author: Wright, J. Rosekrans, J.

text:
    Read v. French and others.
    A stipulation, signed by attorneys who have fraudulently issued an execution which, in respect to its delivery to the sheriff, is prior in point of time to another execution issued by them in favor of a different plaintiff, agreeing that such prior execution shall be postponed to the one subsequently issued, is within the scope of the authority of the attorneys.
    The power of an attorney extends to opening a default which he has taken, (whether properly or improperly,) and vacating the judgment entirely y even though his client has instructed him to the 'contrary.
    A client has no right to interfere with the attorney, in the due and orderly conduct of the suit; and certainly can not claim to retain a judgment obtained, and an execution issued, by his attorney, fraudulently.
    A stipulation to postpone an execution which has been issued on a judgment fraudulently entered, on condition that a motion shall not be made to set aside the judgment, is founded upon a good consideration.
    A judgment by confession is not absolutely void when there has been ai defective statement, but is voidable only at the instance of a party ini interest. .
    A statement, alleging that the defendants “ are indebted to the plaintiff in the sum of $3300, which indebtedness arose on account of goods purchased in the year 1858; that the whole amount of the purchase was $3500; and • ■ the amount remaining due is $3300; that the goods consisted of cloths, trimmings, &c., and were purchased at P. where said plaintiff resides,” is; sufficient in point of form, although it is not alleged, in terms, that the-goods were purchased by the defendants from the plaintiff; the words used plainly importing that fact.
    Judgment by default can not be entered except upon proof of personal service of the summons and complaint. An admission of service of the summons and complaint, not stating the mode in which the service was made, is not sufficient.
    The admission of a defendant, of the service of a summons and complaint, should state that the* service was personal, by the delivery of a copy thereof to him, or the clerk will have no power or authority to enter judgment under section 246 of the code.
    Appeal from a judgment of the Supreme Court. The action was brought hy the plaintiff, as a judgment creditor of the firm of Clark & Hadwin, of Ogdensburgh, against the defendants French, other judgment creditors of such firm, and the sheriff of St. Lawrence county, to have the execution issued on the judgment in favor of the defendants the Frenches vacated from the time it issued, so far as it affected the execution issued on the plaintiff’s judgment, and to have the execution and judgment in favor of the plaintiff declared to have a prior lien to the execution issued on the French judgment ; also, to have the money received from the sales of the property of Clark & Hadwin by virtue of either or both of said executions applied to pay and satisfy the judgment in favor of the. plaintiff before any portion of the same was applied to satisfy and pay the judgment of the defendants French; and that the defendant Nott, as sheriff, pay to the plaintiff the amount of his judgment, if the proceeds of the sales of the property of Clark & Hadwin be sufficient to pay said judgment; and if such proceeds shall not be sufficient, then that he pay such sum as the proceeds of such sales shall amount to.
    The defendants French and the sheriff answered separately. The sheriff alleged that an execution on the French judgment was received by him at 10 o’clock in the forenoon of the 18th of February, 1854, and that in the forenoon of that day, by virtue of it, he levied on all the goods and property of Clark & Hadwin; that at 4 o’clock in the afternoon of the same day he received an execution on the plaintiff’s judgment, and immediately afterwards levied it on the same property. He admits that he subsequently sold the proper-ty by virtue of both executions, and after applying the proceeds of the sale to the payment of the French execution, as having a priority of lien, the balance of such proceeds remaining and applicable to the payment of the plaintiff's execution was about $1458.
    The cause was tried at a circuit' court in the county of St. Lawrence in October, 1857, before Mr. Justice Jambs, without a jury. The case as made up contains no statement of facts found by the judge, nor his conclusions of law, unless his decision, which is incorporated with, and made part of the case, is to be considered and treated as such. " If it is to be so regarded, this case is shown:
    In February, 1854, Thomas S. Clark and Isaac B. Had-win, composing the firm of Clark & Hadwin, were indebted to the plaintiff and others in large amounts, and were' in embarassed circumstances. Desiring to secure the plaintiff, they proposed to confess a judgment in his favor, and applied to the law firm of Vary & Clarke as the plaintiff’s attorneys, to prepare the papers and enter the judgment. On the evening of the 17th of February, 1854, the attorneys having prepared the statement of confession, it was signed and sworn to by Clark & Hadwin, and left with the attorneys to have the judgment entered. This statement was in the following form:
    “SUPREME COURT.' James H. Read agst. Thomas S. Clark & Isaac R. Hadwih.
    Thomas S. Clark and Isaac B. Hadwin, defendants, hereby confess ourselves indebted to James H. Bead, plaintiff, in the-sum of three thousand three hundred dollars, and hereby authorize him, or his executors, administrators, attorney or assigns, to enter a judgment against us, for that amount. The above indebtedness arose on account of goods purchased in the year eighteen hundred and fifty-three. That the amount remaining due thereon at this date is three thousand three hundred dollars,. That the whole amount of purchase was about thirty-five hundred dollars. That the said goods consisted of cloths, trimmings and sailors’ furnishing goods. That said goods were purchased at Providence, Bhode Island, where said Bead resides. And we hereby state that the sum by us confessed is justly due to the said James H. Bead, plaintiff, without any fraud whatever. Dated 17th February, 1854.
    (Signed,) Thomas S. Clark,
    ‘ Isaac B. Hadwin.”

      The attorneys, Vary & Clarke, had, at the time, in their hands for collection a claim of the defendants Abner and Horace French against Clark & Hadwin. After Clark & Hadwin had signed and verified the confession of judgment, Vary, one of the attorneys, handed them another paper with a request to sign it, saying “that it was that little affair of French’s, some $1.62 or $1.75 costsand they signed it without knowing its contents; and supposing the attorneys had made a little expense on the French claim. The paper turned out to be an admission in the following form, attached to a summons and complaint 'in a- suit by the defendants Abner French and Horace French against Clark & Hadwin: “We, Thomas S. Clark and Isaac B. Hadwin, hereby admit that we are the defendants mentioned and described in the feregoing summons and complaint, and we hereby admit service on each of us of a copy of the foregoing summons and complaint, this 23d day of January, 1854, at Ogdensburgh, H. Y,, by .B. H. Vary. (Signed,) Thomas S. Clark, Isaac B. Hadwin.”
    On the 18th of February, (the next day,) the 'attorney Vary filed the judgment roll in the case of the plaintiff, Bead, and a judgment was docketed in his favor for $3306.63. -At the same time he entered judgment by default for want of an answer in the suit of Abner French and Horace French . against Clark & Hadwin, The roll was filed and judgment docketed for $986.87. Both judgments were docketed at half j)ast eight o’clock in the morning.
    About 10 o’clock in the forenoon of the 18th the attorneys Vary & Clarke delivered to the under sheriff of the county an execution on the French judgment, with directions to levy. He levied forthwith on the goods in the store of Clark & Hadwin. At 4 o’clock in the afternoon of the same day, Vary & Clarke issued execution on the plaintiff’s judgment, and the same under sheriff levied it on the same store of goods.
    Upon the discovery being made by Hewlett the agent of Bead, and Clark & Hadwin, of the manner in which the French judgment had been obtained and the delivery and priority of execution under it, the attorneys, Vary & Clark, to avoid a motion being made to set aside the French judgment and execution, made and gave to the plaintiff’s agent and Clark & Hadwin, with directions to deliver it to the sheriff, the following stipulation:
    “ SUPREME COURT. James H. Read agst. Clark & Hadwin. Abner French and Horace P. French agst.' Clark & Hadwin.
    Whereas a misunderstanding has arisen in relation to the delivery and priority of executions in above causes, it was the intention of the defendants to have the execution in first above causes take priority on this confession.
    It is hereby stipulated that the said execution have the priority and the same effect in law as if first delivered to the sheriff. Ogdensburgh, February 28, 1854.
    Vary & Clarke,
    Pl’ffs att’ys in each above causes.”
    This stipulation was read to, and the original left with,-the under sheriff, by Hewlett, on the 22d of March, 1854. The sheriff sold the property of Clark & Hadwin on the executions-; and disregarding the stipulation, first applied the proceeds of the sales to the payment of the execution issued on the judgment of the defendants French, leaving a balance in his hands of about $1458.74, which he paid or caused to be paid to the plaintiff Bead, or his representatives, towards satisfying his. execution. The sheriff admits that at the sale of the property and before he could return either of the exe- ' cutions, an injunction was served on him, restraining him from paying over the moneys to any party or parties whatever, or from making any disposition of the proceeds at said safe; that subsequently he returned the French execution satisfied, 'and the execution of the plaintiff as having collected thereon $1458.74, and nulla bona as to the residue, for which said execution was issued. So much of the jn'oceeds of the sales as are equal to the amount directed to be levied on the French execution is still in the hands of the sheriff.
    The judge found as facts, that the execution in favor of the defendants Abner French and Horace French against Clark & Hadwin, was as against the plaintiff Read, and as against Clark & Hadwin, fraudulently issued; and that Vary & Clarke executed the stipulation of the 28th of February, 1854, as attorneys for the Frenches; and decided as matter of law: 1st. That the attorneys, Vary & Clarke had power to make the stipulation. 2d. That the defendant Hott had no right to disregard such stipulation, but should have followed and obeyed it. 3d. That the execution on the judgment in favor of Abner and Horace French be vacated from the, time it issued, so far as it affects the execution in favor of the plaintiff Read against Clark & Hadwin; and that the execution in favor of Read have preference over the said execution in favor of the Frenches. 4th. That the moneys received from the sales of the property ' of Clark & Hadwin be applied to pay and satisfy the judgment inyfavor of Read before any portion of the same be applied to satisfy and pay the execution in favor of the Frenches. 5th. That the plaintiff recover of the defendant Hott, sheriff of St. Lawrence county, the amount of moneys so collected by him, and not'paid over to said Read, after deducting the sheriff’s fees and poundage, viz. the sum of $1261.41, with interest from the date of the decision, and that the plaintiff recover of the defendant his costs in the action.
    On the trial, when the plaintiff rested, the defendant Kbit moved for a nonsuit, on the grounds, 1st. That the plaintiff’s judgment was void because the affidavit and confession did not state the necessary facts to show an indebtedness from Clark &. Hadwin to the plaintiff. 2d. That Vary & Clarke, as attorneys, had no authority to make the stipulation put in evidence. 3d. That if the plaintiff has established a fraud on the part of the attorneys in obtaining the defendants’ judgment, there is nothing to charge the sheriff with notice of or participation therein, and he is not liable. The nonsuit was denied.
    At the close of the testimony the defendants French moved for a nonsuit, on the grounds: 1st. That the plaintiff has neither shown a valid agreement to give priority to his execution over French’s nor any fraud in obtaining French’s judgment. 2d. That the stipulation ¿hus proved is void. It was made without authority, without consideration, in violation of rights vested in French, and for want of mutuality, and for want of proper parties. The motion was denied.
    .The defendant ISTott also moved for a nonsuit on the same grounds as when the plaintiff rested, and on the further grounds that there was no proof of the service of the stipulation on Notty and if there was, there is proof that the stipulation was waived and the sheriff directed to enforce the execution and pay French. The motion was denied.
    Judgment being entered on the decisions of the judge, the defendants appealed to the general term of the Supreme Court, where the judgment was affirmed as against the defendants French, and modified as to the defendant bfott, so far as it charged him with costs, and without costs of the appeal, for or against him.
    The defendants appealed to this court, ■

