author: Denio, Ch. J. Ingraham, J.

text:
    Edward N. Kitchel v. Sylvester Schenck and other.
    Where an indorser of a note makes no advance upon it, and has no interest in it, the fact of his making a charge for his indorsement will not make the'note usurious in the hands of a person who receives it from the maker in the usual course of business, and pays value for it without any knowledge of the transaction between the maker and indorser.
    If the defense of usury can be sustained in such -a case, it must be because the note-had a legal inception in the hands of the indorser before it was offered to the plaintiff by the maker for discount.
    Indorsing a note for the maker’s accommodation for a premium to be paid by the latter does not make the indorser a holder, or in any way affect a ■party to whom the paper shall be subsequently negotiated.
    Action on a promissory note, dated February 6, 1858, for $300, made by the defendant Schenck to the order of, and endorsed by the defendant Briggs, and endorsed also by the other defendants; payable at the Auburn Exchange Bank, two months after date. The defendants set up the defense of usury. On the trial, before Judge Welles and a jury, the plaintiff produced the note and read the same in evidence, its execution and the-endorsements having been admitted by the answers. The defendants examined Schenck, the maker, as a witness, who testified that at the time he made the note sued on, he was indebted on a note for $300, which matured the 7th February, 1858, which was held by or was in the possession of the City Bank of Auburn. The witness said that this note, which was then maturing, was one he had given to Mr. Hyde, one,of the defendants, and upon which he had paid an usurious premium of $7.50; that the note in suit was given in extension of that former note of $300; that he had spoken to Hyde about it a few days before the note sued on was made, who said he would do a new nóte on the same terms as the- other; that the witness made the new note, procured the defendants, Briggs and Hall, to endorse it for his accommodation, and took it to Hyde, who endorsed and handed it back to him, and told him to go over to the Auburn Exchange Bank, which was across the street, and get the money, which he did. When Hyde made the endorsement upon it, he said it would be the same as the other; that he took the money at the Bank of Auburn and went to the City Bank, and paid the other note. The witness said: “I agreed to pay Hyde for this 2i per cent, which would be $15.” He admitted that he had not paid him anything. It was proved by the cashier of the Auburn Exchange Bank, that the note in suit was discounted for the defendant Schenck, the maker, who signed a discount check, as was usual in such cases; that the bank required this of parties procuring discounts, to show for whom the discount is made; that Hyde never had any interest in the note to the witness’s knowledge, and there was never any arrangement with Hyde as to discounting paper having his name upon it. It appeared that he (Hyde) had a balance to his credit in the bank exceeding the amount of the note so discounted, at the time it was discounted. On further examination, it appeared that the former note for $300 was likewise discounted for Schenck. The transaction appeared to have been of the same character as that respecting the note sued on. The defendant Schenck when he procured it to be discounted, signed the discount check as in the other case, and received the money at the bank. The note was endorsed by Hyde, and Schenck said “ he told me to go over to the bank and get the money.” The witness also swore that the note for $300 which was first discounted, was made to renew in part a former note for $600 which he had given to Hyde, on which an usurious premium was exacted and paid to him. The plaintiff requested the judge to hold that there was no evidence to show that the note in suit had ever been the property of Hyde, and that the plaintiff was entitled to recover. The judge refused so to decide, but submitted the case to the jury, to which the plaintiff’s counsel excepted. The judge charged that if the note became operative .in the hands of Hyde, it was usurious in the hands of the bank, and in the hands of the plaintiff who derived title from the bank. But if Hyde only endorsed it for. Schenck’s accommodation, then it had no legal existence as a note until it was discounted by the bank, and it would not be usurious though Schenck paid a premium on procuring Hyde’s endorsement. He further charged that if the transaction was intended by the parties or by Hyde to conceal the design to commit usury, it was equally void as if the form adopted was expressly in violation of the usury laws, provided the same ultimate end was attained; that the fact that the bank discounted the note in good faith, before due, an.d upon a full payment of consideration, did not shut out the defence of usury. The plaintiff’s counsel excepted to parts of the charge, and by several requests to charge sought to obtain a direction that there was no evidence upon which to base the defence of, usury, and excepted to the several refusals to charge. The verdict was for the defendant. The judgment was reversed, and a new trial ordered at the general term, and the defendants brought this appeal with the usual stipulation.

      W. T. Worden, for the appellant.

      J. R. Cox, for the respondent.
   Denio, Ch. J.

The plaintiff derives title to the note from the Auburn Exchange Bank, and if that bank could maintain an action upon it, the plaintiff is entitled to recover in this suit. The bank discounted it in the usual course of business, for Schenck, the maker, and knew nothing respecting the transaction between Schenck and Hyde. If the defence of usury can be sustained, it must be because the note had a legal inception in the hands of Hyde before it was offered to the bank for discount by Schenck. The jury have found that it had such an inception, and the precise question is whether there was any evidence tending to establish that fact suitable to have been submitted to the jury. I think there was not. All that passed between Schenck and Hyde was that .the former handed the note to the latter, who endorsed it, and handed it back. Then Schenck took it to the bank and procured it to be discounted for his own benefit. This was a usual transaction between maker and accommodation endorser. It is supposed that the testimony of Schenck gives another aspect to the transaction, and that it shows, if true, that Hyde, for the short period which intervened between the time it was placed in his hands and the time it was offered to the bank, was the holder of it, and that it was an effective note in his hands. Now it was possible that Hyde should have taken it as his own note, and have then made, use of Schenck as his messenger to take it to the bank and get it discounted for him. But this would have been a very incongruous transaction; for if Hyde received the note as his own, his endorsement would have been a nullity while he held it. But Schenck does not swear to any such thing. According to his testimony Hyde was' to do what he did- do upon the same terms as on the former occasion respecting the other note for $300. What he did respecting that former note was to endorse it for Schenck’s accommodation, for a premium of $7.50. The terms referred to obviously relate to the amount of premium. There is not a word in Schenck’s testimony which shows that the transaction respecting either of the notes was any thing other than endorsing them for Schenck’s accommodation, for a premium, to be paid by Schenck. Such an endorsement does not make the endorser a holder, or in any way affect a party to whom the paper shall be subsequently negotiated. It‘follows that this note had its first inception when the bank discounted it for the maker, and the finding of the jury to the contrary was without any, even the slight-' est, evidence to support ff. It is of no legal importance that the $600 note was usurious. The bank was not the holder of that note, and it does not appear that it ever had any connection with it. When the note in suit was negotiated to the bank, it was not a renewal of or substitute for that or any other note, but was an original discount. It may be that if this note should ever come into the hands of Hyde, he could not enforce it on account of the premium which he had received for endorsing; and it would have been the same thing if it had been shown that the present plaintiff purchased it of the bank as the agent for Hyde, or for his benefit. But no facts tending to that conclusion were shown. There may be grounds to conjecture that some such arrangement was made, as it is not a common thing for a bank to dispose of its discounted paper, the parties to which are solvent; but still it is lawful for it to do so. It will not, however, do to advise juries to ’avoid contracts not shown to be illegal, merely upon conjecture, however plausible the grounds for it may be. I am for affirming the order appealed from, and for rendering judgment absolute against the defendants.- The damages are to be assessed according to the rules and practice of the supreme court.

