text:
    Mann, receiver of The Canajoharie and Catskill Railroad Company, vs. Pentz.
    A creditor of a railroad corporation recovered judgment at law, issued execution, had it returned unsatisfied, and filed his bill in chancery under section thirty-six of the statute relating to “ proceedings against corporations in equity,” (2 R. S. 463,) for a sequestration of the effects of the corporation and the appointment of a receiver. The receiver appointed in that suit then instituted a suit in equity against a stockholder to recover the unpaid balance of his subscription. The stockholder sued had paid all the calls made by the corporation, pursuant to the terms of his subscription, and other stockholders who had not paid their subscriptions were not made parties. Held, that the bill could not be sustained.
    A receiver appointed under that section of the statute, it seems,' has no greater or other powers than receivers in ordinary creditors’ suits. The forty-second section of the same statute, declaring the powers of receivers, relates only to such as are appointed in suits commenced under section thirty-nine against moneyed corporations, and not to those appointed under section l/iirly-six.

    A corporation, it seems, is not necessarily dissolved by proceedings instituted under section thirty-six, after the return of an execution at law.
    Where the return of an execution at law uqsatisfied is the ground of proceeding against a corporation according to section thirty-six, and the effects of the corporation are not sufficient to pay the debts, the creditor may resort to equity to recover the unpaid subscriptions to the capital stock.
    But m such a case each shareholder is liable only in due proportion with the others, and the bill should be filed by the creditor in behalf of all the creditors against the corporation, and all the shareholders who have not paid up their subscriptions, so that an account may be taken of the debts and assets of the corporation, of the amount of capital not paid in, and the sum due from each shareholder.
    Where the rights of creditors are not in question an action will not lie against a subscriber to the capital stock of a corporation to recover his subscription or any part thereof, until he is in default after regular calls upon him pursuant to the charter.
    The Canajohavie and Catskill Railroad Company was incorporated by act of the legislature passed April 19, 1830, with a capital of $600,000, divided into shares of $50 each. Another act, passed in 1837, authorized the capital to be increased to $1,000,000. The defendant Pentz was an original subscriber for fifty shares, and paid all the calls made upon him by the company and seven per cent in addition, leaving unpaid, and not called for, upon his subscription, fourteen dollars on each share, or $700 in all. ■
    In May, 1842, A. Van Vechten, a creditor of the corporation, who had obtained a judgment at law and issued an, execution thereon which was returned unsatisfied, filed a bill in the court of chancery against the company, under the 36th section of the statute entitled “of proceedings against corporations in equity,” (2 R. S. 463,) for a sequestration of its property and effects, and for the appointment of a receiver. On the 9th of December, 1842, an order for a sequestration was made in that suit, and a receiver directed to be appointed, to whom, when appointed, the order required the company and its officers to assign all its effects. On the 9th of January, 1843, in pursuance of that order the complainant was duly appointed such receiver.
    In August, 1843, the receiver filed the bill in this cause setting forth the above facts, and stating that the corporation was owing debts to the amount of several thousand dollars; and that with all the assets on hand, there was not sufficient due from solvent stockholders on their unpaid shares to discharge such debts. The proof, however, did not appear to sustain the latter allegation. The bill prayed that the defendant might be decreed to pay to the complainant, as such receiver, the balance still remaining unpaid on his shares of stock, with interest an(l costs of suit, and for general relief.
    The answer of the defendant stated (and so the fact appeared to be) that several of the stockholders had not paid as much on their shares as the defendant had paid, and that if all who were able to pay were made to do so there would be a balance coming to the defendant on what he had already paid. It also alledged that Van Vechten was a stockholder who had not paid on his shares, and that all the stockholders were necessary parties to the suit.
    The assistant vice chancellor of the first circuit, before whom the cause was heard on pleadings and proofs, pronounced a decision in favor of the complainant according to the prayer of the bill. (See 2 Sandf. Ch. R. 257.) His decree was affirmed on appeal by the supreme court sitting in the first district. The defendant appealed to this court.

      S. Sherwood, for appellant.
    I. The plaintiff having no title but as a receiver at common law, can only recover the debts and effects of the company, no power having been given him beyond the proceeding under the 36th section of article 2, title “ Proceedings against corporations in equity.” (Verplank v. Mercantile Ins. Co., 2 Paige, 452.) The plaintiff is not a receiver to wind up the affairs of the company under the 41st section, nor under section 66 or 69, and has none of the statute power to sue at law or in equity, to make calls and collect balances not previously due. If the receiver had any remedy against each stockholder separately, it must have been by an action at law, no equitable right being stated against this defendant. (Penniman v. Briggs, Hop. 305.)
    II. The stockholders, as such, are not indebted to the company until a call is made upon all equally; their agreement is to pay when called upon as stockholders, and such call is a prerequisite to liability. The only equitable remedy which the receiver could enforce, would be by a bill against all the stockholders, compelling equality of payment.
    III. Sixty-five per cent only was called or required by the company, which was promptly paid by the. defendant; the arrearages of the 65 per cent by solvent stockholders would be sufficient to pay the debts due by the company, and should be collected before resorting to those not in default.
    IY. The receiver, under the 36th section, is a receiver at common law, appointed on no other proof of insolvency than an execution returned nulla bona ; and his powers, as receiver, are not defined by the statute, but left as at common law. The receiver in case of moneyed corporations is appointed, in case'of insolvency, <fcc. by creditors or stockholders, in a particular man-tier detailed in sections 39, 40, 41 and 42, and his powers are defined and extended; to such receiver is given all the powers, &c. as “ in t,he case of a voluntary dissolution of a corporation,” which are specified from section 66 to section 71, among which is the power of collecting balance of stock.
    V. While the 36th and 37th sections leave the powers of the receiver, as to collection, as at common law, yet they require the moneys obtained to be distributed as “in case of voluntary dissolution.” Heqce the plaintiff is receiver, not by proof of insolvency, nor to wind up the affairs of the company, but with the common law power of collecting debts, &o. distributing such collections among all the creditors who prove their claims.
    VI, The judgment of the courts below ought to be reversed, and the bill dismissed with costs.

      J. Van Vleck, for respondent,
   Pratt, J.

The first and most important question in this case is that which relates to the construction of the forty-second section of the article of the revised statutes entitled “ Of proceedings against corporations in equity.” (2 R. S. 464.) If that section applies to receivers appointed under the thirty-sixth section of the same article, it was conceded by counsel upon both sides that the bill in this suit could be sustained. Without admitting or denying the correctness of this assumption, upon a careful examination of the different sections of the statute in question, I am satisfied that the forty-second section will bear no such construction.