      Wm. G. Brown, for the plaintiff.

      Myers & Westbrook, for the defendants.
   Wright, J.

The question at issue was, whether the plaintiff or the defendants, Abner French and Horace French, were entitled to the proceeds arising from the sale of certain property by the defendant Mott, under and by virtue of two executions delivered to him as sheriff. The sheriff assumed to decide the question of priority of the executions, in favor of the defendants French, and retain in his hands sufficient of the moneys to pay and satisfy their execution. He has really no interest in the determination of the case, except as a mere stake holder.

It is a statutory provision, that if there be several executions issued out of a court of record, against the same defendants, that which shall have been first delivered to an officer to be executed shall have preference, (2 R. S. 366, § 14;) and in making a disposition of the proceeds of the sale of the property levied on, the sheriff must ordinarily be governed by the priority in the delivery of the executions to him. The execution creditor may, however, waive the preference, or the prior execution may be withdrawn or postponed, or become dormant as to a subsequent one; in which case the latter would be entitled to be first satisfied from such .proceeds.

The execution on the judgment in favor of the defendants French was, as respects its delivery to the officer, prior in point of time to the execution on the plaintiff's judgment; but these attorneys, who had fraudulently issued it, stipulated that it should be postponed to that of the plaintiff; or, in the language of the writing, the plaintiff's execution should “have the priority and the same effect in law as if first delivered to the sheriff.” If the attorneys had the authority to thus stipulate, it would end the case. The judgment of the special term, in effect, simply declares this priority, and adjudges the money in the sheriff’s hands realized by the sale, and not paid over to him, to belong to the plaintiff.

I have no doubt that the stipulation was within the scope of the authority of the attorneys of French. They had fraudulently obtained the French judgment, and issued execution thereon, securing for it a priority of lien. The judgment and execution would, on motion, have been set aside altogether; but to avoid this, they stipulated that the plaintiff’s judgment and execution should .have the preference. These powers extended to opening the default which they had taken, (whether properly or improperly,) and vacating the judgment entirely, even though their clients had instructed them to the contrary. A client has no right to interfere with the attorney in the due and orderly conduct of the suit; and certainly can not claim to retain a judgment obtained, and an execution issued by his attorney fraudulently. (Anon. 1 Wendell, 108; Gaillard v. Smart, 6 Cowen, 383.) So, also, the attorneys of French had control over the execution in every respect. They might have withdrawn it from the hands of the sheriff, or suffered it to become dormant as to a subsequent one, or have authorized the officer to depart from the regular and ordinary course of his duty, (Corning v. Southland, 3 Hill, 552; Waters v. Sykes, 22 Wend. 564.) An attorney has authority over an execution for at least a year and a day after judgment perfected in favor of his client, (Lusk v. Harting, 1 Hill, 659, and- cases, cited,) and may now even acknowledge satisfaction at any time within two years. (2 R. S., 2d ed., 286, § 26.) The stipulation, therefore, of the attorneys of French postponing the French judgment and execution to that of the plaintiffs, was within their authority, and given upon adequate consideration, viz. that a motion should not be made to set aside their judgment altogether. Instead of being an act wholly irreconcilable with their duty as attorneys of the Frenches, (which it is claimed to have been,) it was the reverse; for the retaining of an advantage obtained by artifice or fraud is not a duty which an attorney -owes to his client.

One of the grounds on which the defendant Hott moved for a nonsuit was, that the plaintiff’s judgment was void because the affidavit and confession did not state the necessary facts to show an indebtedness from Clark & Hadwin to the plaintiff. To this two or three answers maybe made. 1st. The sheriff could not collaterally raise the question of the validity of the judgment; 2d. A judgment by confession is not absolutely void where there has been a defective statement, but is voidable only at the instance of a party interested; and 3d. The statement was sufficient. The objection urged is, that it does not show by whom or to whom the goods were sold. This is really frivolous. It is stated that Clark & Hadwin are indebted to Bead in the sum of $3300, which indebtedness arose on account of goods purchased in the year 1853 ; that the whole amount of the purchase was $3500, and the amount remaining due at this date is $3000; that the goods consisted of cloth, trimmings, &c., and were purchased at Providence, Bhode Island, where said Bead resides. It is true, it is not stated in terms that the goods were purchased by Clark & Hadwin from Bead, but the words used plainly import the fact, and are susceptible of no other construction. .(Neusbaum v. Keim, 24 N. Y. 325; Lanning v. Carpenter, 20 id. 447; Freligh v. Brink, 22 id. 418.)

The special term awarded costs.against the sheriff, but the judgment in this respect was properly modified by the general term,

The judgment of the Supreme Court should be affirmed.

Rosekrans, J.

The judgment in favor of the defendants French w'as clearly void, as it appeared that no action had ever been commenced against them by the service of a summons and complaint, and there was no confession of judgment, or authority given to enter one. Section 134 of the code requires that the service of a summons shall be made by delivering' a copy thereof to the defendant personally. Section 246 provides that judgment may be had in an action on contract, for the recovery of money only, if the defendant fails to answer, upon the plain tiff’s, filing with the clerk, proof of personal service of the summons and complaint on one or more of the defendants, or of the summons alone pursuant to section 130. It will be perceived that the defendants, Clark & Hadwin, did not admit personal service of the sum- ' mons and complaint. They merely admitted service of the summons and complaint on the 23d of January, 1854, without stating the mode in which the servióe was made. For atight that appeared the service may have been by publication under section 135, and the time of publication'. could not have elapsed when the judgment was entered., The summons and complaint may have been deposited in the post , office at Ogdensburgh, in compliance with an order for publication. The written admission of a defendant of the service of a summons and complaint should state that the service was personal, by the delivery of a copy thereof to him, or the clerk has no power or authority to enter judgment under section 246 of the code. Thé proceeding by the Frenches was, in no sense, a confession of judgment; I think it was a nullity. " The court had no jurisdiction until the service of the summons as prescribed by the code. But if the judgment in favor of the Frenches was a valid judgment, I think the evidence in the case was sufficient to show an understanding and agreement on the part of their attorneys that the judgment in favor of Bead should be first entered up, and such proceedings taken as would secure his' demand. Clark & Hadwin told Mr. Vary, when they applied to him to draw the confession, that they were owing Bead and had agreed to secure him, and that they wished to give Bead a judgment, and that Allen had commenced a suit and was about to take judgment. It certainly could not have been contemplated by Clark & Hadwin, or by Vary & Clarke, that any proceedings should be taken by the latter t© defeat the object which Clark & Hadwin had of securing Bead. And as the Frenches had, as yet, commenced no action, V%ry & Clarke were bound to do nothing which should defeat the purpose of Clark & Hadwin, which was made known when the confession was signed. The testimony of Vary goes to establish-the agreement which the plaintiffs allege. He says that the -admission of service of the summons in Frenches’ case, was not spoken of until the confession was signed, and that he told Clark & Hadwin that his object was to get ahead of the judgment of Allen, and that was all that was said. Ho intimation was given that the admission was to be used for the purpose of defeating the object of securing Bead’s demand. Vary knew, at the time, that Clark & Hadwin were insolvent. They had talked of a compromise of their debts at 50 cents upon a dollar, and Winters’ verification of the complaint in the French suit stated that Clark & Hadwin told him they could only pay $100 on the demand. He also testified that he supposed the court would set aside the French execution if an application was made by Bead, and that he gave the stipulation to postpone it to Bead, in order to avoid the motion. The stipulation made when Vary testified the whole transaction was fresh in his mind, stated that it was the intention of Clark & Hadwin to have Bead’s execution ahead of French’s. He also testified that Clark & Hadwin told him, at the time he drew the confession, that their object was to secure Bead. Upon this evidence no honest mind could fail to come to the conclusion, that the agreeement alleged in the complaint was fully proved. As no action had as yet been commenced by the Frenches, I think their attorneys were at liberty to make such agreement, and that the Frenches are responsible for the violation of it, or at all events can not reap the fruits of its violation. It appeared too that Vary & Clarke were attorneys for non-resident creditors, to collect the demand of the Frenches, and there can be no doubt that they had authority to give the stipulation postponing the execution of the Frenches to that of Read, (Corning v. Southland, 3 Hill, 552.) Ignoring the stipulation, they professed to act for the Frenches alone and to protect their interests, and did not violate the rule of law which prohibits a person acting as the agent of both parties to a contract. As the amendment of the complaint, allowed by the judge, changed the entire nature of the. .action, I think it was unathormed, but, if the views already expressed, as to the effect of the evidence on the question of the agreement to give Read’s judgment preference over the Frenches, are correct, no amendment was necessary. Within the recent decisions of this court, the confession of judgment to Read was in conformity with the requirements of the code. (Neusbaum v. Keim, 24 N. Y. Rep. 325.)

