text:
    Freeman & Wait vs. Cram.
    A mechanic’s lien under the lien law for the city of New-York, (Stat. 1844, p. 339) expires at the expiration of one year from the commencement thereof, and is not prolonged by obtaining a judgment against the owner of the property within the year.
    Appeal from the New-York common pleas, where the judgment was in favor of the defendant on demurrer to pleas. The only question presented by the pleadings, in the court below, necessary now to be stated was whether, a mechanic’s lien in the city of New-York, under the act of April 29 th, 1844, for materials furnished upon a contract with the owner, expires at the end of a year from the time of its commencement, or whether by obtaining a judgment against the owner within the year, the lien may be prolonged and enforced afterwards. The facts material to this question stated in the pleadings, were as follows:
    On the 29th of September, 1845, Freeman & Wait, the plaintiffs, who were mechanics in the city of New-York, contracted in writing with Moses E. Arment to furnish the area gratings for a house which Arment was then building at the corner of 4th Avenue and 17th street. This contract was filed in the office of the clerk of the city and county of New-York, on the first day of October, 1845, in pursuance of the “ act for the better security of mechanics and others erecting buildings and furnishing materials therefor in the city and county of New-York, passed April 29th, 1844.” (Stat. p. 339.) Notice of the filing of the contract was served upon Arment, the owner, within 20 days after the making of the contract, but on what precise day, did not appear. The gratings were furnished on the 16th of October, and the notice had then been served,
    On the first of January, 1846, Arment, the owner for whom the materials were furnished, sold and conveyed the house and lot to the defendant, Jacob Cram, a purchaser in good faith and for a valuable consideration. The gratings remained unpaid for.
    On the 8th of September, 1846, nearly eleven months after the lien attached, the plaintiffs commenced their suit in the New-York common pleas, in the manner prescribed by the statute, for the enforcement of the lien against Arment, who at the time of filing the contract and notice thereof, was the owner of the building and lot of land; and on the 25th of the same month, the plaintiffs obtained their judgment for the materials furnished, but no execution was issued. Arment died insolvent, on the 10th of November, 1847.
    On the 30th of March, 1848, more than two years after the commencement of the lien, the plaintiffs commenced the present suit, by suing out a writ of scire facias to revive the judgment against Jacob Cram the defendant, as terre tenant of the house and lot for which the materials were furnished, and for the purpose of enforcing their supposed lien against the real estate then in his hands. The question was whether they had any subsisting lien, or whether it expired at the end of a year. After-judgment for the defendant the plaintiffs appealed to this court.

      A. H. Dana, for appellants.

      J. J. Townsend, for respondent.
   Ruggles, J.

delivered the opinion of the court.

•The first section of the act (Laws of 1844, ch. 220) prescribes that any person who shall, by virtue of any contract with the owner thereof, perform any labor or furnish materials in building, altering or repairing any house or other building, in the city and county of New-Y ork, shall have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot of land on which the same stand, to the extent thereinafter prescribed,” &c.

By the second section, the person performing such labor, or furnishing such materials, is required to file the contract, if it be in writing, in the office of the clerk of the city and county of New-Y ork, and to serve a notice thereof personally on the owner or his agent, within twenty days after the making of such contract or commencing the performance of such labor, or the furnishing of such materials. The clerk is required to keep a .book to be called the mechanics’ and laborers’ lien docket, in which the contract is to be noted in the manner specified in the act, with the time of filing the contract.

By the third section it is provided, that the lien so created by the act, shall take effect from such filing, and such service of said notice, and shall continue in force for the space of one year thereafter. The 4th, otli and 6th sections provide for the enforcement of the lien substantially as follows: The laborer or person furnishing materials may cause a notice to be served personally on the owner, or his agent, requiring him to appear in the court of common pleas, or in the marine court of the city and county of New-York, either in person or by attorney, at a time certain to be specified in such notice, not less than ten days from the service thereof, and submit to an accounting and settlement in such court, of the amount due or claimed to be due under such contract, for the labor done or materials furnished.

Within ten days after the service of notice, a bill of particulars of the amount claimed to be due, is to be served on the owner or his agent, accompanied with a notice to produce a bill of particulars of any set-off which may be claimed to the same withinten days thereafter, which shall be served in like manner.

In case the owner shall not appear in pursuance of the requirement of the notice, at the time and place therein specified, his default may be entered, and if the proceeding is in the common picas, a writ of inquiry may be issued for the assessment of the damages, and judgment shall be entered upon the same, and execution shall issue for the enforcement of the said claim so adjudicated and established in the same manner as in like cases upon judgments in such court in actions of assumpsit.” And upon the appearance of both parties issue shall be joined upon the claims made and notices of set-off served, and the same may be noticed for trial and put upon the calendar by either party, “ and shall be governed, tried, and the judgment therein enforced in all respects, in the same manner as upon issues joined and judgments rendered in actions of assumpsit in the said court.

, By the third section of the act, the mechanic’s lien is limited in its duration to one year from the time of its commencement. There is no provision in the act for the prolongation of the lien by means of the judgment. The duty of the court is simply to settle the amount of the claim and render judgment therefor. The court is not required to adjudicate upon the validity of the lien, or the time of its commencement. The judgment is to be rendered and enforced, in all respects, like a judgment in an action of assumpsit. The statute docs not declare or provide that it shall bind the real estate by relation, from the time of the docketing of the mechanic’s lien or the service of notice thereof on the owner. The docket of the judgment is not required to refer to the time of the commencement of the mechanic’s lien created by the statute. The mechanic’s lien, and the lien of the judgment, are different things, not connected with each other. The mechanic’s lien is special, and affects only the real estate on whicli the work is done. The lien of the judgment is general and affects all the defendant’s real estate, but from the time when it is docketed only. The mechanic’s lien commences with the filing of the contract and service of notice; and continues only during the space of one year thereafter. The lien of the judgment commences at the date of its docket, and continues ten years against purchasers and longer against the defendant. They are connected together but in one way. The mechanic’s lien may be enforced by execution upon the judgment and sale within the year after the commencement of the mechanic’s lien. This was probably all that the makers of the statute intended. Certainly they have provided for nothing more in the first nine sections of the act. Their object appears to have been to provide a security in favor of laborers and material men, only until their demands could be liquidated and their lien enforced. From the nature of their demands and the shortness of the credit usually given by them, it was not necessary to provide for them any thing more than a temporary lien. Their claims being uncertain in amount, the creation of a permanent incumbrance would have been vexatious and embarrassing to owners and purchasers. The statute authorizes a summary proceeding to obtain a judgment for the amount due, by which in most cases if not in all, the mechanic’s lien may be enforced by execution and sale within the year; and if in some cases the owner should be able to delay the proceeding until the expiration of the lien, the answer is that the statute has not provided in those cases an effectual remedy. The mechanic’s lien is the creature of the statute, and its duration being limited thereby, the courts can not extend or prolong it. The judgment record is not evidence of the existence of the mechanic’s lien, of the time of its commencement, or of the quantity or description of the real estate which it affects. It could not be made so against third persons not parties to the suit. In case of the enforcement of the lien 'by an execution and sale within the year, if a dispute should arise between the purchaser and some third person, with respect to the priority of their respective rights, the purchaser would be required to prove the existence of the mechanics’ lien by evidence not contained in the judgment record.