Ingraham, J.

The history of this transaction,- as testified to by the defendant, is, that he was indebted on a note to Hyde, and went to him telling him he wanted to give another note for it;, that Hyde said he would do it on the same terms as before, which was 2J per cent per month; that he afterwards took the note to him, and Hyde put his name on the back of it, and told Schenck to take it to the bank and get the money. He received from the bank the face of the no.te, with which he paid the former note. The defendant never paid Hyde anything. The question is, whether this transaction was usurious. If the discount by the bank was for the benefit of Hyde, or by virtue of any understanding with him, it became a question of fact for the jury to say whether the transaction was intended as a cover for usury, so as to enable Hyde to obtain more than legal interest. The cashier swears there was no such understanding with Hyde as to discounting notes, and he never knew that Hyde had any interest in the note. There was not any evidence, unless the discount by the bank was for the benefit of Hyde, to show that Hyde ever held the note, or had any interest in it. The fact that Hyde was paid for his endorsement could not affect the note. If the payment to him to put his name on the back of the note could be considered usurious, it could not be carried back so as to render Schenck’s liability on the note void, until the note became the property of Hyde. Upon this point the charge was full, and submitted the question to the jury. The plaintiff objected to submitting to them the question whether Hyde had any interest in the note. The general term concurred in this view of tbe case, and granted a new trial upon the ground that there was no evidence that Hyde ever had the title to the note in controversy.

It must be conceded, if Hyde made no advance upon the note, and had no interest in it, or in the proceeds, that his charge for the endorsement would not make it usurious in the hands of any person who received it from the maker and paid value for it. This was decided expressly in Barber v. Ketchum (7 Hill, 444), and differs from the transaction in Schermerhorn v. Talman (14 N. Y. R. 93), where the parties exchanged securities at a difference by which one was to receive more than he gave. In that case, Denio, Ch. J., says: “There is no difference, in principle, between a case where the security advanced by the lender is for a less nominal amount than the borrower’s undertaking for repayment, and this case where the difference is produced by an adjustment of the rate of interest.”

A stronger case than the present to make out usury was that of Van Duzer v. Howe. (21 N. Y. 531.) There the maker paid $50 to an accommodation endorser for his endorsement and procuring the discount of the paper. Dejsio, J., says: “ There is no pretense in the evidence for the allegation of usury. The inquiry is, in whose hands it first became available in a sense which would enable that party to maintain an action upon it against the prior parties. One who endorses for the accommodation of a prior party does not thereby become the holder of the bill, 'nor can he maintain an action upon it, until he has taken it up by paying the amount to a subsequent purchaser.” I need only to refer to various cases referred to in that case by Judge Denio, to show that this note is not within the decisions that would make it usurious.

There never was a time when Hyde could have maintained an action upon this note. He had not the possession of it and it had no vitality until the maker passed it to the bank. Even after the bank discounted it, the maker had the proceeds at his disposal and he could apply them to such purpose as he saw fit.

In the case last referred to, the judge submitted the question to the jury, but it was said in the opinion of the court “ I doubt whether the evidence would have justified the submission.” In the present case the evidence that Hyde had nothing to do with the discount, never controlled the proceeds from the bank, and never made any advances upon the note, are uncontradicted. The jury' could not disregard that evidence, and there was in reality no disputed question to submit.

If in such a case as this, where the maker of a note having it in his possession applies to an innocent party to discount it, and receives from him the face of the paper, the maker may afterwards set up a defense of usury founded on a transaction between him and an accommodation endorser, there can be no safety in discounting negotiable paper. On the contrary, where the maker of a note thus presents his own paper for discount, he should be estopped from setting up any defense of such a character.

The order of the general term was proper, and should be affirmed, and judgment absolute should be rendered for the plaintiff.

Selden, JV, was absent. All the other judges being for affirmance, judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Abram Dunn v. The People.
    On the trial of an indictment for advising and procuring, and advising one S. &., a pregnant woman, to take a certain medicine, with intent to procure her miscarriage, the prisoner’s counsel having avowed their intention to insist that one H. was the father of the child, and not the prisoner; Held, that it was competent for the prosecutor to prove by the testimony of H. that he had never had sexual intercouse with S. G.
    The female, in such a case, does not stand legally in the situation of an. accomplice. The law regards her rather as the victim than the perpetrator of the crime.
    But if deemed an accomplice, she would be a competent witness for the prosecution. ‘ 5
    When it appears that a witness has sworn differently upon the same point, on a former occasion, he is not to be pronounced by the judge to be incompetent, and his testimony stricken out and wholly excluded from consideration, as though he had been convicted of a crime rendering him incompetent to testify as a witness; but the testimony should remain in the case, to be considered by the jury in connection with the other evidence, under such prudential instructions as may be given by the court, and subject to the determination of the court having a jurisdiction to grant new trials in causes of verdicts against evidence.
    .Where the judge called the attention of the jury to the sworn contradiction of herself by the principal witness, and said that it was a strong circumstance tending to discredit her testimony on the last trial, but that the amount oí credit due to that testimony was a question for them to determine; adding that if a reasonable doubt arose in their minds it was their duty to acquit the defendant; Held, this was unexceptionable in point of law.
    The plaintiff in error was convicted, at the court of oyer and terminer for Erie county, for advising and procuring one Susanna Guyer, a pregnant woman, to take a certain medicine called Dr. Johnson's French Female Fills, with intent thereby to procure her miscarriage. She was the principal witness for the prosecution, and testified that she became pregnant by the defendant on the 30th of March, 1861,'and that in May following, she having communicated the fact to him, he gave her a box of Johnson’s Female' Pills, and told her to take them, and that they would “miscarry the child;” that she took four of the pills and did not feel so well afterwards, and that she took no more. This was in Erie county. Before her confinement she went to Goderich, in Canada, where her husband was; and while there the defendant sent her a trunk of clothing which she had left behind, and in it there was another box of the same pills, but she took none of them, and she was after-wards delivered of a child. The first box of pills was produced in court, and identified as having been received from him. A letter of the defendant to her was also given in evidence. It mentioned the sending of the clothes, but did not refer to the box of pills. On her cross-examination, she admitted that she had stated that the father of the child was one Dwight Hodge, and the fact that she had so stated was proved by another witness. She further admitted, in her testimony, that on an examination in a proceeding against the defendant before certain magistrates under the statute respecting the support of bastard children, she had testified, as a witness, that she had not had connection with any man except the defendant for a year and a half; that she had not had connection with her husband since she separated from him some years before; that she had never been in Goderich, in Canada; and that she had never told any one who the father of the child was, until after it was born; all of which several statements she admitted to be untrue. It was proved by another witness that she rodé out with the defendant on the 30th of March; that being the occasion on which she swore that the intercourse took place by 'which she became pregnant. It was also shown by the defendant’s cross-examination of one of the witnesses for the prosecution, that Mrs. Guyer had resided for some time at the same house in which D. Hodge lived, and that there were opportunities for him to have come to her lodging-room in the night without it being known. The counsel for the prosecution called Hodge, and offered to prove by him that he had never had sexual intercourse with Susanna Guyer; but the defendaut’s counsel objected, upon which the court inquired of the defendant’s counsel whether he intended to claim that such intercourse had taken place, who avowed that he should so claim. The court then overruled the objection, and the witness Hodge denied that he had ever had such intercourse. At the close of the prosecutor’s case, the defendant’s counsel requested the court to charge that the defendant ought not to be convicted on the uncorroborated testimony of Susanna Guyer, for the reason that she was an accomplice; and because, by her own confession, she had been guilty of perjury, and was therefore unworthy of credit. The request was refused, and the court finally charged that the fact that the woman had sworn differently on the former occasion, was a strong circumstance tending to discredit her testimony here; but that if, after taking these circumstances into consideration, in connection with the other matters testified to by her and the other witnesses, and properly weighing all the testimony in the case, they were satisfied, beyond a reasonable doubt, that the defendant was guilty of the offense charged, it would be their duty to convict him. But that if, after carefully looking at the testimony,, a reasonable doubt should fairly arise, it would be their duty to acquit jhim; and that the credit to be given to the woman was peculiarly a question for them. The counsel for the defendant requested further instruction to be given, to the effect that if she was uncorroborated in her testimony, it would be unsafe to convict the defendant, on account of her being an accomplice; and, also, because she had sworn falsely on the former occasion, and that they ought to acquit him. The court declined to charge further, or differently, and the defendant’s counsel excepted to the ruling against him on all these points. After the verdict and the judgment, which was for three months’ imprisonment in the penitentiary at hard labor, the defendant brought error on a bill of exceptions to the supreme court, where the judgment was affirmed; upon which this writ of error was brought.