The judgment should be affirmed.

All the-Judges concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Wright, J.

license: Public Domain

text:
    Marble v. Whitney.
    Where an order was made by two commissioners of highways, laying out a road, in which it was recited that all the commissioners of highways of the town met and deliberated on the subject embraced in the order; and the referee found, as facts, that on the 23d of April, 1839, all three of the commissioners met and viewed the proposed route, and on the 10th of May following, two of them caused it to be surveyed, and made the order of that date laying out the highway; and that one of the commissioners was not present at the survey, nor was he notified to attend the same; Meld, that the order was valid, in the absence of any finding that the third commissioner did not meet with the others and deliberate on the subject' of laying out the highway; the presumption being that all the commissioners did meet and deliberate on that subject, and that the act was legal until the contrary appeared.

      M'eld, also, that the survey was a mere ministerial act, not requiring the presence of the third commissioner to give validity to the order laying out and establishing the highway.

      It is not necessary to the Validity of an order of the commissioners of highways, laying out a road, that there should be an application in writing by some person liable to be assessed for highway labor; where it is laid out by the commissioners With the assent of the' owners of the lands, such owners releasing their damage's.
    Commissioners may, upon their own motion, and without any application therefor, lay out a highway.
    Where, after the making of an tirder by commissioners of highways, in 1839, for laying out a road, the road Was that ye'ar opened in fact, and during 1839, and succeeding years, Was opened and partially worked throughout the route, and was traveled by the public, more of less, every year from the time of its being thus laid out, opened and worked; Held, that this was an opening and working of the road within six years, as contemplated by the statute.
    The requirement of the statute is, that the road shall be opened and worJeed within six years after making the order; that is, the commissioners shall have six years in which the road they have laid out may be opened and workéd, but if it be not done within that period, their order laying out or establishing it shall have no legal effect. .
    The statute does not prescribe how well, or how much, it shall he worked; if opened and worked at all, it will not lose its legal existence.
    Commissioners of highways may act upon the personal consent of the owner, in laying out or altering a highway across his lands; and although such . consent may be revoked, .it must be done before the road" is laid out, or the alteration made. If the commissioners act immediately, on the faith of the virtual consent, hy laying out the road, or making the alteration, he will he estopped from denying the legality of the act.
    Where such consent has been given Under a mistake of law, merely, no relief can be given, even' on a bill in equity, filed for that purpose.
    Appeal from a judgment of the.Supreme Court. The" action was for entering on the close of the plaintiff and throwing down and removing his fences. The defendant answered, denying the complaint, and alleging that the premises mentioned was a public highway, and that the defendant was the commissioner of highways, and as such entered thereon to remove obstructions and encroachments.
    The plaintiff denied that such alleged highway was ever legally laid out or legally opened, and the principal question in this case is, was the alleged road a lawful public highway ?
    The cause was referred to a referee, who found these facts:
    1. That since the 4th of April, 1849, the plaintiff owned and possessed the farm in question, being situate in the town of Maryland, in the county of Otsego.
    2. That on the 23d of April, 1339, the three commissioners of highways of the town of Maryland (naming them) met and viewed the route of a proposed highway from the Schenevas creek road northerly across the said farm, which was then owned and occupied by Horace Jones and William Crouch; and on the 1st of May, 1839, Daniel. Platt and Levi S. Boardman, two of said commissioners," met, accompanied by a surveyor, and surveyed or run the line of the route, and made an order laying out a highway, commencing at said creek road at the southeast corner of the plaintiff’s farm and the farm of -Uriah Spencer adjoining thereto on the east, and running therefrom northerly or nearly northwesterly across the plaintiff’s farm and the Baker farm. Ha than Sperry, the other commissioner, was • not present at such meeting or survey, nor was he notified to attend the same. (The original order laying out the highway was produced from the town records, and read in evidence as follows:
    “A meeting of the commissioners of the town of Maryland, county" of Otsego, at the house of Hathan Spencer in said town, on the 23d April, 1839, all the said commissioners having met and deliberated on the subject embraced by the said commissioners, that a highway be laid out in said town, upon application of Joseph Lason, Hubbard Jones and Leonard Baker, and each of them consent thereto, commencing at the Schenevas creek road at the west side of Uriah Spencer’s land, and runs thence north, &c., (giving the courses and distances,) to the Milford line, surveyed by Elias Brooks; and it is further ordered, that the line above described be the center of highway, and that the said highway be of ■ the width of three rods. In witness whereof the said commissioners have hereunto subscribed their names, the 1st day of
    May, 1839. Daniel Platt, Jun.
    Levi T. Boardman,
    Oom’rs of Highways.'

      And it is further ordered, that the above surveyed road should be annexed to road district No. 1, Maryland.”)
    3. That it does not appear that there was any application in writing for such highway; or that any application therefor was made by any person liable to be assessed for highway labor.
    4. That the route of such highway was partially opened during the year 1839, and during that year and. others was cut out and partially worked, but the log road (referring to .a prior traveled track cálled a “log road,” leading northwesterly from the same starting point) continued to be the principally traveled track in the year 1851, although the new route was traveled some, more or. less, during each of the-years from 1839 to 1851. From 1839 to 1849, and also prior thereto, as well the log road as the line of the new route so laid out were intercepted by fences at different places north of the plaintiff's farm, and also on that farm ; which fences were kept up by the owners of the respective farms, but which were taken down and replaced by those desiring to pass along the route.
    5. That in August, 1855, the commissioners of highways of the said town of Maryland met at the southern terminus of the line run in 1839, accompanied *by a surveyor, to consider an alleged encroachment upon the highway so laid out, and the plaintiff was present at such meeting. Upon taking the bearing of the first course, according to the survey of 1839, as indicated by the order laying out the highway, it was ascertained that from that point the line diverged west of the traveled track, and cut off a strip of the plaintiff's improved field between such line and the traveled track, thereby leaving a gore of land between the line and the adjoining farm on the east. The commissioners represented that they had no doubt the road was originally so laid out, and that unless some compromise or an agreement should be effected they .would be required to open the road according to the line thereof as indicated by the order of 1839, which representations they then believed; and the plaintiff fearing and believing that he would be required to open the road, accordingly consented to be considered as an .applicant for an alteration of said highway, so that the' first and second courses from the starting point in the creek road would be ■ north, 20 deg. west, 8 chains and 10 links, and thence north, 41 deg. west, 3 chains and 50 links to the center of the road as then used, instead of north, 35 deg. west, 8 chains, and thence north, 44 deg. 30 min. west, 5 chains, as laid out and recorded in 1839. The commissioners proceeded and made the alteration accordingly, and signed an order to that effect, which was filed with the town clerk and by him recorded. That nó written application for such alteration was made. Such consent, or application was founded in mistake, the plaintiff believing that the highway had been laid out in 1839, and could be opened through his improved field westerly of the traveled track without his consent, by force of the order.made by the commissioners in that year.
    6. That the plaintiff, in compliance with the requirement .of the commissioners, soon after the alteration, moved his fence, thereby opening the road according to the alteration thus made; and some months thereafter the plaintiff replaced his fence, leaving it as before the alteration. Upon being again required by the commissioners, the plaintiff moved his fence according to the alteration, but soon thereafter moved his fence back, and even farther east than where it stood when the alteration was made, whereby a team could not pass along the route of the highway without removing or taking down the fence.
    7. That in May, 1857, the defendant, then being the commissioner of highways in the said town of Maryland, entered upon the farm of the plaintiff upon the southern terminus of the alteration, and proceeded -upon the line of such alteration until intercepted bythe fence so placed by the plaintiff, when he was forbidden by the plaintiff from going further across his farm, as well as from moving or interfering with that or any other fence thereon. The defendant took down the fence of sufficient width to allow a team to pass, and proceeded on across the plaintiff’s farm to his north line, following the line of the survey of 1839, as marked upon the ground, and at the said north line took down and removed the division fence which had before been placed upon and across such line by the plaintiff.
    The referee’s conclusions of law were, 1st. The highway was not laid out in 1839 according to the statute.
    1st. The acts of the two commissioners, on the 1st of May, 1839, in the absence of the other, he not being notified to attend the meeting, were not valid as the acts of the commissioners of the town; and 2d. There should have been an application in writing by some person liable to be assessed for highway labor.
    2d. The highway so laid out ceased to be a road for any purpose whatever, as it was not, within the six years, opened and worked as contemplated by the statute.
    3. The consent of' the plaintiff to the alteration in 1835, and his acts connected therewith, and subsequent thereto, operated as a license, until revocation; and therefore the acts of the defendant in taking down the fences after such revoca-, tion and notice thereof, rendered him liable as a trespasser.
    4. The consent of the ^ plaintiff to the alteration having been made or given under a mistake or misapprehension of facts, did.not estop or prevent him from insisting that the forms of law should be observed before he could be divested of the right to the full enjoyment of his land, although he had prior thereto allowed it to be used as a road across his farm.
    '5. The plaintiff is entitled to judgment against the defendant for one dollar, besides costs.
    On the trial, the defendant proved that upon an examination by the town clerk and another, in the town clerk’s office, with a view of finding all papers and records having reference to the road, there was found, with the papers and records of the town in the office, the certificate of freeholders, the order of 1839 laying out the road, the written release of damages, and the survey. The defendant offered the survey thus found on the files of the town clerk, in evidence, and the same was objected to on the grounds that it was immaterial and incompetent, and the objection sustained and the paper excluded. It purported to be the survey of the route of the highway, made on the 23d of April, 1839, by Elias Brooks, and was identical with that in the order laying out the highway.
    Judgment being entered on the report of the referee, on appeal to the general term of the Supreme Court the same was affirmed.
    The defendant then appealed to this court.