The tenth section of the statute has no application to the present case. It provides for the laborer or materiakman who deals with the contractor and not the owner, and gives him an execution “ as upon a judgment recovered on the day of the at taching of such lien.” Whereas the judgments and executions mentioned in the sixth and fourth sections of the act are in form and effect as in other cases, excepting that when the sale is within the duration of the mechanic’s lien, the plaintiff may make title under it by extrinsic proof of its existence and duration. The judgment should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Jewett, J.

license: Public Domain

text:
    Baskins vs. Shannon.
    To show good faith in a subsequent mortgage .of personal property, so as to enable the holder thereof to avoid a prior mortgage on the ground of fraud, it must be proved by evidence dehors the instrument itself that the second mortgage was given for a valuable consideration, or to secure the payment of an honest debt
    And evidence showing that about a year before the subsequent mortgage was given the mortgagor became indebted to the mortgagee, but not connecting the two transactions, is nob sufficient.
    Baskins brought trover against Shannon in the common pleas of Yates county, for the conversion of a canal boat. On the trial the plaintiff claimed title under a mortgage from one Ward, dated November 19,1841, to secure the payment of $425 by the first day of July then next. The defendant claimed title under a prior mortgage from Ward to him, dated October 28, 1841, covering the boat and other personal property. This mortgage the plaintiff insisted wás fraudulent as to him on the ground, among others, that it was not accompanied by a change of the possession of the mortgaged property, and had not been filed in the proper town clerk’s office. To show the bonafides of his own mortgage, the plaintiff proved that about a year before it was given he sold to Ward 600 bushels of wheat, at $1 per bushel, which was not paid for on delivery. This evidence was objected to by the defendant’s counsel, but the objection was overruled. He also, under a like objection, introduced in evidence two notes against Ward of $208,16 each, dated January 8, 1841, and payable September 1, 1841. There was no evidence to connect the indebtedness for the wheat or on the notes, with the plaintiff’s mortgage.
    The plaintiff had a verdict and judgment thereon in the common pleas. The supreme court, on error brought, affirmed the judgment; and the defendant appealed to this court.

      M. T. Reynolds, for appellant.

      D. Wright, for respondent.
   Jewett, J.

If it were conceded that Baskins is a mortgagee of Ward in good faith, although his mortgage was executed subsequent to the execution of the mortgage made by Ward to Shannon of the same property, the latter would be void as against Baskins, on the ground that there was no delivery of the property mortgaged, or any possession taken of it by Shannon, nor was his mortgage filed in the office of the town clerk of Starkey, where Ward at the time resided. (Laws of 1833, ch. 279, § 9.) And besides, there is no evidence that there was any consideration for it.

But it is insisted that the mortgage to Baskins can not have priority over the mortgage to Shannon, on the ground that it was not proved to have been executed in good faith. To show good faith in the making of a chattel mortgage, as between a subsequent mortgagee and the creditors or a prior mortgagee of. the mortgagor, it is essential to show that the subsequent mortgage was made for a valuable consideration or to secure the payment of an honest debt. (Hanford v. Artcher, 4 Hill, 271.)

The plaintiff attempted to do that; he gave evidence to show that in the fall of 1840, a year prior to the time of making his mortgage, he sold to the mortgagor 600 bushels of wheat at $1 per bushel, which was not paid for on delivery; and also that he held two notes of $208,56 each, against him, made in January, 1841, which the court held, on motion for a nonsuit, to be sufficient evidence of the consideration of his mortgage. In that, I am of opinion that the court erred. There is no evidence to authorize a jury to find that the mortgage to Baskins was made to secure the payment of the price of the wheat sold, or any portion of it, or the notes or either of them. The evidence wholly fails to connect either of those claims with the giving of the mortgage. Admitting that those claims were justly due to Baskins from Ward, they could not have the effect to uphold the mortgage, in the absence of evidence to show that the object of it was to secure the payment of them, or of some part of them.

The judgments of the courts below must be reversed and a new trial awarded in the supreme court, costs to abide the event.

Judgment reversed.


author: Pratt, J.

text:
    Williams vs. Hutchinson.
    A step-father is not entitled by law to the custody or services of the children of his wife by a former husband, nor is he bound to maintain them.
    But where a step-father assumes the relation of a parent to the child of his wife by a former husband, and faithfully discharges the duties of that relation by receiving such child into his family and educating and supporting him on the same footing as his own children by a former wife, and where there is no express agreement to pay wages to the step-child, he cannot maintain an action against the step-father for services rendered while a minor, although the value of the services may exceed the expenses of such education and support. Under ' such circumstances a promise to pay wages will not be implied.

      It seems that a person standing in loco parentis may maintain an action for the seduction of the child. So also, it seems, he is liable for necessaries furnished to his adopted child to the same extent as though they were furnished to his own children.
    Appeal from the supreme court, where the action was assumpsit for work and labor. The cause was heard before a referee, and the facts found by him were as follows: The defendant married the plaintiff’s mother, a widow, in the year 1834, and lived with her until her death in 1842. The plaintiff at the time of the marriage was eleven years old, and he lived in the defendant’s family until his mother’s death, and this action was brought to recover the value of his services during that time. At the time of such marriage the mother had three sons, and the defendant had four, and they all lived in his family together. The step-children were clothed and schooled and treated in all respects the same as the other children, and performed labor for the defendant suitable for children of their age and condition. The defendant was a farmer, and carried on his farm with the assistance of this labor. There was no express agreement or understanding that the plaintiff should receive wages, or account for his board, schooling or clothing; nor were any accounts kept on either side. The value of the plaintiff’s services, as found by the referee, over and above the value of his board, clothing and schooling, and all other set-offs against him in the defendant’s favor, was $146,81 ; but he reported that there was nothing due from the defendant to the plaintiff on the ground that, under the facts proved, the law would not imply a promise to pay. Judgment having been entered according to the report in the defendant’s favor, the plaintiff appealed to this court.

      E. Van Buren, for appellant.
    I. The step-father is not entitled to the services of the child by her former husband. (Freto v. Brown, 4 Mass. R. 675; Worcester v. Merchant, 14 Pick. 510 ; Gay v. Ballou, 4 Wend. 403.) The reason of the rule is that, the step-father is not bound to support the child of his wife by'a former husband. (See authorities above cited; also

      Tub et al. v. Harrison, 4 T. R. 118 ; 4 East, 76.) Nor is the mother entitled to the services of her child after marriage. She can not after marriage be compelled to support her children. By her marriage she ceased to have the power of controlling her own actions, and the power of supporting and educating her children. (See cases above cited.

    II. An express promise need not be proved, nor need an express promise be implied; where an express promise exists, there is no necessity of an implied promise. An implied promise is one which the law raises, founded upon the justice of the transaction. (Story on Cont. § 12; Greenl. Ev. 102, 108 ; Guild v. Guild, 15 Pick. 129 ; Peter v. Steele, 3 Yeates, 250; Cook v. Husted, 12 John. 188.)
    III. There is nothing in the case to show that the plaintiff intended to render the services voluntarily; and if there was, it» would not conclude him, because he was an infant. An infant can not bind himself by an express agreement, and of course he can do no acts which will repel an implied promise. If he had made an express agreement to work for nothing, it would not bind him; and can he by his acts raise a valid- implied agreement which would be void if expressed 1 The law is his guardian and repudiates all his contracts. “ He is not bound to the extent of his contract even for necessaries, he is only liable for what they are worth.” (Cro. Eliz. 583.) “A negotiable note given by an infant even for necessaries is void.” (Swasey v. Adm’rs of Van Derheyden, 10 John. 33.) “An infant may avoid a usurious contract entered into by him and recover the money lent under the contract, for money had and received.” (Millard v. Hewlett, 19 Wend. 301; See also, Medbury v. Watrous, 7 Hill, 110.) The plaintiff did not stand “in loco parentis” as against the infant. That relation can only be created by an agreement express or implied. If an infant is incapable of contracting, then he can not contract this relation.
    It is. true that where a person stands “ in loco parentis” he may make himself liable to third persons for necessaries furnish- • ed the infant, upon the ground that he holds himself out to the world as standing in that relation, but that does not bind the infant.