      W. Dorsheimer, for the plaintiff in error.

      C. C. Torrance, for the defendant in error.
   Denio, Ch. J.

There was no well-founded objection to the testimony of Hodge, against the reception of which the defendant excepted. • It was a material fact, if it was a fact, that the defendant was the father of the child of which the prosecutrix was enciente. It would afford a motive on 'his part for the commission of the offence imputed to him in the indictment, as that would tend to shield him from the probable consequences of his misconduct. The woman had sworn positively that the defendant was the father; but her testimony on that point was much shaken by the prior statements which she admitted she had made, and which were otherwise proved, which charged Hodge as the father. These statements of hers, though well calculated to ‘ impair her credit, had no legal tendency to implicate Hodge, for they were not made on oath, but were mere hearsay. If this were all the foundation which had been laid, it would not have been competent for the prosecution to have examined Hodge, to establish the fact that he was not the father. There was not, thus far, any more occasion for exonerating him than any other person, and the testimony would have been idle, and it might have been mischievous. But the defendant had given some evidence, by the cross-examination of one of the witnesses for the prosecution, tending, in a very slight manner it is true, to show an intercourse with Hodge. Standing alone, it would not have amounted to anything, but it indicated the line of defence which the accused designed to pursue. The court, before deciding upon the competency of the question pnt to Hodge, inquired of the defendant’s legal advisers whether they intended to claim that there had been an illegal intercourse between the prosecutrix and Hodge, and they avowed that such was their intention. . The question whether Hodge was the father of the child henceforth became one of. the subordinate issues in the case, and the question to Hodge, bearing directly and conclusively upon that point, became not only competent, but was quite important. It is not a sufficient answer to' this view that the testimony by which the defendant claimed to implicate Hodge was insufficient for that purpose. It had been given by the defendant, and had been received without objection. It was before the jury, and might have been the subject of comment by the defendant’s counsel. Indeed, they gave notice, in substance, that they should rely upon it to show that Hodge, and not the defendant, might have been the father, and thus to take away or diminish the probability that the defendant would take steps to remove the consequences of the intercourse. If the declaration of the counsel, in their answer to the court, is to be understood as a statement that they should claim that there had been intercourse with Hodge upon other evidence to be after-wards given by the defense, the denial of Hodge would still have been competent; for it was within the discretion of the court to prescribe the order of the testimony, and there would be no error in allowing a witness to rebut, by way of anticipation, a defense which the other party avokved he should set up and attempt to prove. In either view, error cannot be predicated on this ruling.

The position that an acquittal should have been directed on the ground that the female was an accomplice and was not corroborated in her testimony, was not urged in the argument, though taken on the trial. It could not, however, have been sustained. She did not stand legally in the situation of an accomplice; for although she no doubt participated in the moral offence imputed^ to the defendant, she could not have been indicted for that offence.. The law regards her rather as the victim than the perpetrator of the crime. (Rex v. Hargrave, 5 C. & Payne, 170; Rex v. Boyes, 1 Best & Smith, 311; 101 Eng. C. L. 309.) But if she had been an accomplice, in the strict sense of that term, the direction asked for could not properly have been given. Although it is not generally discreet for a jury to convict upon the unsupported testimony of an accomplice, it is not the law that a conviction upon such testimony can in no case be had. (The People v. Costello, 1 Denio, 83, and cases cited by Beardsley, J.; The People v. Dyle, 21 N. Y. R. 578; Rex v. Boyes, supra.)

The point most earnestly insisted on before us v/as, that the jury should have been instructed to acquit the defendant on account of the false testimony which the principal witness admitted she had given upon her examination before the magistrates. Upon this position there is a case which looks like an authority favorable to the defendant. In Dunlop v. Patterson (5 Cow. 243), a judgment of the court of common pleas, in a civil case, was reversed because a witness for the plaintiff, who alone proved the case against the defendant, had testified in a former suit, upon the material ■ question involved in the issue, directly contrary to the testimony which he gave in that case. A motion for a non-suit was denied, and the jury were charged that the witness was competent, and that the jury might give that weight to his testimony which they thought it demanded. The opinion of the supreme court on reversing the judgment, delivered by Mr. Justice Woodworth, contains several expressions which indicate that in the opinion of the learned judge it was a conclusion of law that a witness so impeached could not be credited, and that the duty of the court was to direct that his testimony should be wholly disregarded; while there are other parts which convey the idea that the error was in not sufficiently cautioning the jury against the dangerous character of such testimony. It is said, for instance, that the court ought to have charged the jury that the testimony of the witness was so strongly impeached as to justify them in disregarding it altogether; that the unsupported testimony of a single witness, who swore at one time in direct contravention to the testimony given by him at another, in relation to the same transaction, was not entitled to credit and ought not to be regarded. In another place, it is said that no reason whatever was assigned by the witness for his prevarication and disregard for truth, and that he was not therefore a credible witness unless supported as to the material fact which he attempted to establish. It is to be implied from this that if he had explained his self-contradiction in some reconcilable way, or if he had been supported to some extent as to the material fact, his testimony might then have been taken into consideration and estimated by the jury at what it should have been considered, worth. And there is, moreover-, an implication that if a more cautious charge had been given, and the testimony had still been left to the jury, there would have been no error in law. This, I think, leaves the question of law, as to the character of such testimony, in a very unsatisfactory position. The true question is whether, when it appears that the witness has sworn differently upon the same point un a former occasion, he is to be pronounced by the judge to be incompetent, and his testimony stricken out and wholly excluded from consideration, as though he had been convicted of a crime rendering him incompetent to testify as a witness; or whether the testimony remains in the case, to be considered by the jury in connection with the other evidence, under such prudential instructions as may be given by the court, and subject to the determination of the court having a jurisdiction to grant new trials in cases of verdicts against evidence. In my opinion, the latter is the correct principle of law. ' «

