author:
Davies, J. Hogeboom, J.
      Ingraham, J.,

text:
    Samuel Harris and others v. Horace J. Moody and Jacob R. Telfair.
    Goods carried on deck, according to the custom of the trade hy steamboats navigating Long Island Sound, and stowed in the usual way, are'liable to contribution by way of general average for a loss occasioned by a jettison of other goods necessarily thrown overboard under stress of weather and while subjected to the perils of the sea.
    Bank bills of individuals, so carried for them, in a cratej hy an express company, which company, by agreement with the owners of the steamboat, pay such owners a fixed sum annually for the carrying of a stated number of portable crates, with the contents thereof, are bound, when saved, to contribute for such a loss.
    All property on board the vessel at tile time of the jettison, and saved, unless attached to the persons of the passengers, is to be brought into contribution.
    Bank bills are to be regarded as property, the goods and chattels of the owner thereof; and in case of loss, the owner is entitled to recover the nominal or par value thereof, in the absence of any proof of depreciation, with the interest thereon. .
    Bank notes transported by an express 'company, for the owners, under such an arrangement between it and the owners of the vessel, as is above stated, are to be deemed as paying freight, and therefore as forming a part of the cargo of the vessel.
    This is an action to recover a parcel of bank bills amounting to the sum of $1,171, retained by the defendants who claim .a lien thereon. Such lien is set up under the following circumstances. The steamboat Connecticut, proceeded on a voyage from-the city of New York to Allyn’s Point, in the state of Connecticut, on the afternoon and evening of the 17th of October, 1856, and encountered a heavy gale, whereby she sustained great damage, losing her smoke stack and forward mast, and being greatly strained and injured. The storm continued unabated, and it was evident that the vessel would go down, unless she could be brought round; and to do this it was essential and necessary, for the general preservation, to lighten the boat, and in consequence thereof, with a view to general safety a large amount of cargo was jettisoned, by means whereof the steamboat was enabled to turn and finally to enter Huntington Harbor in safety, from whence she was brought to the port of New York on the succeeding day. The cargo which was jettisoned was not under cover, but according to the established usage and custom of the trade, by steamboats running between New York and Allyn’s Point, was carried on the main deck of the steamer, the space below that deck being, as usual, occupied by the engine, boilers, coal, &e., and by the passengers. Most of the cargo jettisoned was laden upon the upper or main deck of said boat, along each side of the ladies’ cabin, and between the stern of the boat and the paddle boxes, being the space according to usage and custom appropriated to cargo. A cabin is built upon the said deck, and occupies' a space in the centre of the vessel, and equi-distant from each side of the boat, and between the sides of the cabin and the sides of the boat the said cargo was stowed. The bank bills, for the recovery of which the action is brought, belonged to the plaintiffs, and were by them entrusted and delivered at Baltimore, to Adams & Co., express agents and forwarders, to be by them transported to and delivered at Boston to the plaintiffs’ agent. Said bills, at the time of the jettison, were in a crate or case belonging to Adams & Co., which was laden on board the said vessel. By the agreement between Adams & Co. and the owners of said steamboat, the said Adams & Co. were, in consideration of a fixed annual sum paid by them, permitted and allowed to transport on said boat, a stated number of portable crates, with the contents thereof. And the said Adams & Co. made and collected their own charges for the transportation of the contents of said crates from the parties who employed them. The owners of the boat claimed that the said bills were liable to contribute in common with the other property saved, to the payment of the general average loss occasioned by the jettison, and for. that purpose returned the said bills, and delivered them to the defendants in this action, who were at the commencement thereof, in the possession of the same as the agents of the said owners, to secure the payment of .the contributing share of such general average loss, for which said owners and the defendants insisted that the said bills are liable to contribute as part of the cargo of the vessel. These facts were agreed upon by the parties to this action, and upon them the judge, at the trial, directed the jury as matter of law, that the plaintiffs were not entitled to recover; and that the defendants were entitled to their verdict, to which ruling and direction the plaintiffs excepted. Thereupon, the jury gave their verdict for the defendants, and assessed the value of the property taken, at $1,171, and $134.33 as damages for the detention thereof. And the justice directed said exceptions to be heard in the first instance at the general term of the superior court of New York. That court overruled the exceptions, and gave judgment for the defendants (see 4 Bosw. 210), and the plaintiffs appealed to this court.

      John E. Burrill, for the appellants.

      Daniel Lord, for the respondents.
   Davies, J.

Two questions are presented for consideration and determination upon this appeal. 1. Whether jettisoned goods stowed on the deck of a steamer are entitled to the benefit of general average. 2. Whether the particular species of property belonging to the plaintiffs in this action, and retained by the defendants, is liable to contribute for the general average loss. These questions will be considered in the order stated.

By the Rhodian Law, as cited in the Pandects, if goods were thrown overboard, in a case of extreme peril, to lighten and save the ship, the loss being incurred for the common benefit, is to be made good by the contribution of all. (3 Kent’s Com. 232.) The necessity of the jettison, in the present instance,, and that the goods sacrificed were the price of the safety of the vessel and of those saved, are conceded in the statement of facts. Chancellor Kent, in 3 Com., p. 239, lays down the rule, as deduced from the authorities cited by him, that goods shipped on deck contribute, if saved, to the average loss, but if lost by jettison, they are not entitled to the benefit of general average, and the owner of the goods must bear the loss without contribution; and the reason assigned by him for this rule is that the goods, by reason of their situation upon deck, increase the difficulty of the navigation, and are peculiarly exposed to peril. And a further reason for the rule is stated, that the carrier,- in that case, is not responsible to the owner, unless the goods were stowed on deck without the consent of the owner, or a general custom binding him, and then he would be chargeable with the loss. Citing as authorities Consulat. de la Her, chap. 183; Ord. de la Mar, 3, 8, 13; Emerigon, chap. 12, §42; Smith v. Wright (1 Caines’ Rep. 43); Lenox v. United Insurance Company (3 John. Cases, 178); Boulay Paty, tome iv, 566; Code de Commerce, art. 421; Dodge v. Bartol (5 Green, 286); Brig Thaddeus (4 Martin’s Louis. Rep. 582); Abbott on Shipping, 5th Am. ed. 578; Story on Bailments, 339; Johnston v. Crane (Kerr’s N. B. Rep, 356); Wolcott v. Eagle Ins. Co. (4 Pick. 582).

Smith v. Wright (supra), was an action to recover the value of goods shipped on deck and ejected. It was proved, in that case, that goods on deck, if lost, are paid for by the underwriters on those goods, without contribution from the assurers of. the vessel or other parts of the cargo, and one merchant testified that he once owned goods stowed on deck which were lost by jettison, and being uninsured, he claimed nothing from the owner of the vessel or the other part of the cargo; that he conceived it to be the general understanding that for goods ejected from the deck no contribution is to be made, by the owner of the vessel or of other goods. The court held that the owner was not entitled to general average, as the shippers of goods under hatches and the insurer on the ship and cargo was not liable to contribution, on account of their presumed ignorance of any part of the cargo being placed in so perilous a situation. The point decided in the case was that the carrier was not liable for the loss of goods shipped on deck, when thrown into the sea for the preservation of the ship and cargo.. In Lenox v. United Insurance Company (supra), the court held that for stores shipped on deck and insured, and thrown overboard to lighten the vessel, the underwriters were liable only for a partial loss, and that a loss of the lading on deck could not be charged as general average. Cram v. Allen (supra), was decided on the authority of these cases, and also that of Dodge v. Bristol (supra). And the reason assigned for the rule is that goods laden on deck are peculiarly exposed to peril, and increase the difficulty and dangers of navigation.