      J. E. Dewey, for the plaintiff.

      A. J. Parker, for the defendant.
   Wright, J.

If the locus in quo was a public highway, the defendant, as commissioner of highways, was justified in the entry complained of, and in the removal of the plaintiff’s fences. The referee decided that it was not a highway, at the time of the entry, it not having been legally laid out, or legally opened; that the consent of the plaintiff to its alteration, in 1855, (some two years before suit brought,) was a mere licence, which the plaintiff could revoke after the alteration was made; and that such consent having been given under a mistake or misapprehension of facts, the alteration made by the commissioners was void. In my opinion neither of these positions are maintainable.

1st. Was the highway legally laid out, in 1839?. The referee,- holding that it was not, gave two reasons for his decision : 1st. That the act of the two commissioners on the 1st of May, 1839, in the absence of the other, he not being notified to attend the meeting, were not valid as the acts of the commissioners of the town; and 2d. ■ There should have been an application in writing by some person liable to be assessed for highway labor. The act of the commissioners ‘on the 1st of May, 1839, referred to, was the signing and filing of an order in the town clerk’s office, laying out the road in question, in which it was recited that all the commissioners of highways of the town met and deliberated on the subject embraced in the order. The referee found as facts, that on the 23d of April, 1839, all three of the commissioners met and viewed the proposed route, and on the 1st of May following two of them caused it to be surveyed, and made the order of that date laying out the highway; and ■that one of the commissioners was not present at the survey, nor was he notified to attend the same. It was not found that the third commissioner did not meet with the others and deliberate on the subject of laying out the highway, but only that he was not present at the survey or notified to attend. The revised statutes provide that, “any two commissioners of highways of any town may make an order in execution of the powers conferred in this title, provided it shall appear in the order filed by them that all the commissioners of highways of the town met and deliberated on the subject embraced in such order, or were duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon. (1 R. S. 525, § 125.) The order, therefore, in the present case, was a valid one. It recited that all the commissioners met and deliberated-on the subject of laying out the road. The presumption is that he did, and that the act was legal until the contrary appear. There is no finding that the third commissioner did not meet and deliberate with the others on the subject, and looking into the evidence, the truth of the recital plainly appears. The fact that he was not present at the survey, or notified to attend, did not make the order void, or tend to falsify the recital that the third commissioner met and deliberated with his colleagues in respect to its subject matter. The survey was a mere ministerial act, not requiring his presence to give validity to an order of the commissioners laying out and establishing the highway.

Nor was it necessary to the validity of the order, as the referee held, that there should have been an application in writing by some person liable to be assessed for highway labor. There was no affirmative evidence óf an application in writing for the highway, by a person liable to an assessment. It was laid out by the commissioners, with the assent of the owner of the lands, amongst whom were persons through whom the plaintiff derived his title; such owners releasing their damages. Commissioners of highways may, upon their own motion, and without any application therefor, lay out a highway. - The precise question has been decided in this court. (The People v. Supervisors of Richmond County, 20 N. Y. Rep., 252. See also Gould v. Glass, 19 Barb. 179.)

2. The statute declares that every public highway laid out that shall not be opened and worked within six years from the time of its being so laid out, shall cease to be a road for any purpose whatever. (1 R. S. 521, § 99.) The highway in question, the referee decided, ceased to be a road, as it was not within the six years opened and worked as contemplated by the statute. The facts which he found, and on which he based his legal conclusion were these: after the order was made, and during the year 1839, the road was partially opened, and during that year and others, was cut out and partially worked; it was travelled more or less during each of the years from 1839 to 1851, though a “log road,” (a prior traveled .track leading northwesterly from the same starting point,) was the principally traveled track in the latter year. From 1839 to 1849, the road was intercepted by fences at different places north of the plaintiff’s farm, and also on that farm, which were kept up by the owners of the respective farms, but which were taken down and replaced by those desiring to pass along the route; in other words, there were bars across the road, at some seasons of the year, at two or three points, which travelers let down and put up as they passed over the route. This is a finding in substance, that after the making of the order, in 1839, the road was that year opened in part, and during 1839 and succeeding, years, was opened and partially worked throughout the route, and was traveled by the public more or less every year from the time of its being thus laid out, op'ened and worked. The statute is that a public highway laid out by commissioners as prescribed by law, if not opened and worked within six years from the time of its being so laid out, shall cease to have any legal existence as a highway. The requirement is .that it shall be opened and worked within six.years after making the order; .that is, the commissioners shall have six years in which the road they have laid out may be opened and worked, but if it be not done within that period, their order laying-out or establishing it shall have no legal effect. The statute does not prescribe how well or how much it shall be worked; if opened and worked at all, it will not lose its legal existence. In this case the highway was opened the same year it was laid out, and, as the referee finds, partially worked. It was opened and worked so that it has been traveled by the public since 1839. The referee clearly erred in the conclusion that “it was not within the six years opened and worked as contemplated by the statute.”

1 3. There was, therefore, a legal public highway, at the time of the alleged trespass, without regard to what occurred in 1855. But in 1855, the surveyed route of the road in controversy was altered by the commissioners on the application and hy the consent of the plaintiff himself. This alteration was made in August, 1855, the plaintiff executing a writing under seal releasing all damages, and in which it was admitted that the alteration was upon his application. Soon afterwards he moved his fence, thereby opening the road in conformity to the alteration. Some months intervened, when he put it back again; but being again required by the commissioners, moved it aceording'to the alteration. Soon thereafter, however, he moved it back, and even further east than where it stood when the alteration was made, whereby a team could not pass along the route of the highway; without removing or taking down the fence. The consent of the plaintiff to this alteration, and his acts connected therewith, and subsequent thereto, the referee held, operated as a license, until revocation, and therefore the acts of the defendant in taking down the fences, after such revocation and notice thereof, rendered him liable as a trespasser. This was plain error. The plaintiff’s consent was not a license that he could revoke after the alteration was made. Commissioners of highways may act upon the parol consent of the owner in laying out or altering a highway across his lands; and although such consent may be revoked, it must be done before the road is laid out or the alteration made. If the commissioners act immediately on the faith of the virtual consent, by laying out the road or making the alteration, he will be estopped from' denying the legality of the act. In The People v. Goodwin, (1 Selden, 568,) it was held that a parol consent was sufficient, and if not revoked before the commissioners acted on the faith of it was irrevocable. In this case the alteration was made immediately on the plaintiff giving his consent, and he at once moved his fence to conform to it.

Again: it was held that the plaintiff’s consent having been given under a mistake or misapprehension of facts, the alteration then made by the commissioners was invalid. It is difficult to discover what mistake of fact induced him to give his consent, even if such a consideration could affect the legality of the official act of alteration. It is found that at the time the alteration was made; the commissioners had met to consider an alleged encroachment on the highway. Upon the surveyor taking the bearing of the first course, according to the survey of 1839 indicated by the order laying it out, it was ascertained that from that point (the southern terminus) the line diverged west of the traveled track, and cut off a strip of the plaintiff’s improved land between such line and the traveled track. The commissioners represented that they had no doubt the road was originally so laid out, and that unless som'e compromise or arrangement could be affected, they would be required to open the road according to the line thereof as indicated by the order of 1839; which representation they then believed; and the plaintiff fearing and believing that he would be required to open the road accordingly, consented to be considered as an applicant for the alteration, which the commissioners immediately proceeded to make. Such consent or application was founded in mistake, (as the referee finds;) the plaintiff believing, at the time, that the highway had been laid out in 1839, and could be opened through his improved field westerly of the traveled track, without his consent, by force of the order made by the commissioners in that year. Here was no mistake or misapprehension by the plaintiff of fact, but of law, if any thing. . Whether the road could be opened .without his consent, by force of the order of 1839, was a question of law, and not of fact; and there can be no relief in such a case, even ona bill in equity filed for that purpose. But it was of no sort of importance that the application was made and consent given either under a mistake or misapprehension of fact or law by the plaintiff, the commissioner practicing no fraud on him. Here a mere statement or expression of opinion by the commissioners, as to what they conceived would be their official duty, is ingeniously found by the referee to be a representation made to the plaintiff on which he acted; but even this statement or representation is expressly found to have been made in good faith. The plaintiff not only consents, but he , is the applicant for the alteration. He calls on the commissioners to perform an official act of public concern, and it becomes a matter of record. The conclusion is a most absurd one, that the plaintiff may treat the act as ipso facto void, because of his own mistake, and hold the public officer as a trespasser for acting under an order that he had procured to be made, while it stands upon the record in full force. His1 consent to, and his acts connected with, the alteration, estop him from denying the validity of the proceeding.