      J. N. Whiting & T. R. Strong, for respondent.
    I. The services for which this action was brought having been rendered while the plaintiff was an infant, living with his mother and his step-father, the defendant, into whose family he had gone upon their marriage, and while he was supported and maintained by the defendant in all respects as the defendant’s own children, and there having been no express agreement or understanding that the plaintiff should be paid for his services, this action can not be maintained. Under such circumstances the law will not imply a promise to pay for the services.
    The general rules of law in regard to the right to the services of an infant, are, that they belong to the father during his life, and in case of his death, to the mother if she survive him. (Nightingale v. Withington, 15 Mass. R. 272, 274; Dedham v. Natick, 16 id. 135, 140.) But if the mother marries again, they belong to the infant; (Freto v. Brown, 4 id. 675; Commonwealth v. Hamilton, 6 id. 273, 275; Worcester v. Merchant, 14 Pick. 510;) unless he is received into the family of his step-father as a child and supported as such, in which case they belong to the step-father. (Stone v. Carr, 3 Esp. R. 1; and see cases referred to in 5 Barb. 122.) This right is allowed to these several persons in the cases mentioned, on account of the obligation which the law casts upon them respectivelyin those cases to support the infant. The father during his life is subject to this obligation; after his death it devolves upon the mother; but if she marries again, her legal existence becomes merged in that of her husband, who also acquires a right to her property, whereby her capacity to discharge the obligation ceases, and thenceforth the obligation is confined to the infant, unless the stepfather receives him into his family and treats and supports him as a child; in which case he stands in loco parentis to the infant, and in law assumes the parent’s obligations. (See above authorities.)

      The step-father is not bound to support his wife’s infant children ; but if he voluntarily places himself in loco parentis to them, he subjects himself to a parent’s duties in respect to their support while that relation continues. (Same authorities.) Neither is an infant bound to allow a step-father to place himself in that relation, or to continue it if once formed, any longer than the infant chooses.
    The liability of a step-father who stands in loco parentis to an infant step-child for his support, is not affected any more than that of a parent by the consideration that the infant does or does not render an equivalent in services for the support he receives—he is equally liable for support whether services are or are not rendered in return. He can not any more than a parent call upon the infant for any balance in his favor if the support exceeds the value of the services: nor is he any more than a parent bound to account to the infant for the balance, if the services of the infant exceed the value of his support. His rights and obligations in respect to services and support are precisely coextensive with those of a parent, while he sustains the relation of parent to the infant.
    It is doubtless competent to a step-father and his infant stepchild to have an understanding in regard to services and compensation which the law will enforce; but in such a case the parties do not stand in the relation of parent and child solely, if at all—something is superadded by agreement. (Gay v. Ballou, 4 Wend. 403. The same it is believed would be true in regard to a father and his infant child, but for the fact that the obligation of the father to support, and his right to the services of the child, do hot depend upon the will of either, with the single exception that a parent may relinquish his right to the services of his child. (Shute v. Dorr, 5 Wend. 204, and cases cited.) When he has relinquished his right, and an understanding is thereafter had between them that the child shall be compensated for his services, no good reason is perceived why the law should not enforce it.
    The case at bar is one in which the defendant stood in loco

      parentis to the plaintiff, and fully discharged his obligations arising out of that relation while the services in question were rendered, and there was no other relation between the parties by agreement or otherwise ; and if the foregoing principles be correct, they are decisive of the case against the plaintiff.
   Pratt, J.

It is well settled that a person is not entitled to the custody or earnings of the children of his wife by a former husband, nor is he bound by law to maintain them ; but these principles alone are by no means decisive of the question now before us. The parent is not legally entitled to the custody or earnings of his children after they arrive at the age of twenty-one ; nor is he entitled to the earnings of, or bound to maintain, his nephews or nieces ; yet if they live with him as members of his family without any contract or understanding that he shall pay for their services or receive pay for their maintenance, the law will not imply a promise to pay on either side. (Robinson v. Cushman, 2 Denio, 149; Andrews and wife v. Foster, 17 Verm. R. 556 ; Fitch v. Peckham, 16 id. 150; Owen v. Parsons, 5 Watts & Serg. 357, 513; Wier v. Wier, 3 B. Munroe, 645.)

The learned judge who wrote a dissenting opinion in the case of Williams v. Hutchinson, (5 Barb. 122,) a younger child against the same defendant, conceded the law to be as held in those cases, when applied to adults; but he contended that when applied to cases of infants, who were not competent to contract or bind themselves, a different rule should prevail; that those cases proceed upon the principle that there is an understanding or assent to the arrangement, and a waiver of those legal rights which would otherwise exist; that as no such understanding or assent can be implied in the case of an infant, the law will imply a promise to pay whenever a benefit has been received. I can not concur in the conclusion to which the learned judge arrived in that case.

I. Á contract-or promise to pay, as a matter of fact, requires affirmative proof to establish it. Under certain circumstances, when one man labors for another a presumption of fact will arise that the person for whom he labors is to pay him the value of his services. It is a conclusion to which the mind readily comes from a knowledge of the circumstances of the particular case, and the ordinary dealings between man and man. But where the services are rendered between members of the same family no such presumption will arise. We find other motives than the desire of gain which may prompt the exchange of mutual benefits between them, and hence no right of action will accrue to either party, although the services or benefits received may be very valuable. And this does not so much depend upon an implied contract that the services are to be gratuitous, as upon the absence of any contract or promise that a reward should be paid. So far then as it depends upon any presumption of fact the difficulty is as great or greater in the case of an infant than an adult.

II. But it is insisted that the law will imply a promise to pay in many cases even against the will of the person sought to be charged, when reason and justice dictate that he should pay, and the reasoning of the dissenting judge is mainly based upon this proposition. The proposition is undoubtedly correct, but the difficulty is that it is not applicable to the circumstances of this case. If the facts of this case show that the defendant has received the valuable services of the plaintiff for which he has rendered no corresponding benefit, different considerations might arise. But is that so? Is the calculation in dollars and cents the only consideration which this court is authorized to take of this case ? The plaintiff, at the tender age of eleven years, was adopted into the family of the defendant, and treated in all respects as one of his own children. Suppose at that time the alternative had been presented to some friend of the child, whether he should be cast into the world to take care of himself, or follow his mother into the family of the defendant, to be clothed, educated and cared for; nay more, suppose the alternative had been presented to that friend, whether the child should follow his mother and live in the family óf the defendant until the age of nineteen, and be treated in all respects as the finding of the referee in this case shows he was treated, or go into the family of a stranger under an arrangement that he should receive pay for the value of his services, and be charged for every thing which he received, would that friend have hesitated recommending the arrangement and disposition of the child which was actually made in this case, in preference to the one above supposed. If we look at the actual result, the case is not changed. The referee, it is true, has found, that in dollars and cents the value of the services exceeds the cost of maintenance; but these are not the only benefits which the plaintiff has received. There are considerations growing out of the relation which the parties sustain to each other which can not be computed in money. To say nothing of the benefits derived from a father’s care and a mother’s love, of the thousand joys which can only be found by the dutiful child in that sacred sanctuary called home, is it nothing to be trained up in those habits of industry, in that knowledge of business which fit a child for the actual duties of life 1 I should feel much more inclined to hold a man standing in loco parentis responsible, who had furnished his adopted child with all needful food, clothing and education, and had neglected to train him up in habits of industry; and yet, according to the doctrine contended for by the counsel for the appellant, the assumed parent could recover for necessaries furnished under these circumstances. “A parent,” says a commentator no less renowned for his great legal learning, than for his just appreciation of the duties growing out of the family relations, “who sends his son into the world uneducated and without skill in any art or science, does a great injury to mankind as well as to his family, and defrauds the community of a useful citizen and bequeaths to it a nuisance; and it is said that Solon was so deeply impressed with the force of the obligation, that he even excused the children of Athens from maintaining their parents if they had neglected to train them up to some art or profession.” (2 Kent, 195.)

We therefore fail to find in this case that want of reciprocity in the benefits enjoyed by the parties growing out of the relation which existed between them, which would from dictates of reason and justice imply a promise to pay. It is not to be im plied from the fact that the defendant has been benefited and not injured by his generosity; for it is a subject of gratification, rather than regret, that both parties have probably been benefited by the relation which has existed between them.