It is to be observed here, that this rule has only been applied to sailing vessels, and for the sole reason that the lading of the goods on the deck increased the difficulty of. the navigation, and it was consequently regarded as unjust that that portion of the cargo which imperilled the vessel and the other parts of the cargo, if thrown overboard, should be compensated for. Its presence in the particular locality was regarded as in some degree the cause of the peril, or at least its destruction was called for to ensure the safety of the residue, by reason of its dangerous locality. This general rule is also, enunciated by Abbott on Shipping, at page 78, and he says the reason of the rule, as given by Valin, is that goods' so carried embarrass the navigation of the ship. But Valin adds, that he thinks this doctrine should be controlled by the usages of the trade; and, accordingly, that contribution may be claimed for goods thrown overboard from the deck of small coasting vessels or river craft, which usually carry a part of their cargo oh deck. (Tom. 2, p. 203; See 1 Emer. 640.) An examination of the cases will show that the rigor of this rule has been greatly departed from, and one adopted more in consonance with the habits and usages of trade as now practiced, and the modes adopted for the transportation of freight upon water. It might, perhaps, be sufficient to show the inapplicability of the rule as laid down by Chancellor Kent, to say that it was made and applied exclusively to sailing vessels, and the reason given for its adoption can have no force as applied to ships propelled by steam. That reason was that the goods carried on deck' embarrassed the navigation, because thus placed there; that to remove them made the vessel more easily navigable, and thus tended to ensure her safety. Ho such reason has any application to a vessel propelled by steam. The space under deck of this particular vessel was otherwise appropriated than for cargo; and the parties in this action have agreed that it was the established usage and custom, upon this particular boat, to carry its cargo on the main deck. The reason of the law ceasing, the law itself ceases, and the case might safely, I think, be left here. But an examination of the authorities will show that there are exceptions to the rule, and that even in the present case, if the vessel upon which these goods had been laden, were a sailing vessel, the goodsjettisoned would have been entitled to a general contribution. We have already noticed the exception made by Valin, of small coasting vessels or river craft, which usually carry a part of their cargoes on deck. This demonstrates that the rule, as he understood it, applied only to sea voyages. This vessel was in the sound, and usually carried her cargo on deck. These facts, show how inapplicable to her, is a rule made to govern voyages at sea. and especially in reference to vessels navigated with sails. Arnould on Ins. (2 vol. 890) in discussing this doctrine of jettison, observes, that the most important exception is that of goods carried on deck, which as they tend to embarrass the navigation, are not contributed for if jettisoned, unless they are so carried according to the common usage and course of trade on the voyage for which they are shipped. On proof however of such usage, they are contributed for if jettisoned like other goo.cls, and no notice to the underwriters of the existence of such custom is necessary in order to make them liable; they being bound to know the usage of the particular trade. Thus carboys of vitriol, timber on the voyage between London and Quebec, and pigs between London and Waterford, have been contributed for, after jettison, though carried on deck; a usage of trade being proved in each case, so to carry them. The authority cited to sustain the proposition that goods carried on deck, because they tend to embarrass the navigation, are not contributed for if jettisoned, has been' already referred to. The authority of Yalin for the exception made has already been adverted to. Other cases recognize the same exception. Brown v. Cornwell (1 Root Conn. R. 60,) was decided in 1773. The question put to the court in that case was, whether stock, (horses) shipped upon the deck, in case it is thrown overboard, to save the vessel and the rest of the cargo j will entitle the owners to an average upon the goods, c§c., shipped in the hold of the vessel, that was saved. The court determined that the law was so, that it did; that although stock upon deck is more exposed to damage, and in a storm exposes the vessel to greater risk than goods in the hold, yet as it is the universal custom to ship goods in the hold, with stock upon deck, when the stock upon deck is thrown overboard for the express purpose of saving from destruction the cargo in the hold, it is but reasonable that the cargo saved should bear a proportion of the loss, which was the price of its ransom. In Gould v. Oliver (4 Bing. N. S. 134), it was held that the proprietor of goods laden on the deck of a ship, according to the custom of a particular trade, is entitled to contribution from the ship owner for a loss by jettison. Tindall, Ch. J., in delivering the .opinion of the court, observed that Yalin lays- it down that the rule in article thirteen, does not apply in respect of boats and other small vessels going from port to port “ when the usage is to load merchandise on the deck.” The latter words of which textwriters give the reason for throwing such case out of the exception, into the general rule for contribution, at least so far as the ship is concerned. He says that as to the authorities in the English courts, there is no one which states directly that goods laden on deck, shall in no case be entitled to contribution. The question, however, whenever it has arisen in .our courts, has been between the owner of the goods thrown overboard and the underwiter. And the rule generally established seems to have been, that for goods so laden, the underwriters are not responsible. (Ross v. Thwaite; Park on Insurance, 26; Backhouse v. Ripley, id.) To the same point may be cited Lenox v. United Insurance Company, supra; and that the owners are not liable, Smith v. Wright and Cram v. Aiken, supra.) But Ch. J. Tindall proceeds to observe that in Da Costa v. Edmonds (4 Campb. 142), it was left to the jury to say, whether there was a usage to carry goods on deck, of the description of those thrown overboard; and the jury having found such usage, the underwriters were held liable. The case now under consideration does not, indeed, arise between the same parties, but it appears to fall within the same principle. Da Costa v. JEdmonds, was an action on a policy of insurance, to recover from the underwriters the value of forty carboys of vitriol, stowed on deck and thrown overboard in a storm, on a voyage from London to Lisbon. It appeared that carboys of vitriol were very frequently carried on the decks of ships, but that it was likewise usual to stow them below, bedded in sand, in which situation they are considered safe. Lord Ellenborough left it to the jury to say whether it was usual to carry vitriol on the deck, and whether these carboys were properly stowed. If there was a usage to carry vitriol on the deck, the underwriters were bound to take notice, of it without any communication of such usage, and all they could require was, that these carboys should be properly stowed, in the usual manner. On the other hand, they were not liable, if the goods were carried on deck without such a usage; or if they were not stowed there in a skillful and proper manner. The jury found for the plaintiffs, and a rule was refused. The case of Milward v. Hibbert (3 Queen’s Bench, 120; S. C. 2 Gale & Davis. 142) is quite to the point. It appeared that a quantity of pigs in the course of a voyage from Waterford to London, were thrown overboard from the deck where they were stowed. It was insisted that for the deck-stowed pigs, no contribution could be claimed. The court thought otherwise, and Lord Denman in delivering its opinion, said: “ The practice appears to have been not to lay it down as a-rule of law, that for goods stowed on the deck, the owner of them shall be excluded from the benefit of the general average, but to receive evidence of commercial men respecting the usage of the trade and the general understanding of those engaged in it (and in insuring), which may obviously vary, and require from time to time', fresh evidence and different explanations.”

I arrive at the conclusion, therefore, that the rule laid down, by the earlier writers, as applicable to sailing vessels upon a sea voyage, has no relation to the voyage of the steamer Connecticut, upon its voyage up the sound from the port of New York to that at Allyn’s Point; and that if it had, the usage established in this case to stow the goods on deck takes it out of that rule, and brings it within the exception, early recognized and so frequently followed. It results, therefore, that the vessel and cargo of the steamer became liable to contribute to the loss of the goods jettisoned, notwithstanding the same were stowed upon the deck of the steamer. It may also be observed that1 the rule is universal that goods stowed on deck, if saved, contribute to the general loss, and it is not perceived, on principle, why, as they contribute to the general loss, they should not also be entitled to be contributed for, when destroyed for the general safety.

The next question is whether the particular species of property belonging to the plaintiffs in this action, and retained by the defendants, is liable to contribute for the general average loss. By the Rhodian law every thing on board the vessel saved contributed to make up the loss, and in the essay on that law concerning jettison, translated from the digests and code of Justinian, it is said: Several merchants had loaded various quantities of goods on board the same ship, in which were several passengers, both freemen and slaves! In consequence of a violent storm, a jettison became indispensible. It was asked whether all must contribute to the jettison, and whether those must contribute who had goods on board the vessel such as pearls, jewels, &c., and whether there must be a contribution for the heads of fréetnen, and by what action it could be enforced. It was determined that all must contribute who had an advantage from the jettison, because it was atribute due by those things which had been preserved, and therefore that the owner of the vessel was bound to contribute for his share; the amount of the jettison must be apportioned according to the value of the goods. It has also been agitated whether an estimation is to be made of the clothes and jewels of every person; and it was unanimously agreed that they should cohtribute. Arnould thus announces upon what property contribution is to be levied: "All which is ultimately saved out of the whole adventure (i. e., ship, freight and cargo), contribute to make good the general average loss,' provided it had been actually at risk at the .time such loss was incurred, but not otherwise, because, if not at risk at the time of the loss, it was not saved thereby.” (2 Arnould, 921.) .Gold, silver, jewels, precious stones and all other small articles of value, unless carried about the person, contribute. He, says Mr. Phillips, thinks that bank notes, being not so much property as evidences of property, ought not to contribute. Nesbett, he observes, considers that they should, and his seems to bo the better opinion, for they are convertible into money and are saved by the sacrifice from becoming valueless. (2 Arnould, 923.) Phillips says: As much of the cargo on board at the time of making a jettison, or other sacrifice for the general safety, as finally arrives at the port of delivery, or comes to the use of the owner, contributes in ■general average.

Mr. Benecke says: Passengers ought to contribute for their trunks and luggage, because if cast overboard their value is allowed for. Phillips says, this reason does not appear very satisfactory—a plainer one seems to be, that the baggage is benefitted by the jettison in proportion to its value, in comparison with its whole value at risk, precisely as any other property is so. Emerigon is of the opinion that of right and upon general principles, every thing belonging to passengers, even to their wearing appa-t rel, is liable to contribution. Valin considers the wearing apparel, jewels, rings, ornaments, and in general whatever a passenger habitually wears, uses or carries about his person, during the voyage, including his change of linen, to be exempted from contribution, by the concurrent authority of the ordinances and writers. And Phillips says this seems to be the general practice. He adds: If any part of the baggage is of sufficient value to be. worth bringing into contribution, no reason has been given why it should not contribute a part of the contributing interest. The reason for exempting wearing apparel and the like seems to be that, the persons of those on board are not brought into contribution, and the exception extends tp things which are merely necessary to the person. This discussion shows how universally all that is on board ship, at the time of the jettison, and saved from the impending peril, is called upon to contribute, and the only exception is the persons on board and what is necessarily attached to them. And the reason given for the exemption of the person on board is, that it is impossible to estimate the value of freemen. Slaves, on board at the time of jettison, have been valued, and made subjects of contribution. Park, Justice, in Brown v. Stapyleton (4 Bing. 119), says: The rule is that all merchandize put on hoard for the purpose of traffic, is liable to be brought into contribution, ancl in merchandize is included all property-of great value, unless attached to the persons of the passengers, but property so attached does not contribute. It may therefore be considered as settled by text writers and by judicial authority, that all property, on board at the time of the jettison,, arid saved, unless attached to the persons of the passengers, is to be brought into contribution.

