author: Davies, J.

text:
    William Root v. George Wagner, Sheriff, &c.
    The party in whose favor process.issu.es, may give such directions to the sheriff as will not only excuse him from his general duty, but bind him to the performance of what is required of him:
    Where a judgment is recovered against several defendants, and execution issued against all, the plaintiff in the judgment, or the assignee thereof, may direct the amount thereof, or any thing less than the whole amount, to be made out of the property of any or either of the defendants.
    Where a judgment was recovered against four defendants, 0., K., S. and T., and an execution issued thereon was levied upon the property of 0., K. and S., whereupon the holder of the judgment directed the sheriff to let the sale of K.’s property, which was advertised for sale, go down, but to hold on to the levy as to the property of 0. and S., and to make two-thirds of the judgment out of the property so levied on, of 0. and S., which order and direction the sheriff refused to obey: Held, that the sheriff was liable to the holder of the judgment for two-thirds of the amount thereof, upon the assumption that the property of 0. and S., which he had levied on, was sufficient to make that amount.

      Appeal from a judgment of the' Supreme Oourt, entered upon the report of a referee.

    The action was prosecuted to recover from the defendant, as sheriff of Yates county, the balance due upon a ' judgment owned by the plaintiff, upon, which execution had been issued and delivered to the defendant as sheriff. The facts found by the referee, before whom the cause was tried, are as follows: That a judgment was obtained in the supreme court in favor of the Bank of Genesee, against Alva Clarke, Joseph Ketchum, Theodore F. Sharpe and Eel-son Thompson, defendants, for the sum of $924.23, and that the same was docketed in the clerk’s office of Yates county on the 30th of August, 1850. That an execution was issued on said judgment, and received by the defendant as such sheriff, on the 31st day of August, 1850. . That the defendant, -as such sheriff, pursuant to and by virtue of said execution, levied upon personal property of the defendants in the execution (except that of Eelson. Thompson), in the life-time of the execution, to an amount of between two and three thousand dollars, viz: On a store of goods of said Sharpe valued at $2,000; a span of horses of Clarke valued at from $250 to $400, and upon live stock and farni property of said Ketchum valued at $1,000. That on the 30th of Eovember, .1850, and after said levy, the said judgment was sold and assigned "to the plaintiff in this action, for a valuable consideration, of which sale and assignment the sheriff had notice. That the said sale and assignment were made to the plaintiff in good faith, for a valuable consideration by him paid, and that he thereby became and is the lawful owner of said judgment. That after such assignment the plaintiff in this action directed the sheriff to let the sale of Ketchum’s property, advertised to be sold on the day after the said assignment was made, go down, but to hold on to the levy and all the levy by him made, on the property of other defendants, until further directions. That the property of said Ketchum, so advertised to be sold, was of sufficient value to make the amount of such execution. That after such assignment and notice to the sheriff, the plaintiff in this action ordered and directed the defendant, as sheriff, to make two-thirds of said judgment out of the property so levied on by him, of the said Clarke and Sharpe, which order and direction the defendant, as such sheriff, neglected and refused to comply with and obey. That this action was commenced on the 24th day of June, 1851, and that two-thirds of the original judgment, on the 9th of July, 1857, amounted to the sum of $912.20, and the referee found as a conclusion of law that the plaintiff was entitled to recover the said two-thirds of the amount of the original judgment so assigned to him, with interest thereon from the time of docketing said judgment. The judgment upon the report of the referee was affirmed at general term, and the defendant appealed.

      F. Kernan, for the appellant.
    I. The recovery is not for any act or omission of the defendant occurring prior to the 30th of November, 1850. The alleged cause of action upon which the recovery was had, is that the sheriff did not, in obedience to instructions given to him after that day by the plaintiff who had purchased the judgment, make .two-thirds of the amount of the execution from the. property of Clarke and Sharpe, two of the four judgment debtors.
    II. Upon the facts of the case, the defendant is not liable for two-thirds of the judgment, and the referee erred in deciding that he was.
    1. The judgment was against the four defendants for damages and costs, and there was no allegation or proof as to whether it was upon contract or for a tort; or whether, as between the defendants themselves, either had superior equities, as against the others, as to its payment. (.2 Barb. Ch. R. 462, per Chancellor; 2 J. Ch. B. 131; 11 Paige, 19.)
    2. The execution was in the usual form. There was no notice or special direction to the sheriff as to executing the writ, until after the 30th of November, 1850. In advertising and proceeding to make the amount of the execution from the property of Ketchum, one of the defendants, on the 30th of November, the defendant was acting according to law. He omitted to collect the amount of the execution on that day by the express direction of the plaintiff herein.
    3. Under these circumstances, the defendant was not required to make two-thirds of the amount of the execution from the property of Clarke and Sharpe, and is not liable to the plaintiff for omitting to do so.
    («.) The sheriff is a minister of the law, not the agent of the party. So long as he executes process according to the law, he cannot be made liable to the party, in an action on the case, for refusing to follow his instructions as to the manner of executing it. He may collect an execution in, thirty days, but he is not liable to the party if, in disregard ©f his instructions, he give the debtor sixty days to pay it. He may, in defiance of the directions of the party, adjourn a sale of property, to try to obtain a better price. It is submitted, therefore, that if the plaintiff in the execution had, on issuing it, directed the sheriff to make two-thirda of the .amount from the property of Clarke and Sharpe, he was,not bound to do so, but might have levied it from the property of Ketchum.
    (5.) But in this case no special directions were given to the sheriff until the time to levy by virtue of the execution had expired, and until, relying on the property of Ketchum as sufficient to satisfy the demand, he had allowed the property of Clarke and Sharpe to pass from his control, as, he had a right to do. Again: at the time of these instructions, the sheriff had, in good faith and rightfully, advertised and was about to sell property of Ketchum suf ficient- to satisfy the debt. The plaintiff could not then compel him to look up, other property and sell it, to pay two-thirds of the -debt, -or make him liable for that amount for his refusal to do so.
    (o.) Again: it is not proved or found that the sheriff could have, made two-thirds of the execution from the property of Clarke and Sharpe, at the time he was directed to do so, if he had made the effort. This, at least, should have been found, to warrant the judgment. The contrary is quite evident.
    - (cl.) Again: There is nothing in the case showing why two-thirds should be made from Clarke and Sharpe. The judgment was against four. It does not appear that Thompson had not property. It does appear that the property of Clarke which was levied upon would not make one-third.
    (e.) It was not proved, and is not found, that the property of Clarke and Sharpe,’ respectively, was sufficient to pay one-third of the amount. The instructions and judgment are on the theory that the sheriff was bound to make two-thirds from their several property, even if it had to be levied from the property of one of them.
    4. It is submitted that the judgment is unwarranted by the facts established.
    III. At common law an action on the case would not lie against a sheriff for neglecting to execute a ft. fa. according to its demand or return it in due season. Much less sould an action like this be sustained. (Moreland v. Leigh, l Stark. R. 388; Watson on Sheriffs, 203; Commonwealth v. McCoy, 8 Watts, 151; Pardee v. Robertson, 6 Hill, 550-552.)
    IV. The statute which gives to an aggrieved party an iction for damages against sheriffs and other officers neglecting to execute process, provides for only two classes of cases, viz: 1. When the officer does not execute the process according to the command thereof; and, 2. When he neglects to make due return of his proceeding thereon. In no other cases can the action be maintained by virtue of the statute. (2 R. S. 440, § 77, 1st ed.)
    V. It cannot be claimed that this action or recovery is founded on the sheriff’s neglect to execute the process according to the command thereof, or to make a return.