First. The learned vice chancellor assumed that the necessary effect of proceedings under the thirty-sixth and thirty-seventh sections would be to dissolve the corporations against which such proceedings were had, and to wind up their affairs. I do not so construe the objects which the legislature had in view. It is true that such proceedings might in many cases eventually have that effect; but in other cases no such effect might be produced. The property and effects of many kinds of corporations are so indispensable to their power to do business, that a sequestration of such property would necessarily suspend the exercise of their corporate powers, and prevent them from going on with their ordinary business, and yet there are other corporations upon which it might have no such disastrous effect. A judgment might be obtained against a manufacturing corporation and an execution be returned nulla bona, and yet the assets of the company be ample to pay all the debts. In such case a sequestration of such assets would not necessarily affect the corporate franchises, although it might interrupt or suspend its ordinary business. It is, therefore, my opinion that the object of the legislature by the thirty-sixth and thirty-seventh sections was simply to provide a summary mode of compelling the application of the property of a corporation which had allowed an execution to be returned against it unsatisfied, to the payment of all its debts; from the fact that the property of the corporation was the only security for its debts, and a sequestration of such property might eventually result in a dissolution of the corporation ; and as there was no individual responsibility against the corporators for the security of creditors, the statute provided for an equal distribution of the property among all the creditors, instead of applying it to the payment of the particular creditor whose execution had been returned unsatisfied. If a surplus should be left after satisfying all the debts, it is quite clear that it should be paid over to the corporation by the receiver. But if the construction of the court below be correct, the surplus, if any, should be distributed among the members of .the company. Again, it is clear from the provisions of the thirty-eighth section, that the legislature did not contemplate that proceedings' under the two previous sections would necessarily dissolve the corporation. By this section it is necessary that corporations should remain insolvent a whole year, or for that time should have neglected to pay their debts, or suspended their ordinary business, before they are liable to be dissolved. The provisions of this section are utterly inconsistent rvith the assumption that a corporation should necessarily be dissolved by proceedings under the- previous sections. These proceedings might cause a suspension of business which might render the corporation liable to be dissolved under the provisions of the thirty-eighth section; but such consequences by no means necessarily follow.

But with the 39th section commence provisions which apply to proceedings against a particular class of corporations. These provisions are continued down to and including section 50. They apply to moneyed corporations, a class of corporations whose entire power and capacity to do business depend upon their solvency. There are therefore obvious reasons why the legislature should provide for winding them up the moment they should become insolvent. Section 39 therefore provides, among" other things, that when one of this class of corporations shall become insolvent or unable to pay its debts, the court of chancery may restrain it by injunction from exercising its corporate rights, privileges or franchises. Section 40 directs upon whose application and upon what proof such injunction may issue,- and section 41 provides for the appointment, in any stage of the proceedings, of a receiver to take charge of the property and effects and to sue for and collect the debts and demands. Section 42 refers to a subsequent article for a full definition of the powers of such receiver. Its language is, “ such receiver shall possess all the powers and authority conferred and be subject to all the obligations and duties imposed in article third of this title upon receivers appointed in case of the voluntary dissolution of a corporation.” The remaining sections down to and including section 50 appfy to proceedings against the same class of corporations, but they contain special provisions for enforcing the liability incurred by directors and stockholders under- title 2, chapter 18, part 1 of the revised statutes. (1 R. S. 588.) This title refers, exclusively to moneyed corporations, and the revisers in their notes say, that the sections from 42 to 51 were framed to enforce such liability. (Revisers' Notes, 3 R. S. 755, 2d ed.) But from the sections themselves it is evident they all refer to the same subject matter, and it is only by a very forced construction that section 42 can be taken from the sections with which it is connected and made to apply to receivers appointed under section 36. Such construction is clearly not authorized by the language of the several sections, nor by the position as to each other in which they are placed; nor is such construction required by any known mischief which the legislature intended to remedy by passing the statute.

This was the interpretation, which the late chancellor put upon these sections in the case of Verplank v. The Mercantile Ins. Co. (2 Paige, 438,) and there is nothing in the case of Nathan, receiver, v. Whitlock, (9 id. 152,) which conflicts with the opinion expressed by him in the former case. The latter was the case .of a moneyed corporation admitted on all sides to be insolvent. Besides, the chancellor held the contract by which Whitlock claimed to be discharged from his indebtedness void, its against the company. It was therefore simply the case of a receiver commencing a suit to enforce the collection of a debt due to the company.

In the Matter of the Franklin Bank, (1 Paige, 85,) and Attorney General v. Bank of Commerce, (id. 511,) were also cases of moneyed corporations, but in those cases no other powers were exercised than simply to take charge of the property and effects of the corporations and distribute them among their creditors. They acted under the act of 1825, and there is nothing in that act which required a dissolution and entire winding up of a corporation upon the return of an execution unsatisfied against it. (Sess. Laws of 1825, p. 450.) I am therefore, satisfied that if this bill can be sustained, it must be by virtue of some power which the receiver possesses independent of section 42.

The question then arises, can the plaintiff as receiver with the powers conferred by the 36 and 37 sections, maintain this suit 1 Simply as representing the corporation it is quite clear that he can not. There is no express promise to pay in the subscription of the defendant: the only condition upon which he could have been made liable to the corporation; was by regular calls made in pursuance of the charter. The defendant had paid up all the regular calls made upon him; and he was not therefore liable to the company, and the receiver, as representing it, can not maintain this suit.