If the testimony of such a witness were by law unfit to be considered, no amount of consideration, or of intrinsic probability or coherence of circumstances, or explanation of the former testimony would carry it to the deliberations of the jury. But the contrary of this, as I have said, is clearly implied by the opinion we are considering. That case can, I think, only be sustained, if at all, by considering the reversal as based upon an error of the court of common pleas, in its instruction upon the weight to be attached to the evidence of the witness who was' impeached by his former testimony. It was not decided that such testimony could not be considered at all, but only that the jury would be justified, that is, that they had the right to disregard it. under the circumstances of the case. The court could not go further without usurping the domain of the jury; for to them the law has entrusted the right of determining upon the credibility of witnesses. I quite agree that it is the duty of the court, in such cases, to be sedulous in guarding the jury agáinst hastily or inconsiderately acting upon the testimony of the witness, but it has no right to direct an acquittal on^such grounds, or to in struct them as matter of law wholly to disregard the testi many; or, what is the same thing, entirely to withdraw it from their consideration. And I am not of opinion that error can be predicated upon the greater or less cogency or earnestness with which the necessary caution may be given, provided their attention is fairly called to the dis crediting circumstance.' It is matter of common experience and observation that when the testimony of a witness con tradiets what he has .formerly asserted, it detracts from the credit to be given him, and if such former statement was made in a deliberate manner, and especially if it was under the solemnity of an oath, and in a case where the same question of fact was involved and was material, the degree of credit attributable to his former statement is proportionately diminished; or it may be wholly destroyed if the jury so determine, I think the charge in the present case was unexceptionable • in point of law. The court called the attention -of the jury to the sworn contradiction of herself by the principal witness, and said that it was a strong circumstance tending to discredit her testimony on that trial-but that the amount of credit due to that testimony was a question for them to determine; adding that if a reasonable doubt arose in their minds it was their duty to acquit the defendant. If after that charge there was an improper verdict it was the fault of .the jury and not of the court. If the request to charge further had been acceded to, the direction would have been, in effect, the ordering a verdict of acquittal. Such an order the court had no right to make.

I am for affirming the judgment of the supremé court.

Ingraham, J.

The main question in this case is whether

Mrs. Guyer, the person who was the complainant, did not, by her admissions of what she testified to on a former trial, become so impeached as to make it the duty of the court to instruct the jury “ that she was unworthy of credit, and unless her testimony was corroborated by other evidence, it was unsafe to convict the prisoner,”

The facts as testified to by her op this trial, and as to Avhich' she admitted she had sworn falsely on a former trial, were in relation to the paternity of the child. These facts were directly in issue in the first proceeding, but on this trial were not necessary or material to prove the case of the People, but were only admissible for the purpose of shoAving motive on the part of the prisoner in advising the use of means to produce an abortion.

. In Dunlop v. Patterson (5 Cowen, 243), "the rule Avas adopted as a correct one that where the evidence was material to the issue and the witness admitted he had sworn falsely on a former trial, the court should so instruct the jury. It is very clear that a witness who admits upon the trial that he has deliberately sworn to a statement in direct contradiction to that given by him upon the trial, can furnish nó satisfactory evidence upon which either life, liberty or property should be taken away, unless his testimony is so corroborated as to repiove the presumptions against him. In that case, however, the testimony was material in both actions; and unless it be held that proof of motive was material in this case, and that the former statement of Mrs. Guyer that the prisoner was the father of the child tended to prove such motive, the evidence in this ease would not be of that character. This evidence to prove who was the father of the child, can scarcely be said to be material to prove that the prisoner had been guilty of the crime charged, viz: aiding or advising the producing of an abortion. It was collateral to proof of the offence to show that the prisoner was such father, but it was not necessary to make out the offence either that such should be the fact or to prove it on the trial if it was so. This contradiction of the witness by herself on a former occasion should have greatly discredited her with the jury, but I think was properly left to them, and there is no fuie of law which authorized the court to take it from them.

Mor does the suggestion that Mrs. Guyer was an accomplice, aid' the prisoner in rejecting her testimony. This point was expressly held in The People v. Costello (1 Denio, 83), and a charge that the jury could convict on the testimony of an accomplice, uncorroborated, was sustained. This decision was approved in this court by Bowen, J., in Haskins v. The People (16 N. Y. 344), although this rule was not necessarily involved in that case.

Such I suppose to be the true rule; and while a jury should be cautioned against giving credit hastily to the uncorroborated evidence of an accomplice, still if such evidence furnishes to them satisfactory proof of guilt, and they so find- by their verdict, the want of corroborating evidence is no ground for granting a new trial.

The objection to admitting Dwight Hodge to testify that he never had sexual intercourse with the witness Guyer, was not well taken, Mrs. Guyer had herself proved on the trial that he had not had such intercourse, and that her statement to that effect was untrue. The introduction of such evidence, afterwards, tended to confirm the testimony of the witness on this trial and not to impeach her. The judgment should be affirmed.

All the judges concurring, judgment affirmed.


author: Denio, Ch. J. Hogeboom, J.

text:
    The People, ex rel. John Buckley v. Nathaniel S. Benton, Auditor of the Canal Department.
    It was the intention of the legislature, by the act of April 19,1859, relating to the duties of the canal board, &c., prospectively to abolish the office of assistant collector of tolls, but at the same time to allow the practice of appointing those officers, by the canal board, to continue during the then ensuing season of .navigation.
    Accordingly held, .that the canal board had power, on the 9th of June, 1859, to appoint an assistant collector of canal tolls; and that it was the duty of the auditor to draw a warrant for his salary during the time he held the office, viz: until the close of navigation that year.
    It seems that although it is a misdemeanor in a public officer to serve without filing an oath of office as required by law, the omission to do so will not involve a forfeiture of compensation,
    John Buckley, the relator, was appointed an assistant collector of canal tolls, for the office at Rochester, by a resolution of the canal board, passed June 9, 1859, and his salary fixed at thirty-five dollars per month. He performed the duties of his office until the close of navigation, and on the 30th December the canal board adopted a resolution directing the auditor to draw a warrant in his favor for the sum of $224.04 as compensation for his services. The auditor refused to draw his warrant, upon the ground that the canal board had no power to make the appointment. An alternative mandamus was issued, to which a return was made, and a peremptory mandamus ordered by the general term of the supreme court in the seventh district.
    The auditor appealed to this court.