It is said that injustice might in some cases be done by one claiming the benefit of the parental relation, that he might receive the services of the child so long as he continued in health, but if sickness should overtake him, or if for any cause he should be unable to render services which would be profitable to the parent, the latter might dissolve the relation, and compel the child to -take care of himself. It will be time enough to decide that case when it arises. Our views in this case are based upon the assumption that the defendant stood in Joco parentis, and has faithfully discharged the duties appertaining to that relation. Had he been guilty of flagrant injustice, had he failed to discharge faithfully the duties which he had assumed,different considerations would arise; but the case shows that the plaintiff was during the whole time treated in all respects the same as the other children of the defendant, and there is no evidence that he did not in all respects discharge the duties of a father faithfully and honestly.

III. The counsel for the appellant assumes that the plaintiff, because he was an infant, could not consent to any arrangement by which he should .waive the right to claim wages for his services. This is not correct. An infant may enter into a binding contract which is clearly for his benefit. (2 Kent, 236 ; 1 Mason, 82; 2 H. Black. 511; 1 T. R. 161.) He may contract for necessaries, or bind himself as an apprentice, and will not be allowed to avoid his contract. (3 Barn. & Cress. 484.) It being clearly for the benefit of the infant -that he should be' provided with a home, any contract beneficial to himself which he might make for that purpose, would be binding. This case would therefore come directly within the principle decided in the cases first cited, and which are conceded by the counsel for the appellant to be founded in correct legal principles.

IV. The authorities sustain the positions we have taken. It has been frequently held that where a man stands in loco parentis, he is entitled to the rights and subject to the liabilities of an actual parent, although he was not legally compelled to assume that relation. Thus he can sustain an action for seduction, and is not restricted to the actual damages sustained for the loss of service, but the same rule of damages applies as in the case of an actual parent.

So he is liable for necessaries furnished to a child standing in that relation, to the same extent that he is liable for necessaries furnished to his own.

The policy of the law seems to be to encourage and protect that relation—to encourage an extension of the circle and influence of the domestic fireside. And unless compelled by some rigid rule of law, we should not by our decision establish a rule calculated to deter the husband from adopting his wife’s children, by a former marriage, into his family. The marriage with the mother, it has been held, severs the relation which would otherwise exist between her and her children, as guardian of their persons. If, therefore, the husband voluntarily adopts them into his family, educates and supports them, and discharges his whole duty towards them as a parent and a good citizen, the law should be liberally construed in his favor. It is a disposition of the children which must add vastly to the happiness of the mother, and to the children its advantages can scarcely be estimated. In the language of the same learned commentator cited above, “ Under the thousand pains and perils of human life the home of the parents is to the children a sure refuge from evil and a consolation in distress.”

We are of opinion, therefore, that the judgment of the supreme court should be affirmed.

Judgment affirmed.


author: Bronson, Ch. J.

text:
    Price vs. Powell.
    action on the case against a carrier for the loss of goods is properly brought in the name of the consignor, where he is the owner of the property.
    And in such a case the consignee, where he is a mere agent, having no interest in the goods, is a competent witness for the consignor.
    The consignee is presumptively the owner of the property shipped, but this presumption may be rebutted.
    Where the master of a vessel signs a bill of lading which states that the property is “shipped in good order,” in an action against the, owners for an injury thereto, the burden is on the defendants to show that the injury happened before the goods came to their hands.
    In an action qgainst the ship owner, the declarations qf the master concerning the injury to the goods, made before he has discharged his duty by delivering the goods according to the bill of lading, are competent evidence for the plaintiffs.
    A delivery of the goods upon the wharf at the place to which they are consigned does not discharge the carrier unless notice be given to the consignee.
    And after notice to the consignee the carrier still continues liable until the consignee has had a reasonable time to remove the goods.
    Whether it may not be shown in exoneration of the carrier, that by a local custom of the place to which the goods are consigned, the tjelivery is complete by landing them on the wharf, quere.

    A bill of exceptions should give a plain and concise statement of the facts out of which the questions of law arise, and the evidence shoqld not be set forth in detached and scattered parcels.
    Edmund Price and Elijah B. Price brought an action on the case in the common pleas of the city of New-York, against Powell and others as common carriers. On the trial it appeared that on the 30th of May 1846, the plaintiffs shipped at New-York on board the brig “ Belle,” S. Myers master, some pieces qf marble commonly called tomb tops, consigned to one Hotchkiss at Wilmington, North Carolina. The bill of -lading was as follows: “ Shipped in good order and well conditioned, by E. Price & Son, on board the,brig called the “ Belle,” whereof S. Myers is master, now lying at the port of New-York and bound for Wilmington N. C., 6 boxes of marble [and other articles] marked and numbered as in the margin, to be deliv ered in like good order and condition at the port of Wilming ton N. C., (the danger of the seas only excepted,) unto Guy 0. Hotchkiss or his assigns, he or they paying freight for the same as customary with primage and average accustomed. In witness whereof, &c. Dated New-York, May 30th, 1846.
    S. Myers.”
    The defendants were proved to be the owners of the brig. The deposition of Hotchkiss the consignee, taken on commission, was read on behalf of the plaintiffs, after an objection to his competency, on the gyound of interest, had been made and overruled. He testified among other things that on the 8th or 9th of June, 1846, he heard of the arrival of the brig at Wilmington, and that late in the evening of the same day he visited her at the wharf of G. W. Davis, to whom she was consigned, and was then informed by one of Davis’ clerks that the marble was unloaded and was lying on the wharf. On the next morning he went to the wharf, and on examining found that some of the tomb tops were broken. After he had opened the first box containing one of the pieces and found it broken, he called Myers, the master of the brig, showed it to him, and in his presence opened the other boxes. The master stated 11 he did not see how they could have been broken while on the vessel, as they were stowed on their edges leaning against the stanchions of the brig.” He said farther that he would see the plaintiffs on his return to New-York and do what was right in the matter. The evidence as to what the master said on this occasion was duly objected to, but the objection was overruled.
    One Nash was called as a witness, who testified that he had been a seafaring man for forty years, and had been in the habit of carrying marble and was familiar with the proper mode of stowing it in sea-going vessels. The witness was asked the question whether in his opinion the marble in question was properly stowed on the brig “ Belle.” This was objected to on the ground that the opinion of a witness was not proper evidence upon the subject matter of the inquiry. The objection was overruled and an exception taken.
    In the course of the trial the defendants offered to prove that by the custom at Wilmington goods were always delivered on
      the wharf, and that this was deemed the termination of the carrier’s duty, and a good delivery to the consignee. The testimony was objected to on the part of the plaintiffs and the objection sustained. The defendants excepted. Subsequently however the defendants, without objection, gave evidence concerning the custom in question, but it failed to prove that the custom was as assumed in the offer.
    When the evidence was closed the defendants’ counsel requested the court to charge the jury 1. That the action could not be brought in the name of the present plaintiffs, but should have been brought in the name of Hotchkiss the consignee.
    2. That the plaintiffs could not recover without showing that' the marble was broken whilst in the possession of the defendants and before the termination of their duty as carriers.
    3. That by the plaintiffs’ own showing the duty of the defendants, as carriers, was ended by the delivery of the marble on the wharf at Wilmington, and the marble was not shown to be unsound at that time. The court refused to charge as requested, and did charge, among other things, that a delivery at the wharf was not sufficient to exonerate the defendants from their liability as carriers without notice to the consignee: also that the consignee had a reasonable time after notice within which to take possession of the property, and .that if the marble was broken while on the wharf over night, the consignee not having had a reasonable time to remove it before the next morning, the carriers would still be liable. The defendants excepted. The plaintiffs had a verdict, and after judgment the defendants appealed to this court.