It does not follow, however, that the creditors have no remedy against stockholders who have not paid up their subscription. The capital stock of a corporation is a trust fund for the security of its creditors. (Case v. Grant, 15 Mass. 505 ; Spear v. Grant, 16 id. 92 ; Wood v. Dummer, 3 Mason, 308; Nathan v. Whitlock, 9 Paige, 152.) In these cases the corporations had attempted to distribute their stock among their stockholders, leaving debts against the corporations unpaid, and it was held that creditors in proper suits might compel such stockholders to refund sufficient to pay those debts. Upon the same principle, when the stock has not all been paid in, the delinquent stockholders should be compelled to contribute from the unpaid subscriptions sufficient to pay such debts. Such unpaid balance should be deemed for this purpose a portion of the capital stock. It is therefore in accordance with this obvious principle of equity that our revised statutes have expressly provided, that When the whole capital stock of a corporation has not been paid in, and the capital paid shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount due on such share,' as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the company.” (1 R. S. 600, § 5; Revisers' Notes, 3 id. 531.) The liability is therefore clear, but how is it to be enforced 1 The statute itself does not define the method to be pursued, but leaves the remedy to be enforced by such practice and in, such form as the- nature of the right to be asserted and the relief sought may require. It being a statute liability, if the. receiver can select one stockholder and collect the whole amount unpaid upon his shares of the stock, there is no reason why his remedy is not as perfect at law as in equity. But the nature of the right to be enforced and the circumstances under which it is to be enforced render the proceedings under this statute eminently proper for a Court of eqtiity, and the practice should be such as to effect the equitable designs of the statute and not be unnecessarily oppressive upon those against whom the proceedings are directed. This liability is only incurred when the capital paid in is not sufficient to satisfy the debts against the corporation, and then only to an amount sufficient to satisfy such debts. It is, therefore, necessary that an account of the assets and of the debts should be taken, of the amount of the capital remaining unpaid upon the shares, and the amount unpaid by each stockholder, in order that they may be -made equally liable. I can see no way in which this could be effected under the practice before the code, except by a bill filed in behalf of all the creditors against the corporation, making the delinquent stockholders also defendants. The court would then have the power to do complete justice and make each delinquent stockholder pay his due proportion and no more. This is the practice established by the revised statutes, to enforce a liability somewhat analogous against directors and stockholders of moneyed corporations, (2 R. S. 464,) and the same practice is suggested by Judge Jackson, in Case v. Grant, and by Judge Story, in Wood v. Dimmer, (supra.) The creditor therefore who filed the original bill against the railroad corporation, when he found that the property of the company was not sufficient to pay all the debts, should have amended his bill and made the delinquent shareholders parties to the original bill. The receiver had no power as such to file this bill. There is nothing in the original bill nor in the order appointing the receiver, which indicates that it was the object of that suit that the receiver should have any other or greater powers than receivers in ordinary creditors’ suits.

The decree of the supreme court and of the assistant vice chancellor must therefore be reversed, and the bill dismissed with costs, in the courts below.

Ordered accordingly.


source: Caselaw Access Project

author: Gardiner, J.

license: Public Domain

text:
    Metcalf vs. Van Benthuysen.
    A title to lands duly authenticated by written evidence will not be set aside on the assumption of a previous lost conveyance, except upon clear proof of the existence and execution of the supposed deed, and so much of its contents as will enable the court to determine the character of the instrument.
    Parol proof in the case of a lost deed is admitted from necessity, but it must show the contents or the substance of the contents of the operative parts of the'instrument.
    Where the contents and loss of a missing deed are established, the parol declaration of the supposed grantor, it seems, is admissible as corroborative evidence of the execution and existence of the instrument; but such evidence of itself can not operate to confer a title or confirm one otherwise defective.
    The supposed grantee in a lost deed entered upon the land which was wild and tincultivated, cut timber, ran the boundaries with a pocket compass, executed a conveyance to other parties, and then left the country. There was no other account of him, nor any evidence that he and the supposed grantor were known to each other. One of the persons to whom he conveyed testified, that at the time he exercised these acts of ownership, he saw in his possession a deed purporting to be executed by the supposed grantor to him, and this was the only evidence of the ‘existence, genuineness and contents of the lost deed; held that the evidence wás not sufficient to make out a defence in opposition to a hostile title clearly established by written evidence.
    Appeal from the supreme court. On the 6th of January, 1807, Barent Van Benthuysen purchased of the state of New-York a tract of land known as the state’s one hundred acres on military lot No. 41 in the township of Hannibal, county of Oswego ; and on such purchase he paid down a portion of the consideration money, gave his bond for the residue payable at a future time, and received from the surveyor general a certificate of the purchase in the usual form. On the 1st of July, 1839, he assigned the certificate to his son John Van Benthuy* sen, the defendant in this cause, who on the 5th of the same month paid what was due to the state on account of said purchase, and obtained letters patent conveying to him the premises in fee. In July, 1840, John Van Bcnthuysen commenced an action of ejectment for the purpose of recovering the premises from David B. Metcalf who was in possession, and who thereupon filed the bill in this cause before the vice chancellor of the fifth circuit, for the purpose of restraining the suit at law, and procuring a conveyance to himself from the defendant of the legal title to the premises. The vice chancellor sustained the bill and decreed according to the prayer thereof. His decree was affirmed by the supreme court on appeal, and Van Benthuysen then appealed to this court. The facts. under which the complainant Metcalf claimed the equitable title are sufficiently stated in the opinion of the court.

      Willis Hall, for appellant.

      Charles Rhoades, for respondent.
   Gardiner, J.

The legal title of the defendant to the one hundred acres in question is complete, and is sustained throughout by written evidence of the highest character. The complainant, however, by way of equitable defence, alledges that in 1807 or 1808, and while the father of the defendant was owner of the certificate of purchase, issued by the state for these premises, the former, for a valuable consideration to him in hand paid, sold and conveyed by deed in fee with covenants of warranty, the same land to one William Mead of Chenango county. That on or about the 14th of March, 1808, Mead, for the consideration of $200, conveyed in like manner with warranty, the premises to William Huff and Isaac Kinney, under whom the complainant claims title.

The execution and delivery of the deed to Mead, by the elder Van Benthuysen, is the principal question in the cause, and the only one I shall consider.

In March, 1808, a man calling himself William Mead, and stating his residence to be in Oxford, Chenango county, entered upon this lot, cut some timber, and ran its boundaries with a pocket compass, executed a deed to Kinney and Huff, and immediately left the country. During his stay in Oswego county, the witness Kinney saw in his possession a deed, purporting to be exe cuted by Van Benthuysen to Mead. This is the only time the deed was ever seen, and the only account we have of the grantee. Kinney was the agent of Benthuysen, who resided in Warren County, and continued to reside there until his death. There is no,evidence, aside from the deed alledged to be lost, that the. parties to it were known to each other, or had any communication upon this, or any other subject; and none that any man of the name of Mead, residing in Chenango or elsewhere, ever claimed to be owner of the lands in question, except that derived from his declaration to Kinney, on" the occasion to which I have referred. We are therefore thrown upon the testimony of Kinney exclusively, for evidence of the existence, and claim, of his grantor, and of the deed which was the evidence of his title.

If this witness, at the time of which he speaks, had in good faith purchased the land of his principal of a stranger, at an advance of more than fifty per cent over its cost the year previous, it would have furnished some evidence of his confidence in the title he was acquiring, if he had stated the amount of the con’sideration, and the time when, and manner in which it was paid. Although the fact is put in issue by the pleadings, there is no evidence upon the subject whatever.