      Hamilton Harris, for the appellant.

      J. C. Cochrane, (attorney general,) for the respondents.
   Denio, Ch. J.

The supreme court, in this case, awarded a peremptory mandamus, requiring the auditor to draw his -warrant on the treasurer in favor of John Buckley, the relator, for the payment of $224.04, claimed to be due him from the state for his services as assistant collector of canal tolls at Bochester, for about six and a half months from July 1st, 1859, at the rate of thirty-five dollars per month. It appeared that Buckley was appointed such assistant collector, at the rate of compensation mentioned, by the canal board, on the 9th day of June in that year, his appointment to take effect from the first day of that month; and that he served in that situation until the close of navigation, on the 17th day of December of the same year. The return of the auditor to the alternative writ denied the right of the board to appoint assistant collectors, and that was the only question in the case.

The revised statutes affirmed the existence of the canal board, which was created by prior statutes, with the powers and duties enumerated in that title of the revised statutes, and provided that the board should have power to appoint so many collectors of tolls on the canals as they might deem necessary, with power to fill vacancies, make removals, and determine the compensation of those officers. They were also authorized and directed to prescribe such rules and regulations respecting the collection of tolls, and to impose such forfeitures for the breach thereof, as they should judge reasonable. (1 B. S. 229, §§ 68 to 70.) On the 19th of April, 1859, an act was passed relating to the duties of the canal board and to certain canal officers, by ,the third section of which “the'office of assistant collector, or assistants to collectors of canal tolls pn the canals,” was abolished. (Laws of 1859, p. 1132.) A subsequent section of the same act declares that no clerk shall be employed by any collector of tolls, except when the auditor of the canal department shall certify the same to be necessary to enable such collector to perform the duties of his office. (§ 5.) By the last section of the act, it is declared that it shall take effect immediately, except as to the above-mentioned third section, and another section not material to the present question; which sections, it was declared, should take effect on the first day of Janiiary, 1860. It is inferable from these provisos of this act of 1859, that prior to its enactment the canal board had been in the practice of appointing officers whom they called assistant collectors, or assistants to collectors of tolls, and that such appointees had actually been in the performance of such duties as were indicated by the title of their offices* It was the intention of the legislature prospectively to abolish that class of official agents; but, at the same time, to allow the practice of appointing them to continue during the then ensuing season of navigation. The intention of the legislature, not to disturb the existing practice during the canal season of 1859, was just as strong as was that of putting an end to it after that season should have passed. If we look only at the legislative intention) the enactment is equivalent to a mandate that the system of appointment of assistant collectors should continue until January, 1860, and that after that time it should cease. If it were conceded that, under the provisions of the revised statutes to which reference haá been made, only one collector could be appointed for a single port, but by a wrong construction on the part of the board a practice had grown up of appointing an assistant to the principal collector, it would unquestionably be competent for the legislature to confirm that practice either permanently or for a limited time, and it could be done so as to cover the past as well as the future. The question of power, as well as of construction, is different from what it would be if individual rights or interests were adversely affected. In the statutes respecting the revenues and expenses of the canals, the legislature must be considered as dealing with a subject of which the state is the proprietor. Its rights or interests may be modified or compromised as the legislature may consider expedient, where there is no constitutional impediment, and there is no person who can question the effect of such legislation. I am, therefore, of opinion that the supreme court was right in holding, as it did, that the legislature, by the act referred to, must be considered as affirming and continuing for a limited time the practice which had prevailed of appointing assistant collectors. But I do not feel sure that the original authority was not sufficiently comprehensive to warrant the appointment of such officers. The number of collectors which the board were authorized to appoint was, in terms, unlimited. When the original provision was made, which was affirmed and continued by the revised statutes, the canal system was, to a certain extent, experimental, and hence large powers were committed to the board entrusted with the regulation of tne subject. (Laws of 1826, p. 360, § 5.) It was not well ascertained, we may suppose, how numerous or near to each other the collectors’ offices might be, nor how many of these officers might be required. Hence the subject was entrusted to the discretion of a board composed of high officers of the states It might be that at particular points more than one official, having the general power of a collector, would be necessary. But if more than one was required to perform the duties, it was plainly proper that there should be some subordination of rank and official power among them, so that there should .be an official head of the office. Stich provisions are quite usual in many of the arrangements of public administration. They are generally established and regulated by particular provisions of law, and thus have the direct sanction of the legislature. But in the present case the comprehensive provision in the revised statutes seems, by its broad language, to commit such details to the canal board. But if this were doubtful, the act of 1859 might be made use of to aid in the construction of the original act. When a legislative provision assumes a pre-existing state of the law, it is some evidence that the construction of the prior statute is such as it is thus assumed to be.

Under the power conferred upon the auditor by the act of 1859, to limit the number of clerks which a collector might employ, he had limited the number to be appointed at the Rochester office to three. The relator, prior to his appointment as assistant collector, had been a fourth clerk in that office. That situation, assuming that there w;ere three clerks previously appointed, could not be any longer held by him, and he thenceforth ceased to be in the em ployment of the state. If I am right in supposing that the power to appoint assistant collectors existed, he was qualified to receive that appointment.

It appears that die neglected to file an oath of office as required by law. It was a misdemeanor in him to serve without qualifying himself in that respect, but we are no1 referred to any statute or authority by which such omission is madé to involve a forfeiture of compensation. I am ir favor of affirming the judgment of the supreme court.

Hogeboom, J.

I think the judgment of the supreme court should be affirmed.

1. The canal board had power to appoint as many collectors of tolls as they might deem necessary. (1 R. S. 5th ed. 602, § 135.) This appointment is an exercise of that power. , The incumbent was a collector of tolls on the canal. He discharged the duties of collector. There is nothing to show that his functions were in any wise different from those of collector. He is no less a collector because he is called assistant collector. He is, as any other collector at that point would be, an aid or assistant to the first collector. He helps him to collect tolls. He relieves) him of a portion of the burthens of the office. He is, in effect, a second or additional collector, at the same station. If he had been called such, I think no one would have questioned the validity of the appointment, or the right to compensation for services rendered strictly in that capacity.

2. I think, also, that by the fair construction of sections three and twelve of chapter 495 of the Laws of 1859, the relator is entitled to compensation. These sections abolish the office of assistant collector, but provide that the abolition shall not take effect till January 1, 1860. During the intermediate time, therefore, the office is continued, and its existence recognized. ' During that time, and between the passage of the act and the time of its taking effect, these services were rendered. They may be said' to have been rendered upon the faith of the legislative pledge therein contained. It may be that the abolition of an office which does not exist does not create it or infuse into it vitality for the past. But the office, whether rightfully created or not, did exist in point of fact, and an incumbent was in the discharge of its duties. This was doubtless known at the time of the passage of the act, as well as the fact that the power of the canal board to make the appointment, though exercised, had been questioned. These doubts were intended to be resolved by this act. It must, I think, have been intended at least that compensation should be made for services actually performed in good faith, and of which the state was receiving the benefit, under an .actual appointment to an office supposed to exist, and whose existence was recognized by the state officials having charge of the canals.