      1. There is no allegation of such neglect in the complaint; and the recovery was not claimed or had upon this ground.
    2. But the sheriff was in good faith proceeding to execute the writ according, to the command thereof, and would have collected the money and made due return but for the direction of the plaintiff to desist from selling the property advertised, and not in any event to sell the property of Ketchum. This would be an answer to an action for not making a return.
    VI. But, if technically liable, the damages should have been only nominal. The facts do not authorize a judgment for two-thirds of the judgment. On these facts it would be monstrous to hold the defendant liable for this large, sum. If bound to pay it, he has no remedy, and the reaE debtors escape.

      D. B. Prosser, for the respondent.
    I. The only questions which are properly before the court on this appeal are the objections and exceptions take's by the defendants to the reception of evidence on the hear ing, and these were the only exceptions in the case up or which the general term gave judgment. The exceptions to the report of the referee, as presented by the case, madu and filed since the decision and'judgment of the general term, have not been passed upon by that court. This court is strictly a court of review, to correct errors in the actual determination of the general term of the supremA court. The special term had no power or authority tc correct the record of the general term, or grant the ordei allowing the case and exceptions, after the judgment oi the general term. The general term, if it had been applied to, could only have corrected the case after judgment, so as to properly present the facts and exceptions actually taken and imperfectly stated, which had been passed upon by it. The general term could not authorize the making a new ease, after judgment, containing exceptions not before taken. (Johnson v. Whitlock, 3 Kernan, 350.) Here we have now two cases; the one upon which the judgment of the general term was given, and the other for this court to pass upon.
    H. There was no error in the referee’s over-ruling the objection on the part of the defendant to the reading of the assignment of the judgment in evidence, because:
    I. The execution and delivery thereof was distinctly alleged in the complaint, and was not denied by the answer.
    2. The proof was that the assignment was executed and delivered to the witness by the president, in the bank, at the time of the payment of the moneys. No other evidence of its execution was necessary.
    3. The judgment being for less than $1,000, no resolution of the directors was necessary to authorize a sale and assignment thereof, by the presidént. (1 E. S. 598, § 8.)
    4. The authority of the president, (if any should be deemed necessary,) to execute the assignment, will be presumed, until the contrary is made to appeal'. (Bank of Vergennes v. Warren & Storrs, 7 Hill, 91; Gillett, rec. v. Campbell, 1 Denio, 520.)
    HI. In case the court should be against us on the propositions contained in the first point, and should deem the exceptions to the report of the referee, as contained in the case made and filed since the decision and judgment of ■the general term, as properly here on this appeal, it is, still submitted that the conclusions of the referee were fully justified under the pleadings and evidence, and that, the exception to his report is not well taken, because it is well settled by the authorities that a plaintiff, or owner of a judgment and execution, has a right to instruct the-sheriff as to the manner of- executing the process, which instructions the sheriff is bound to obey, so long as they are. within his general power and duties. (Walters v. Sykes,
      22 Wend. 566; Godfrey v. Gibbons, id. 569; Sherry v. Schuyler, 2 Hill, 204; Armstrong v. Garrow, 6 Co wen, 465; Gorham, v. Gale, 7 id. 739; Allen on Sheriffs, 143-4.) Therefore it seems to follow that when such .instructions are given and the sheriff refuses to obey, a right of action for such refusal arises. Were it otherwise; the authority and right to instruct, and the duty to obey, would be of no avail, as the law would afford the injured party no mode of enforcing obedience, or indemnity for damages suffered by reason of the disobedience. In the case now before the court, we have not only the neglect of the defendant to obey the lawful instructions of the plaintiff, but that he willfully refused to proceed in the collection of the execution as directed by the plaintiff, or to collect the same in any way unless he was permitted to go contrary to the instructions of the plaintiff. The defendant ought not to complain if he should be held to a strict accountability. His refusal was willful, from which the inference would seem to be warranted that he was in some way indemnified by the defendants in the execution, for whom he seemed to be acting. He was willing to obey the instruction of the plaintiff so far as such instruction related to the property of Ketchum, but when called upon to proceed against the property of the other defendants levied upon, he utterly refused, thus undertaking to protect two of the defendants in the execution at the expense of one of the others. It is time the defendant, and all others holding like executive trusts, learned that it is no part of their duty to assume the province of a court of equity, by undertaking to adjust what they may regard to be equities of the case between the parties; and that it is their duty to obey the process, and the lawful instructions of the party having a right to instruct. The plaintiff is remediless unless he cam maintain his action. The defendant holds the execution, with a levy upon sufficient property to satisfy the same, but absolutely refuses to proceed unless he can do so in a particular manner, contrary to the instructions of the plaintiff. Not only so, but before this action was commenced he received $294 of Clarke upon the execution, which he still holds.
   Davies, J.