This alteration, in 1855, would be conclusive against any right of the plaintiff to maintain the action. It was done on his motion and for his convenience alone; and was a valid exercise of the powers of the commissioners. Ho certificate of freeholders was required; for it is only when the consent of the owner or occupant is not given that such certificate becomes necessary. (1 R. S. 514, § 58.)

I am of the opinion, therefore, that the referee erred in thé legal conclusions: 1st, that the highway was not laid out in 1839 according to the statute; 2d, that it ceased to be a road, as it was not within six years opened and worked as contemplated by the statute; 3d, that the consent of the plaintiff to the* alteration in 1855 was a mere license that could be revoked after such alteration was made; and, 4th, that such consent having been made or given under a mistake or misapprehension of facts, did not estop or prevent him from insisting on the invalidity of the proceeding in this action.

The judgment of the Supreme Court should be reversed, and a new trial ordered, with costs to abide the event.

All the Judges concurring,

Judgment reversed, and new trial ordered.


author: Balcom, J. Wright, J.

text:
    Paul Rider and others, administrators &c., v. William D. Powell.
    Where, in an action, brought to havé a bond and mortgage reformed, so as • to conform to ■& parol contract between the parties, in pursuance of which, it was alleged, they were given, the judge found that the bond and mortgage were not in conformity, in their terms, with the parol contract, and that there was a mistake of 'fact on the part of the plaintiff in relation to th'e writings, and that he was entitled to have the same reformed, and directed judgment to be entered accordingly; but without finding whether or not there was any fraud, or mistake of fact on the part of the defendant as to the terms of the instruments; it was held that the rule for judgment in favor of the plaintiff, was to be construed as a finding of the necessary facts.
    This action was brought to reform a bond and also a mortgage on a farm in Delaware county, executed by the defendant to George Eider, the original plaintiff, who has died since the trial.
    The facts ‘are, that on the 3d day of March, 1858, George Eider, since deceased, made an oral contract with the defendant to sell him his farm and certain personal property on the same, for $4600. Defendant to have possession immediately after the- execution of the proper writings, which were to be executed the next day. The defendant was to pay Eider $100 down—$1000 more on or before the 1st day of the following April—secure $500 more by án indorsed note, payable with interest, on the 1st day of December, 1858, and execute a bond and mortgage on the farm to Eider, to secure the payment of $3000, and interest as follows: $300 on the 1st day of December, 1859, and interest on the whole sum of $3000, from date; the sum of $300 on the 1st day of December, 1860, with interest on the whole sum remaining unpaid; and the sum of $300 on the 1st day of December, in each and every year thereafter, with annual interest on the whole sum remaining unpaid, until the whole sum of $3000 should be fully paid; and at the time of the execution of the bond and mortgage, Rider and wife were to convey the farm by warranty deed to the defendant.
    On the 4th day of March, 1858, Rider and wife conveyed the farm to the defendant by a warranty deed duly executed and acknowleged by them. The defendant then paid Rider $1100 in money, and gave him an indorsed note for $500 payable with interest, on the 1st day of December then next. The defendant then executed a bond to Rider and also a mortgage to him on the farm, to secure the payment of $3000 and interest. But by reason of a mistake on the part of Rider, he accepted such bond and mortgage, although they only provided for the payment of $300 with interest on the same, on the 1st day of December, in each year until and including 1868, so that by them Rider was not entitled to interest annually on the portion of the $3000 unpaid. The defendant took possession of the farm and personal property and paid Rider the $1000 cash before April 1,1858, according to the terms of the oral contract.
    The next day after Rider took the bond and mortgage, he discovered that they did not secure the payment of interest annually on the portion of the $3000 unpaid, in. each year; but only the interest on $300 in each year until the $3000 should be fully paid. • Rider then went to the defendant and offered him the bond and mortgage, note and money he had received of him, and demanded his deed of him, or that the defendant execute to him a bond and mortgage in conformity with their oral contract. But the defendant refused to do any thing about it. ,
    The judge before whom the action was tried found that the bond and mortgage, executed by the defendant, were not in conformity, in their terms, with the oral contract between the parties, and that there was a mistake of fact on the part of the plaintiff in relation to the bond mortgage, and that Rider was entitled to have the same reformed. He did not find whether or not there was any fraud or mistake of fact on the part of the defendant, as to the terms of the bond or mortgage. He gave judgment in favor of Eider that the bond and mortgage be reformed so that they would conform to the oral contract between the parties; which judgment was affirmed at a general term of the Supreme Court in the 6th district. Eider has since died, and his administrator and administratrix have been substituted as plaintiffs in the action. The defendant appealed from the judgment to this court.

      James B. Olney, for the respondents.

      A. J. Parker, for the appellant.
   Balcom, J.

Eider and wife conveyed the farm to the defendant, and he took possession of it and also of the personal property he purchased with it. He paid Eider $1100 in cash, and gave him an indorsed note for $500 in part payment of the purchase money. The oral contract therefore was so far performed as to relieve it from the operation of the statute of frauds; and the defendant could'not retain the farm and personal property without giving Eider such a bond and mortgage as their oral contract called for, unless the fact that there was no fraud or mistake on the part of the defendant," as to the terms of the bond and mortgage he gave to Eider, justified him in so doing.

Parsons says: “ The question has often come before our courts, whether oral evidence can be received to show the mistake, (in a written contract,) and thereby make it in fact a new contract, when an oral contract would be void or not enforceable by the statute of frauds. The course of adjudication is not uniform on this point. But while it can not be denied that numerous authorities support a disregard of the statute in such cases, others maintain its authority.” (1 Par. on Con., 3d ed. 555.) Justice Story puts the case, “where the party plaintiff seeks, not to set aside the agreement, but to enforce it, when it is reformed and varied by the parol evidenceand. then says: “A very strong inclination of opinion has been repeatedly expressed by the English courts, not to decree a specific performance in this latter class of cases; that is to say, not to admit parol evidence to establish a mistake in a written agreement, and then to enforce it, as varied and established by that evidence. On various occasions such relief has, under such circumstances, been denied. But it is extremely difficult to perceive the principle upon which such decisions can be supported, consistently with the acknowledged . exercise of jurisdiction in the court to reform written contracts, and to decree relief thereon. In America, Chancellor Kent, after a most" elaborate consideration of the subject, has not hesitated to reject the distinction as unfounded in justice, and has decreed relief to a plaintiff, standing in the precise predicament.” (1 Story’s Eq. J. 7th ed. § 161.) Archer J. in delivering the opinion of the court, in Moale v. Buchanan et al. (11 Gill and Johnson, 325,) said: “Had the agreement been entirely by parol, and a part performance, the "complainant would have been entitled to relief. Shall he be in a worse situation by having attempted to reduce the whole agreement into the form of a conveyance, if he shall make an omission in the conveyance, by mistake of an essential part of the agreement ?” He then answers this interrogatory in the negative, and refers to the opinions of Chancellor Kent, in Gillespie and wife v. Moon, (2 John. Ch. R. 585,) and Keisselbrack v. Livingston, (4 id. 144.)

A judgment was given by this court in De Peyster v. Hasbrouck, (1 Kernan, 582,) reforming a mortgage and enforcing it against premises not originally embraced therein.

The Supreme Court was therefore justified by authority as well as principle in reforming the bond and mortgage in this case, unless the fact that there was no fraud or mistake on the part of the defendant in fixing their terms, or respecting their terms, renders such decision erroneous. The decisions in Mathews v. Terwilliger, (3 Barb. 50,) and Quick v. Stuy vesant, (2 Paige’s Ch. Rep. 84,) support this conclusion instead of militating against it.

I am not aware of any adjudged case, in which it has been held that there must be a mutual mistake of fact by the parties to á written contract or some fraud on the part of the party not mistaken; to entitle the party who made the mis-. take and who suffers by it, to have such contract reformed so that it will truly express the oral agreement of the parties which was to be carried into effect by the written contract; and such a doctrine would be contrary to good sense and sound principle, In Matthews v. Terwilliger, (supra,) G-bidley J. said: “blow if by the actual agreement of the parties, Matthews was to pay interest on the purchase price of the farm, how did it happen that the written contract which should have truly expressed the agreement of the par-' ties, wholly omitted all mention of interest ? Was it by the fraudulent design of the complainant, or by the mistake and inadvertence of the defendant ? If it was owing to either of these causes, then the complainant is not entitled to have the written contract, on which he has founded his bill, performed ; but the defendant is entitled to have it reformed, and the mistake corrected.” In that case the complainant endeavored to compel the defendant to specifically perform a contract for the sale of his farm, and the latter set up a mistake in the contract by the omission of an undertaking on the part of the complainant to pay interest on the portion of the purchase money which was not to be paid down; and there was no mistake on the part of the complainant as to the terms of the contract as written and signed by the parties, and it was framed precisely as he intended it should be. See Haire v. Baker, (1 Selden, 357. Also see 8 Cowen, 195; 1 Wend. 355.)

