, who was dead, given on a former trial of the case, was read in evidence. Subsequently the defendant offered to read the deposition of Munson in the chancery suit, for the purpose of contradicting his evidence as read, and impeaching him. The testimony was objected to, on the ground that the attention of the witness Munson was not called to the subject, and the court sustained the objection This was not error. Had the witness been living, and on the stand, it would not have been competent, by way of impeachment, to show that he made different and contradictory statements on other occasions, without first calling his attention to them. Without this, there is no foundation laid for the evidence. It cannot change the rule because the witness is dead, and the parties have stipulated that his evidence might be read as he gave it on a former trial.

3. It was proved that shortly after the Wolcott meeting the plaintiff and others called upon the defendant at his premises, to make inquiry as to some stocks in the bank which they had heard were not considered good. This was before the plaintiff had given his bond and mortgage. The defendant expressed surprise; said that he had heard of no such thing; that the bank was in good condition; they had better go down to the bank and he would meet them there. They did go at his request, and he met them at the bank, and also others connected with it. The plaintiff was allowed to prove that, at this meeting, invited by the defendant, Smith, one of the directors, in the presence and hearing of the defendant, showed a paper exhibiting the affairs of the bank; went on to say that its condition was good; that he had made a calculation, by throwing off so much for bad debts, if there were any—he did not think there would be any — there would still be a dividend of 2-£ per cent over expenses; and that all the State stocks which they had were paid for. To the introduction of this evidence the defendant objected. I think the admission of it was not ground for an exception. The plaintiff had met the defendant at the bank by the request of the latter. It may be conceded that the defendant could not be charged on the representations of Smith, though made in his presence and hearing, but still I think the evidence was not incompetent. It is to be remembered that this interview was after the alleged representations were made by the defendant. His conduct on the occasion tended to show a fraudulent intent. He remained silent when Smith and others were making statements to the plaintiff, respecting the bank, which he knew to be false.

4. The defendant made a speech at the Wolcott meeting, principally respecting the advantages of getting up a flouring association in connection with the bank, but took occasion also to represent the bank itself to be in a flourishing condition, and wanted mortgages to match its stocks on hand. These statements were made when the plaintiff was present, and when he subscribed $3,000 or $4,000. The evidence was unobjectionable. Even if what the defendant said had been confined exclusively to urging the advantages of the flouring association, the admission of the evidence could not have prejudiced him.

5. The case was one of fraud, and ordinarily such a case is not capable of being established by direct affirmative proof. Any evidence having a tendency, though it may be slight, to establish fraud is not incompetent. Necessarily, considerable latitude is to be allowed in giving evidence of circumstances tending to prove the fraudulent intent. Evidence bearing upon the questions of the actual condition of the bank when the alleged representations were made, the defendant’s knowledge of its condition, and whether such representations were made with the design to deceive or mislead, was legitimate and proper. This consideration answers many of the objections taken to the proof on the ground of irrelevancy. It was certainly not objectionable to show that the bank started with a heavy debt, which was never wholly paid; that up to January, 1840, it had paid no part of the debt, except in its own circulating notes; that the defendant knew of the existence of this debt; that the very persons who were the original projectors of the association, with but limited mean’s, had in less than six months after its-organization borrowed from it, and had not repaid, to an extent that placed it on the verge of bankruptcy; that the defendant knew this, and to save the institution, as a director, moved in December, 1839,* the purchase on credit of $28,000 of stocks, and became personally bound; that this personal liability existed when he was urging the plaintiff and others to become stockholders, and when he represented the bank to be sound, solvent and in good condition; .that the same embarrassments which existed when the representations were made, although various efforts were made by the defendant and his associate directors to relieve from them, continued to the end, notwithstanding additional stockholders had been obtained, and the bank lost nothing in bad debts after February, 1840; that the defendant, though he had subscribed for $8,000 of stock, was released from $3,500 of the subscription; and that finally, when the concern came to explode, which was in a little over four months after the plaintiff gave his bond and mortgage, he took to himself a large share of its assets by way of indemnity against the identical liability he had incurred, as surety, for the stocks purchased in December, 1839. Some of these matters, and the defendant’s knowledge of them, were proved by witnesses, and others by the minutes of proceedings of the board of directors, when the defendant was present and participating, bud by the several assignments to him by the bank. Objection was made to the introduction of the minutes of the director’s proceedings as testimony in the case, or rather to certain parts of them, on the ground of immateriality and irrelevancy. These resolutions supposed to be especially irrelevant were the one offered by the defendant himself, in December, 1839, to buy $28,000 of stocks on credit; another offered by him calling on debtors of the bank to pay, and requiring interest on mortgages before January, 1840, to be collected with the view of relieving him and others from individual liability; and another releasing him from part of his subscription. These, instead of being immaterial and irrelevant, went strongly to show the falsity of the defendant’s representations to the plaintiff respecting the bank; his knowledge that they were false; and a guilty motive in making the misrepresentations.