It remains to be considered whether the parcel of bank bills, belonging to the plaintiffs, are to be regarded as property. That they are so treated by the plaintiffs is apparent from the pendency of this action. The complaint alleges that the defendants have become possessed of and wrongfully detain the following property of the plaintiffs: that is to say, one package of bank bills of the value of $1,171. In the face of this allegation, it will hardly be permitted to the plaintiffs to argue that this package of bank bills is not property, and has no actual value.

In Turner v. Fendall (1 Cranch, 116), the supreme court of the U. S. held that money may be taken in execution, if in the possession of the defendant. That it could be levied on and seized, as the goods and' chattels of the defendant. In Handy v. Dobbin (12 Johns. 220), an execution was issued against the goods and chattels of Handy, by'virtue of which the officer seized two five dollar bank bills of the goods of Handy. Spencer, J., in delivering the opinion of the court, observed that there can be no doubt that the constable, under the attachment, could take any goods and chattels which could be levied on by execution. The authority in both cases is the same. Bank bills are treated, civiliter, as money; a tender in them is good, unless it be' specially objected to at the time. ' The question then is narrowed to this: can money be levied on by execution? This court, he says, in Williams v. Rogers (5 Johns. 167), intimated strongly their concurrence in the decision of the supreme court of the United States, in 1 Cranch, 133. In that case, all the cases on the point were reviewed, and itx was held that money could be levied on. We now fully concur in the doctrine then advanced. We perceive no objection in principle why money should not be taken in execution. It is the goods and chattels of the party; and it appears to us to comport with good policy as well as justice, "to subject everything of a tangible nature, excepting such things as the humanity of the law preserves to the debtor, and mere choses in action, to the satisfaction of the debtor’s debts. (See also Ontario Bank v. Lightbody, 13 Wend. 102.) Sherman v. Wells, (28 Barb. 403) was an action to recover certain bonds of the state of Michigan, of the nominal amount of $4,600, entrusted to the defendant as a common carrier, and which were, lost by the sinking of a vessel on Lake Erie, upon which they were for transportation. The defendants were held liable to, pay the amount of the principal and interest of the bonds. ' The measure of damages was held to be the face of the bonds," unless the one party prove it to be more, or the other prove it to be less. (Sedg. on Dam. 512-13; 1 Cowen, 240; 10 M. & W. 575; 2 Bawle, 241; 2 Farm. 440; 1 Barn. & Adol. 528; 3 Camp. 476; Angelí on Carr. \ 285; 13 East, 509; 2 Par. on Contracts, 471.) It would seem, therefore, to be well settled, that bank bills are to be regarded as property, the goods and chattels of the owner thereof; and that in case of - loss, the owner is entitled to recover the nominal or par value thereof, in the absence of any proof of depreciation, with the interest thereon. Such being their nature and properties, they were clearly subjected as property, to the burthen of contribution, in the case under consideration.

But it is claimed, on the part of the plaintiffs, that under the. arrangement between Adams & Co. and the owners of the steamboat,.the bank notes in question paid no freight, and therefore formed no part of the cargo of the vessel. We have seen from the authorities that it is not an essential element in‘the liability to contribution that the property on board should form- a part of the cargo of the vessel. The inquiry is, in testing its liability to contribute, was the particular • property or thing saved on board at the time of the jettison, and in peril? If so, its duty or liability to make contribution is fixed, except in the particulars heretofore alluded to. It is true that Myers says: “ What pays no freight pays no average;” but this doctrine is very generally repudiated, and no authority is cited to sustain it. Even the same author qualifies this, in that he means to exclude from contribution only the wearing apparel and. ornaments belonging to the person, by saying: “ If a passenger should conceal in his trunk, or about his body, any such considerable sum of money or jewels as would not be suffered without paying feight, he must contribute to the jettison.” Here the things concealed formed neither a part of the cargo or paid freight, yet this author declares their liability to contribute. Mr. Stevens says: It would be very unjust that the master, or any other person who had goods on board, should not contribute because he pays no freight. ' 0

But it is apparent from the facts presented, in this case, ' that in truth compensation was paid to the owners of the steamboat, for the transportation of this particular species pf property. It is of no moment that the same was made in a fixed sum, for the carrying by the year, the crates with their contents. The payment was in' fact made for the transportation of the crates, the parcels therein being placed there for safety and convenience. And it is also a matter of no importance that such compensation or freight was paid in the first instance by Adams & Co. Adams & Co., collected their own charges for the-transportation from the plaintiffs and others who employed them, and we cannot fail to see that a portion of these charges must have been a share or proportion of the sum paid by Adams &• Co. for the transportation on the steamboat of this particular parcel from the port of New York-to Allyn’s Point. We conclude, therefore, that this particular parcel of bank bills formed a part of the cargo of, this steamer, and freight was paid therefor, It was not necessary, to make it a part of the cargo, that it should have been specifically received, and designated as such, or that to determine the question whether or not freight was paid on it, the sum should have been paid specifically, on this identical parcel. We therefore arrive at the conclusion as well upon principle as authority that the bank bills of the plaintiffs on board of the steamer, for transportation at the time of.the jettison, are to be deemed and taken as property, and are bound to contribute, to the general average loss. If these views are correct, the judgment appealed from should be" affirmed.

Hogeboom, J.

The general rule undoubtedly is, that goods shipped.on deck, contribute if saved, but if lost by jettison, are not entitled to the benefit of general average. (Abbott on Shipping, part 4; chap. 10, sub. 3; 3 Kent’s Com. 240; Smith v. Wright, 1 Caines, 43.)

Buf the rule has its qualifications.

1. It is strictly applicable only to those vessels which are expected to encounter the extraordinary perils of the sea, and not to those which navigate smoother waters, and are comparatively safe from extraordinary exposure. (2 Smith’s Leading Cases,'531; Abbott, 481, 482.)

2. The custom and usage prevailing on the particular route navigated, as to the place on the vessel where the cargo is stowed or located, has a material bearing upon the right of the jettisoned cargo to contribution for loss. If by such usage the cargo is stowed on the main deck, and not under cover, then it becomes not only liable to contribution if saved, but entitled to contribution if lost. (2 Smith’s Leading Cases, 531; Gould v. Oliver, 4 Bingham, N. C. 134; Brown v. Conwall, 1 Root [Cow.] 60; Barbour v. Bruce, 3 Conn. R. 9; Barbour v. Dodge, 5 Greenleaf [Maine], 286; 22 Pick. 116; 1 Parsons’ Maritime Law, 307, 308, 309.) By the terms of the stipulation in this case, it is fairly inferrible not only that the main part of the cargo was actually stowed on the main deck, but that it was the only place in the vessel where it could be located. In such a position it was as gafe as elsewhere from such perils as vessels of that description on the route which they pursued would be likely to encounter. To deny to a cargo thus placed the right to contribution for loss, in the event of a necessary jettison, would be practically to ignore all title to contribution in all ordinary cases. The rule of contribution would be nullified, and the practice of general average terminated.

The bank notes in-question formed a part of the cargo of the steamboat. They were packed in a crate, and the crate paid freight. Whether such freight was an aliquot part of a fixed annual sum, or a reasonable and customary Charge for the particular voyage, cannot alter the question. It was still freight paid for the transportation of the particular crate in which these bills were; and if for the crate, then also for its contents, for it was the contents of the crate and not the crate itself which induced the shippers to undertake the transportation and incur its expense. It was therefore a part of the cargo or burthen carried. It embraced the two important elements which enter into the definition'' of cargo, to wit: 1. A part of the load or burthen of the vegsel. 2. A part of. the articles which produced freight or compensation to the carrier. (Abbott on Shipping, part 4, chap. 10, sub. 12, p. 502.)

. Nor were they within any of the various exemptions or exceptions which exclude certain articles from being considered as a part of the cargo, and therefore not liable to contribution.

1. They were not like small parcels of money or evidences of debt, wearing apparel or e ordinary baggage attached to the person of the passenger and under his personal care and supervision. They were placed among the ordinary goods, wares and merchandize which constitute the cargo of the vessel, exposed to its perils and sharing its fate. (2 Arnould on Insurance, 888 [Am. ed.]); 1 Phillips on Insurance, 172 [2d ed.]; 2 do 152; 3 Kent’s Com. 210; Nelson v. Belmont, 21 N. Y. Rep.)

2. They were within the protection of the contract made between the shipper and the carrier. We are entitled to infer, from the course of the business, that the carriers were entirely aware of the character of the packages conveyed by the express companies, and that they include packages of money as well as other small parcels of value.

3. They were also property, within the meaning of that term as applied to articles which might legitimately form a portion of the cargo of the vessel. They were money in the ordinary definition of that term, and among the most valuable kinds of property. They pass from hand to hand equally with gold and silver as a part of the ordinary currency of the- country. They are liable to levy and sale on. execution. (Handy v. Dobbins, 12 Johns. 220; Turner v. Fendall, 1 Cranch, 33. See Parsons on Maritime Law, 323.)

They were something more than mere evidences of debt, and, if not, were none the less articles of personal property. They were subjects of barter and sale, and if improperly detained or lost, could be recovered or sued for in replevin or trover. Nor could their place be supplied, in case of loss, by similar papers without loss of identity. True, evidence of the loss might in some cases be successfully procured and thus the loss wholly or par-' tially remedied. A new note or bill might be substituted for the one lost; yet it would not be the same note or bill. It is not more than in other cases the loss of mere evidence or proof of property, but of property itself having intrinsic and appreciable value. If, on proof of loss, the amount of the bill or note should subsequently be recovered of the party liable to pay, the pursuit of this remedy should be imposed on the carrier and not on the owner. Prima facie the loss of the bills should be treated as a loss of the debt they represent. The payment of the - loss by the carrier would transfer the title to him, and the burthen and. risk of its subsequent, recovery should devolve on him. (See 1 Park on .Insurance, chap. 7, § 2, page 293; Abbott on Shipping, 502, part 4, chap.. 10, sub. 12; Brown v. Stapleton, 4 Bing. 119.)