It seems to me to be entirely "clear, upon principle, that Eider was entitled to have the bond and mortgage reformed so that they would conform to the oral agreement of the parties for the sale of the farm, although the defendant -may have known, at the time they were executed, that they varied from such oral agreement, and did not say or do anything to induce the scrivener to draw them differently from what they should have been drawn. And as there is no controlling authority to the contrary, I am of the opinion that this court should so hold, and affirm the judgment in the case, with costs.

Davies, Rosekeans and Seldeh, Js. were also for affirmance ; the latter on the ground that there must have been fraud, or a mutual mistake.

Wright, J.

(dissenting.) The action was to have the defendant’s bond and mortgage reformed so as to conform to a parol contract between the parties, in pursuance of which it was alleged they were given. The bond and mortgage were to secure the payment of $3000, (a part of the purchase money of the plaintiff’s farm,) in ten annual installments of $300 each. As drawn, interest was to be paid annually on the different installments; but there was no provision for the payment of the interest on the whole principal remaining unpaid, at the time of the payment of such annual installments. In the latter particular the reformation or correction of the bond and mortgage were asked for. The pleadings admitted a :parol- contract between the plaintiff and defendant, for the sale of- the farm of the plaintiff, for the price of $4600, of wffich sum $3000 was to be paid in ten annual installments of $300 each; the first payment to be made on the 1st of December, • 1859, and the remaining payments on the 1st of December of each year thereafter; and which sum of $3000 was to be secured by the defendant’s-bond and mortgage on the premises. The complaint alleged the contract to. have been, that the plaintiff was to have interest annually on the whole sum of $3000; whereas the defendant, in his answer, averred that that sum was made payable in ten annual payments of $300 each, with interest on such annual payments. The judge who tried the cause found only the single fact, viz. that there was a mistake on the part of the plaintiff as to the interest he was to receive by the bond and mortgage ; and decided that as matter of law, he was entitled, to have his mistake corrected, and the bond and mortgage amended or modified, so that he should recover annual interest on the whole sum unpaid, and directed a judgment accordingly.

We can only review the case upon'the pleadings and facts found by the judge; and the question is, whether in a case where a contract between parties provides for the performance of a particular act by them, such contract is entitled to be reformed, in equity, because there has been a mistake on the part of one of the contracting parties, as to its terms, when such mistake is not occasioned by any fraud practiced by the other party.

I suppose the rule to be, that when there is a mistake on one side, (and not a mutual mistake,) it may be a ground for rescinding a contract, or for refusing to enforce its specific performance, but not a ground for altering its terms. (Adams’ Equity, 171.) A mistake by the plaintiff when he made the contract, as to the interest he was to receive on the bond and mortgage, would not entitle him to have the contract so modified as to conform to his mistaken impression, though it might be a reason for rescinding the contract on the ground .that the minds of the parties never met in making it. In Lyman v. United Insurance Co., (17 John. R. 375,) Chief Justice Spencer lays down the true rule of law to govern the case, (whether the mistake found relates to the bargain • or to the. taking of the bond and mortgage,) that before a written contract can be amended or altered on the pretense of mistake, the proof must be entirely clear that that mistake has occurred; and secondly, that the amendment sought would conform the contract to the intention of both parties.”

' If we were to look, however, in this case, beyond the findings of fact by the court, it is clear that the deed, bond and ^mortgage constituted the true contract, and that all previous negotiations were merged in them. It would be a violation of the plainest elementary principles to permit a party who has entered into a written contract, to have the written contract altered so as to. conform to his understanding of a previous negotiation, when the opposite party understood it differently, and as it was set forth in the written contract. The parol bargain- was void by the statute of frauds; neither possession being taken under it or consideration paid. It was after the deed, bond and mortgage were executed and delivered, and under them the money was paid and possession taken. The court was asked in the case not only to enforce an agreement void by the statute, but one that the parties did not understand alike.

The judgment of the Supreme Court should be reversed and a new trial ordered, with costs to abide the event.

Dentó, Chief Justice, and Emott, J. were also for reversal. Marvin, J., while concurring with Wright, J. in his dissenting opinion, as to the law, was for affirmance on the construction which he (Marvin) gave to the judge’s finding of facts; and finally the rule for judgment in favor of the plaintiff was construed as a finding of the necessary facts, viz. fraud or a mistake of fact on the part of the defendant. And the judgment of affirmance went upon that theory.

Judgment affirmed.

       Eosekbahs, J. protested against this doctrine.


author: Selden, J.

text:
    John J. Kelly v. Samuel McCormick, impleaded, &c.
    In an action upon a bond given to the sheriff for the purpose of obtaining the release of a party from arrest upon an attachment issued for a contempt, in proceedings supplementary to execution, the objection that the complaint does not show that an execution on the judgment against the principal obligor was issued, or returned, or that any order for his examination, or for the attachment, was made, is not available to the defendants.
    The liability of the principal to arrest is conceded by the bail, by entering into the bond. If there was any irregularity in the process upon which the arrest was made, it belongs to the principal, alone, to set it up. It is in his power to waive it; and the giving of bail to obtain his discharge is evidence that he did so.
    An attachment issued for a contempt should be made returnable before the judge by whom it was issued, and not before one of the judges of the court at chambers.
    But if it be irregular in this respect, it is voidable only, and not void; and is therefore amendable.
    The defect, if any there be, is waived by the giving of a bond to the sheriff; or, at all events, it is so far waived that it can not be made available as a defense to an action on the bond. , .
    Where a bond given to a sheriff, to procure the release of a party from arrest on an attachment^ is in all respects in' accordance with the provisions of the statute, with the exception of the omission of seals, the defendants, in an action thereon, can not avail themselves of that objection. Slight departures from the statute, in such obligations, are not fatal.
    Where the appellant fails either to appear, or after appearing, to submit points in accordance with the provisions of the 25th rule, the judgment below should be affirmed of course.
    Appeal from a judgment of the Hew York common pleas. Kelly recovered a judgment, in the Hew York common pleas, in 1850, against one Boylan, and proceedings supplementary to execution were had against him, and in the course of those proceedings, an attachment was issued against him for contempt, which was returnable before one of the judges of the court of common pleas at their chambers in the city hall, at a time specified in the attachment. The attachment was indorsed with an order to let the defendant to bail in the sum of $300. The sheriff arrested Boylan on the attachment, atid the defendants McCormick and Cude joined with him, as his sureties, in a bond to the sheriff to obtain' his release from arrest in accordance with the order indorsed on the attachment. Boylan failed to appear on the return of the attachment, and the bond was ordered to be prosecuted. It was accordingly assigned by the sheriff to the plaintiff, and this action was commenced upon it. Samuel McCormick alone defended. The cause was tried before Judge Wood-ruff, without a jury, who found the facts as above stated, except that the instrument; called a bond,* was not sealed by the parties executing it, but was only signed with their names. • ,
    A dismissal of the complaint was moved for on the grounds, 1. That the complaint did not aver that an execution was issued or returned; or that any order for the examination of Boylan was made; or that any order for the attachment was made or served on him.
    2. That the attachment was irregular, because it was returnable before one of the judges at chambers, and not before the court.
    3d. That the defendant was not estopped from availing himself of the irregularity.
    4th. That the paper signed by the defendants was not a bond, and was not authorized by statute.
    The objections were overruled, and judgment was entered for the plaintiff. The defendant having excepted to the decision denying his motion, appealed to the general term of the court of common pleas, where the judgment was affirmed, and he appealed to this court.

      QlarTcson N. Potter submitted points on the part of the respondent, but no one appeared for the appellant.
   Selden, J.

The objection, that the complaint does not show that an execution on the judgment against Boylan was issued, or returned, or that any order for his examination, or for the attachment, was made, is not available to the defendants in an action on the bond. The liability of the principal to arrest, is conceded by the bail, by entering into the bond. If there was any irregularity in the process upon which the arrest was made, it belonged to the principal alone to set it up ; it was in his power to waive it, and the giving of bail to obtain his discharge is evidence that he did so. ■ (Stever v. Somberger, 19 Wend. 121; S. C., 24 id. 275; Gregory v. Levy, 12 Barb. 610; S. C., 7 How. Pr. Rep. 37.)

The attachment should, I think, have been made returnable before the judge by whom it was issued. (Code, § 302; Shepherd v. Dean, 13 How. Pr. R. 173; S. C. 3 Abb. 424; Dresser v. Van Pelt, 15 How. Pr. R. 19.) But if it was irregular in this respect, it was voidable only,, and not void, and therefore amendable. (Parke v. Heath, 15 Wend. 301; Code, §§ 173, 174, 176.) The defect, if any there were, was therefore waived by giving the bond; or at all events it was so far waived that it can not be made available as a defense to an action on the bond. ■ •