All the judges concurring, judgment affirmed.


author: Denio, Ch. J. Mullin, J.

text:
    Frederick C. Crounse v. Jacob D. Wemple.
    In an action to recover damages for obstructing and shutting up a private road which the plaintiff claimed to be entitled to by prescription and use for over twenty years, over the -land of the defendant, the plaintiff, in ' order to show the user and the acquiescence of the defendant, offered to prove that the commissioners of highways allowed the plaintiff to perform his highway labor on the alleged road, the year before the action was commenced; Held, that the evidence was competent.
    It appeared that a part of the alleged private road, as once traveled, had not been lately used, although the place where the obstruction was located had been continually made use of by the plaintiff down to the time of placing the obstruction. On this point the judge charged, in effect, that the plaintiff’s ceasing to use the road through a swamp, which was the part as to Which the use had been discontinued, would not prevent his recovering; Held, the charge was not erroneous.

      Held, also, that the substitution of another route through the swamp did not destroy the plaintiff’s easement as to the part of the road oyer which the user had been.

      Held, further, that the fact that during the twenty years of user, another road had been established, answering, to some extent, the same purpose as the alleged private road, and that the new road had been sometimes used by the person through whom the plaintiff claimed, did not extinguish the private road in question.
    Supposing the title of an individual to a private road, by prescription, to be otherwise perfect, the fact that SUch road has become less important to him than formerly, will not put an end to his right to it.

      Appeal from a judgment of the Supreme Oourt, rendered in an action for obstructing a private road or highway.

      T. B. Mitchell, for the appellant.

      J. G. McChesney, for the respondent
   Denio, Ch. J.

This action was brought in the year 1857, to recover damages against the defendant for obstructing and shutting up a private road or highway which the plaintiff claimed to be entitled to, over the lands of the defendant. There was a recovery for nominal damages, which carried costs and' established the right. The complaint set up two grounds on which the plaintiff claimed, to be entitled to the way, but on the trial the only one on 'which it was attempted to be sustained was a title founded on prescription and an uninterrupted adverse use for more than twenty years. The plaintiff gave evidence making out a prima facie case and rested. Among the evidence offered by the plaintiff to show the user and acquiescence of the defendant was this: That the commissioners of highways of the town of Rotterdam, in Schenectady county, in which town the alleged road was situated, allowed the plaintiff to perform his highway labor on the alleged road in the year 1856, which was the year preceding that in which the action was commenced. This evidence, in connection with the road warrant for that year, by which it appeared that the plaintiff was assessed for three days’ labor, was given in evidence, against the objection of the defendant, who exceptéd. The objection was stated to be that the acts and declarations of the commissioners last year would not affect the defendant’s right in this year. This raises the first point relied on by the appellant. The evidence was not entitled to any considerable weight, although I think it was competent. The greater part of the time of the alleged user had elapsed; but it had not wholly expired until the commencement of this action. The objection, it will be perceived, related wholly to the proximity of the time of the trial. It was not questioned' but that .the permission given by the commissioners to the plaintiff to expend his road tax on his private road was competent to be shown, but only-that so recent an act would not influence the question. I think the exception was not well taken. After the plaintiff had rested, the defendant moved for a non-suit, but the motion was denied and there was an exception. The ground upon which it is claimed in the brief that the case had not been made out, is that'the prescription, if any, was only in favor of a way from the Guilderland road, Avhich was a highAvay, and which was one of the termini of the alleged private road,, to a certain mill, and that it was not available to the plaintiff except while going to and from the mill; and it was said' that it had not been recently travelled for that purpose. I do not perceive any ground in the evidence for such a limitation of the right to use the road, provided a prescription for any purpose was ■ established. Hence, I think the refusal to non-suit was right. The defendant then gave evidence on his part, respecting the origin of the private-road. Some of his witnesses testified that it arose out of a license given many years ago to one Jacob Lewis, who was then the owner of and in possession of the farm which the plaintiff now owns and possesses, to use the road during his life time. He died in 1851, and the claim of the plaintiff is that the prescriptive title to the road is appurtenant to the farm. Much of the argument contained in the defendant’s brief is devoted to showing that the user, being a license, was not adverse to the owner of the land, and also that the prescription terminated with the death of Jacob Lewis. The last of these positions is undeniably correct in point of law. And it seems to me that the other, if satisfactorily established by the evidence, would raise a question extremely difficult to be answered. But, either because the evidence on these facts was not supposed to be such ás would be credited by the jury, or for some other cause, the defendant did not in any way insist upon that position, either in his requests to charge, or otherwise; nor did the judge refer to these subjects in his charge. The part of the defendant’s argument, therefore, which refers to them, is inapplicable to the case. The judge charged the jury at considerable length, -laying down the law respecting prescriptions for private ways over the land of another person with accuracy. It had appeared that a part of the alleged private road, as once traveled, had not been lately used, although the place where the obstruction was located had been continually made use of by the plaintiff down to the time of placing such obstruction. On this point the judge stated, in effect, that his ceasing to use the road through a swamp, which was the part as to which the use had been discontinued, would not prevent the plaintiff from recovering. There was an exception to this part of his charge, but I think it was entirely correct. It had appeared that another route had been substituted for the way through the swamp, but this certainly did not destroy the plaintiff’s easement as to the part over which the user had been.

It had appeared that during the twenty years of user another road had been established, answering to some extent the same purposes as the alleged private road, and that the other had been sometimes used by Lewis, through lyhom the plaintiff claimed. The defendant desired to have the jury charged that this circumstance extinguished the private road in question, but the judge declined so to charge, and the counsel excepted. It does not seem to me that the consideration that the road had become less important to the plaintiff would put an end to his right to it, supposing his title by prescription to be otherwise perfect. The same points were further insisted on in several other requests to charge, which were refused, but I regard these in the light of repetitions, made for greater caution, and that the same, so far as they were material, are embraced in what has already been said. I do not perceive any ground upon which we can disturb .the judgment. I am of opinion that it ought to be affirmed.

Mullin, J.