It is said that choses in action, bonds, bills, notes, mortgages, deeds, evidences of debt» and of title are exempt from contribution, and therefore that bank bills should be. I do not understand that in cases similarly circumstanced to the present they would be so exempt. They are ordinarily exempt because accessory to the person, but not so in any instance when they pay freight and become part of the cargo proper.

It is said that subjecting bank bills to liability is the introduction of a new principle, and would be disastrous if practically carried out, because if liable to contribute when saved, they are equally entitled to contribution if lost, and that the large sums and extraordinary values thus brought into the account for contribution would absorb the price of less valuable property, and therefore dictate the rejection of the principle. This consideration cannot be indulged. In the first place, jettison of articles of such light weight and such great value, is not permitted except in cases of emergency, and therefore they are much more likely to suffer than to exact contribution. In the next place there is no practical injustice in allowing and enforcing contribution according to a just valuation; and in the third place the question does not- here arise to what extent these bank bills shall be made to contribute; for the plaintiffs refused to recognize the lien altogether, and therefore the defendant was warranted in refusing to surrender the property if the lien existed to the slightest amount. It was a question of lien or no lien, and not of amount of lien.

In.my opinion the bank bills were bound to contribute to the loss. The bills were justifiably detained to respond for such loss; and the judgment should be affirmed, with costs.

Ingraham, J.,

concurred in above opinions, as to all

except that bank bills are property, under the law relating to contribution and average. . Upon that point he was for reversal.

All the other judges being for affirmance, judgment affirmed.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Margaret Kniffen v. Alfred McConnell.
    Where it was proved, in an action to recover damages for a breach of promise of marriage, that the uncle and aunt of the plaintiff, in her presence, and without objection on her part, asked the defendant to marry her, which he refused, and when the plaintiff said to the defendant: “ M., I don’t want your money; I want your word and honor that you promised me,” he replied: “ There is no use in talking; I can’t marry you now.” Held, that there was evidence enough, on.the subject of a request, to submit that question to the jury.
    In an action for breach of promise of marriage, evidence as to the defendant’s pecuniary circumstances should be confined to general reputation. To that extent it is admissible.
    Where the answer, in such an action, contains only a denial of the promise, evidence showing acts of improper and lewd conduct on the part of the plaintiff, for the purpose of proving criminal intercourse with other men, after the.m along of the promise, is not admissible, as a bar to the action,, for the reason that that defense is not set up in the answer.
    Such evidence may be received, however, in mitigation of damages, it seems.

    It is not erroneous for the judge to charge the jury that if they find the defendant seduced the plaintiff under a promise of marriage it aggravates the damages.
    Where the plaintiff proved: 1st, The promise, as admitted by the defendant in his acts and conversation. 2d. The pregnancy of the plaintiff, and subsequent birth.of a child. 3d. The application to the defendant to marry her, on account of her condition, and his refusal. 4th. The appeal of the plaintiff to him that she did not want his money, but wanted his word and honor that he had promised her. Held, that this evidence was amply sufficient to submit to the jury the question whether the defendant had seduced the plaintiff, and if so, whether he had promised marriage, to carry out his intentions, or had taken advantage of the confidence arising from that promise to effect his purpose.
    It is not erroneous to charge that if the defendant has. come into court and attempted to prove the plaintiff guilty of misconduct with other men, of which he knew she was innocent, or when the misconduct was committed with himself, it aggravates the injury and strengthens the claim to damages, although such misconduct is not set up in the answer as a defense.
    Where the judge charged that if the jury were satisfied that the defendant was not the father of the plaintiff’s child, they should find for the defendant; Held, that there was some ground for criticism on this part of the charge; that the pregnancy being a conceded fact, it was not for the defendant to prove that he was not the father, hut for the plaintiff to prove that he was.

      This was' an action to recover damages for breach of a promise of marriage. The complaint contained a promise of marriage, macle by the defendant to the plaintiff, to marry her when he should be thereafter requested; averring a request to marry and the defendant’s refusal. It also contained a second allegation on a promise to marry the plaintiff within a reasonable time, a request by the plaintiff and a refusal to marry her, although a reasonable time had elapsed. The answer was a general denial of everything in the complaint.
    Upon the trial, it appeared the defendant commenced paying attentions to the plaintiff in 1852, and continued his attentions till Sept., 1855. .During that time, he went with the plaintiff to parties, balls and elsewhere; would spend his evenings with her, ride out on Sundays, and on his return stay till midnight. On one occasion, when the plaintiff was sick, the defendant visited her two' or three times a week, and would fan her, staying from half an horn to two or three hours. On one occasion, when visiting her, he was told by a relative of the plaintiff they were old enough to get married, or to break up keeping company. To which he replied, he was not fooling about the matter. In April, 1855, on a visit he made to the plaintiff, the defendant was charged by her aunt with causing her condition—she being then pregnant—and asked what he was going to do about the matter. He denied being the father of the child. The plaintiff said no other man had ever had any connection with her. He was asked to marry her. He replied, he was not in a condition to marry then. He after-wards said she h'ad proved herself tó be treacherous, and he could not marry her. The plaintiff was about twenty-six years of age and the defendant forty. It was proved she had invited other young men in her room, and had gone to parties with them. Other evidence was given as to their riding together; and a sister of the plaintiff proved that the defendant told her they were engaged.
    Upon the trial, the judge permitted the plaintiff to prove wka.t the defendant was worth. This was objected to by the defendant, and the objection overruled upon the ground that the evidence was admissible to show the extent of the damage the plaintiff had sustained by the defendant’s refusal to marry her. To this the defendant excepted.
    When the plaintiff rested, the defendant’s counsel moved for a dismissal of the complaint on the ground that there was no evidence of a sufficient request to marry on the part of the plaintiff. The motion was denied, and the defendant excepted.
    The defendant offered to prove that the plaintiff was on one occasion in a private bedroom with some young men and they shut themselves in and remained for some time; and also acts of a lascivious character, showing that she had prostituted her person to others, after the alleged promise of marriage. This was excluded, on the ground that no such defence was set up in the answer; to which the defendant excepted. The same evidence was afterwards offered and admitted in mitigation of damages. It was proved that in September 1855, the plaintiff spent the night at a tavern with a young man other than the defendant, and that they lodged together; and a similar occurrence in July or August, 1854. Some evidence was given to impeach the testimony of these witnesses.
    The judge, among other things, charged the jury that if they found the defendant had seduced the plaintiff under a promise of marriage, it aggravated the injury, and they might regard such seduction as an aggravation of damages. That if the defendant had attempted to prove her guilty of misconduct with other men of which he knew she was not guilty, or when the misconduct was committed by himself, it aggravated the damages.
    The defendant’s counsel asked the judge to charge that unless the jury were fully satisfied that there was a contract of marriage between the parties at the time the defendant was requested to marry the plaintiff, and that the defendant was the father of the child with which she was pregnant, the jury must find for the defendant. This was refused, but the judge did instruct the jury that if they were satisfied the defendant was not the father of the plaintiff’s child, or that the defendant had any reasonable ground so to believe at the time of his refusal to marry her, then they should find for the defendant. ■
    To these various points of the charge, and to the refusal to charge, the defendant duly excepted. The jury found a verdict in favor of the plaintiff for the sum of- $2,350, and the plaintiff remitted to the defendant the sum of $350, and prayed judgment for the residue of the verdict and damages, being the sum of $2,000 demanded in the complaint; and for the latter sum, with costs, judgment was entered. The general term affirmed an order of the special term denying a motion for a new trial, and judgment was entered on the verdict, for the plaintiff.

      D. J. Sunderlin, for the defendant.

      F. Kernan, for the plaintiff'.
   Ingraham, J.

There was sufficient evidence of a request on the part of the plaintiff to marry, to warrant the denial of the motion to dismiss the complaint. The uncle and aunt, in her presence, and without objection on her part, asked the defendant to marry her on account-of her condition, which he refused; and when the plaintiff said to him, McConnell I don’t want your money; I want your word and honor that you promised me,” he replied, “ There is no use in talking, I can’t marry you now,” there was evidence enough on the subject of a request to submit that question to the jury.

The defendant objected to evidence as to his pecuniary circumstances. The ground upon which this was admitted, was to 'show the full extent of the loss or damage the plaintiff had sustained by reason of the defendant’s refusing to fulfill his engagement. , By this, I suppose, it was intended to show that from the plaintiff’s pecuniary condition, she would have been in the enjoyment of comfortable circumstances, and placed in the use of means, which by his refusal, she has been deprived of. It is now settled that in action for breach of contract, evidence of the condition of. the defendant as to means is not admissible. And in other actions, a similar ruling has been adopted when the evidence was offered to increase the damages. Thus in Myers v. Malcom (6 Hill, 292), this evidence was held improper in an action for damages, from an explosion of gunpowder improperly stored. And in Dain v. Wycoff (3 Selden, 191), Gákdinee, J. in an action for damages for seduction, says: “If the defendant can not show his poverty in mitigation of damages, there is no reason why the plaintiff should aggravate them by proof of his wealth.1' In James v. Biddington (6 Car. and P. 589), such evidence was held inadmissible in actions for criminal conversation. But in the latter case it is said this rule does not apply in action for breach of promise of marriage, where the amount of the defendant’s property is material as going to show what should have been the station of the plaintiff in society if the promise had not been broken. (Sedg. on Dam. p. 544.) His means might have relieved her from labor, or placed her in a condition of comfort and independence which she would not have otherwise enjoyed. The objection in this case was not to the mode of proof, but to the admissibility of that kind of evidence. It may be objectionable to particularize the defendant’s property, and such evidence should be confined to general reputation as to the circumstances of the defendant. To that extent I think it admissible.