This witness was examined, upon a commission issued in tne cause, in the state of Illinois. The tenth interrogatory put to him is as follows: “Did you ever see a deed, or paper writing, purporting to be d deed, conveying the said state’s hundred, executed by B. Van Benthuysen? If yea, to whom was it executed, the date thereof, the consideration expressed, the premises described, and was it executed by any one but Van Benthuysen; did it contain a covenant of warranty ? In whose possession did you see it; was it under seal, and acknowledged 7 Declare all you know in relation to said deed.” In answer he says, I did see a deed executed by Barent Van Benthuysen, the date I do not know. I saw the deed in March, 1808. I don’t recollect the date or consideration ; the lot was described “ as the state’s hundred acres, in the southeast corner of military lot number 41, Hannibal.” I think it was not executed by any one besides Yan Benthuysen. I think it contained a covenant of warranty. I saw the deed in possession of William Mead. I think the deed was acknowledged and under seal, and further I know not.

The answer of the witness in response to the interrogatory is nothing more than that he saw what purported to be a deed executed, which includes the entire instrument, in the hands of Mead. He was acquainted with the hand-writing of Yan Benthuysen, and yet he does not swear to his signature, or even to his belief that it was his signature. He recollects neither the date nor consideration. He thinks it was acknowledged, but gives neither the year, or date of the acknowledgment, the name of the officer or place of his residence, or one word of what, in his judgment, would have constituted a legal acknowledgment. He thinks there was a covenant of warranty, but is unable- to state a word of its contents. He thinks it was under seal. • He does not recollect, or profess to recollect, any thing but the name of Yan Benthuysen to a paper writing, purporting in his judgment to be a deed. Every word to which he has testified might be true, if he had seen, in the hands of Mead, a contract for the sale and conveyance with warranty of the land, on payment of the purchase money, to which the name of Yan Benthuysen had been forged. The witness professes to recollect and state the description of the land. This description, although sufficient to embrace the lot in question, differs from that contained in the certificate of the surveyor general, in the possession of Yan Benthuysen. This was his only evidence of title, and according to the usual mode of conveying lands would have been copied into the deed executed by him to Mead. In the certificate the land is described as “ the parcel of land distinguished as the 100 acres reserved out of the southeast corner of lot number 41 in the township of Hannibal, in the military tract, in and by letters patent granting said lot.” ICinney gives the description as “ the state’s hundred acres in the southeast corner of military lot No. 41, Hannibal.” This was the popular designation of the tract, not 'the official description; subir as a person acquainted with' the premises could give, whether he had or had not any recollection of the language of the deed.

Secondary evidence of this character is admitted from necessity. But where the lost deed should accompany the possession, and ownership of the land, as an essential muniment of the title, no necessity will dispense with the proof by parol, of the contents, or substance of the contents, of the operative parts of the instrument. Chief Justice Marshall- remarks, in Taylor v. Riggs, (1 Pet. 591,) that “ the substance of the agreement Ought to be proved satisfactorily, and if that can not be done, the party is in the condition of every other suitor in court, who makes a claim which he cannot support.” There is nothing in the facts of this case to induce a relaxation of the rule. The existence of the deed to Mead, would not only convict the elder Van Benthuysen of a gross fraud, but the circumstances under which it was seen—the mode of taking possession of the land— the sale by warranty deed instead of an assignment of the certificate ; the mystery which surrounds the grantee, and which subsequent inquiries have increased, instead of dissipating ; the immediate sale to Kinney and Huff, so far as -appears, without consideration, are all calculated to induce the Belief, that if they did ’ not know they were buying a pretended title, they had good grounds for suspicion.

They were at least guilty of gross negligence, in leaving in the hands of their grantor, of whom they knew nothing, the only evidence, such as it was, of his or their - title to the premises. It is true that this witness swears, that in the fall of 1808. Van Benthuysen told him he had sold the state’s hundred th William Mead. It is not- pretended that he said any thing as to the mode of sale, whether it was by assignment, contrabt,quit-claim deed with warranty, or by parol. ‘ '

If the contents and loss of the missing deed had been established, the declaration would be entitled to weight, as corroborative evidence of the execution and existence of the instrument in question. Of itself-it can not operate to confer or confirm a title otherwise defective, if proved by a witness disconnected with the transaction. But the declaration was made, if at all, by Van Benthuysen, after the supposed conveyance to Mead. It is sworn to by Kinney, thirty-six years afterwards, to sustain a title warranted as good by him, and which if fictitious, would materially affect his own character, and after the death of the only persons who could contradict him. Testimony in itself of the most uncertain nature, is not strengthened, in this case, by the position of the witness.

The possession of the plaintiff for a series of years, is the only fact that seems to require explanation. There is no evidence that the elder Van Benthuysen was ever in the county of Oswego, or knew of the occupation of the premises. For nine years after his purchase of the state, the lot was unoccupied. More than half of it is still uncultivated, and the lot upon two sides is bounded by lands still in the same situation. The complainant was the undoubted owner of eighty acres adjoining the land in question, and his actual occupation during the latter part of the time seems to have been upon this parcel. The elder Van Benthuysen resides in Warren county, was a man of wealth," and the owner of a large real estate. The legal title was in the state; and the holder of the certificate was authorized in the belief that without an assignment by him no one could acquire or impair his equitable right to the premises under the existing laws. (1 R. S. 203, §§ 26, 27, 28.)

On the other hand, the grantees of Mead all knew that their title depended upon a conveyance from the state, and thus the fact of such conveyance could be ascertained at the state offices at any time. No such inquiry was ever made. Kinney must have known that Van Benthuysen had only an equitable title, unless the latter, without any assignable motive, had practiced a deception upon his own agent.

The declaration of Van Benthuysen in the fall of 1808, volunteered to Kinney, according to his deposition, does not help the matter. Kinney must have understood the sale, then spoken of, to apply to the interest that Van Benthuysen held at the time, and not as an agreement thereafter to procure the legal title. Upon the whole, there is not enough in the evidence adduced by the complainant to impeach satisfactorily the title of the defendant.

I place my decision upon the ground, that a title to lands' duly authenticated' by written evidence ought not to be set aside on the assumption of a previous lost conveyance, except upon clear proof by the claimant of the execution and existence of the supposed deed, and so much of its contents as will enable the court to determine the character of the instrument. • The complainant’s proof falls short of this, and it is therefore unnecessary to consider whether the loss of the deed is shown satisfactorily. In my opinion, the complainant, by neglecting to ascertain the residence and to make inquiries of Almy, terminated his search at the only point from which, if it had been vigorously prosecuted, there was a probability of its being successful. It is unnecessary however to decide this question.