The sheriff has refused to obey the directions of the plaintiff, in reference to the execution in his hands, and has defended this action upon the theory that he was under no obligations to conform his action to such directions. In this he is clearly in error. The party in whose favor process issues, may give such instructions to the sheriff as will not only excuse him from his general duty, but bind him. Both the process and the law which convey authority under it, are for the benefit of the party in whose behalf it is issued, and it is a general rule that a man may dispense with an entire law which is intended for his aid or protection. It follows that he may quality it, to-a greater or less extent, according to his discretion.- (Walters v. Sykes, 22 Wend. 566.) In the present case this plaintiff, as soon as he became the owner of the judgment, became the real plaintiff therein, and in the execution-issued to enforce the collection thereof. Both thereafter were to be employed for his benefit, and were under his control, and those charged with the execution of the process thereon were as much subject to his directions as if he •had been the original plaintiff in the judgment. Almost the precise point arising here was presented in the case of Godfrey v. Gibbons (22 Wench 569). The plaintiff in that case had a judgment against two persons by the name of Gibbons, and one Wiswall. He issued an execution thereon, directing the sheriff to levy the money of the defendants Gibbons; but the sheriff, acting under their advice, made a levy on the property of the defendant Wiswall only. The plaintiff then withdrew the first execution, and issued another, which was levied upon the property of the ■ defendants Gibbons, according to the directions of the plaintiff. It was shown by affidavits' that, as between the Gibbonses and the other defendants, those defendants ought to pay the debt. This depended on the state of the accounts between the defendants. The defendants Gibbons moved to set aside the last execution, and took the ground that the levy on the property of the defendant Wiswall, .under the first execution, and which the plaintiff had released by its countermand, had satisfied the'judgment. The supreme court denied the motion, and said they had nothing to do with the state of the accounts between the defendants. The plaintiff, not the defendants, or any of them, had a perfect right to direct a levy on the joint or several property of the defendants, or any of them, the judgment being against alh That the plaintiff was at liberty to disregard the levy made upon the property of Wiswall, for the -sheriff was bound by the directions of the plaintiff’s attorney to levy on the property of the Gibbonses only. ¡Referring to the case of Walters v. Sykes (supra), the court said the sheriff might, by the direction of the plaintiff’s attorney, as a special agent, be restrained and limited to any act which is within his general authority under the writ. We therefore see that the execution is issued for the benefit of the plaintiff therein, or the owner thereof; that it is the duty of the sheriff to conform to his directions, in the execution of the process when within his general authority under the writ. That the plaintiff may direct the amount of the execution to be made from the joint or several property of the defendants therein) and in the judgment, or that of any of them. It follows that the judgment in this case, being against four defendants, and the execution therein against the four, it was competent for this plaintiff to direct the amount thereof to be levied on the property of any of them. That as he could direct the whole to be made out of the property of any of the defendants, it also follows that he could direct less than the whole to be made in like manner. Upon the defendant’s theory, Ketchum could have been compelled to pay the whole judgment. Undoubtedly the plaintiff could have collected the whole judgment from his property. Upon the same principle, and for the same reason, the whole of the judgment could have been collected from the property of the defendants Clarke and Sharpe. If the whole could have been collected from them, it is difficult to see why two-thirds may not be. It was, therefore, clearly the duty of • the sheriff to conform his action to the directions of the plaintiff, and collect the two-third part of the judgment out of and from the property of the defendants, Clarke and Sharpe, levied on by him; and as the referee has not found that such property was inadequate to make such amount, we must assume it was sufficient for that purpose. The plaintiff was, therefore, damnified to the extent of two-thirds of the amount of his judgment, by reason of the refusal of the defendant to comply with his directions, and the referee properly gave judgment for that amount.

The judgment should be affirmed.

Mullin, «T., was for a reversal. All the other judges being for affirmance, judgment affirmed.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Richard G. Fowles v. Henry C. Bowen.
    In an action for slander, the plaintiff, to show special damage, may give in evidence the contents of a letter written by. the person to whom the slander was uttered, to his partner, advising him to discharge the plaintiff from their employ and stating the substance of the writer’s conversation with the defendant, although the letter did not cause the discharge of the plaintiff, but only an examination of his trunks.
    In an action for slander, a previous letter written by a partner of the defendant, and with his assent, concerning the plaintiff, is admissible in evidence to show malice.
    Words spoken of the plaintiff, while in the employ of the defendant's firm as a clerk, and addressed to a subsequent employer, to the effect that the plaintiff had become such a notorious liar that they could place little or no confidence in him; that they were so strongly impressed with his dishonesty that they had written to a person named to employ a police force to watch him, &c., m.ust be understood as relating to him in his capacity as clerk; and being spoken of him in connection with his business, they are actionable •pe.r se.

    Any charge of dishonesty, against an individual, in connection with his business, whereby his character in such business may be injuriously affected, is actionable.
    After a mercantile firm has given to' one of its clerks a general recommendation as such, if a partner is led by facts subsequently coming to his knowledge, to change his opinion, it is his right and duty to communicate the facts to a' subsequent employer of the clerk, in order to guard him against being misled by the previous recommendation of the firm.
    Such a communication, if true, is privileged; and in order to sustain an action thereon for slander, the plaintiff must show it to have been malicious.
    In the case of privileged communications, slight evidence of malice may be left to the jury.
    Evidence of the falsity of the charge is not sufficient to authorize the infer - ence'of malice.
    The plaintiff, if he seeks to maintain his action, must show that the charge was false, before he can ask the jury to find the slander to be malicious.

      Appeal from a judgment of the Superior Court of the city of New Yorh, in an action for slander.