The defendant offered evidence showing acts of improper and lewd conduct on the part of the plaintiff,' for the purpose of proving criminal intercourse with other men. This was excluded by the court, for the reason that the same was not set up in the answer. There was no error in this ruling. The alleged improprieties had taken place after the promise of marriage had been made. They did tibt show the contract to be void from its commencement, but they showed acts which relieved the defendant from an obligation of performance, and which constituted a defense to the original cause of action. The code, section 149, requires an answer to contain either, 1. Denials of the plaintiff’s allegations; or, 2. A statement of any new matter constituting a defense or counter-claim. The wording of this section is imperative. The answer must contain such statements. In this case the answer only contained a denial of the promise. It gave no information of any new defense, or any new matter occurring after the contract, that formed a defense. No issue was formed as to such a defense. In McKyring v. Bull (16 N. Y. 297), the effect of this section was held to be such as to require all matter, if it constituted a defense, to be pleaded. (See also Wright v. Delafield, 25 N. Y. R. 270.) While, however, this was not admissible as a bar to the action, the defendant offered and the court received it in mitigation of damages, and the defendant received the full benefit of it, as much as he would have done if received on the first offer. In addition to the admission, the judge gave the defendant, the full benefit of the evidence as a defense when he told the jury if the defendant was not the father of the plaintiff’s child,, or had any reasonable ground so to believe at the time of-his refusal to marry her, they should find for the defendant.

The judge also charged that if they found the defendant had seduced the plaintiff, .under a promise of marriage, it aggravated the damages. I do not understand the objection to this ruling to be to its correctness as a rule of law, but that it was not warranted by the evidence, and that the judge submitted to the jury a proposition not sustained by the evidence, and not in the case. The, propriety of the rule was fully examined by Mason, J., in Wells v. Padgett (8 Barb. 323), and cases cited by him from Massachusetts, Mississippi, Tennessee, Kentucky and Indiana, approving that rule. The only case cited to the contrary is from Pennsylvania, but the propriety of that decision has been since questioned. The weight of authority and the general, principles upon which such evidence has been admitted, are strongly in favor of sustaining the rule.

Was there then evidence enough in the case to warrant the finding of the jury on that point. These was proved: 1st. The promise as admitted by the defendant in his acts and conversation. 2d. The pregnancy of the plaintiff, and subsequent birth of the child.. 3d. The application to him to marry the plaintiff, on account of her condition, and his refusal. 4th. The appeal of the plaintiff to him that she did not want his money, but wanted his word and honor that he had promised her. These and other portions of evidence bearing upon this question were amply sufficient to submit to the jury the question whether he had seduced the girl, and if so, whether he had promised marriage to carry out his intentions, or had taken advantage of the confidence arising from that promise to effect that purpose. There is no room for the objection that there was not enough evidence on which that question could be submitted to the jury.

The judge also charged that “ if the defendant had come into court and attempted to prove her guilty of misconduct with other men, of which he knew she was n®t guilty, or when the misconduct was committed with himself, it aggravates the injury and aggravates the claim to damages.” In Southard v. Rexford (6 Cowen, 254), it was held that an attempt to justify the breach of promise of marriage by stating upon the record, as the cause of desertion of the plaintiff, that she had repeatedly had criminal intercourse with various persons, and fails entirely in proving it, is a circumstance which ought to aggravate damages. The reason given by the learned judge in that case is that a verdict for nominal damages under such circumstances would be fatal to the plaintiff. The rule is undoubtedly founded upon the fact that the justification is placed upon the record, and that it will ever remain there as a -reiteration of the charge against the plaintiff, and with such an answer on the record, a trifling verdict would not show that such charge was unfounded. The same rule applies to actions for libel and slander; but I have not seen any case where the rule has been extended beyond a justification upon a the record. The defendant certainly did prove improprieties on the part of the plaintiff, after the promise was made, not perhaps as to the prostitution, for those witnesses were discredited, to some extent, and may have been disbelieved by the jury. The attempt to submit such conduct to the jury, when the same is not made a part of the record, does not in my judgment warrant the charge of the judge in the present case. Such- a rule would deprive a party of a right to submit any thing in mitigation of damages, as connected with the plaintiff’s conduct, without • assuming' the liability of having the damages increased if he fails in establishing the truth of them.

It is an anomaly in an action for a breach of contract, to hold that setting up matters to excuse such breach, in an answer, the proof of which fails, is an aggravation of damages. Certainly the rule should be extended no further than the case of Southard v. Rexford has carried it; and where it is not made a part of the record and set up by way of justification, there is no good reason for the rule as laid down upon the trial. It has been held that to prove the bad character of the plaintiff in such an action, the representations of character made by third persons may be given in evidence without proving their truth. (Foulkes v. Solway, 3 Esp. Rep. 236.) If the rule, as laid down at the circuit, be correct, then such proof would only be an aggravation'of the damages. I think there was error in this part of the charge, and that the rule should have been confined to the justification set up on the record.

There is also some ground for criticism in the remaining part of the charge objected to by the defendant, viz: That if the jury were satisfied that the defendant was not the. father of the child they should find for the defendant. The pregnancy was a conceded fact. It was not for the defendant to prove that he was not the father, but for the plaintiff to prove that he was, if she wished to relieve herself from the effect of the admitted pregnancy. The instruction to the jury might very easily lead them to suppose that unless it was proved the defendant was not the father, they might suppose him to be the father, and punish him accordingly.

For the cause above stated as to .the charge that the attempt to prove facts imputing want of chastity to the plaintiff, which failed, was an aggravation, I think a new trial should be ordered; but a majority of the court are of the opinion that the charge was not erroneous in this respect, and that attempting to give such matters in evidence, though not set up in the answer as a defense, if not made out, warrants the charge to the jury that it should aggravate the damages.

The judgment, therefore, must be affirmed.

Mullen, J., concurred with Ingraham, J., upon the last point. All the other judges being for affirmance, judgment affirmed.


author: Wright, J. Johnson, J.

text:
    Robert Dodge, Executor, &c., v. Calvin L. Crandall and others.
    Where the holder of a mortgage which was past due, being about to enforce it by action, H. agreed by parol with the plaintiff’s testator, who ■ had assumed the payment thereof, for a valuable consideration, to purchase said mortgage and refrain from collecting the principal for five years. Held, that this agreement, being executed by the taking of an assignment of the mortgage, and the payment of the consideration therefor, operated as effectually to extend the time of payment,' as if it had been under seal.

      Held, also, that this was an executory and not an executed contract, and was, therefore, not affected by the statute of frauds.

      Held, further, that a judgment dismissing the complaint, in an action to foreclose the mortgage, brought before the expiration of the five years, was sustainable upon the equitable ground that the defendant, having a cause of action, could be allowed to set it up to avoid circuity of action.
    A judgment, in an action brought by an executor, as such, dismissing the .complaint with costs, and adjudging that the defendants recover of the plaintiff a specified sum, for their costs and disbursements, without any direction that the plaintiff shall pay the costs personally, can only be collected from the assets in his hands. It is in law a judgment against him for costs as executor, and is properly rendered as though he was prosecuting in his own right.

      Appeal from a judgment of the Supreme Court.