6. On the cross-examination of Aaron Griswold, one of the defendant’s witnesses, the plaintiff’s counsel was allowed to inquire of him: 1st. Is it probable the parties talked together at Fed Creek ? To which he answered: It is probable, although I have no recollection of it. 2d. Is it not probable you saw them ?. The answer to which was : I may have seen them. Allowing these questions and answers is claimed to be error that should lead to a reversal of the judgment. I think the objection of the most frivolous nature. The questions were proper enough on a cross-examination, but if this were otherwise, the answer could not possibly have prejudiced the defendant.

7. Elizabeth Sampson, a colored woman, who lived in the family of the defendant in December, 1840, was called, among others, to prove declarations of the plaintiff alleged to have been made at an interview and conversation with the defendant at his house, at the time mentioned, to the effect that the defendant had never said anything to induce him to take the stock; that Chapman was the man that influenced him, and that he only blamed the defendant because he did not contradict what others said. The testimony of the four other witnesses was read from a printed case, but this colored woman was examined orally. On her cross-examination she was asked to detail her former evidence in 1848. She related with great precision her direct examination, but had wholly forgotten her cross-examination. Subsequently the plaintiff offered to read in evidence her cross-examination taken, as the case states, in 1858, but which is doubtless an error, and should be 1848. No objection was made that the foundation for the evidence had not been laid, but the simple objection was, that it was immaterial and incompetent. I think the evidence was properly received. But if otherwise, it could not be ground for a new trial. The evidence was wholly unimportant in its bearing on any of the issues in the case, and could not by possibility have worked any injury to the defendant. Nor was there, anything in it tending to discredit the witness or capable of being used for that purpose. The single fact shown by the introduction of it was, that the witness, after a lapse of fifteen years (or five years, if the examination was in 1858), failed to remember aH her testimony on a former trial.

8. The defendant’s counsel requested the judge to instruct the jury that the defendant was not chargeable with a know ledge of the insolvency of the bank, even if he erred in judgment of the fact, provided his error was an honest one. The judge charged the proposition in the affirmative, provided the defendant exercised ordinary care and prudence; and there was an exception on the ground that the proposition was not •charged without the qualification. This exception is claimed on the points of the defendant’s counsel to have been well .taken, but no reason is given for the assertion. On the contrary, I think the response of the judge to the request was quite as favorable as the defendant could ask. The proposition was, in a great degree, an abstract one under the proof in the case. If it had any meaning it was this, that if, as a director, the defendant, without any effort to investigate or inform himself, had erroneously but honestly adjudged that his bank was solvent, when it was actually insolvent, he, as matter of law, was not chargeable with a knowledge of such insolvency.. Such a proposition is certainly not sustainable, and the qualification of it by the judge was an eminently proper one.

I am of the opinion that the judgment should be affirmed. Ho errors to the prejudice of the defendant occurred in the progress of the trial. The case was fully and fairly submitted to the jury upon the single issue of the defendant’s liability for what he had said and done; and there is no room to doubt the fact that the jury have passed upon that distinct and isolated question. Their decision should' end a litigation that has been protracted for nearly a quarter of a century.

Denio, Ch. J., and Brown, J., fully concurred in the above opinion. Porter, Campbell, Davis and Davies, JJ., on the ground, as expressed by Judge Wright, that the ■plaintiff would be estopped from defending an action on the bond and mortgage in Pumpelly’s hands.

Judgment affirmed.