      M. T. Reynolds, for appellants.

      J. M. Van Cott, for respondents.
   Bronson, Ch. J.

This case has been made up in a loose and disjointed manner, and with little regard to the rules which ought to govern in framing bills of exceptions. Instead of giving, as it should, a plain and concise statement of the facts out of which the questions of law arise, the bill is made up of portions of the evidence, and these are set forth in detached and scattered parcels; making it necessary to hunt through the whole case, and draw inferences, to get at the facts relating to a single one of the many questions made by the bill; and rendering it difficult, "if not impossible, to determine what are the legal rights of the parties. If it be proper to review such a case, every doubt about facts should be turned against the party making’ the bill.

Although the consignee is presumptive owner of the property shipped, it is a presumption which may be, and which was, I think, sufficiently rebutted in this case. As I understand the evidence, the property was not consigned to Hotchkiss as owner, but as the agent of the plaintiffs, who were the owners of the property at the time of the alledged injury by the carriers. And besides, it appears that there was other evidence, which is not set forth in the case, going to prove that the plaintiffs, ana not the consignee, were the owners of the property. The plaintiffs must be regarded as owners; and this disposes of two of the exceptions. As the plaintiffs were owners, the suit was properly brought in their names. And as Hotchkiss was but an agent, he had no interest in the event of the suit, and was a competent witness for the plaintiffs.

As the master signed the usual bills of lading stating that the property was shipped in good order and well conditioned,” the burden lay upon the defendants to show that the marble was broken before it came to their hands. The evidence bearing upon that point made it a proper question for the jury; and the case does not show that the question was not submitted to their consideration. The case does not profess to give the whole of the judge’s charge.

The conversation between Myers the master, and Hotchkiss the consignee, at the time the latter opened the boxes and found the marble broken, related to the acts and duty of the master concerning the subject in hand ; and the conversation occurred before the master had fulfilled his obligation by delivering the property to the consignee. No evidence concerning the usage at Wilmington had been given at the time the question about proving this conversation was made ; and clearly, landing the property on the wharf was not a good delivery, without, at the least, giving notice to the consignee. (Ostrander v. Brown, 15 John. 39; Gibson v. Culver, 17 Wend. 305 ; Fisk v. Newton, 1 Denio 45.)

There is room for doubt whether the evidence which the defendants offered concerning the custom at Wilmington should not have been received. But it is not necessary to consider that question; for as I understand the case, the defendants were afterwards allowed to give evidence of the custom without objection. And it turned out, as is often the case, that the de fend ants had offered to prove more than they could establish. The proof does not show that, by the custom, delivery on the wharf, without any thing more, is a good delivery to the consignee. On the contrary, the proof shows, that according to the custom, notice must be given to the consignee. The witness says it is not customary for the captain to give the notice; but the consignee of the vessel, or his clerk, gives it. The consignee of the vessel, as well as the captain, was the agent of the defendants, and it matters not which agent was bound to give the notice-. The defendants had not discharged their obligation as carriers, until they had, either in person or by some agent, given the notice.

On the case proved; the judge was clearly right in charging the jury, that delivery at the wharf was not sufficient} without notice to the consignee.

Davis was the consignee of the vessel, and he actually gave notice, by one of his clerks, to Hotchkiss, that the marble was out of the vessel and lying on the wharf. This was late in' the evening; and on the morning of the next day Hotchkiss went to the wharf, opened the boxes; and found the marble broken. The question whether Hotchkiss acted within a reasonable time after he had notice was submitted to the 'juryi

Nash was an expert, and being such, his evidence was properly received.

Of the other questions in the case it is enough to say, that they have been considered, without finding that any error was committed on the trial. I am of opinion that the judgment should be affirmed.

Judgment affirmed.


text:
    Langley vs. Warner.
    An assignee óf á demaná, who prosecutes an action for the recovery thereof, and obtains judgment in the name of his assignor, but for his own benefit, is bound, on the reversal of the judgment, to refund the money which he has collected on the execution.
    But where a judgment is collected, and the money is paid over by the officer holding the execution, to the attorney who prosecuted the suit, an action will not lie, after a reversal of the judgment, against the attorney, to recover back the money, although by agreement between him and his client he retains the money in payment of a debt due from the latter to him.
    A party in whose favor a j udgment is recovered has, until the j udgment is reversed, a perfect title to the money collected on the execution, notwithstanding the pendency of a Writ of error or certiorari; and if he pay's the money to his creditor, the latter acquires a complete right to hold it, although a reversal after-wards takes place.
    A special verdict should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine except questions of law.
    James Langley and Henry G. Langley brought assumpsit in the superior court of the city of New-York, against Thomas Warner, and declared for money had and received. At the trial before Yanderpool, J. the jury found a special verdict stating the case in substance as follows :
    On the 14th of November, 1845, one Walsh recovered in the marine court of said city, judgment against the plaintiffs in this suit for the sum of $76,22. Execution was immediately issued to the proper officer, who collected the money from the. plaintiffs, and on the 25th of the same month paid it to the defendant, who was the attorney for Walsh in the judgment, and who signed’ a receipt for the money as such attorney. At the time the judgment was obtained Walsh was indebted to the defendant in a sum larger than the judgment; and before the money was collected he had agreed that the amount to be collected should go to the defendant on account of that indebtedness. After the money was paid to the defendant, he and Walsh had a settlement of their account, and on the settlement he gave Walsh credit for the sum received. On the 15th of November, 1845, a certiorari upon the judgment was issued from the superior court, and served upon the marine court, of which the defendant had notice when he received the money on the execution. In January, 1846, the certiorari having been returned, the superior court reversed the judgment and awarded restitution against Walsh. Execution on this judgment of reversal and restitution was issued in favor of the plaintiffs against Walsh, and returned unsatisfied; and the plaintiffs thereupon brought this suit to recover from the defendant the money which had been paid to him as before mentioned.
    The superior court gave judgment in favor of the plaintiffs on the special verdict, and the defendant appealed to this court.

      A. Taber, for appellant,
    insisted that upon the facts found by the special verdict, the action could not be maintained. The defendant had received the money as attorney for Walsh, and the remedy was against the cliebt. The judgment, he said, until reversed, gave Walsh a title to the money, and he therefore might employ it to pay his debt to the defendant, without making any one except himself liable to refund it on the reversal of the judgment. The special verdict does not find that the defendant was assignee of the judgment.

      A. J. Vanderpool, for respondents.
    The action to recover back money, after the reversal of the judgment on which it is collected, lies not only against the party to the record, but against an assignee or party in interest, and the defendant stood in that situation when he received the money. (Maghee v. Kellogg, 24 Wend. 32; Stevens v. Fitch, 11 Metc. 248; Catlin v. Allen, 17 Verm. 158.) Even regarded as an agent merely, the defendant is liable. The money was never actually paid over to his principal. Merely passing the sum to the account of his client, or giving him credit therefor, will not protect him. It must be an innocent and bone fide actual payment without notice in order to protect him. (Buller v. Harrison, Cowp. 565 ; Allen v. McKeen, 1 Sumn. 278, 317; Edwards v. Hodding, 5 Taunt. 815; Chitty on Cont. 611; Gray v. Gutteridge, 3 C. & P. 40, 41; Hearsey v. Pruyn, 7 John. 181; Amidon v. Wheeler, 3 Hill, 137.)
   Bronson, Ch. J.

If the defendant had been the assignee of the demand on which the suit was brought by Walsh in the marine court, and had commenced and carried on the suit in the name of Walsh, but for his own benefit, he would have been bound, on the reversal of the judgment, to refund the money which had been collected on the execution. (Maghee v. Kellogg, 24 Wend. 32; Catlin v. Allen, 17 Verm. 158.) But no such facts are found by the jury; and the rule is, that a special verdict must find facts—not evidence; and it must find all the facts which are essential to the party’s title, and not leave a part of them to be made out by argument and inference. (Hill v. Covell, 1 Comst. 522 ; Sisson v. Barrett, 2 id. 406.) There is no evidence, I think, from which an assignment could be found; (See Miller v. Franklin, 20 Wend. 630 ; Taylor v. Bolmer, 2 Denio, 193 ;) but if there was such evidence, it is enough to say, that it was for the jury, and not the court, to find the fact of an assignment.