    This action was to foreclose a mortgage executed by Crandall and wife to David Barclay, on 9th February, 1853, to secure the payment of the suni of $800, in three instalments of $266.66 each; the first instalment to be paid on 1st March, 1855; the second on the 1st March, 1856; and the third on 1st March, 1858; interest to be paid annually on 1st March in each year, on the whole principal remaining due and unpaid.' On the 29th April, 1854, Barclay assigned the mortgage to Jerusha Holcomb and Jerusha Barclay, who, on the 6th June, 1854, assigned it to Lyman D. Nielcl. On the 28th March, 1855, Meld assigned it to S. Y. E. Mallory. Mallory died on 19th September, 1856,- and on the 29th of that month letters of administration were granted on his estate to Thomas M. Howell. On 28th February, 1859, Howell, as such administrator, in consideration of the sum of $576.56, to him paid by John W. Holberton; the plaintiff’s testator, assigned the mortgage and the bond accompanying the same to Holberton. Holberton died in February, 1862; and in June, 1862, these foreclosure-proceedings were commenced by his executor.
    Prior to the 23d February, 1856, the defendant, Frederick C. Holcomb, had purchased of Crandall, the mortgagor, and became the owner of the mortgaged premises, and had agreed with Crandall to assume and pay the bond and mortgage to the owner and holder thereof, and was under obligations to pay the same at the time of the assignment to Holberton. ■ Shortly previous to the 28th February, 1859 (the date of the assignment of the bond and mortgage by Howell as administrator of Mallory to Holberton, the plaintiff’s testator), it was agreed between Holberton- and the defendant Holcomb, that Holberton should buy of Howell, administrator as aforesaid, the said bond and mortgage, and take an assignment thereof, and hold the same for the term of five.years, from the 28th Feb., 1859, and give Holcomb the- said term of five years within which to pay said bond and mortgage, and should not collect the same until that period of time should elapse; and that Holcomb should pay Holberton for so buying and holding said bond and mortgage, and giving day of payment thereof as aforesaid, the sum of fifty dollars. That in pursuance of such agreement, Holberton took an assignment of such bond and mortgage as before stated, and agreed to give the said Holcomb five years from 28th February, 1859, to pay the same. And Holcomb thereupon, in consideration thereof, paid the said John W. Holberton the said sum of fifty dollars. The time for which the payment of the bond and mortgage was so extended by said agreement had not, when the suit was commenced, or. at the time of the trial, elapsed, and would not expire until the 28th February, 1864.
    Holcomb, amongst others, was made a party defendant in the foreclosure • suit, and answered setting up the agreement between himself and the plaintiff’s testator to'purchase the bond and mortgage of the administrator of Mallory, and give and extend the time of payment thereof to him for the period of five years from the 28th February, 1859.
    The cause was tried by a referee. The plaintiff’s counsel admitted that there had been no default in the payment of interest upon the bond and mortgage, and that he did not claim a right to foreclose the mortgage- by reason of any default of payment of principal; he claimed the right to foreclose it, and maintain the action for that reason, unless it was established that there had been a good ánd legal agreement, extending the time of the payment of the principal. It was also conceded and admitted by the plaintiff’s counsel, that Frederick C. Holcomb, the defendant, was the owner in fee of the mortgaged premises, having purchased the same, subject to the mortgage in question, and having become bound to pay the bond and mortgage as part of the purchase money for the same, prior to the purchase of said bond and mortgage by John W. Holberton, deceased, and that he, Holcomb, was in a proper condition to avail himself of any defense in this action, including the defense set up in the answer, provided that such an agreement was made.
    The defendant’s counsel then offered to prove the defense set up in the answer. -The counsel for the plaintiff objected to Holcomb proving -a parol agreement between himself and the plaintiff’s testator, to extend the time for the payment of the principal due upon the bond and mortgage for five years on the payment of fifty dollars, as set up in the answer of the defendant, on the ground that such agree ment not being in writing, was void and contrary to the statute of frauds. The referee overruled the objection, and the plaintiff’s counsel excepted.
    The referee heard the evidence, and found the facts as above set forth; and found as a conclusion of law that said agreement extending the time of payment of the bond and mortgage for five years from the 28th February, 1859, although by parol, was valid and effectual. That, therefore, there was nothing due the plaintiff on such bond and mortgage, and he could not sustain the action, and that his complaint must be dismissed. He ordered judgment accordingly. The plaintiff’s counsel excepted to the referee’s conclusions of fact and of law in respect to the agreement to. purchase, enlarging the time of payment of the bond and mortgage.
    Judgment was entered on the report of the referee dismissing the complaint “with costs,” and adjudging that the defendants “ recover of Robert Dodge, the plaintiff, the sum of $96.21, their costs and disbursements.” The plaintiff appealed to the general term, when the same was affirmed. The plaintiff then appealed to this court.

      C. Tracy, for the appellant.
    I. The judgments entered are irregular and unauthorized. This action is solely by an executor. The judgment is made personal for costs without an order of court therefor. The referee has no power to award costs. (Woodruff, Adm’r, v. Cook, 14 How. 481; Code, §317; Mersereau v. Ryers’s Adm’r, 12 How. 301.)
    II. The verbal agreement alleged as a defense whereby the payment was extended for five years, of a specialty made between strangers prior to any interest acquired therein by the party sought to be charged, is void by the statute of frauds.- (2 R. S. 135, § 2, sub. 1.) It was an executory and not an executed agreement. (Story on Contracts, §18-20; Bouvier’s Diet. “Agreement,” and “Executed.”) The admission of matter as a defense to avoid circuity of action is allowed only where such matter is a good cause of action. (4 Wend. 360; 3 Cow. 151.) “It is an agreement that by its terms is not to be performed xvithin one year from the making thereof.” {Vide cases cited, 2 Abb. Dig., pages 84 and 85.) It is not an agreement to make a valid new mortgage or written or sealed extension or valid release, or one which equity would decree performed, but it is sét up and found as simply a completed verbal understanding to wait five years for the debt then past due by its terms, on which the debtor has no remedy. (Stoddard v. Hart, 23 N. Y. R. 556; Marshall v. Lynn, 6 Meeson & Welsby, 109.) It is expressly not to be completed till five years had elapsed, and it cannot be upheld by cases where performance might be within a year, or of part performance within the year, nor for “ rescission ” or as “ executed.” (Delacroix v. Bulkley, 13 Wend. 71; Lockwood v. Barnes, and notes, 3 Hill, 128; 6 Seld. 232.) The verbal contract alleged, and so found by referee, is entire, viz.: to purchase the bond and mortgage and not to enforce its payment in five years. Although in part executed, it is void by the statute, for the extension, and therefore wholly void. (Van Alstyne v. Wimple, 5 Cowen, 162; 8 Johns. 253; Baldwin v. Palmer, 6 Seld. 232.) On such a “void” and “null” contract no action lies, and no defense exists. (Kellogg v. Olmsted, 25 N. Y. Rep. 189; 23 N. Y. Rep. 556; Hunt v. Bloomer, 5 Duer, 202, Aff’d, 3 Kern. R. 341; Baldwin v. Palmer, 6 Seld. [10 N. Y.] 232; Halsted v. Spencer, How. Ap. Cas. 319; Broadwell v. Getman, 2 Den. 87; Pitkin v. Long Island Railroad Company, 2 Barb. Ch. 221; Amburger v. Merwin, 4 E. D. Smith, 393; Burk v. Earl of Liverpool, 9 Barn. & Cres. 392; Bracegirdle v. Heald, 1 Barn. & Ald. 722; Peters v. Crompton, 1 Smith’s S. C. 145, note; Lyon v. King, 11 Met. 411; Peters v. Inhabitants of Westboro, 19 Pick. 354; Foster v. McO’Blennes, 18 Missouri, 88; Pierce v. Estate of Paine, 31 Vt. 34.) Sucha defense should have been excluded. (5 Bosworth, 238, and cases cited; 31 Barb. 267; St. Nicholas Insurance Co. v. Mer. Marine Insurance Co., 6 Duer, 208-19; Townsend v. Emp. Stone Co.) Such alleged agreement extending a specialty, whether- with or without consideration, is expressly adjudged void. (Allen v. Jaquish, 21 Wend. 628; Eddy v. Graves, 23 ib. 84; 4 Hill, 484; 31 Barb. 548; Bander v. Snyder, 5 Barb. R. 70); and immaterial; (Hasbrouck v. Tappen, 15 John. 200, 3 and 4.) The debtor may at any time thereafter have tendered the debt. In the principal opinion below the judgment is upheld solely “ to avoid circuity of action,” although the agreement is, conceded to be “void,” upon which no action or defense could be maintained. (Lathrop v. Hoyt, 7 Barb. 60; 2 Story Eq. Jur. 611, §1201; 5 id. 70; 25 id. 440.) On a valid agreement any damage to the debtor from tender of his lawful debt or performance at any time, would be “fanciful.” (25 N. Y. R. 189.) The cases cited as “analogous,” viz., 1 Wend. 360, 3 Cow. 151, are upon sealed contracts modifying personal obligations. No cases of enlargement by parol of personal contracts, as by waiver of performance, or by not being expressly prohibited within one year, have any. application to specialties, or any other contract which would not have been valid if made by parol. (Blood v. Goodrich, 9 Wend. 68; 6 Meeson & Welsby, 109; 13 Wend. 71.) There was no legal consideration. If the sum of fifty dollars was paid, it was paid for the forbearance, and was usurious (1 R. S. 772, §§ 1 and 2), and can not maintain such agreement, any more than if paid on account. (Hunt v. Bloomer, supra, cases cited; 2 Abb. Dig. 28.) This pretended agreement, so upheld below, by the principal debtor, Holcomb, discharges the mortgagor, Crandall, and the mortgage itself, and is alleged to have been made with a stranger before assign-, ment. (Trotter v. Hughes, 2 Kernan, 74.) The, evidence should have been excluded. The agreement is n.ot made out by evidence.
    TH. The appellant’s exceptions are well taken. (Vilas v. Jones, 1 Comst. 286-7; La Farge v. Herter, 9 N. Y. R. 241, 243; Crain v. Hubbel, 7 Paige 413; Judd v. Seaver, 8 id. 548.)