    The defendant was one of the firm of .Bowen & McNamee, of New York. The plaintiff had been a clerk in their employ. On his leaving them, the firm gave him a letter of recommendation, saying that he had attended to his duties in a satisfactory manner. A few days after, a letter was written to a Mr. Shiletto, of Cincinnati, telling him that since Fowler left them they had heard of his taking several trunks with him, larger than required for his clothing, and requesting him to have some officer to watch him and examine his baggage. In February succeeding, Cole, with whom the plaintiff was employed at Cincinnati, visited New York, and there the conversation took place which is the subject of this action. Bowen stated to Cole, in his store, that he desired to set him right in regard to a young man in their employ, viz: Fowler; that he had become such a notorious liar that he could place little or no confidence in him; that he had strong cause to doubt his honesty, and had written to Mr. Shiletto to employ an officer to watch him. The letter to Shiletto was written by Stone, one of the firm, with the knowledge of Bowen.
    The defendant, in his answer, claimed that the words were a privileged communication. No special damage was shown. The judge submitted to the jury whether, if the communication was privileged, it was made maliciously, and if so, added that the plaintiff was entitled to damage's. The answer also contained an averment of the truth of the words complained of, and the judge instructed the jury that if the defendant failed to prove the truth of the words it was an aggravation of the wrong.
    The jury found for the plaintiff for $4,500 damages, and the judgment entered thereon was affirmed by the general term, and the defendant appealed to this court.

      Jno. K. Porter, for the appellant.

      Charles O’Conor, for the respondent.
   Ingraham, J.

Upon the trial of this cause, the plaintiff, to show special damage, was permitted to give in evidence the conténts of a letter written by Cole to his partner, advising him to discharge the plaintiff from their employ, and stating the substance of his conversation with the defendant; that, in consequence of the receipt of that letter, Cole’s partner stated its contents to the plaintiff, and went with him to his rooms and examined his trunks, but that he did not discharge him in consequence of that letter. To this evidence the defendant objected. I do not see any good cause for the objection to this evidence. It was a communication from one partner to another, in regard to a matter connected with the interests of the firm, and the natural result of the communication made by the defendant to Cole. As is said in Terwilliger v. Wands ( 17 N. Y. R. 54), occasions may doubtless occur where the communication of slanderous words by a person Who heard them will be innocent; and it is certainly reasonable that when repeated ■on such an occasion and damages result, the first speaker should be held responsible for the damages as flowing directly and naturally from his wrong. The communication from Cole to his partner was necessary, and the result of the defendant’s communication. Thére can be no doubt, if the instructions of Cole had been followed and the plaintiff discharged, the a'ct would have been the immediate and natural result from the speaking of the words by the defendant, and, as such, admissible in evidence.

. The repetition of the slander to a third person without any interest existing to call for the communication, is not admissible; but when the slander is repeated to be connected with instructions injurious to the plaintiff, and necessarily connected with the business or interests of the man to whom the slander was spoken, it may be used - for the purpose of showing damage. (Olmstead v. Brown, 12 Barb. 657.)

The letter of Stone was received in evidence and objected to by the defendant. This letter was written by a partner of the defendant, and there was evidence to show that it was written with his assent; and the defendant himself told Cole “ we have written to Shiletto to employ a police force to watch him.” Any other letter written .by the defendant would, under various decisions, be admissible to show malice, although the propriety of that rule has been doubted. (7 John. R. 270; 2 Saunders' Pl. and Ev. 808; Inman v. Foster, 8 Wend. 609; Kennedy v. Gifford, 19 Wend. 298.)

If the letter of Cole to Hopkins was admissible, as a necessary consequence of the words spoken by the defendant and connected with Cole’s interest, what Hopkins did in connection with or in pursuance of that letter would be admissible evidence. What Cole did affecting the plaintiff in consequence of the defendant’s communication to him would be evidence to show damage, and the same things done by his partner, under instructions from him, are subject to the same rule. The ground upon which this was received was, that it tended to show the special damage. Whether or not it made out such damage was a question for the jury or the court after the evidence was received. The failure to do so, and the subsequent direction to the jury to disregard that evidence, cannot have any effect on its admission originally.

It is objected that the words were not per se actionable, and, as no special damage was proved, the complaint should have been dismissed. The words were spoken of the plaintiff while in the employ of the defendant, and the charge was that he had become such a notorious liar that they could place little or no confidence in him. That they were so strongly impressed with his dishonesty, that they had written, &c., to employ a police force to watch him. It must be obvious to any one that such words, addressed to an employer in respect to his clerk, must be understood as relating to him in his capacity as clerk. The idea that a man may speak to a merchant about the dishonesty of one employed by him, and be able to separate the charge oí dishonesty from his acts as clerk and place them upon the individual only in his private relations, is delusive. Nothing else could be understood from those words than that the defendant had reason to doubt his honesty while with him; and the preface to the communication showed the intent of the defendant to apply the words to the plaintiff in his capacity as clerk, -when he said he desired to set Colo right in regard to a young man in his employ named Fowles. Such words, spoken of a person in connection- with his business, are actionable.

Any charge of dishonesty, against an individual in connection with his business, whereby his character in such business may be injuriously affected, is actionable. If spoken of him individually, and not in connection with his. office or business, these words would not be actionable. (Van Tassel v. Capron, 1 Denio, 250.)

The rule is given by Jewett, J., in Kinney v. Nash (3 Comst. 177): “The principle is well settled that to maintain an action for words spoken, the words must either have produced a temporal loss to the plaintiff, &c., or they must impute some matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment.” If there was any question, on the evidence, whether the -words were spoken of the defendant in relation to his trade or business-, then the decision of it belonged to the, jury. The judge on the trial so left it to the jury, and to his instructions as to. the law the defendant did not object, except to the submission of any question on that point, to them; and that has not been argued here. " -

But the defendant objects that this communication was privileged, and that without evidence of express malice the court should not have submitted the cáse to the jury to say whether' there was any malice on the part of the defendant. There can be little, if any, doubt that the. communication was privileged. The defendant and his' partners had given the plaintiff a recommendation as clerk. That recommendation was in the form of a general letter addressed to no one, and if untrue would have exposed the writers to an action by any one injured thereby. After this was given, the defendant was led, by facts coming to his knowledge, to more inquiry, and on Mr. Cole’s visit to this city, while the plaintiff was in his employ, the defendant made to him the communication ivhich forms the subject of this action. There can be no doubt of his right and duty to make such a communication if it was true, and was made to guard Cole against being misled by the letter written by the defendant’s firm; and in order to sustain a verdict thereon, the plaintiff must show the communication to have been malicious. There is no proof of express malice. On the contrary, in all the communications of the defendant a desire is expressed to avoid publicity and' not unnecessarily injure the plaintiff. The judge, however, submitted to the jury the question whether the communication was made in bad faith, without believing at the time it was made that it was true.