The case then comes to this: the money in question, in the regular course of judicial proceedings, came to the hands of the defendant as the attorney of Walsh; and on a subsequent settlement between them, the money was passed to the credit of Walsh on account of his indebtedness to the defendant. It was the same thing, in effect, as though the defendant had first paid over the money to Walsh, and the latter had then re-paid it to the defendant in satisfaction of his debt. About two months afterwards the judgment was reversed, and restitution was awarded to the plaintiffs against Walsh. It was very proper that he should make restitution; for he had, in effect, received the money and applied it to the payment of his debt. The plaintiffs proceeded to execution against Walsh, in pursuance of the judgment for restitution; but failing in that, they now seek to recover the amount from the defendant. I see no principle on which the action can be maintained* The defendant has got none of the plaintiffs’ money; he has got nothing but his own. Walsh had a perfect title to the money when it was collected—just as perfect as it would have been if no certiorari had been issued. He had a right to do what he pleased with the money; and he made a very proper use of it by paying his debt* The plaintiffs have taken up the strange notion, that because they were trying to get the judgment reversed, Walsh could not give a good title to the money, especially if he paid it to one who knew what they were doing. I am not aware of any foundation for such a doctrine. As Walsh had a good title to the money, he could of course give a good title to the defendant, or any one else. No one was bound to presume that the judgment of a court of competent jurisdiction was erroneous, and would be reversed. The legal presumption was the other way—that the judgment was right and would be affirmed. But if the judgment had been known to be erroneous, the pendency of the proceedings in error could not affect, in the least degree, the title of Walsh to the money. Nothing short of a reversal of the judgment could destroy or impair his right.

We arc referred to cases where money paid to an agent has been recovered back from him, notwithstanding the fact that he had given his principal credit for the money in account. But they are all cases _ where the principal had no right to the money at the time it was paid to the agent; while here, the principal had a perfect right to the money at the time his agent received it. The distinction is obvious; and I can not but that it should have been overlooked.

I am of opinion that the judgment should be reversed, and judgment rendered for the defendant on the special verdict.

Ordered accordingly.


author: Hurlbut, J.

text:
    Wesson et al. vs. Chamberlain, sheriff, &c.
    Where a justice has jurisdiction of the subject matter of a suit before him and of the person of the defendant, his judgment can not be attacked collaterally.
    And therefore in an action against an officer who has taken the body of the defendant on execution, for the escape of his prisoner, it is not competent to show in defence that the evidence before the justice failed to make out a cause of action in tort, and so, that thejudgment was erroneous.
    Where a sheriff suffers a defendant whom he has taken on execution, to go at large on the undertaking of a third person to pay the debt or surrender the prisoner, the plaintiff, unless he consented to the arrangement, may issue a new process and retake the defendant. Nor is the plaintiff’s consent to the escape, made out by evidence showing that he subsequently called upon the third person to perform his undertaking.
    On appeal from the supreme court, where the action was brought against the sheriff of Chenango county, for an escape. The plaintiff recovered judgment in that court and the defendant appealed. The case was submitted on written arguments.
   Hurlbut, J.

This action was brought to recover for the escape of Nelson Brown and Hiel Fitch, from the jail limits of Chenango county, where they were imprisoned by virtue of an execution issued on a judgment, rendered in an action of trover before a justice of the peace; a transcript of which judgment had been filed in the office of the clerk of that county. The suit before the justice was regularly commenced by summons personally served on the defendants therein, who, however, did not appear on the return day, and the plaintiffs proceeded with their action, by putting in a declaration in trover, and adducing evidence in support of it.

It appears that the defendants in that suit had purchased goods of the plaintiffs, on a credit of three months, and given their note for $63,70, the amount of the purchase money; but the plaintiffs sought to disaffirm the contract of sale, because, as they alledged, it was induced by fraud and false pretences on the part of the defendants; and before they delivered their evideuce in that suit, they produced the note which had been given on the sale, and delivered it to the justice to be cancelled.

The evidence before him, tended to show that at the time the goods were purchased, Messrs. Brown do Fitch were insolvent and unable to pay their debts ; that within a month or two after the purchase, a judgment was entered against them, in favor of a near relation, for nearly the sum of $10,000, upon which all their tangible property was sold ; and that at about the same time, they had made an assignment of their effects for the benefit of their creditors. These events happening so promptly after the purchase of the goods, raise a strong suspicion of bad faith in respect to it, and although some further evidence might have been necessary to establish the fraud beyond a doubt, it can not be said that the justice acted without authority in giving judgment in the case before him. He had jurisdiction of the persons of the defendants and of the subject matter of the suit. The evidence delivered on the part of the plaintiffs tended to show the fraud complained of, and whether it was sufficient to establish it, ivas a question addressed to the legal judgment of the magistrate, whose determination, however wrong, was conclusive upon the parties until reversed on a proper appeal. The judgment might have been erroneous, but it was not void. The evidence therefore, which was offered by the defendant in the present action, with a view to show either, that on the proof before the justice, or upon facts which might have been shown to exist, the action of trover could not have been maintained, was clearly inadmissible and properly rejected by the court. The judgment was not open to attack upon the merits, in a collateral action. (Cowen & Hill’s Notes to Phil. Ev. part 2, p. 946.)

The objections that the plaintiffs did not appear and prosecute their action before the justice, and that the evidence was delivered in the form of an ex parte affidavit made out of court, seem to have no foundation in fact. The case shows that the authority of the plaintiffs’ attorney to appear in the suit, was proven by his oath, and that Mr. Mygatt was sworn and gave evidence as a witness, and his testimony is certified by the justice as proper evidence given on the trial. That he might have prepared the statement of facts to which he testified out of court and produced it to the justice, is entirely immaterial. He was sworn as a witness before him, and the evidence which he gave was not in the form of an ex parte affidavit forbidden by 2 R. S. 244, § 105, but appears to have been taken properly in court.

Another ground of defense is that Fitch, one of the defendants in the judgment, had been arrested on a prior execution, issued in October, 1844, and was released upon Mr. H. Bennett’s giving to the sheriff a written agreement either to pay the judgment in 60 days, or to surrender the defendants, whereby it is urged the judgment was satisfied. This would have been true, if the escape had happened with the consent of the plaintiffs given before it occurred; and we are referred to two letters written by.Mygatt to Bennett, as proving such consent. But the plaintiffs do not appear to have known of the escape, or of Bennett’s agreement, till some time after it was taken, when their attorney, by two letters, requested Bennett to perform it. This is all the evidence in the case having the least tendency to show that they consented; and it falls very far short of showing consent before the escape occurred. As regards the sheriff, the escape was voluntary and he was responsible for it; but the debt was not thereby discharged as against the judgment debtors, and the plaintiffs had a right to issue a new execution and to retake the defendants. (1 Salk. 272.) The judgment oi t’ne supreme court must be affirmed.

Judgment affirmed.


text:
    Wakeman vs. Price.
    A motion in the supreme court to vacate a master or receiver’s sale of real estate, where the sale was regular, is addressed to the discretion and favor of that court, and the order made on such a motion is not, therefore, the subject of appeal to this court.
    This was a creditor’s suit instituted for the purpose of procuring satisfaction of a decree out of the equitable assets and other property of the defendant. In June, 1848, an order was made directing the receiver, appointed in the suit, to sell certain real estate of the debtor for the purpose of paying the debt. A sale was accordingly made at public auction in September, 1848, of a large amount of real estate in the city of New-Yorlc, at prices far below its value, and on that and other grounds the defendant petitioned the supreme court, at special term, to have the sale set aside. The motion was opposed by the purchaser at the sale, but was granted by the court on the terms of paying certain costs, &c. On a rehearing of the motion at a general term, the order was affirmed, and the purchaser appealed to this court.
    A. C. Bradley, for appellant.