We think the decree should be reversed upon the ground suggested.

Decree reversed,


author: Pratt, J.

text:
    Halstead vs. The Mayor, &c. of New-York.
    Under an act passed in May, 1840, associate judges of the court of general sessions of the city and county of New-York were appointed. By another act passed in May, 1841, the salaries of such judges was made a county charge, and the supervisors were directed to audit and allow them. This they refused to do, on the ground of the unconstitutionality of the former act, and separate suits were thereupon brought against them to recover the penalty provided by law for neglect of duty. The act of 1840 was subsequently adjudged to be unconstitutional, and then the corporation of the city assumed the defence of the suits. After judgments had been recovered against the supervisors, they assumed the payment thereof with the costs of the defence, and for such costs, drew drafts upon the treasurer of the city. Held, that the corporation had no power to assume the defence of the suits', or the payment of the judgments and costs, and therefore that the drafts were void.
    The powers of municipal corporations considered and discussed.

      This was an action brought in the supreme court by David P. Halstead, against the mayor, aldermen and commonalty of the city of New-York, to recover the amount of two drafts drawn by the defendants upon the treasurer of the city, payable to P. A. Cowdrey, Esq. and endorsed to the plaintiff. One of the drafts was dated May 10, 1847, for the sum of $2661,27, and on its face purported to be for “ defendant’s cost in the case of R. H. Morris and eight others, former supervisors.” The other was dated May 11,1847, for $300 and purported to be for “ counsel fees,” in the same matter. On the trial before Edwards, J. in January, 1849, the drafts, after proof of due presentment, protest and notice, were read in evidence.
    On the part of the defendants, it was proved that in or about September, 1841, separate suits were commenced in the name of the people of the state of New-York on the relation of James Lynch against Robert H. Morris and eight others, supervisors of the city and county of New-York, to recover irom each of them, a penalty of $250 for neglecting and refusing to audit and allow the account of Lynch as one of the associate judges of the court of general sessions of said city, according to the requirement of the act to enable the supervisors of the city and county of New-York to raise money by tax,” passed May 26, 1841. (Stat. p. 267.) The fourth section of that act declares that the arrears of the salary of the said associate judges and their salaries thereafter to become due, by virtue of an “ act for.the better organization of criminal courts in the city and county of New-York,” passed May 14, 1840, should be deemed county charges, and directs the supervisors to audit and allow the account for such arrears on or before the 10th day of July then next, and thereafter quarterly as such salaries might become due. James Lynch was appointed associate judge under the said act of May 14, 1840. In June, 1841, his claim for one year’s salary was before the supervisors, and they refused to audit it on the ground that the act of 1840 was unconstitutionally passed; and for that refusal, he brought the suits before mentioned under the statute (1 R. S. 368, § 16) which imposes a penalty of $250 upon every supervisor neglecting or refusing to perform any of the duties required of him by law as a member of the board of supervisors.
    On the 26th of January, 1846, while those suits were pending in the court for the correction of errors, and before the argument, the common council passed a resolution which, after reciting that the supervisors in refusing to audit the salary until the constitutionality of the act of 1840 should be settled, acted in the conscientious discharge of their duty, and further reciting that the supervisors had been sustained in their opinion of the unconstitutionality of the law by the decision of the court of errors, (see 4 Hill, 384,) declared, that the corporation of the city would defend the said supervisors in the further prosecution of the suits for the penalties, and directed the counsel of the corporation to aid in the argument thereof. On the 8th of May, 1847, the common council passed another resolution, directing the ^payment of the judgments recovered against the supervisors in those suits, together with their taxable costs and reasonable counsel fees incurred in the defence of the suits. In pursuance of that resolution the drafts in question were drawn upon the treasurer. The treasury of the city, over which the common council has control, and the treasury of the county under the government of the supervisors, are one and the same, there being but one treasurer.
    Upon these facts, Justice Edwards charged the jury that the drafts were void, and that, although the plaintiff was a bona fide holder without notice of the consideration, he was not entitled to recover. A verdict was accordingly had for the defendants, which the supreme court refused to set aside, and after judgment, the plaintiff appealed to this court.

      P. A. Cowdrey, for appellant.

      H. E. Davies, for respondents.
   Pratt, J.

There was no objection in this case to the form of the drafts, and the counsel for the plaintiff waived upon the argument the point which had been raised below in relation to the rights of a bona fide holder of a draft of this character. The simple question is therefore presented for our consideration, whether the common council of the city were authorized to assume the payment of the penalties, with the costs and expenses of the litigation, to which certain supervisors of the city and county of New-York had been subjected for an alledged neglect of official duty.

Chancellor Kent, in his Commentaries, says that the modem doctrine is to consider corporations as having such powers as are specifically granted by the act of incorporation, or as are necessary for the purpose of carrying into effect the powers expressly granted, and as not having any other. (2 Kent’s Com. 298.) “A municipal corporation,” says Willcock, “has at common law few powers beyond those of electing, governing and removing its members, and regulating its franchises and property. The power of its governing officers can only extend to the administration of the by-laws and other ordinances by which the body is regulated.” ( Willcock on Mun. Corp. tit. 769.) By our statute, the powers of corporations are expressly limited to those specified in the statute of the state, and those conferred by their charters. (1 R. S. 600.) These principles are so obviously in accordance with the end and object of the creation of this class of governmental agencies that their correctness must be recognized and acknowledged by every one, and yet if we were to judge from the conduct of municipal corporations alone, we would conclude that there was no limitation of their powers, at least of their power of levying taxes. Until the case of Hodges v. The City of Buffalo, (2 Denio, 110,) nothing was more frequent than for city authorities to vote largesses and give splendid banquets for objects and purposes having no possible connection with the growth or weal of the body politic, thus subjecting their constituents to unnecessary and oppressive taxation. Since the decision in that case the principle has been more generally recognized and acted upon that these corporations are creatures of limited powers, especially upon the subject of the appropriation of the funds of the people. Within the principles of that decision, based as they are upon the statute, and the principles above cited from the elementary writers, it is difficult to find any power or authority in the common council of the city of New-York to pass the resolution of May 8, 1847, under which the drafts in suit were issued.