In the case of privileged communications slight evidence of malice may be left to the jury. (Kelly v. Partington, 24 Eng. Com. L. Rep. 144; 4 B. & Ad. 700.) In the case of Hastings v. Lusk (22 Wend. 410), malice appears to have been inferred from the want of pertinency of the slanderous words, at the time they were spoken, while the occasion made them privileged, and the question of malice was left to the jury. In that case the chancellor says: “ The presumption that there was no malice is not rebutted by the plaintiff merely showing that the charge against him •was untrue in point of fact; it must be further shown that the defendant either knew or had reason to believe it was untrue, at the time of the speaking of the words complained of.

In the present case there is no direct proof of malice. The only testimony from which malice could be inferred is the falsity of the charge; but this is not sufficient. (Harris v. Thompson, 24 Eng. L. & Eq. Rep. 370.) Jervis, C. J., says: “ It must be something consistent only with a desire to injure the plaintiff to justify a judge in leaving the question of malice to the jury.” And Williams, J., says: “ The mere circumstance of the statement being false, will not suffice to show malice, unless there is some evidence to show that the defendant knew it to be false.” At any rate, the want of proof on the part of the defendant, that the slander wras true, is not enough; and the plaintiff, if he seeks to maintain his action, must show that the charge was false, before he can ask the jury to find the slander to be malicious.

Sellen, J. says in Lewis & Herrick v. Chapman (16 N. Y. 369), in speaking of privileged communications: “ the law ceases to infer malice from the mere falsity of the charge, and requires from the plaintiff other proof of its existence.” And the charge of the judge that the law would infer malice from the falsity of .the words, was held to be erroneous. (See also Child v. Affleck, 17 Eng. Com. Law, 186; Somerville v. Hawkins, 70 Eng. Com. Law, 583; Vanderzee v. McGregor, 12 Wend. 546.)

The only evidence in this case relied on to prove malice, as stated by the judge in his charge, was the original letter given when the plaintiff was leaving the defendant’s employ, and the conversation with Carter, about the same time. That evidence would hardly be enough to warrant the finding that the words were false, and under the cases cited I think not enough to submit the question of malice to the jury. The judgment should be reversed, and a new trial ordered.

Davies, J., did not sit in the case. All the other judges concurring, judgment reversed.


author: Wright, J. Hogeboom, J. (dissénting.)

text:
    Garret Lefever v. Nathan Lefever.
    The plaintiff, a director in a bank, who had been such from its organization, who usually attended the meetings, and was actually present and took part in the proceedings of the board of directors when the last dividend was declared, having purchased -from the cashier of the institution twenty-shares of the capital stock, brought an action to have such contract rescinded, and to recover back the money paid, on the ground of false representations and concealments of the cashier, as to the value of the stock and the condition of the bank, at the time of the purchase : Meld, that the plaintiff was not estopped from setting up his actual ignorance of the condition of the bank at the time of the sale.
    That although the purchaser was a director of the bank, having the means of knowledge, he was not in the particular transaction chargeable with notice of the condition of the bank.
    That if he was actually ignorant of its condition, the fraudulent vendor would be equally responsible to him for the deceit as to any stranger to the institution.
    That it was not a case in which the plaintiff was legally bound -to know the truth or falsity of the vendor’s representations.

      Held, also, that the evidence in such action plainly showing that at the time of the alleged sale and transfer of the stock, on the 29th of August, 1857, the bank was, by the application of all the ordinary tests, sound, solvent and prosperous, and the stock worth all that the defendant had represented it to be, the plaintiff could not be allowed to show the contrary by • introducing in evidence what purported to be a certified copy of proceedings had in November, 1857, on the petition of certain stockholders, for the re-establishment of the bank.
    This action was of a novel character. Á director of a bank (who had been such from, its organization, who usually attended the meetings and was actually present and took part in the proceedings of the board of directors when the last dividend was declared), having purchased from the cashier of the institution twenty shares of its capital stock, asked to rescind such contract and recover back the money paid, on the ground of false representations and concealments of the cashier as to the value of the stock and the condition of the bank at the time of the purchase. The cause being tried by a referee, he found that at the time of negotiating the sale and transfer of the stock (viz: on the 29th August, 1857), the defendant falsely represented that the bank was then sound and solvent and in a flourishing condition; that the stock was then worth one hundred and five cents to the dollar, and the then accruing dividend; and that the bank then had no bad or protested paper, each of which representations was known by the defendant to be false at the time it was so made. That their truth or falsity (except as to certain paper held by the bank) was unknown, in fact, to the plaintiff, and that the plaintiff relied on the representations in making the purchase of the stock. He further found that on the 2d September, 1857, the drafts of the bank, drawn on the Nassau Bank, the redeeming agent of the Huguenot Bank, were protested to the amount of several thousand dollars; that on-the 17th September, 1857, the bank was legally declared insolvent, and that on the 27th September, the plaintiff tendered to the defendant a reassignment of the stock, and demanded a repayment of the sum of $2,123.33, the amount paid therefor. The judgment of the referee upon these facts was that the plaintiff was entitled to have the contract of sale rescinded, and to recover back from the defendant the sum paid for the stock, with interest. That judgment having been affirmed at a general term of the supreme court, the défendant appealed to this court.