      M. T. Reynolds, for respondent.
   Pratt, J.

The order made in the supreme court was not appealable. The precise question has been decided in tnis court, in Hazleton v. Wakeman. That was an appeal from an order of the chancellor granting a motion to open the biddings at a master’s sale. The appeal was dismissed on the ground that it would not lie from an order of that character. No written opinion was given in that case, but it is directly within the principle decided in several previous cases in this court. . (1 Comst. 43; 2 id. 86, 269, 563 ; 1 id. 125, 533, 535.)

It is conceded that the court below have the power, under certain circumstances, to grant the relief prayed for in this case. But such relief, where the proceedings have been regular, can not be claimed as a matter of right, but simply as a matter of favor. It must therefore rest in the discretion of the court to grant or refuse it. It is simply a question of practice in that court—as clearly so as an order granting or denying a motion to open a default, to dissolve an injunction, or to allow costs.

The same principle was finally settled in the late court for the correction of errors. (Rowley v. Van Benthuysen, 16 Wend. 372 ; Rogers v. Hoosick, 18 id. 350.) The statute conferring jurisdiction upon that court was broader and more comprehensive in its terms than the code.

The appeal in this case must therefore be dismissed with costs.

Appeal dismissed.

       Reported in 3 Howard’s Pr. Rep. 457.


author: Gardiner, J. Bronson, Ch. J. (Dissenting.)

text:
    Thompson vs. Blanchard.
    tinder the statute of frauds, which required the “ agreement” to he in writing, it was necessary that the consideration should be expressed in the instrument, and this was so held upon the force of the word “ agreement.”
    But a mere undertaking or promise does not, ex vi termini, import a consideration; and therefore where a statute requires an “ undertaking” to be entered into by sureties in order to give aright of appeal, an instrument containing the requisite stipulations is valid, although it does not express a consideration and is not under seal.
    At the common law, the consideration of a promise or undertaking may be proved by parol.
    The statute of frauds requiring the agreement and consideration to be in writing, applies, it seems, only to common law agreements where the consideration is the subject of mutual arrangement between the parties, and not to instruments created under and deriving their obligation from special statutes, without the acceptance or assent of the party for whose ultimate benefit they are given. "
    S. Stevens, for the respondent, Thompson, moved to dismiss the appeal, on the' ground that there was no valid undertaking. Three sureties had executed an instrument under § 335 of the code, without seals, as follows: “ In Supreme Court. Isaac W, Thompson v. Leonard Blanchard, impleaded with Russell C. Wheeler. Whereas the above named Leonard Blanchard has appealed to the court of appeals from the judgment in this court entered against him and in favor of the above named plaintiff for $930 damages besides costs, which costs do not exceed the sum of $200, making in all $1130: Now therefore we the undersigned do undertake that the said appellant will pay all costs and damages which may be awarded against him on the said appeal not exceeding the sum of $250, and if the judgment appealed from or any part thereof be affirmed, the said appellant will pay the amount directed to be paid by the said judgment, or the part of said amount as to which the said judgment shall be affirmed if it he affirmed only in part, and all damages which shall be awarded against the said appellant upon such appeal. Dated Oct. 3, 1849. (Signed) Henry E. Blanchard, George Young, Jr. C. F. Mulford.” The counsel said the instrument was void for the want of a consideration, and under the statute of frauds.

      N. Hill, Jr. for the appellant, opposed the motion.
    He also produced the written consent of the parties, and asked leave to amend, if the court should think the undertaking defective.
   Gardiner, J.

The undertaking of the appellant in this case was drawn with reference to, and is in precise conformity with the requirements of § 335 of the code. In this we all agree It is a necessary implication from the statute, that an undertaking thus executed' shall be effectual to sustain an appeal and an action in behalf of the appellee, if the judgment appealed should be affirmed in whole or in part. The legislature, however, have not left the matter to implication. They have enacted that when an appeal shall be perfected as provided by the 335th section, it shall stay all proceedings in the court below upon the judgment appealed from, or the matter embraced therein.” (§ 339.)

It is objected notwithstanding that the instrument is nudum pactum, not because there is no consideration in fact, but because none is expressed in the writing. The answer is, that the statute required an undertaking in writing with certain prescribed stipulations, and nothing else. An undertaking is a promise. (Bouv. L. Dict.) It may be made with or without consideration. If the promise was in writing, the consideration need not.be expressed, it might be proved in all cases by parol. The common law was satisfied if there was a consideration in fact to sustain the undertaking. Neither before nor since the statute of frauds, has it ever been held that an undertaking, or promise, ex vi termini, imports a consideration. In Wain v. Warlters, (8 East, 10,) under the English statute of frauds, it was for the first time decided that the word agreement implied a consideration. But that case proceeded upon the distinction between an agreement and an undertaking. Lord Ellenborough stated the question to be, whether “ agreement, in the statute, was synonymous with promise or undertaking, or signified a mutual contract upon consideration.” And all the judges concurred in saying, that had the statute required only that the promise should be in writing, instead of the agreement in respect to which the promise was made, their opinion would have been different.

The legislature, in the section referred to, have said that an undertaking, to the effect prescribed, shall be effectual. We have no authority to add other conditions. If it be said that such an instrument would not be obligatory by the statute of frauds, the very obvious answer is, that the legislature of 1848 had the same power to restore the common law, as to this class of securities, that their predecessors had to abolish it. 2d. The undertaking prescribed by the 335th section is a statute security and not a common law agreement. Agreements which derive their obligation from the common law, and no others, are enumerated in our statute, and required to be made in writing, expressing a consideration. (2 R. S. 136.) The objection I am considering assumes that the undertaking in question falls within one of the classes of agreements there specified. It has however been generally supposed, that the assent of more than one party was essential to the validity of an agreement at common law. Lord Ellenborough calls it a mutual contract upon consideration. The consideration being one element of the agreement, must of course be the subject of arrangement between the parties, before it can be expressed in writing. Accordingly where a contract has been executed by both parties, evidence is required in addition, of delivery and acceptance, or something equivalent, in order to show their assent, to it as a perfected instrument, mutually obligatory upon them. The necessity for this, when is is executed by one of the parties only, is apparent. Now the undertaking in question was properly prepared, executed, and filed with the clerk, by the appellant, without any communication or arrangement with the appellee. (§§ 343, 340.) The assent of the latter was not necessary to the creation of the obligation, nor would his dissent defeat, or in the slightest degree modify its effect upon his own, or the rights of the other party. And so we have in effect decided, in a case between these parties. (2 Comst. 562.) The only consideration that can be imagined, for the undertaking of the defendant and his sureties, is the stay of proceedings upon, and the right to review the judgment, obtained by the plaintiff. But this delay and privilege is the act of the law, against the wishes and in spite of the opposition of the respondent. What possible'application, therefore, has the statute designed to prevent frauds and perjuries in reference to common law contracts, to an undertaking, the contents and legal effect of which are written on the face of the statute 1 What fraud is to be suppressed, or perjury avoided, by making this appellant certify, under his signature, to a consideration which, if it exist at all, did not arise from the agreement of parties, but from a law which this court, and all others, are bound judicially to notice ? At most it would be but cumulative evidence of the provisions of a statute. '

We think, for the reasons assigned, the undertaking sufficient and the appeal well brought.

Bronson, Ch. J. (Dissenting.)

There can not be a valid contract without a quid pro quo, or sufficient legal consideration. (Co. Litt. 47, b ; Dyer, 336, b ; Plowd. Com. 308 ; Com. Dig. Agreement, B. 2.) Some instruments import a consideration, as bills of exchange, promissory notes, and writings under seal; and in suing upon them it is not necessary to aver or prove a consideration. But in suing upon other promises and engagements, whether written or verbal, it is necessary to aver and prove a consideration, unless one is expressed on the face of the instrument. There is one case which favors the notion that a promise without a consideration may be good, if it be in writing. (Pillans v. Van Mierop, 3 Burr. 1663.) But that case was long since overruled, both here and in England. (Sears v. Brink, 3 John. 210; Rann v. Hughes, 7 Bro. P. C. 550.; 7 T. R. 346, note, S. C.) Mere words of promise, undertaking or agreement, whether written or verbal, do not make a contract, unless there be a consideration.