I am not certain that I understand correctly the facts in this case, and therefore I may not have arrived at a correct conclusion in regard to the legal principles involved in it. I understand that there was a road running from the Guilderland road .to Yolk’s Mill for many years before the controversy arose; that the road united with the Guilderland road at the place where the defendant erected the obstructions which form part of the grounds of action in this case; that-the route of a portion of this road was changed so as to carry it further north, and near to the house of one Taylor, where it remained for some nine or ten years, and was then changed back to the old route. During this time Lewis, who lived, beyond the swamp, desiring a road from his place to the Guilderland -road, applied to one Delamont for permission to open a road over his (Delamont’s) land through the swamp, and it was given, and a road was opened through the swamp to the old mill road, and thus Lewis Avas accommodated with a road from his place to the Guilderland road. The plaintiff now owns the Lewis farm. The defendant, in addition to fencing up the entrance at the Guilderland road, plowed up the bed of that part of the road Avhich lies upon his land. That part of the road which runs through the swamp may be laid out of view,'as I do not discover how its extension or non-extension affects the question of liability. • The obstruction is on the old mill road; and if that road has not been used for such a length of time as to entitle the plaintiff to travel it, this opening out of the swamp road does not help it. The court charged the jury, that if that part of tin, old mill road in which the obstruction was placed had been used for over twenty years under a claim of right, Avith thu knowledge and acquiescence of Delamont, the plaintiff’ Avould be entitled to recover. The jury found for the plaintiff, and they must have found in the affirmative of the proposition thus submitted. The learned judge added to the foregoing charge, that the plaintiff would be entitled to recover if the user was found as stated, even if the plaintiff and those under whom he claims had not used the swamp road for twenty years. To this .branch of the charge the defendant’s counsel excepted. The charge was right, if the old mill road had been used twenty years: and if it was obstructed, it was wholly immaterial how long the swamp part had been used. The court was requested to charge, that it was competent for Yolk and others interested in the mill road to change its location, and the substituted road having been used without objection, the old road became extinct. The judge refused to alter his. charge on that point, and the defendant’s counsel excepted. The judge had charged that it was competent- for- the owner of the right of way, and of the land over which it runs, to alter its location, and when it is changed it was for the jury to say whether such change was intended to be a permanent one, or merely temporary; and if the new way has been used by the party owning the casement, and the owner of the land forbids the use of the new road—if the right to use it exists by license—the owner of the way may go back to the old road. But if such change was the result of an .agreement to make a permanent change, then the right to change back did not attach in the event of th'e owner of the land closing the new way. In other words, I understand the judge to have submitted the question to the jury to say whether the change was intended to be permanent or temporary; if the former, then the old way was gone; if temporary, then the party entitled might fall back upon. it. The jury must have found the change to have been temporary merely. If the request is to be considered as calling upon the judge to charge that a temporary change of the location of the way by consent of paz’ties opez’ates as- an abandozzment or forfeiture of the way as first used, it was properly refused. If the way becomes impassable, and the paz’ties agree to change it until it is rendered passable, that is not such a change as will operate as an abandonment or surrender of the old line.

The change in this case continued through some nine or ten years. If the judge had been called upon to instzmct the jury as to the effect of this length óf time on the question of abandonment, I very much doubt whether it would have been found to have been a temporary change merely. Ifo request was made to charge on that point, and no questian is now made upon it¡ and I see no reason for disturbing the judgment. '

The question whether the verdict is against evidence is not before us, nor does it seem to have been raised. The judgment should be affirmed. .

All the judges concurring, judgment affirmed.


author: Denio, Ch. J.

text:
    Conrad Wachter v. Lawrence Quenzer.
    Where an alleged libel, published in a newspaper in the German language, contained a phrase—“ the Swiss gallows ”—which did not show on its face what was meant, and no one, without a knowledge of the popular understanding of German, would attach any particular sense to the words: Held that it was competent for the plaintiff to prove that the term “ Swiss gallows” had a commonly understood meaning among Germans, apd that it referred to a supposed usage, in Switzerland, as to the punishment of convicts of a certain class.

      Held, also, that evidence that the phrase, as commonly understood among Germans, alluded to a real or supposed law or practice of marking certain criminals with a hot iron in the form of a gallows, as prevailing in Switzerland, was not liable to the objection that the plaintiff must prove the law of Switzerland; and that this was not competent testimony for ■that purpose,
    An alleged libel charged the plaintiff with having “ made himself invisible on account of too much borrowing and not paying; that is to say, ran away.” The inuendo in the complaint was that the intention was to charge that the plaintiff had borrowed articles of property and then ran away and absconded, without paying for or returning the same, The answer set up in a general way, without any specification of particulars, a justification of the charge. Held that evidence of the plaintiff’s absconding, being indebted, did not meet the charge, and was not a justification.
    The substance of the former rule, as to the method of pleading a justification in an action for libel, is not abolished by the code.
    In respect to new matter in an answer, the direction of the code is only that it must be in ordinary and concise language, without repetition. This does not allow a mere repetition of theelibelons words and an averment that they are true, without the statement of a single fact showing them to be so.
    Section 165 of the Code of Procedure, allowing the defendant, in his answer in an action for libel or slander, to allege both the truth of the matter charged as defamatory, and any mitigating circumstances, does not mean that it may be alleged in general terms, without any statement of facts or particular circumstances.
    Although the plaintiff may resort to a motion, under section 160 of the code, to compel the defendant to make his answer more definite and certain by amendment, yet this wñl not preclude the plaintiff, in an action for- a libel, from objecting to the evidence on account qf tfie indefiniteness of tfie nnsxyer,

      This is an appeal from a judgment of the superior court of the city of New York, rendered in favor of plaintiff, at special term, November 25, 1858, upon a verdict of $2,000 damages, and affirmed at general term, July 15, 1859. The action was brought to recover damages for a libel, published of and concerning the plaintiff, by the defendant, in a newspaper called “ The New Yorker Demokrat,” printed, in the German language, - in the city of New York, on or about the 14th day of April, A. D. 1856. The libel was set forth in the complaint. The publication of the libel by the defendant was admitted by the answer. That the translation of the libel as set forth in the complaint was correct, was proven on the trial by the witness Finch. That the plaintiff was the person intended by the libel, was established by the evidence. That the sense or meaning of the phrase “Swiss gallows,” as commonly understood among Germans, was, that the person to whom it is applied has been branded on the bare back with a hot iron for sorno criminal act, was proven by the witness Brockman. Thu extent of the circulation of the paper in which the libel was printed and published, was proven to be from 6,000 to 7,000.

      C. C. Egan, for the appellant.

      Charles Cheney, for the respondent.
   Denio, Ch. J.