      John K. Porter, for the appellant.
    I. The plaintiff, as an officer of the bank, entrusted with the supervision and management of its affairs, and with full means of knowledge of its condition, cannot make title to damages, through his neglect of duty and inattention .to his trust.-
    1. Want of notice of the condition of a bank is not available to one who is bound as a director to know its condition. By accepting that office, he assumed a duty to the stockholders and creditors of the bank, to inform himself of what would appear by an inspection of the books of an institution of which he was one of the ostensible managers; and he cannot found an action on his own neglect of duty. (Gillet v. Phillips, 3 Kernan, 117; Ketchum v. Panic of Commerce, 3 Am. Law Regr. 168.)
    2. The plaintiff having the means of knowlege is chargeable with notice, and cannot complain of being misled as a consequence of his own negligence. (Kennedy v. Green, 3 Mylne & Keene, 719, 721; Carr v. Hilton 1 Curtis’ C. C. R. 390.)
    II. The referee erred in admitting the evidence to which he gave effect in his report.'
    1., The admission of the certified copy of the proceedings upon the re-establishment of the bank was especially mischievous; and it was plainly immaterial to the true issue, and incompetent as against the defendant.
    ' 2. So far as he was concerned, the statements in the petition were merely hearsay, many of them upon the information and belief of the petitioners, who were themselves competent witnesses.
    3. The introduction under the prior ruling, of the defendant’s testimony before a referee, on a specific inquiry foreign to the issue on the trial, was in itself sufficiently objectionable; but to this was superadded the testimony of the receiver on that occasion, a witness not sworn on the trial.
    4. The estimates of the referee, as to the amount and value of the then assets of the bank, were thus brought in, as material and competent evidence as to the truth of the defendant’s representations in regard to the condition of the bank on the 29th of August, 1857.
    5. There was no authority in law for the introduction of a certified copy of proceedings of that character.
    6. So far as the legal rights of the defendant were concerned, these proceedings were res inter alios acta. (Darrin
      v. Hatfield, Selden’s Notes, Dec. 1852, 36; Verplanck v. Mercantile Ins. Co. 2 Paige, 438.)
    7. The evidence of subsequent losses by the bank by compromises, made by the plaintiff and the other directors, and not by the defendant, was equally irrelevant and incompetent.

      M. Schoonmaker, for the respondent.
    Upon the facts as found, the referee was right in adjudging that the plaintiff was entitled to have the contract of sale, set forth in the proceedings, rescinded, and recover back, from the defendant, the sum paid for the stock with interest.
    I. By the facts found, it expressly appears that in negotiating the sale, and at the actual sale and transfer of twenty shares of the Huguenot Bank stock, by the defendant to the plaintiff, the defendant made false representations to the plaintiff and his agent, upon existing and material facts, knowing them, at the time, to be false, and that the plaintiff was thereby deceived and induced to make the purchase. The principles of law are familiar and well established, and founded in justice, that whenever a vendor, in the sale or negotiation for the sale of goods, or property, affirms that which he knows to be false, or does not know to be true, to another’s loss and his own gain, he is'responsible in damages, or the contract may be rescinded, ifhe one who misleads or abuses the confidence of another, by false statements, in the substance of a purchase, shall be the sufferer instead of his victim. And even if by concealment of known facts the vendor violates any trust or confidence reposed in him by the buyer, the sale is fraudulent and may be rescinded. (Upton v. Vail, 6 Johnson, 181; 1 Story on Contracts, § 506, page 608 and note; 1 Story Equity, § 192; 2 Story on Contracts, § 842.)
    II. The plaintiff is not, by reason of his being one of the directors of the bank, estopped from setting up in this suit his actual ignorance of the affairs, situation and condition of the bank and the value of its stock.
    1. The doctrine of estoppel against a director applies to cases where he is sought to be made liable by the people or strangers, either for omissions or commissions, by himself of his agents, in connection with the affairs and business of the bank. In such case it is founded upon well settled principles of public policy, which will not allow a person to hold himself out to the world as the director or manager of an institution, and then, when sought to be made liable by the people, or creditors of the institution, avail himself of the plea of ignorance, to repudiate the acts or omissions of himself or his agents. It is also upon the further principle that the cashier and other officers of the bank, are the agents of the directors, and the directors are as between them and third parties, held responsible for the acts of their agents.
    2. This case is one of a very different character; it is a dealing between a director and cashier, in relation to some of the stock of the bank, and a negotiation in relation to its sale and transfer by the cashier to a director. It is not a matter at all connected with the business of the bank, or its .management. On the one side was the defendant, the cashier and financial agent of the institution, whose special business it was to manage its pecuniary affairs, take the immediate charge, personal superintendence and control of its business generally and particularly, and keep an accurate account and knowledge of its assets, loans and liabilities, and'all other matters essential to be known, to ascertain the value' of the stock and the condition of the institution. On the other side was the plaintiff, one- of the directors, who, as the cashier well knew, took no part in the management of the institution; was not upon any of its business committees; had no means of information or knowledge in relation to the condition or affairs of the bank, other than that which he was able to obtain from the cashier himself, or from an inspection of the books and papers, kept by the cashier in his. immediate possession and control; and who, at the outset, notified the cashier that he knew nothing about the condition of the bank or value of its stock, and depended entirely upon his representations as a guide. There is not, therefore! in this case, any ground or propriety for"the application of the principle of estoppel, and the rules of public policy governing the liability- of directors in other cases.
    HI. No errors occurred on the trial in relation to the admissibility of evidence, or otherwise, to entitle the defendant to a new trial, and the several exceptions taken by the defendant, in the course of the trial, to the admission of evidence, were not well taken.
    1. In stating the transaction, negotiations and contract, in reference to the sale and transfer of the stock, it was right that the entire conversation should be given, and there was no error in the admission of testimony.
    2. Subsequent conversations and transactions are proper evidence for many purposes; among others: To corrobo, rate plaintiff’s version of the transaction; to show falsity of representations; to show injury in fact derived from the misrepresentations; to show that a large amount of assets were bad and unavailable; to show -knowledge on the part of defendant; and many other material facts.
    3. The action being based upon fraud in the sale and fraud in the warranty and representations, the referee was right to refuse to strike out the testimony of Garret and Jacob Lefever.
    4. The testimony of Nathan Lefever, given before a referee, was properly introduced and admitted as a declaration or admission of his.
    5. The proceedings in the matter of the Huguenot Bank, were proper evidence for various purposes: To show the time that bank went into hands of a receiver; to.prove allegations in the complaint; to show declarations and admissions of defendant. It was necessary to introduce the whole record, or the paper would have been incomplete.
    6. The cross-examination of Eltinge and others, in reference to the Murray and Davis, and the Barculo and other papers, among the bills receivable, and the responsibility of the parties to the papér, was proper in reference to the value of -the assets of the bank, and to test the accuracy of'Eltinge’s estimate, as to such value. Also, to test the correctness of-his evidence upon his direct examination, that $10,000 would cover all losses since August 29, 1857, which, if proper for defendant to prove, was proper ‘for plaintiff to disprove. Objections to such testimony were properly overruled.
    IY. The motion for a non-suit was properly denied. The plaintiff had proved sufficient to entitle him to recover.
    Y. This court has no power on appeal to examine into 'the - correctness of the findings of fact by the referee. Its power is limited entirely to questions of law arising upoh the trial, and upon the facts as found and éstablished by the referee. (Code, § 268; Dunham v. Watkins, 2 Kernan, 556.)
   Wright, J.