The only question which raises any doubt as to the correctness of the judgment, is that arising out of the want of seals, to the instrument on which the action is founded. Although the code of procedure authorizes judges, before whom proceedings supplementary to execution are had, to punish parties or witnesses, for disobedience to his lawful •orders, as for contempt, (Code, § 302,) yet the proceedings, in effecting such punishment, must be governed by tbe provisions of the revised statutes. (2 R. S. 534, vol. 3, 5th ed. p. 849.) The sheriff is therefore authorized to discharge the party arrested upon an attachment in such cases, only upon receiving the bond of the party attached, with two sufficient sureties in the penalty indorsed on the attachment, with the condition that the defendant will appear on the return of the attachment and abide the order and judgment of the court thereupon. (2 R. S. 537, § 13.) It is elsewhere provided that “Ho sheriff or other officer shall take any bond, obligation or security, by color of his office, in any other case or manner than such as are provided by law; and any such bond, obligation or security, taken otherwise than as herein directed, shall be void.” (2 R. S. 286, § 59.) This statute, which is in substance the same as that of 23 Hen. 6, ch. 10; (8 John. 100; 10 Co. 99 a,) was designed to protect defendants from oppression, and plaintiffs from the consequences of the disposition of officers to be indulgent to parties under arrest. - (Winter v. Kinney, 1 Comst. 368.) It should have a reasonable construction, in order that it may effect the object aimed at by the legislature. The present case is not within the object of its prohibition, if it is within the letter. I think the expression “by color of Ms office, in any other case or manner than such as are provided by law,” limits the penalty of the statute to cases where it is shown, or must be presumed from the circumstances, that the officer designedly departed from the statute. In Decker v. Judson, (16 N. Y. Rep. 442,) Judge Paige says: “Color of office is defined as characterizing an act wrongfully done by an officer, under the pretended authority of his office, and grounded upon corruption, to which the office is as a mere shadow of color.” Chancellor Walworth, in Burrall v. Acker, (23 Wend. 608,) says: “The words color of office necessarily imply an illegal claim of right, or authority to take the security.” The present case certainly does not come within those definitions. The bond was in all respects in accordance with the provisions of the statute, with the exception of the lack of seals, which may have been entirely overlooked by the sheriff. In many cases, where bonds have been taken, not in strict accordance with the statute, but where it was plain that neither oppression on the one hand, nor ease and favor on the other, was designed, the bonds have been held good. A substantial compliance with the statute is all that is required. Where two sureties' are required by the statute, and the sheriff tabes a bond with one only, the bond is valid, though it does not relieve the sheriff from responsibility. (Shaw v. Tobias, 3 Comst. 188; 18 Wend. 521; 20 id. 673.) In Norden v. Horsley, (2 Wils. 69,) the sheriff was authorized by statute to take bail in the sum specified in an affidavit and indorsed on the back of the writ, and for no more.” The debt sworn to was £12, and that was the sum indorsed on the writ; but the bail bond was taken for £24.18s. The court held the bond good, saying “it doth not appear but' the defendant gave and executed it freely and voluntarily, and it is neither unreasonable by the statute, 23 Hen. 6, ch. 10, nor made void by the statute, 12 Geo. 1, now pleaded; and it has always been, the practice to take bail bonds for more than the sum sworn to, viz. in double the sum, and if the bond in this case were void, it would be void in every case where it was taken in double the. sum. Indeed it might. have another consideration with respect to the sheriff or officer, how far such officer would be punishable by action or otherwise, if he should refuse to set a defendant at large, unless he would give very unreasonable security for his appearance. But in the present-case the bond is not unreasonable, being taken only for eighteen shillings more than double the sum sworn to, and which seems to be only a mere mis-' take, and not with any design to oppress the defendant.” This case not only shows that the English statute, from which our statute was framed, has been very liberally interpreted by the English judges, but also that obligations taken by the sheriff, not in accordance with the statute, will not' be declared void as taken coloré officii, where they are voluntarily executed by the parties and not executed by him. Perhaps that ruling, to its full extent, could not be sustained under our statutes, as a fair presumption might arise that fhe sheriff designedly exceeded the statute in the amount of bail; but it may safely be referred to as authority for the position that slight departures from the statute in such obligations are not fatal. In the present case the obligation, in every thing except the mere execution of it, which was the duty of the obligors, and which the sheriff could not perform for them, was in exact accordance with the statute; and although the plaintiff, who obtained the attachment, might have objected to the instrument for want of seals, I do not think the defendants can avail themselves of that objection. 'After presenting the instrument to the sheriff as a lawful and valid security, and by means of it obtaining the discharge of the principal party from arrest, “neither he nor his sureties ought to be permitted to get rid of it by alleging that it was not so strong or so perfect as the sheriff might have required him to make it. It is enough that it contains all the essentials of a valid contract and answers all the purposes intended by the statute.” (3 Comst. 192.)

The instrument on its face shows a sufficient consideration to make it binding upon the parties as a simple contract.

The judgment should be affirmed.

Upon consultation the court concurred in the foregoing opinion; but it was also held that where the appellant failed either to appear when his cause'is reached, or afterwards to submit points in accordance with the 25th rule, the judgment below should be affirmed of course, and on that ground as well as on an examination of the merits, the judgment in this case should be affirmed.

Judgment affirmed,


author: Rosekrans, J.

text:
    Fry v. Bennett.
    The rule is well settled, that if a general verdict is rendered, upon several counts in a complaint, some of which are good and others state no cause of action, the judgment entered upon the verdict is erroneous.
    Where counts, in a complaint for libels, set forth various articles which are alleged to have been falsely and maliciously published by the defendant, in a public newspaper, and which articles reflect upon the plaintiff and his business, and his management of it, and tend to injure him in his business, and are therefore libellous, if false and malicious, such counts are good; and the objection that the verdict is in part founded upon counts which do not state a cause of action will not lie.
    In an action for libel, proof of "express malice on the part of the defendant, in the particular publication counted upon, is competent for the purpose of enhancing the damages; whether the publication comes within the class of privileged communications, or not.
    Within the rule which allows proof of the repetition of the libellous charge, to show malice beyond that implied by the original publication, any act or .language of the defendant tending to prove malice on his part, in regard to the particular libel which is the subject of the action may be proved.
    Testimony tending to show that the publications complained of were the result of a malicious feeling entertained by the defendant towards the plaintiff, and that the libellous articles were published to gratify this malicious feeling, and to accomplish the defendant’s threatened purpose “ to finish” the plaintiff, is of this nature, and therefore admissible.
    A party has no right to object,-when a cause is reached in its order on the calendar, at the circuit, that the trial should not be had before the judge who is presiding, for the reason that he had tried the cause on a former occasion.
    The question as to which party shall open and close the case, it seems, should be regarded as one of practice, to be regulated by the discretion of the judge, and his decision upon it is not a subject of exception.
    If the court had the power to review a decision upon a matter which is the subject of discretion, it would not be disposed to reverse a judgment for an error in the exercise of such discretion.
    In an action for the publication of a libel, in a newspaper, it is competent for the plaintiff to prove the extent of the circulation of the paper, at the time ■ the libel was published.
    The editor and proprietor of a newspaper is presumed to have knowledge of its contents.
    Where the alleged libel is published of and concerning the plaintiff as the manager of an opera in this state, it is unnecessary for the plaintiff to aver or prove that he had taken out a license to give operatic representations under the acts of the legislature, of 1829 and 1839; the legal presumption being that he has not violated those statutes.
    [f the defendant wishes to avail himself of the defense that the plaintiff had not the requisite qualification under the statute, he should allege it in his answer, and the burden of proving the want of qualification is" upon him.
    Appeal from the Superior Court of the city of Hew York. The action was for libel. The case has been twice tried, and on both occasions before Chief Justice Oakley, in the Superior Court, The complaint set forth twelve causes of action, being so many separate libels, as claimed. One was demur-' red to and abandoned. To each of the others the answer set up a justification and mitigating circumstances. Special damages were not charged or claimed. The libels are alleged to.have been published of the plaintiff as manager of the Italian opera, represented at the Astor place opera house during the season of 1848. The publications were made in the Hew York Herald, of which the defendant was the proprietor and editor. On the first trial the plaintiff recovered a verdict of $10,000. (See 4 Duer, 251, S. C.) The defendant moved for a new trial, which was granted. ■ The second trial was before a jury, in Hay, 1856. At .the trial the defendant insisted, first, that the articles were not libellous; secondly, that they were privileged criticisms upon public performances; thirdly, that they were true in fact; and, fourthly, that if'the jury should not think them-all true, they were nevertheless published under such mitigating circumstances as to take from the plaintiff the right to more than nominal damages. During the course of the trial many exceptions were taken to rulings of the court, which are noticed in the opinion of Rosekbans, J. The second trial resulted in a verdict for the plaintiff, for $6000, on which judgment was. entered, at a special term, in April, 1857; which was affirmed at a general term, in July, 1858. See S. C. (3 Bosw. 200,) for the facts, and for the points raised and decided in the Superior Ootirt.

      David Dudley Field, for the appellant.

      F. B. Sherman, for the respondent.
   Rosekrans, J.

The rule is well settled that, if a general verdict is rendered,'upon several counts in a complaint, some of which are good, and others state no cause of action, the judgment entered upon the verdict is erroneous. It is claimed by the defendant that within this rule, the judgment in this case should be reversed, for the reason that the 7th, 8th, 9th, 10th and llth counts in the complaint do not state a cause of action. -The meaning of the articles set out in the several counts is fully explained by the introductory matter and innuendoes stated in the complaint, and is to be. regarded as their true meaning. The 7th count is upon an article which contains a charge of a design on the part of the plaintiff to cheat and defraud the subscribers to the opera under the plaintiff’s management, of the subscriptions, by a fraudulent discontinuance of operatic representations and performances at New York, as he had previously done a.t Philadelphia. The article set out in the 8th count contains a charge that the plaintiff had become bankrupt and insolvent at Philadelphia, and that he was about to become bankrupt and insolvent at New Yoj-k. The article which is set out in the 9th count charges that the plaintiff had violated his business engagements and obligations with the¡ subscribers to the operay and had misapplied the money subscribed for that purpose, to the purchase of a panorama, which he intended to substitute in the place of operatic representations, in violation of his agreement. The 10th count is upon an article alleged to have been published by the defendant, charging the plaintiff with having given a fancy ball at the opera house, at which the gamblers of the city were permitted to appear and mix • familiarly with the characters, and that the opera was patronized,. particularly in the parquette and private boxes, by gamblers. The llth count is upon an article alleged to have been published by the defendant to.the effect that, but for the patronage which gamblers gave the opera house, the plaintiff could not sustain himself for a week; that the fancy ball alleged to have been given by the plaintiff would have failed, but for the patronage of gamblers; and that the grand dress ball which, as was stated, the plaintiff was about to give, would fall through but for the patronage of such gamblers. These several articles are alleged to have been falsely and maliciously published by the defendant, and as they reflect upon the plaintiff and his business, and his management of it, and tend to injure the plaintiff in his business, if they are false and malicous statements, they are libellous. The counts referred to are therefore good, and the objection that the verdict was in part founded upon counts which did not state a cause of action, is not well taken.