It would scarcely seem necessary to do more than state the facts in this case. The general statute of the state provides that If any supervisor shall neglect or refuse to perform any of the duties which are or shall be required of him by law as a member of the board of supervisors, he shall for every such offence forfeit the sum of two hundred and fifty dollars.” (1 R. S. 368, § 16.) By an act of the legislature passed May 26, 1841, (Ses. L. p. 267,) the supervisors of the city and county of New-York were required to audit and allow an account for the salary of Judge Lynch as judge of the court of sessions in that city. For neglecting and refusing to obey this law, penalties were recovered against several of them, and the common council by that resolution assume the payment of the penalties, with the costs of litigation. In short, the statute of the state to secure a due discharge of official duty makes every supervisor subject to a penalty of two hundred and fifty dollars for any neglect of such duty. Certain supervisors of the city and county of New-York had been convicted of such neglect of duty, and judgment had passed against them severally for such penalties. The common council do not attempt directly to reverse or nullify the decision of the court in that respect, but they do that which is the same in effect, and surely quite as objectionable in its practical tendency—they transfer the payment of the penalty, with the costs, from the guilty parties to the tax-payers of the city. If the common council is invested with a power of this magnitude—a power which, in its practical results, can set the laws of the state and the decisions of the courts at defiance—then it must be confessed that there is scarcely any limitation to the powers of municipal corporations.

What are the grounds upon which this extraordinary exercise of power is claimed to rest 1 It was placed by the counsel for the plaintiff mainly upon the assumption that the city had an interest in the event of the suit, or at least in the question involved in the case. There are several answers to this position.

First. It is manifest that the city had no interest in the event of the suit, at least in favor of the supervisors. A judgment in those suits could not possibly effect the corporate rights of the city. Nor was the city interested in the question. The right of Judge Lynch to sit in the court of sessions was not involved in the case. Indeed the decision of the court for the correction of errors, in sustaining the decision of the supreme court,- establishing the liability of the supervisors, was placed expressly upon the ground that his right to sit in the court was not involved in the case. Nor was his right to receive the salary involved in the case. The duty of the supervisors was under the act of 1841, simply ministerial, and it was for refusing to obey the requirements of that act that they were prosecuted. These suits therefore could not involve the questions that grew out of the alledged unconstitutionality of the act of 1840. Besides, it would be a dangerous power to be vested in municipal corporations which would give them the right to employ counsel and defend every suit which might present a question, in the decision of which the agents of such corporations might fancy themselves interested. In this case the city had already taken a much more direct and unobjectionable method of testing the constitutionality of the act of 1840, and there is no evidence to show that the city took any part in the defence of these actions until the act of 1840 had been adjudged unconstitutional by the court of last resort. That decision was made in December, 1842, (see 4 Hill, 384,) and the resolution directing the defence of these actions was passed January 26, 1846. Indeed the defence was assumed, upon one ground among others, that the act had been declared unconstitutional by the courts.

Secondly. It is claimed that the common council was interested in preventing the payment of the salary, and thus guarding the common treasury. As I have said before, the right to the salary was not involved. If Judge Lynch was not entitled to the salary the. treasurer of the city was not "bound to pay, notwithstanding the same had been audited. (1 Hill, 244.) But there are other objections. The board of supervisors and the common council are, in theory, two separate and independent bodies, responsible it is true, to a common constituency, but in no sense the agents of or responsible to each other. The fact that in the city of New-York the two bodies are composed principally of the same persons, can not change the relation which they sustain to each other. In every city in the state the action of the board of supervisors of the county in which such city is located may affect materially the interests of the people of such city, yet that consideration would by no means authorize the agents of the city to interfere and attempt to influence them in the discharge of their official duties, or assume the payment of penalties which the law had imposed upon them for their neglect of those duties. There is an obvious principle of public policy which forbids it. The supervisors are responsible to the law and the people whom they represent, for the due discharge of the duties imposed upon them. The object of the statute in imposing the penalty was to protect the people against the consequences of official delinquency; but if those penalties can be transferred from the delinquent to the people themselves, who may have been the sufferers by such delinquencies, by the fiat of a common council, the law is worse than useless. Such a doctrine would be startling in its application to the' city of New-York, for there both bodies being composed of the same individuals, it would be very difficult to enforce the law in any case. For it is only when a majority of the board of supervisors are- guilty, of neglect that any injury can be sus tained, and in such case it would always be in their power, acting as a common council, to pass the burden from themselves to the city. It would seem to be a more direct method and no more objectionable for them in the capacity of a board of supervisors to audit such penalties directly as a legal charge against the county.

Thirdly. The resolution assuming the defence of the suits is not based upon the assumption that the city had any interest either in the event of the suits or the questions involved. The preamble places the action of the common council upon the assumption that the supervisors, in refusing to obey the act of 1841, acted conscientiously, and that they had been sustained in their opinion that the act of 1840 was unconstitutional, by the court for the correction of errors. There is no pretence here that the defence was assumed for the purpose of protecting the corporate rights or the treasury of the city-; and clearly the ground upon which the defence was assumed is no justification. If the common council meant to concede the delinquency of the supervisors, but to shield them from the consequences because they had committed the wrong conscientiously, they were simply attempting to nullify the statute. But if they meant to assume that having acted conscientiously was a good defence, they were simply assuming to decide the very question which was then pending in the courts. In either view it is submitted that the common council were exceeding their powers. It will not be urged that they were authorized to attempt to nullify the law, and it is somewhat difficult to perceive how the city could be interested in the latter question. If the supervisors were not in fact guilty of a breach of the law, they were probably quite competent to defend themselves. At least there is no proof showing any necessity for assistance from the city, and after the decision of the court of last resort sustaining the liability of the supervisors, all' questions of that character were settled. There was then at least no excuse for assuming the payment of the penalties and the costs which had accrued, as well before as after the defence was assumed.

It was claimed to be a debatable question whether the legislature had the power to pass the act of 1841, making the salary of Judge Lynch, who had actually discharged the duties, a charge upon-the city, and yet it is claimed that the common council had authority to charge upon the City the penalties which officers had incurred for neglecting to discharge their duties. The proposition is simply preposterous. It was held in the People v. Lawrence, (6 Hill, 244,) that the supervisors of a county had no right to appropriate money to defray the costs of a justice of the peace who had been prosecuted for official misconduct and acquitted. Judge Bronson, in giving the opinion of the court, compared it to the case of a party indicted for a crime and acquitted on the trial. He gets no indemnity from the public treasury.” In this case the officers were convicted, but it will scarcely be claimed that they are entitled to any greater consideration on that account.