The representations made by the • defendant, -which the referee -finds to be untrue, and on which the plaintiff relied, he being ignorant in fact of their truth or falsity (except as to certain protested paper), related wholly to the condition of the bank and the value of its stock. ‘One of the questions is whether the plaintiff, being a director of the bank, entrusted with the supervision and management of its affairs, is estopped, in a suit of this character, from setting up his actual ignorance of the condition "of*the bank. In any matter or-controversy connected with the business of the bank, or its management, it is clear that want of notice of its condition would not be available to him. . Upon well -settled principles of public policy, he would not be allowed to hold himself out to the world as the director or manager of an institution, and then, when sought to be made liable by the people of creditors of the institution, avail himself of the plea of ignorance to repudiate the acts or omissions of himself or his agents. But this case has no relation to the business of the bank or its management. It was simply a sale of stock by one officer of the bank to another; and, although the vendee was a director, having the means of knowledge, he was not in the particular transaction chargeable with notice of the condition of the bank. If he was actually ignorant of its condition, the fraudulent vendor would be legally responsible to him for the deceit as to anv stranger to the institution. It was not a case in which the plaintiff was legally bound to lrnow the truth or falsity of the defendant’s affirmations.

On the trial the solvency and prosperous condition of .the bank, and the value of its stock, were important inquiries. If the defendant’s representations were not false in these respects when made, then there was no ground for the action. The evidence showed very plainly that on the 29th August, 1857, the time of the alleged sale and transfer, the bank was, by the application of all the ordinary tests, sound, solvent and prosperous, and the stock worth all that the defendant had represented it to be. But the referee holds that the plaintiff might show, by indirection, and the merest hearsay testimony, that the facts, were otherwise; and having received the evidence, he gave effect to it in his report. Accordingly he allowed the introduction, under objection, of what purported to be a certified copy of the proceedings had in November, 1857, on the petitions of certain stockholders for the re-establishment of the bank. Among the papers thus admitted was the petition of the stockholders, stating, on information and belief, the amount of bills receivable; assuming to state the inadequacy of the available fund to pay the debt of the bank to the state treasury, and avoiding it by alleging the responsibility of the sureties; representing many of the debtors of the bank as embarrassed and crippled by the commercial revulsions, and stating the petitioners’ apprehension of disaster from the judicial administration of the fund, under the receivership. Another of the papers was the deposition of the receiver of the bank, embodied1 in the report of the referee. In this was stated the facts of the protest of $11,150 of the bills by the Nassau Bank, and that the amount of bills receivable was $27,000. Appended to the referee’s report was his estimate that from one-eighth to one-quarter of the bills receivable would prove uncollectable; his estimate of the then amount and value of the bank assets; also the receiver’s accounts, showing the large expenses incident to the receivership, the sacrifice of the New York state stocks at panic prices, ranging from eighty-seven and one-half cents to ninety-five cents, and other losses of a kindred character.

To these proceedings in the matter of the bank, the defendant was in no sense a party. It may be that by competent evidence the plaintiff would have been allowed to show the condition of the bank in November 1857, with the view of falsifying the defendant’s representations of its condition in August, 1857. But this would be allowing a wide range of examination ev.en where • the question involved was one of fraud. It was especially mischievous in this case; for between the date of the contract and November, 1857, the great commercial revulsion and panic of that year had occurred, and was at its height, unsettling commercial values, crippling and embarrassing all classes pecuniarily, occasioning a suspension of specie payment by all the banks, and prostrating temporarily even the state credit. If such a latitude of investigation, however, was permissible, it could only be pursued by the introduction of competent proof. The petition of the stockholders to re-establish the bank, the affidavit of the receiver, and the estimates of the referee, as:to the amount and value of the then assets of the bank, were, clearly incompetent as against the.defend'.ant. So far as he was concerned, the statements in the petitions were.mere.hearsay, many of them upon the information and belief of the petitioners, who were themselves competent witnesses. This was also the character of the affidavit of the receiver before the referees (a witness not .sworn on the trial), and of the estimates of the referee as to the .amount and values of the assets of the banks in November, 1857. .Instead of swearing witnesses on the trial .as to the condition of the bank, and the value and .amount,of its assets, when-taken .out of the hands of the' Receiver, (regarding .such evidence as material and competent on the question of .the truth or falsity of -the defendant’s representations in respect thereto, made in August, 1857,) the referee allowed second hand proof of the facts; apd what is quite apparent, in.a degree, at least, based his report' upon such proof. It may not have been strictly objectionable to have allowed the affidavit of the defendant, emboclied.in the report of.the referee, to be introduced with the view of showing his declarations and admissions; but on no .principle was the testimony -of the receiver, the hearsay testimony of certain stockholders.of the bank, and the estimates of the referee as do the amount , and value of its assets, in a process between other parties, admissible. It is urged that the record .of the proceedings was proper evidence to show the time that .-the bank went into the hands of a receiver, and the declarations and admissions of the defendant, and that it was necessary .to introduce the whole record, or the paper would have been incomplete. Suppose, however, it was incomplete, it could certainly be no reason ¿for the introduction -of improper evidence. -If -it were a proper way to .prove the fact that the bank went into ..the hands of a receiver, on the application of some of its .stockholders, on .the 18th September, 1857, it could have been-shown by the ordér or decree of the judge; and if the declarations or admissions of the defendant as to the condition of the bank, made in" a proceeding tó re-establish the ■ institution1, were competent evidence, his affidavit containing these declarations and admissions, could have been introduced. Indeed, it was introduced and admitted;' under objection, beforé the other papers were received.