The instrument in question is not a specialty, nor is it a bill of exchange, or promissory note, which imply a consideration; and no consideration whatever is expressed, There is not even an attempt to express one. The persons who sign the instrument are sureties for Blanchard: they begin by reciting that he has appealed from a certain judgment, and then say, “ now therefore we do undertake that he will pay,” &c. No reason is given, nor motive assigned for making the promise. It would have been just as well if they had said, “ whereas Blanchard owes a certain debt; now therefore we do undertake that he will pay it.” Indeed, the two cases are identical, except that in this case there will be no debt to be paid if the judgment shall be reversed.

Formerly the security required of a party prosecuting an appeal or a writ of error was a bond, and nothing else would answer the purpose : but now the security may be any “ written undertaking;” (Code, §334—343;) which includes every form of valid written contract. The statute speaks only of an “ undertaking,” without eith er prescribing its form, of declaring what shall be a good one. Those things are left to be settled by general principles. Clearly there must be a valid contract—one which can be enforced against the parties to it; and a promise without, a consideration is not such a contract—it is no contract at all. •

There must be an undertaking to do certain specified things: those things are mentioned in this writing; and in that respect there has been a full compliance with the statute. But there is no valid promise or agreement to do those things, or to do any thing else. The sureties say, “ we undertakebut that is not enough without a consideration. The writing conforms to the code so far as relates to the things to be done ; but it is utterly defective for the want of an undertaking” to do those things.

There is evidently nothing in the argument that this is good as a statute security. The statute does not say that the word “ undertake,” without a consideration, shall make a binding contract; and the common law says it shall not.

There is not only a failure to express a consideration, but there is no consideration in point of fact. When an appeal is duly perfected, proceedings on the judgment in the court below are stayed, and the appellant has a review, (s 339.) But without a proper undertaking, an appeal is not effectual for any purpose. (§ 334.) And as there is not a good undertaking, there is neither stay of proceedings, nor a review. It follows, that there is neither benefit to the appellant, nor damage to the respondent; and therefore nothing which can be called a consideration. To say that there is a stay and a review, and therefore a consideration, is plainly begging the question. Without a quid fro quo there is no undertaking; and without an undertaking there is neither stay nor review. And as nothing is either gained by one party or lost by the other, there clearly is no consideration.

If there was in fact a consideration, it would be a fatal objection that it is not expressed in the instrument. This is a promise by sureties to answer for the debt or default of another person; and by the very terms of the statute of frauds the consideration must be expressed in" the writing. (2 R. S. 135, § 2.) The case is none the less within this statute because the party is required by law to find sureties. The code says nothing about repealing the statute of frauds, or excepting this case out of its operation; nor does it make any change in the law of contracts. It does not say that a promise by a surety shall be good without expressing a consideration, nor does it say any thing else which is in the slightest degree inconsistent with the statute of frauds. There is therefore no color for the argument that one statute has been repealed, or in any way affected by the other. The code requires an undertaking with sureties, but without giving a form, or saying what shall be a good one. Those things are left to the influence of the previously existing laws. The com mon law says there must be a consideration; and the statute of frauds adds, that the consideration must be expressed in the writing. This instrument is condemned by both of those laws.

It was an easy thing to make a valid instrument. The addition of seals, or the acknowledgment of a consideration, however small, received from the respondent, would have answered the purpose. Whether the law is wise either in requiring a consideration, or in allowing the objection to be so easily obviated, are questions with which I have no concern.

Unless the appellant amends in pursuance of the code, (§,327,) I am of opinion that the motion should be granted.

Motion denied.


text:
    Dunlop vs. Edwards.
    Where a judgment was entered in the supreme court, upon a bond and warrant of attorney, before the code was passed, and that court, after the code took effect, denied a motion to set aside the judgment made on the ground that it was entered under a void authority, held, that no appeal from the order would lie to this court.
    The third section of the “ act to facilitate the determination of existing suits,” giving a right of review in certain cases, docs not authorize an appeal where the suit was terminated by judgment before the code took effect.
    The “ final orders” from which that section authorizes an appeal to this court, are, it seems, orders made in special proceedings, or upon summary application after judgment; and in the latter case the application, it seems, must concede the validity of the judgment, and seek relief upon matter arising subse* quentiy.
    Section 457 of the amended code of 1849, authorizes a review only in cases where the judgment, decree, or order appealed from, was entered before the code was passed, and where a right of review existed by the previous law.
    Appeal from the supreme court, where the case was this: On the 8th of June, 1847, Robert Dunlop and George Edwards entered into an agreement submitting certain accounts and differences between them to the arbitrament and award of one Haswell. On the same day, Frederick Edwards, the appellant, executed to Dunlop his bond, in the penalty of $6000, conditioned that George Edwards should pay the sum to be awarded, to the amount of $3000; and at the same time he gave a warrant of attorney, authorizing judgment to be entered against him on the bond. Judgment was accordingly entered on the said 8th of June, 1847.
    In December, 1848, Frederick Edwards moved in the supreme court, at special term, to set aside the judgment, alledging among other things, that after he had executed the bond and warrant, but before judgment was entered thereon, the agreement to submit to arbitration had been altered by the parties thereto in certain material respects without his knowledge, the effect of which was to enlarge his liability on the bond and warrant. On this ground, he insisted that the bond and warrant ceased to be operative, and that the judgment was wholly unauthorised. The motion was denied, and the supreme court at general term in January, 1849, affirmed the decision. Frederick Edwards appealed to this court.

      N. Hill, Jr. for appellant,
    in reply to an objection that the order was not appealable, insisted that the appeal was authorized by the code, being an appeal from “ a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment.” (Code, § 11, subd. 2.) (1.) The order was made at a general term of the supreme court, on the 25th of January, 1849; and therefore the right as well as form of appeal is governed by the code. (1 Comst. 423.) (2.) The order affected a substantial right, viz. the right of having an unauthorized judgment vacated; not for any mere irregularity in practice, but because it was entered under a void authority. (3.) The order is a summary proceeding in an action after judgment, and stands upon the same footing as an order denying a motion to set aside an execution which has been paid. (4.) The judgment record in such cases always imports the bringing of an action, and a confession of it. It is on its face the record of an action.

      H. G. Wheaton, for respondent.
   Pratt, J.

The order of the supreme court denying the motion to set aside the judgment, is not an order from which a right to appeal is given under the code. This appeal was brought under the code of 1848, and it gives no appeal in cases of this kind.

I. The judgment was perfected in June, 1847. The code proper only applies to suits commenced after the first day of July, 1848. The supplemental act only makes certain provisions of the code, and among others, the right of appeal, applicable to future proceedings in pending suits. This court has repeatedly held, that when judgment had been perfected before the code took effect, the action could not be deemed pending within its provisions. (1 Comst. 426, 423 and 608.) The motion, therefore, was not a future proceeding in a pending suit.

II. The supplemental act restricts the right of appeal to judgments, decrees and final orders. Final orders in this act refer either to final orders in special proceedings in the nature of judgments, final decrees or final orders upon summary application after judgment. In the latter case, this court has held that it refers to some proceeding based upon the judgment or decree, and assuming its validity as a proceeding against the judgment debtor under section 247 or an application of a judgment creditor for the surplus on a foreclosure, and cases of that kind. (1 Comst. 187.)

III. The 457th section of the code of 1849, does not affect the case. That refers to judgments, orders and decrees made before the first day of July, 1848. It also restricts the right of appeal to cases when a right of review existed before the code went into operation. No such right in a case like this existed before the code.

The appeal should therefore be dismissed.

Appeal dismissed.