      E. W. Gardner, jr., for the respondents.
    I. On the trial before the referee, the only point made by the plaintiff’s counsel was, that the agreement to extend the time of payment, or to forbear to foreclose for five years, was within the statute of frauds, declaring contracts not to be performed within a year, void unless in writing. But, at general term, this position was substantially abandoned by the appellant’s counsel, and the main points made by him were: 1. That Holberton, not yet being the owner of the mortgage, could make no valid agreement in regard to it; and, 2. The mortgage being a specialty, no agreement in regard to it could be valid unless the agreement was also a specialty.
    H. And presuming that the same points will <be made here upon the argument, I will consider them in their order.
    I. The statute applies to executory and not to executed contracts; and, by reference to the case, it will be seen that Mr. Holberton agreed in substance to purchase the bond and mortgage, and forbear to foreclose it for five years, in consideration of fifty dollars—which contract was fully executed at once. Mr. Holberton did purchase the bond and mortgage, and took an assignment of them, and Holcomb paid him the fifty dollars. Nothing further remained to be done by either party; Holberton had simply to wait the five years for his money. Holcomb had paid the consideration money, and Holberton had entered upon the contract by receiving the money and purchasing the mortgage, and neither party could rescind the contract. Holcomb could not recover back the money, and Holberton could not refuse to carry out the contract, based as it was upon a good consideration, and which he had undertaken to execute. (Talmadge v. R. & S. R. R. Co., 13 Barb, 493; 2 Leighs’ N. P. 1045; McLees v. Hall & Bowen, 10 Wend. 426; Donellin v. Reed, 3 Barn. & Adol. 899.)
    III. But it is claimed by the appellant that Holberton, not being the owner of the mortgage, could make no valid agreement extending the time, prior to any assignment. There might have been some force in this position provided Holberton had never purchased the mortgage. This objection, however, has no force in this case, for Holberton did purchase the mortgage and take an assignment, and hold the mortgage at his death, and this action is by his representative; and upon his becoming the owner, the contract took effect as a valid contract, at least from the time he took the assignment.
    1Y. The position taken by the plaintiff, that he is a bona fide holder without notice, cannot be maintained, for, so far as his right to maintain this action is concerned, he takes the place of Holberton, and a person standing in that responsible position should have moral integrity enough to carry out his contracts. Holberton, when living, would sooner have lost his right arm than have attempted to avoid this contract; and, now he is dead, the court will see to it (at least if it is legal to do so), that his executor shall carry out the wishes and legal obligations of his testator, and not allow him, after a poor man has paid his money for more time to meet his obligations, to ruin him by this prosecution.
    Y. If I am right in this position, that this was an executed and not an executory contract, then the position of the plaintiff, that this contract should have been under seal, is answered; for, if the contract was executed, it operated at once to extend the time of payment'five years from the time of taking'the assignment, and the case does not come within the decisions requiring certain contracts to be under seal. And it is conceded that Holcomb is in a proper position to set up this contract, provided such an agreement was made. And it is also conceded that there is no default in the payment of the interest. It is also suggested here, that as title to this mortgage would pass by mere delivery without a written assignment, whether an agreement to extend the time of payment, if founded upon a good consideration, would not be valid and effectual for that purpose, even if executory and not reduced to writing. In other words, is it an agreement varying the terms of the contract, so as to require it to be under seal? or is it not rather an agreement, based upon.a good and valid consideration, to hold the contract in abeyance until the expiration of the time fixed upon by the new contract. (Lattimore v. Harsen; 14 Johns. 330; Dearborn v. Cross, 7 Cow. 48; Delacroix v. Bulkley, 13 Wend. 71; Fleming v. Gilbert, 3 Johns. 528; 1 Barb. S. C. R. 327; 12 Barb. 366; Clark v. Dales, 20 Barb. 42; Stone v. Sprague, 20 Barb. 509.)
    YI. But it seems clear, from the reasoning of his Honor, Judge Smith, in the opinion at general term, that in any event the judgment could be sustained upon the equitable ground that the defendant, having a cause of action, would be allowed to set it up, to prevent circuity of action. That Holberton having taken the assignment, and held it under the contract as proved, and received a consideration therefor from the defendant, and this action being by his representative, it is precisely the same as if he was seeking to foreclose the mortgage by suit, notwithstanding such agreement; and-if the defendant could have no defense to the foreclosure, still his agreement with Holberton would give him a right of action for the injury received; otherwise he would be remediless; and this being the case, the plaintiff would not be permitted to foreclose the mortgage, and the court, to prevent circuity of action, will give effect to.this agreement as a defense to the suit; and upon this principle also the decision of the referee can be sustained. (Brown v. Williams, 4 Wend, 360; Clark v. Bush, 3 Cowen, 151; Jackson v. Root, 18 Johns. 60.) But, in either view of the case, we submit that the decision of the referee was right, and the judgment should be affirmed.
   Wright, J.

The mortgage sought to be foreclosed by action, was in the winter of 1858-9, held by the administrator of S. Y. R. Mallory, deceased. The premises covered. by it, had, after its execution, and about the 23d February, 1856, been conveyed by the mortgagor to the defendant Holcomb, who assumed the payment of the mortgage as a part of the purchase price of the premises. The mort-' gagor had paid the interest, and $266.66 of the principal sum secured by it, before the sale and transfer of the premises to Holcomb. Afterwards, Holcomb paid the interest. The whole principal became due and payable on the 1st March, 1858. Shortly before the 28tb February, 1859, (the administrator of Mallory being about to foreclose the mortgage,) Holcomb entered into an ■ agreement with the plaintiff’s testator, whereby the latter agreed to purchase the mortgage of Mallory’s administrator, who then held the same, and extend the time of payment five years; or give that additional time from the time he took the' assignment, to pay the balance due upon the bond and mortgage; in consideration of which, Holcomb agreed to pay him fifty dollars, which he did pay, and Holberton took the assignment of the mortgage, and continued to hold the same, and receive payments of interest thereon up to his death. The bond and mortgage were assigned to the plaintiff’s testator on 28th February, 1859, and the time agreed to be given to Holcomb to make payment would not expire until the 28th February, 1864.

■ This foreclosure suit was brought in June, 1862, and the question is whether the executor of Holberton is entitled to sustain it, notwithstanding the contract of his testator to purchase the mortgage, and forbear foreclosing it for five years; or, in other words, to extend the time of payment of the debt secured to be paid by it, and which was due, for five years from such purchase. If Holberton, in the face of his contract, was not entitled to maintain an action to collect the principal secured by the mortgage by a foreclosure thereof, before the five years elapsed, it is very clear his representative is not.

The ground taken at the trial was, that the contract was void by the statute of frauds,' not being in writing, and being an agreement that by its terms was not to be per formed within one year from the making thereof. (2 E. S. 135, § 2, sub. 1.) I am of the opinion that it was not affected by the statute. The statute applies to executory, and not to executed contracts; and the one in .question, I think, was of the latter description. It was certainly executed by Holcomb; and it seems to me the purchase of the mortgage by the plaintiff’s testator was an execution on his part. Holberton, agreed in substance, to purchase the mortgage, and forbear to foreclose it for five years, in consideration of fifty dollars. He did • purchase, and take an assignment of it, and Holcomb paid him-, the fifty dollars. Thus, the contract was fully executed. Nothing further remained to be done by either party. Holberton had simply to wait the five years for his money. Holcomb had paid the consideration money, and Holberton had entered upon the contract by receiving the money and purchasing the mortgage, and neither party could rescind it. Neither could Holcomb recover back the money, nor Holberton refuse to carry out the contract, based as it was upon a good consideration, and which he had undertaken to execute.

The further point is now urged (although not alluded to on the trial), that the mortgage being a specialty, no agreement in regard to it could be valid unless the agreement was also a specialty. It may be conceded that ordinarily a sealed executory contract can not be rescinded or modified by a parol executory contract; but that was not this case. Here the mortgage was due. The holder was about to enforce it by action; whereupon Holberton agrees, for a valuable consideration, to purchase and refrain from collecting it for five years. This agreement is executed by the purchase; and as respected the plaintiff’s testator, operated as effectually to extend the time of payment as if it had been under seal. Indeed, as title to the mortgage would pass by mere delivery without a written assignment, I cannot see why an agreement to extend the time of payment, if founded upon a good consideration, would not be valid, and effectual for that purpose, even if executory, and not reduced to writing. The agreement, in this case, was not one varying the terms of the sealed contract so as to require it to be under seal, but rather an agreement, based upon a good and valid consideration, to hold such contract in abeyance until the expiration of the time fixed upon by the new contract. It was conceded upon the trial that Holcomb was in a proper position to set up the new contract, provided such an one was made.

But, in any event, as suggested by the learned judge delivering the opinion in the supreme court, the judgment is sustainable upon the equitable ground that the defendant having a cause of action, would be allowed to set it up to prevent circuity of action. Holberton having taken the assignment, and held it under the contract as proved, and received a consideration therefor from the defendant, and this action being by his representative, it is the same as if he were seeking to' foreclose the mortgage by suit, notwithstanding his agreement. If the defendant could have no defense to the foreclosure, still his agreement with Holberton would give him a right of action for the -injury he received; otherwise he would be remediless. In the face of- his agreement, Holberton, or his representative, ought not to be allowed to foreclose the mortgage; and on the principle of avoiding circuity of action, the law will give effect to such agreement as a defense to the foreclosure suit.

The judgment of the supreme court should be affirmed.

Johnson, J.

The agreement between the defendant Holcomb and the plaintiff's testator, was that the former should pay to the latter fifty dollars, and that the latter in consideration thereof, should purchase the bond and mortgage in question, and extend the day of payment of the principal for the period of five years, from the time of the malting of said agreement. Holcomb thereupon, paid the money, and the testator purchased and took an assignment of the bond and mortgage. The mortgage debt was then . wholly due, and the testator’s assignor was about proceeding to foreclose the mortgage. The principal, if not the only question in the case, is whether this being by parol, was a valid agreement, and operated to extend the time of payment of the indebtedness. If it was, and such was its effect, the action was prematurely brought, and the decision of the supreme court was right, whether the proper reason for the judgment was assigned or not.