The plaintiff recovered two thousand dollars damages, in an action for a libel published in the German newspaper, “ The New Yorker Demokrat.” The translation of the article, given in evidence on the trial, charged the plaintiff with having “ made himself invisible on account of too much borrowing and not paying; that is to say, ran away; and depositing money under another name in the bank, whereby the creditors were paid.” Another part of the publication called upon' the plaintiff to return the bakery utensils which it alleged he- had taken away from the defendant “in default whereof (the article stated), I shall prosecute him in court as a thief.” A nota hone, appended to the piece, was as follows: “It is a fine thing if a man can pass any where and show, if demanded, his bare back, but there are people who dare not very well show it, because there would be found the Swiss gallows upon it.” The answer admitted the publication, and set up that the plaintiff had taken and carried away from the defendant certain bakery utensils; that he had obtained several barrels of flour on the credit of the defendant, and appropriated them to his own use, without having any authority from the defendant for doing so. The last clause of the answer is, “The defendant further answering says, it is true that said plaintiff made himself invisible on account of too much borrowing and not paying; that is, ran away.” On the trial, in the superior court of the city of New York, one Feliz Brockman, a witness for the plaintiff, swore that he was from Switzerland; that he had been in New York six years, and mingled much with the Germans. He said that the term “ Swiss gallows ” had a commonly understood meaning among Germans-, The plaintiff’s counsel inquired what is the meaning of the phrase, as commonly understood among Germans ? The defendant’s counsel objected to the question, on the ground that the sentence showed on its face what it meant, The judge overruled the objection, and the withess answered: “ If a man who murders or steals, or such things, gets less than being hanged, they-mark him with a hot iron in the form of a gallows, ill Switzerland.” The defendant’s counsel objected to the answer, on the ground that the plaintiff must prove the law of , Switzerland, and that the law of that country could not be proved by such evidence. The court overruled the objection to the admissibility of the answer, but stated that it was not received as evidence of the law; and that it Would not be regarded as any evidence of the law of Switzerland. The defendant’s counsel excepted to the ruling.

These exceptions were not well taken. The phrase does not show, On its face, what was meant. No one, without a knowledge of the popular understanding of German, would attach any particular sense to the words; but, as explained by the witness, they did convey a most offensive and reproachful meaning. A German witness had, before the question arose, testified that they had not a fixed meaning in the language, so far as he knew. It was certainly competent to show that they referred to a supposed usage as to the punishment of convicts of a certain class. Then as to the other of these exceptions. Taking the question and answer together, the testimony was that the phrase, a?; commonly understood among Germans, alluded to a real or supposed la'w or practice of the kind mentioned, as prevailing in Switzerland. Such was the understanding of the judge, which he openly stated to the jury, the parties and counsel, and I think it was warranted by the connection in which the answer was given. If this were not its true sense, or what the witness intended, the defendant’s counsel might haVe'readily shown it by cross-examination. If it had been an attempt to prove a part of the criminal law of Switzerland, it may be that the witness would not have been competent to speak on the subject. The testimony shows it to have been one of those allusive expressions, in which libelous imputations can easily be conveyed, and which require explanation to disclose their force and purport. The position that it was necessary to prove the Swiss law, was not well taken. It was not material whether there was really such a law there or not. It was enough that there was a popular understanding that the treatment of certain criminals was to brand them in the maimer referred to.

The inuendo used to point the meaning of the expression in the publication ending, 11 that is to say, ran away,” is that it meant to charge that the plaintiff had borrowed articles of property and then ran away and absconded without paying for or returning the same. The answer sets up, in a general way, without any specification of. particulars, a justification to this part of the charge. On the trial the defendant called Mr. William H. Falls, and put to him this question: “ Did the plaintiff run away owing you anything?” The court excluded the inquiry on the plaintiff’s objection, and there was an exception. The fact of .owing a debt is not the charge imputed or sought to be justified; nor is the fact of absconding on account of a common indebtedness. It imputes a more censurable breach of faith, the fact of borrowing and running away to avoid payment. It is, moreover, connected in the publication with the charge of an ability to pay, and the practicing a subterfuge to avoid it, namely, the depositing his money in a bank under another name, which money was afterwards discovered and obtained by his creditors. The mere fact of absconding, .being indebted', did not meet the charge, and was not a justification. We are referred to the 165th section of the code, and the case of Bush v. Brosser (1 Ker. 347), and Bisbey v. Shaw (2 Ker. 67.) These authorities raise a point of some difficulty in this case. They have produced a considerable change in the law, and we are to determine whether the ruling excepted to on this point is hostile to the new rule as established by the code and settled by these cases. The present doctrine is this: The defendant may set up a justification, or he may allege facts short of a full justification, but giving some color to the charge, by way of modification, or he may do both; and in either case he may prove the facts as they are, though they fall short of a justification; and the jury may take them into consideration for the purpose of mitigating the damages. In this case nothing was alleged specifically, by way of mitigation, but there was an attempt to plead a justification. But the pleading in this respect was altogethci insufficient for want of particularity. The statement contained in the answer, “ that it is true that the plaintiff made himself invisible on account .of too much borrowing and not paying—that is, ran away”—is as general as the libel, and apprises the plaintiff of nothing. The objection on the ground of surprise is just as strong as a notice served «stating that the defendant would justify the truth of the libel would have been. Mr. Chitty states the rule very accurately in saying that the defendant, in this class of actions, must justify by stating the particular facts which evince the truth of the imputation, and that the rule holds whether the imputation upon the plaintiff’s character be of a general or specific nature. He adds that this is necessary, although the libel contain a general imputation upon the plaintiff’s character, that the plea should state specific facts showing in what particular instance, and in what exact manner, .he has misconducted himself. (1 Chitty on PL 494, 495.) I do not conceive that the substance of this rule is abolished by the code. In respect to new matter in an answer, the' direction is only that it must be in ordinary and concise language, without repetition. This certainly does not allow a reiteration pf the libelous 'words and an averment that they are true, without the statement - of a single fact showing them to be so. Take, for instance, a charge that one is a thief or a murderer, or that he has committed perjury. A statement in the answer that the words are true would not be a justification, and it would fall just as far short of being a statement of facts to be proved by way of mitigation. It is a statement of nothing. It is simply a repetition of the libel. Such is the precise character of the answer in this case so far as .it seeks to meet the imputation of borrowing and running away. It does not furnish the slightest clue to the case which the defendant intends to prove on the trial. The provision of the section of the code just referred to is. that the answer (in slander or libel) may allege both the truth of the .matter charged as defamatory, and any mitigating circumstances. This certainly does not mean that it may be alleged in general terms, without any statement of facts or' particular circumstances. The requirement that the answer should set up the matter to be. relied on was intended to prevent surprise, by informing the plaintiff of what he must expect to meet.

. The only doubt which I have had as to the effect of the allegation in the answer under consideration, has arisen from the provision of the code allowing the court to require a pleading, in certain cases, to be made more definite and certain by amendment. (§ 160.) No doubt the plaintiff might have resorted to a motion under this section. But I am of opinion that this consideration does not preclude a plaintiff, in such a case as this, from objecting to the evidence. Whether the evidence excluded tended to t defense or mitigation, the pleading under which it was to be received was prescribed by a special provision of the code, namely, that contained in section 165. If the defendant had not alleged the truth of the matter charged us defamatory, or any mitigating circumstances, according to the special intention of that provision, he was not entitled to give the evidence which was rejected. Considering, as I do, that the reiteration of the charge in the same general terms in which it was made is a nullity simply, I think the defendant has üot fulfilled the condition on which alone he was permitted to give the evidence.

Several topics are discussed in the printed briefs, to which I have not alluded. They either relate to questions which were ‘not made at the trial, or are pure matters of fact which have been settled b"y the jury. The only questions of law in the case are those arising upon the exceptions which I have examined.

I am in favor of affirmance.

All the judges concurring, judgment affirmed.