The. objection to testimony offered by the plaintiff to show express malice on the part of the defendant in the particular publications counted upon, was also properly overruled. It* was wholly immaterial whether the publications came within .the class of privileged communications, or not. In either case the testimony offered was admissible. If the publications were in the class of privileged communications, the plaintiff could not recover without extrinsic proof of malice, and if they were not privileged, and malice was implied in law, and therefore proof of express malice not within the issue . and unnecessary, still as the proof offered tended to show express malice in reference to these particular publications, it was competent for the purpose of enhancing the. damages. The cases cited by the defendant’s counsel, to sustain the objection, do not state any different rule. ¡Nor am I aware of any principle or decision upon which the objection can be • sustained. In Howard v. Sexton, (4 Coms. 157,) which was an action of slander for charging the plaintiff with perjury, words spoken on a different occasion from that in which the slander was uttered, and of a different import, and not having any reference to the slanderous charge, were sought to be proved, to enhance the damages. Gardiner, J. said: “It has sometimes been argued that proof of this character shows general malice upon the part of the defendant, which may properly enhance the damages against him. So would evidence that he had set fire to the house of the plaintiff, or committed a battery upon his person, furnish stronger proof of general 'malice than mere words, however opprobrious. The principle does not stop with mere words, but extends to the whole conduct of the defendant. Some of the adjudged cases,” he says, “certainly seem to go this length, and if the proposition we are considering is sound, they were rightly decided» But the modern, and I think the better doctrine is, that the action for slander was not designed to punish the defendant for general ill will to his neighbor, but to afford the plaintiff .redress for a specific injury. To constitute that injury, malice must be proved; not mere general ill will, but malice in the special case set forth in the pleadings, to be inferred from it, and the attending circumstances. The plaintiff may show a repetition of the charge, for which the action is brought, but not a different slander, for any purpose.” Within the rule which allows proof of the repetition of the slanderous charge, to show malice beyond that implied by the original uttering of the words, any act or language of the defendant tending to prove malice on the part of the defendant, in regard to the particular slander or libel, which is the subject of the action, may be proved. The testimony offered by the plaintiff was of this nature. It tended to show that the publications complained of were the result of a malicious feeling entertained by the defendant towards the plaintiff, and that the libellous articles were published to gratify this malicious feeling; that they were published, as the plaintiff insisted, to accomplish the threatened purpose of the defendant “to finish Hr. Fry.” (4 Duer. 249.) In 3d Phil. on Ev. 560, (Edw. ed.,) it is said evidence is admissible of other-words and libels which show the defendant’s malice towards the plaintiff in defaming him in the manner charged in the declaration.

The exception to the ruling of the judge upon the objection that the trial should not be had before him, for the reason that he had tried the cause on a former occasion, was frivolous. The practice of re-trying causes before the same judge who presided at the first trial, has continued from the time of the organization of the Supreme Court, and an objection to such proceeding is unheard of. Ho different rule has been adopted for the Superior Court of the City of Hew York. Even a justice of the peace may try an action .between the same parties, involving a cause of action which was the subject of a former action between them, where the judgment rendered by the justice, in such former action, has been reversed. The reasons given in the Superior Court, are sufficient to show the correctness of the ruling on this point. It has been held by the unanimous decisions of this court, that it is the right and the duty of a judge of this court to take part in the determination of causes brought up for review from a subordinate court of which he was a member, and in the decision of which he took part. The reasons for this rule apply with stronger force to the case of a judge re-trying a cause which he had previously tried, and in which his decisions, on the former trial, have been passed upon by the court. See Pierce v. Delamater, (1 Comst. 17.)

We think that there was no error in the ruling that the plaintiff had the right to open and close the case. The general rule is, that the party who has the affirmative of the issue, has the right to open and close the case. But to this there are exceptions, which are subject to the discretion of the judge who tries the cause. Where the action is one sounding in damages, in which it is proper for the plaintiff to give evidence to enhance the damages, the usual course is to allow the plaintiff to begin, and close the trial. (1 Phil. Ev., Edw. ed., 818, 819, 820.) The recent decisions seem to regard the question, as to which party shall open the case, as one of practice, to be regulated by the dis-' cretion of the judge, and that his decision upon it is not- a subject of exception. In Booth v. Miller, (15 L. J. 354,) it was said that the weight of. authority seems to hold that an erroneous ruling as to the right to begin, to be ground for a new trial, must have worked manifest injustice. We can not see that the defendant suffered from the ruling in the case, and if we had the power to review a decision upon a. matter which is the subject of discretion, we should not be disposed to reverse the judgment in the case for error in the exercise of discretion.

It .was- clearly competent for the plaintiff to prove the extent of the circulation of the Hew York Herald, at the time the libel was published. The editor and proprietor of a newspaper is presumed to have knowledge of its contents. In-the case of Bex v. Outch and others, it was held that the proprietor of a newspaper was prima facia liable criminally for what appeared in it, but that this presumption might be rebutted. The fact having been proved that the defendant was the proprietor of the paper in 1848 and 1849, it was to be presumed that he continued to be the owner in 1851. Only so much of the article in the Herald as showed its circulation at the time the libel was published was permitted to be read in evidence.

This disposes of the objections to the evidence stated in the case. It was wholly unnecessary for the plaintiff to avei: or prove that he had taken out a license to give operatic representations under the acts of 1829 and 1839. The legal presumption was that he had not violated these statutes. If the defendant wished to avail himself of the defense that the plaintiff had not the requisite qualification under the statute, he should have alleged it in his answer. The burden of proving the want of qualification was upon the defendant. This question is discussed in Starkie on Slander, (ch. 26, p. 384,) and the rule is laid down there as I have stated. In the case of Dr. Morse v. Dr. Thorton, (8 T. R. 303,) proof of qualification was-required of the plaintiff, for the reason that he had specifically alleged it. The proof of the plaintiff’s license, under objection, though unnecessary, for the reason that it was not within the issue, could not by possibility have harmed the defendant, and the judgment should not be reversed for the admission of such inchoate testimony. It is a rule in both criminal and civil cases that a judgment will not be reversed or verdict set aside on exceptions, although there was error in the trial, if the error was such as could do no legal injury. This rule was applied in a capital case. (Shorter v. The People, 2 Comst. 194.)

There was no error in the supposed ruling of the court, as assumed in the defendant’s 8th point, that the plaintiff might prove who were chorus singers, orchestra or principal singers, with a view of showing that the same persons performed at the opera. The case shows that the court merely allowed evidence of who were opera singers.

The court properly excluded a part of the deposition of Foster. It was a mere expression of the opinion of a witness. The same remark may be made of the portion of Maretzek’s testimony which was excluded. He was allowed to testify to facts from which the jury could form their opinion as to the effect of the libel upon the plaintiff’s business.

The answer to the question, “How did Mr. Fry treat his artists ?” was also properly qualified by the court, in requiring the witness to state the facts showing such treatment.

The admission of the plaintiff’s programme in evidence, was proper, for the reasons stated by Bosworth, J. in his opinion in the Superior Court. We also adopt his reasoning, and the conclusions from it, in reference to the matters embraced in the 15th and 16th exceptions of the defendant. The questions presented in the 12th, 13th, 14th, 15th, 16th, 17th and 18th points of the defendant’s counsel were not pressed upon the argument, and we think the reasonings and conclusions of the court below, in relation, to such of them as were then considered, are correct. The case does not show that the defendant’s counsel requested the court to stop the plaintiff’s counsel, and prevent his making remarks, which are urged as inappropriate. An objection was taken to remarks made by the plaintiff’s counsel as to the character of the Hew York Herald, and the court immediately replied that the plaintiff’s counsel was drawing upon his imagination, which was equivalent to saying that there was no evidence in the case justifying the remarks which were objected to. The plaintiff’s counsel was then allowed to proceed with his remarks to the jury, and the defendant’s counsel desired the court to say that a legal proposition, stated by the plaintiff’s counsel, was not the law. To this the court replied that he would state to the jury what was proper to be said, at the end of the summing up, and therefore the defendant’s counsel stated that he excepted to the refusal of the court then to stop the counsel. This exception assumes that a request had been made that the court should stop the counsel, and that this request had been denied, whereas neither the request nor the refusal appear in the case. The ruling of the court upon the legal proposition stated by the plaintiff’s counsel, and which was objected to by the defendant’s counsel, would have had quite as much effect if made in the course of the delivery of the charge of the judge, as if made at the time the objection was made. It is not usual for the court- to pass upon legal propositions presented by counsel in their addresses to juries, until the charge is given to the jury.

Upon a view of the whole case, we can discover no reason for reversing the judgment. The judgment is affirmed.

Belden and Marvin, JJ. expressed no opinion.

All the other Judges concurring)

Judgment affirmed.