It was claimed upon the argument that the counsellor of the city was directed to defend the cases in the court for the correction of errors, and should therefore recover for the services rendered under such direction. If the common council had no right to assume the defence of the suits, it is difficult to understand how they could contract a debt for such defence which should be binding upon the city. The counsel must be deemed to have acted with full knowledge of the facts, and it was his duty to have advised them that they were exceeding then-powers. Had he done so, it is not probable that they would still have insisted on his defending the suits. Again; the drafts covered the whole costs; and there was no proof of the worth of the services after the defence was assumed by the common council. But I am satisfied that the common council had no authority to assume the defence of the suits, or the payment of either the penalties or the costs.

The judgment of the supreme court should therefore be affirmed.

Bronson, Ch. J., Rugóles, J., and Harris, J., dissented.

Judgment affirmed.


author: Taylor, J.

text:
    Veltman and others vs. Thompson and others.
    Under the statute in relation to “ demands against ships and vessels,” a “ debt” is not “ contracted ” for goods furnished to a vessel so as to give the creditor a lien until they are actually delivered or furnished. An agreement to deliver the articles without actual performance, is not sufficient.
    The lien and the right to attach the vessel accrue as soon as the goods are furnished,-in* pursuance of a previous agreement; but the lien is waived if, by the contract a credit is given extending beyond twelve days after the departure of the vessel from the port where she was when the supplies were furnished.
    The lien can not exist, it seems, even by agreement of the parties, except in the manner and upon the conditions provided fot in the statute.
    When goods are furnished from time to time to a vessel navigating the Hudson nver, and making daily trips between New-York and Albany, under a previous agreement that the bills were to be paid at the end of the season, held, under the second section of the statute, that after the expiration of twelve days from any time when the vessel left "port, there was no lien for goods previously furnished under the contract.
    Appeal from the superior court of the city of New-York. The steamboat “Alida,” owned by William R. McCulloch, was run as a passenger boat on the Hudson river, leaving New-York for Albany on Mondays, Wednesdays and Fridays, from April to October, 1847; and this was an action on an attachment bond executed by the defendants on the discharge of the Alida from a seizure under an attachment which had been issued to the sheriff of New-York, pursuant to the provisions of the statute (2 R. S. 493) in relation to “ demands against ships and vessels.”
    It was proved that the attachment was issued on the second day of October, 1847, on the application of Rockefeller and Harris, and that on the 7th day of October, 1847, the plaintiffs Veltman & Co. delivered an account in writing of their demand, accompanied by their proper petition, affidavit and proof, under section 10 of said statute, and thereby became attaching creditors'under the proceedings.
    Tuthill, a witness, and steward of the boat, testified that sometime in April, 1847, he made an arrangement with the plaintiffs to send for crockery whenever' he wanted it, and at the end of the season they were to collect the bills. Accordingly Tuthill sent for crockery as he wanted it, and when received the bills were sent, for his convenience, to compare with the goods received. One part of the bill of goods, amounting to thirty-five dollars; was ordered and delivered before this agreement was made; the residue of them were delivered at short intervals, from May 11 to September 25, 1847. The whole amount during the month of September was less than $50. The last trip of the Alida, out of the port of New York, was on the 1st of October, and on the 2d of October she broke her engine, and did not leave New-York again that year.
    On the trial the plaintiffs had a verdict for $598,92, on which judgment was rendered. The defendants appealed to this court.

      A. Taber, for appellants.
    G. M. Spier, for respondents.
   Taylor, J.

The statute under which these proceedings were instituted provides, that “ whenever a debt, amounting to fifty dollars or upwards, shall be contracted”- in the manner therein specified, “ such debt shall be a lien,” &c. In this case it becomes an important matter to determine when the debt was contracted, within the meaning of the statute. The agreement was made about the 15th of April, and in one sense the debt was contracted at that time; but it is manifest that the statute has relation to a subsisting debt for supplies, materials or labor, furnished vessels, and not to the initiatory bargain out of which the debt may arise. On this point the reasoning of Judge Betts in the case of the Delaware and Hudson Canal Company v. The Alida is very conclusive. The opposite construction, says he, would subvert tire whole design and policy of the privilege, which is intended to give security for labor and materials actually put to vessels, and not to the mere contract or stipulation to supply them. The contract may be entered into in anticipation of the time when the vessel is to receive repairs or supplies, and she may continue her business, leaving the port wher e the contract is made, until the time agreed upon for its fulfilment. Preparations may be made, and materials provided, in accordance with a previous stipulation, while the vessel is pursuing her regular course of business from port to port, for months perhaps, and then when she has received them to hold her discharged from liability, on the ground that she had departed from the port more than twelve days after the contract was made, would render the assurance held out by the act to creditors a sheer delusion. Such a construction, too, would be adverse to th^, plain meaning of the act; for the debt must be contracted for work done or materials or articles furnished; clearly implying that the contract to work or furnish materials must be followed by an actual performance, before the lien provided by the statute attaches. s

But the respondent’s counsel contends that no debt was con' tracted till a sum of money became due to the respondents under the contract. The statute clearly intends that the contract shall be made by the master, owner, &c. and the work done, or materials furnished by the contractor, before any right arises under it. It also clearly implies that this debt is perfected so soon as the work is done or materials furnished; and the only difficulty in this case arises from the fact that an extended credit was given by the party furnishing the materials, beyond the actual delivery; and the decision must turn upon the question whether he has a right to give such credit, for his own convenience, and at the same time retain his privilege under the lien law.

There can be no doubt that the intention of the parties in this case was that the goods should be delivered from time to time through the season as they were wanted; but that payment should be postponed until the close of the season, and then the whole should become due and payable at one time. In this contract I presume no reference was had to the rights of the party under the lien law. Payment was anticipated from the steward, with whom the contract was made, as the agent of the Alida; but insolvency having occurred on the part of the owner, resort is had to this mode of securing the debt.

The obvious intention of the first section of the law was to provide a mode by which mechanics and others, furnishing supplies to vessels temporarily in port, might promptly and certainly secure payment for work or materials furnished, and necessary for the repair or equipment of such vessel, without the uncertainty or delay attending the ordinary process of collection of debts in our courts of law. It is a privilege granted to certain descriptions of creditors by a specific law, applicable to specific cases, in derogation of the common law, and can not be extended or enlarged by construction. (In the matter of Denny and others, 2 Hill, 220.)