That the time of the payment of a simple contract debt may be thus extended, so that no action will lie for its recovery until the expiration of the extended time, when the agreement to extend is founded on a good consideration, is too well settled to admit of question. Under the former system of practice, such an agreement, to defeat the action, could be proved under the general issue, as it went to show that nothing was due, and there was no cause of action when the suit was commenced. (1 Chit. PI. 512.) And so, I suppose, under the present system, the same evidence may be given under a general denial, as it goes to controvert what the plaintiff is bound to establish by his evidence, to wit: the existence of a demand due at the commencement of the action. In such a case the- subsequent- agreement operates upon the instrument, where the demand is evidenced by writing, and becomes part of it, so that the obligation, instead of becoming due according to its terms, is only due at the expiration of the extended time, and until that happens, no action can be maintained upon the instrument. The subsequent agreement does not operate to destroy the original agreement, but only to modify it in respect to the time of payment.

It is claimed, however, on the part of the plaintiff, that this principle has no application to instruments under seal, and that in regard to instruments of that character, it requires an agreement in writing of equal solemnity to effect a change or modification in any material particular. This seems to be the rule in such cases, before any breach of the specialty, and where the subsequent agreement is executory merely. It was so held in Allen v. Jaquish (21 Wend. 628), and in Eddy v. Graves (23 id. 84), cited in the opinion of the court in this case at general term.

But it is, I think, equally well settled that after the. breach of a sealed agreement it maybe modified in any respect, or wholly rescinded, by an executed parol agreement founded upon a sufficient consideration. (Lattimore v. Harsen, 14 Johns. 330; Dearborn v. Cross, 7 Cow. 48; Fleming v. Gilbert, 3 Johns. 528; Keating v. Price, 1 Johns. Cas. 22; Delacroix v. Bulkley, 13 Wend. 71; Townsend v. Empire Stone-dressing Co., 6 Duer, 208.) Many other cases might be cited to the same effect, but the rule .seems to be too well settled to require it.

That this was an executed and not a mere executory contract between the parties is extremely clear. The defendant’s proposition was to pay |50, in consideration that the plaintiff’s testator would buy the bond and mortgage-and extend the time of payment. . This proposition was accepted by the testator who received the money and made the purchase. Nothing else was to be done. ■ The agreement did not contemplate the doing of any further or other act, to effect the extension. The extension was effected completely and perfectly in law the moment the agreement was consummated by the payment of the consideration on one side and the purchase of the securities on the other. The agreement was then completely executed, and took effect upon the bond and mortgage' which, in the hands of .the assignee, became" due and payable as against the defendant Holcomb in five years, and not before. After that it was in no conceivable sense an executory agreement. Its entire object and purpose had been completely and perfectly fulfilled. It is upon this principle only that the proof of an agreement to extend the time defeats the action brought before the 'expiration of the extended time. The defense in such case does not proceéd upon the ground of recoupment of damages for a breach of the agreement to extend, but upon the ground that the agreement, by its own force, operates upon the original contract, and effects the extension by way of a modification of the contract. The statute of frauds has, clearly, nothing' to do with the case.

The objection that the judgment, is made personal for . the costs is not reviewable on this appeal. But if it were it is not well taken. .The code (§ 317) provides that in an action prosecuted or defended by an executor, administrator or trustee of an express trust, costs shall be recovered as in an action by and. against a person prosecuting or defending in his own right, but such costs shall be chargeable only upon, or collected of, the fund or party represented, unless the court shall direct the same to be paid by the defendant or plaintiff personally, for mismanagement or bad faith in such action or defense.

There is no direction in the judgment that the plaintiff shall pay the costs personally; and it can only be collected from the assets in his hands. It is in law a judgment against him for costs as executor, and is properly rendered as though he wras prosecuting in his own right.

The judgment should, therefore, be affirmed.

All the judges were for affirmance, except Selden, J., who thought the agreement void under the statute of frauds, as not to be performed within a year. Judgment affirmed.


author: Wright, J.

text:
    Platt Adams v. Simeon Leland, and others.
    When a promissory note is not made payable at anyparticular place, generally, in order to charge the-endorser, payment must be demanded of the maker, at his place of residence or business. Yet there are various exceptions to this rule.
    If the maker has no known residence or place, the holder will be excused from making any demand whatever. So, if in the intermediate period between the time when the note was made, and- when it becomes due, the maker has removed his domicil or place of business to another state, the holder will be excused for non-presentment for payment, and will be entitled to the same recourse against the endorsers as if there had been a due presentment.
    It will, in such a case, be sufficient to present the note at the maker’s former residence or place <of business.
    Where the makers had, since the making of the note, removed their place of business, unknown to the holder, and on inquiry at the former place of business, the holder was referred to the agent of the makers, who informed him that they were “ out west:” Held, that this was equivalent to saying they were out of the state; and that due diligence had been used by the holder to ascertain where to demand payment.

      Appeal from a Judgment of the Superior Court of the City of New York.

    The defendants were sued as endorsers of a promissory note as follows:
    “$6,000. “ÍsTew York, February 12, 1857.
    “ On the 20th June next, without grace, we promise,, to pay to James Moore, or order, six thousand dollars, for valued received, with interest, at the rate of seven per cent, per annum; having deposited with J. Thompson, as collateral security, with authority to sell the same at the broker’s board, or at public or private sale, or otherwise, at his option, on the non-performance of this promise, and without notice, nine thousand five hundred dollars, bonds of the Sciota and Hocking Valley Railroad Company.
    “Seymour, Moore & Co.”
    The making of the note by the firm of Seymour, Moore & Co., and the endorsement thereof, by the defendants, was proved. At its maturity, it was held by John Thompson, and in August, 1857, was duly assigned to the plaintiff.
    The only question in the case was, whether payment of the note was properly demanded of the makers.
    The proof showed that at the date of the note, the place of business of the firm of Seymour, Moore & Co., the makers, was at No. 110 ■ Broadway, New York, over the Metropolitan Bank. They had an office there. When the note became due, it was given by Thompson, the holder, to a notary to protest.. The notary called at 110 Broadway, and found the name of “ Seymour, Morton & Co.” over the door, and understood from a man in the office that they were the successors of the firm of Seymour, Moore & Co. He demanded payment thereon, which was refused. The person in attendance told him that that had been the office of Seymour, Moore & Co., and referred him to a Mr. Lincoln, No;. 54 William street. He declined paying the note, saying he had no money. The notary went to No. 54 William street; saw Lincoln; told him he understood .he' was the agent of Seymour, Moore & Co.; he said he -knew nothing about the note, and refused to pay it. The notary inquired of him if he knew where they were. He said he supposed they were out west. He professed to .know, but declined to give the notary much information about the firm.
    •At the close of the case, the defendants’ counsel moved to dismiss the complaint, on the ground that the plaintiff had failed to prove a demand on the makers at the maturity of the note. Which motion was denied, and the defendants excepted.
    The plaintiff had a verdict; and Judgment being entered, on appeal to the general term, the.same was affirmed. The defendants bring this appeal; no counsel appears for them.

      E. Moore, for the respondent.
   Wright, J.

I am of the opinion that the non-suit was properly denied. The note was dated at New York, and the place of business of the makers when it was given, was at No. 110 Broadway. It seems that when payable (and unknown to the holder), the firm of Seymour, Moore & Co. (the makers), had been ■ dissolved, and a new firm (Seymour, Morton & Co.), had succeeded them in business at the same place. There was a person in attendance in the office from whom the notary demanded payment, but who refused to pay, saying he had no money, and referred him to a Mr. Lincoln, an agent of the makers, at No. 54 William street. The notary went to No. 54 William street, and saw Lincoln, who did not dispute his agency or connection with the makers, but knew nothing about the note, and refused to pay it. Upon being inquired of, if he knew where the makers were, he said he supposed they were “ out west.”

When a promissory note is not made payable at any particular place, generally, in order to charge the endorser, payment must be demanded of the maker at his place of residence or business. Yet there are various exceptions to this rule. If the maker has no known residence or place, the holder will be excused from making any demand whatever. So, if in the intermediate period between the time when the note was made and when it becomes due, the maker has removed his domicil or place of business to another state, the' holder will be excused for non-presentment for payment, and will be entitled to the same recourse against the endorsers, as if there had been a due presentment. It will in such case, be sufficient.to, present the note at his former residence or place of business. (McGruder v. The Bank of Washington, 9 Wheaton, 598; Taylor v. Snyder, 3 Denio, 145.)

In this case, the residence of the makers, when this note was made, was in the city of New York, and their place of business at No. 110 Broadway. The note was presented for payment there. It was "found that they had removed, and been succeeded in business by another firm. The notary was referred by their successors to a Mr. Lincoln, their agent, for information as to the note and the whereabouts of the makers. Lincoln did not dispute his agency., or connection with them, but knew nothing about the note. He said he supposed they were “ out west.” The common understanding of the phrase is, “ in the Western states,” it means out of this state.

Not finding the makers of the note, or any one of them, at No. 110 Broadway, the place, of business of the firm when the note was made, the question is whether due diligence was used to ascertain where to demand. . The makers had removed their place of business, unknown’to the holder of the paper; and, on inquiry of their agent, the notary was informed by him they were “ out west.” This was equivalent to saying, that they were out of the state. This,

I think, .was sufficient. (Foster v. Julien, 24 N. Y. R. 28.) When the maker of a note has removed into another state, subsequent to the making of the note, the holder need not. follow him to make a demand; but it is sufficient to present the. note at his former place of residence or business. Indeed, in such case, the holder is excused from making a demand. The judgment should be affirmed.

All the judges concurred, except Ingraham, J., who read an opinion in favor of reversal.

Judgment affirmed.