The law, I apprehend, does not contemplate any credit beyond such as is absolutely necessary to perfect the contract. Whenever therefore the work is done, or the materials furnished, in pursuance of a previous stipulation, then the debt has been contracted within the meaning of the act, and the right to attach accrues. If then the creditor gives an extended credit, thereby relieving the vessel from the existing liability, and 'she pursues her employment, leaving the port; although the parties may agree that the liability shall continue and attach at a future day, there can-be no doubt that the lien would be lost: for the condition upon which the statutory remedy is suspended no longer exists; and that condition of things can not be restored in reference to such a debt, by a subsequent agreement of the parties. I think the same doctrine would apply to an original contract, if that contract is so made, as by giving an extended credit, to take the case out of the immediate operation of the statutory remedy. The statute intends that the lien shall attach immediately on the doing of the work or furnishing the materials; the contract of the parties provides that the statutory remedy shall be suspended until a future period. The remedy must be strictly pursued, as provided by the statute, or it is lost.

If this be the true construction of the statute, there can be no further difficulty in disposing of this case. The second section provides that when the ship or vessel shall depart from the port at which she was when such debt was contracted, to some other port within the state, every such debt shall cease to be a lien, at the expiration of twelve days after the day of such departure. The judgment of the court below must be reversed.

Judgment reversed.


text:
    The Seneca County Bank vs. Neass.
    A note was payable at the plaintiffs’ bank in the town Of W., where the defendant, the indorser, received his letters and did his post office business. The defendant, resided in an adjoining town, where the notice of protest was sent to him by mail from W. Held a sufficient service, the defendant not having • specified any other place where the notice was to be left or sent, and it not appearing that the plaintiffs were informed that he received his letters at W.
    A certificate of a notary puvlic setting forth the note, the protest thereof, and that “ due notice” has been served on the indorser, stating also the manner of service, is prima facie sufficient. It need not state the contents of the notice.
    Where a note is indorsed for the accommodation of the maker,.without restriction as to the purposes to Which it is to be applied, the make? may appropriate it to any purpose beneficial to himself; and a party who receives it on account of an antecedent debt due him from the maker is entitled to collect it.
    The president, directors and company of the Seneca County Bank sued George Neass, as the second indorser of a promissory note for $2000, dated July 9, 1842, and payable at the plaintiffs’ bank. One of the questions on the trial at the circuit was, whether the notice of protest had been properly directed and sent. The plaintiffs’ bank was at Waterloo in Seneca county. The defendant resided in the town of Fayette in the same county, and adjoining Waterloo. There were two post offices in Fayette, but the defendant usually received his letters at Waterloo. The notice in question was served by mail, and was sent to each of the offices in Fayette. It did not appear that the plaintiffs had any knowledge that the defendant did his post office business at Waterloo. It was insisted on behalf of the defendant that he was entitled to personal service of the notice, and that the notices sent by mail to the offices in Fayette were not sufficient to charge him, unless they were shown to have been actually received by him in time. The objection was overruled.
    Another question was, whether the notice itself was proved to have been sufficient. The certificate of the notary was read in evidence annexed to the original note, stating that tie had protested the same and that “ due notices of the foregoing protest” were put into the post office at Waterloo, directed to the defendant at the offices in Fayette. It was objected that the certificate was not sufficient, and that the plaintiffs were bound to show the contents of the notice. This objection was also overruled.
    It.also appeared that the defendant had indorsed the note for the accommodation of the maker but without any restriction as to the purpose to which it should be applied. It was in fact applied by the maker to the payment of another note held by the plaintiffs against him.

      The jury, by direction of the court, gave their verdict in the plaintiffs’ favor, for the amount of the note and interest. The defendant moved the supreme court on bill of exceptions for a new trial, which was denied, and after judgment he appealed to this court.

      M. T. Reynolds, for appellant.

      S. Stevens, for respondents.
   Pratt, J.

The counsel for the defendant declined to discuss upon the argument, the question made in the court below, in relation to the alledged diversion of the note by the maker from the purposes contemplated by the parties at the time of making and indorsing it. The note seems to have been indorsed for the accommodation of Lee, the maker, without any restriction as to the particular purpose to which it should be applied. The maker had a right therefore to appropriate it to any pur pose which he might deem for his own interest, and having appropriated it to the payment of a note held by the plaintiffs against him, the consideration was sufficient to render it valid in their hands.

Neither is there any thing in the point that notice of dishonor was not personally served. Since the act of 1835 it is sufficient, where the indorser does not specify the post office to which he desires the notice to be sent, to direct it to the town in which he resides. (Sess. Laws of 1835, p. 152.) In the case of Downer v. Kerner, (21 Wend. 10,) it was held that such was the rule at common law. The fact that the indorser usually received his letters at the post office in Waterloo, should not alter the rule. Since the act of 1835, the only inquiry incumbent upon the holder to make, is as to the residence of the indorser, and when that is ascertained the notice of protest should be directed accordingly. Any rule imposing upon the holder a different obligation would be burdensome and materially affect the circulation of commercial paper. The party is deemed to receive his letters through a post office in the town in which he resides, and if he desires to receive them elsewhere, he should indicate it by affixing the desired direction to his indorsement. It does not appear that the plaintiffs had any knowledge that the defendant usually received his letters at the office in Waterloo, and there is no rule of law which made it necessary for him to inquire.

The only remaining question relates to the sufficiency of the notice of protest. Only one of the objections made at the circuit in that respect was discussed upon the argument, viz. that the certificate of service of notice did not set out a copy of the notice or show its contents.

That is not required in terms by the act of 1833, nor do I find any adjudication requiring it. (Sess. Laws, 1833, p. 395, § 8.) Previous to the passage of that act, the memorandum of a deceased notary was often received as evidence of service of notice, but it was not required in such cases that the memorandum should state the contents of the notice. In Nichols v. Goldsmith, (7 Wend. 160,) there was a memorandum on the back of the note in the hand-writing of the notary who was deceased, in these words : “ Noticed indorser by mail, July, 1824,” and it was held prima facie sufficient. (See also 20 John. 172 ; 2 Wend. 369, 513.)

The act of 1833 provides that where notice has not been received, the indorser against whom a suit, is commenced may accompany his plea with an affidavit that no notice has been received, and in that case the certificate ceases to be any evidence whatever, and under no circumstances is it any more than prima facie evidence. The indorser, therefore, has it in his power, in all cases when insufficient notice has been given, to compel the holder to prove demand and notice by common law evidence. I am, therefore, satisfied that the certificate is not required to set out a copy or the whole contents of the notice. No such practice seems to have been required in any case that has come before the courts. (4 Hill, 236; 7 id. 444 ; 2 id. 227; 19 Wend. 383; 20 id. 192.)

Judgment affirmed.