I am of the opinion, therefore, that the referee erred in • admitting as evidence what is called in the case a certified copy of the proceedings upon the" re-establishment of the bank, except perhaps the order of the court appointing a: receiver and the testimony of the" defendant- before the" referee, embraced therein. The referee' found - that the representation of the defendant that the bank was in a sound, solvent and prosperous condition iff August, 1857,, was false, and the defendant knew it; but the'statement of persons not sworn on the trial, and "in- fact the unsworn - statement of one as to the condition of the bank in November, 1857, were not competent evidence on which to base such "a finding of fact.

The-judgment of the supreme-court should be reversed, and a new trial ordered, with costs to abide the event.

Ingraham,' Davies,-Sélden, Mtjllin and Johnson, JJ., concurred.

Hogeboom, J. (dissénting.)

This action was brought to recover back-1 money paid-on a-transfer of twenty shares of the Huguenot Bank,-on account of false and fraudulent warranty." and representations and ■ concealment as- to the condition and'value of the stock and-assets and protested paper of-the bank. The case was referred toa referee. The evidence was conflicting. The referee found on sufficient and ■ apparently preponderating. evidence, that the alleged representations were made; that they, were false in fact; that they were in effect fraudulent, that is made with knowledge on the part of the defendant of their falsity; and that the plaintiff relied upon them-in making the .purchase of the stock. The supreme court, at general term, affirmed the judgment. I discover no ground upon which on the merits this decision can be disturbed. Even if it were open to review in this court upon the facts, the evidence is of such conflicting character, as makes it proper to sustain the decision of the original tribunal on the question of facts.

The real difficulty, if any, arises on the admission of evidence by the referee, and in this particular he is supposed to have committed grave errors. The more important of these, as alleged, consist in the admission of evidence of the proceedings connected with the insolvency of the bank ayd the judicial declaration of that fact; the appointment of ^ receiver; his subsequent removal, and the testimony of the defendant taken before a referee in those proceedings. To determine these facts correctly, it will be necessary to look with some care into the case, and observe the manner in which, and the purposes for which this testimony was introduced.

The plaintiff having introduced his own testimony, and that of his son and one or two other witnesses, as to the representations and declarations of the defendant, and of a clerk of the bank as to its condition, assets, debts and papers, offered to read in evidence the testimony of the defendant, Nathan Lefever, taken before J.'B.- Jewett, the referee in the matter of the Huguenot Bank, in pursuance of an-order granted thereinNovember 9th, 1857, as reported by said referee in his report, dated November 19th, 1857.

“The defendant, objected (to the offered evidence) upon the ground that it was taken after the suspension of the bank, and related to the condition of things then existing, and at the time of the sale of the stock, and that it was improper and immaterial to any of the issues in this action. The objection was overruled by the referee, and the evidence received, subject to any objection that might be thereafter raised to the same: to which decision the defendant excepted; The plaintiff then offered in evidence a certified copy of the proceedings upon the re-establishment of the bank. The defendant objected to the introduction of the evidence, upon the ground of its immateriality, and that it was an improper mode of proving the misrepresentations alleged in the complaint. The referee overruled the objection, and admitted the evidence, subject to any objections on the part of the defendant that might be thereafter made; defendant excepted to the decision.”

The proceedings thus far stated in regard to the offer, objection and admission of this evidence are stated in the language of the case. Immediately following this statement, and without any further or intervening matter, the case contains and gives in detail the following papers, apparently, so far as we can judge, forming one entire and connected series, to which a single certificate of attestation is attached. These papers are as follows:

1. A petition of stockholders of the bank stating its actual or apprehended insolvency, and praying for an injunction and receiver.

2. An order for a temporary injunction, and to show cause why it should not be continued and a receiver be appointed. "

3. An absolute order of injunction and for receiver.

4. A petition praying for an order vacating the injunction and appointment of receiver. •

5. Various consents of stockholders and creditors and others to such last named order.

6. An order of reference to Jacob B..Jewett to inquire and report as to the matters of the last named petition.

7. Notice of motion for an absolute order on said petition, and on the referee’s report.

"8. Beport of referee last referred to, in which report is-embodied the testimony of the defendant, Nathan La-fever, and the receiver, John Sleight.

9. An order vacating the order granting the injunction and appointing the receiver, and making provision for taking the account of. the. receiver before, the sanie referee. with other directions.,

10. Report .of. referee,under last named order.

11. Certificate of referee that the receiver had complied, with the .requisitions of the last named..order-, and paid, over the moneys in his hands..

12. Certificate of the clerk of Ulster county, that he had compared the foregoing with the .originals on file in, his office, and that they were true copies.

Tlie only ground of objection made to the offered evidence of the defendant’s testimony was “ that it was taken after the suspension of the bank, and related to the condition of things then existing,, and not at the time of the,sale of,the stockj and that .it. was improper and immaterial to any of. the issues in this section.” This, of course, did not embrace an objection to the form in which it was presented, as that it was one of-a connected series.of papers, and. should be detached from -the others; or that it was contained, in a,. referee’s report, instead of being established by original and independent eyidence. Such objections are, therefore, waived.

This testimony of the defendant’s declarations cannot be said to have been.wjiolly incompetent and immaterial; for it contains evidence by .the admission of ,the defendant of his official position and connection with the. bank—of. its capital, its circulating notes,.its securities, its indebtedness, its assets—at the time of the suspension of the .bank,.and of its collectable, and uncollectable paper, all of which.was pertinent to some of the. issues in the case.

The objection to this testimony was, therefore, properly overruled, and the manner in which .it was, admitted by the referee, “ subject to any objection that might be thereafter raised to the .same,” while it would not probably debar the defendant from availing himself of any direc-t substantial and unanswerable Objection to the testimony,, without' further specification, was at the same time a- pertinent admonition, as well as a liberal suggestion to the defendant, that if he desired to make any technical or specific objection to the testimony afterwards, he might and must do so. None such was made.

The case does not show whether upon such decision the evidence was directly introduced. I infer not, for it did not immediately follow, and the case goes on to state, “ the plaintiff then offered in evidence a certified copy-of the proceedings, upon the re-establishment of "the bank.” As before shown, the evidence of the defendant was contained in these proceedings, and it is fair" to infer that one of the objects in offering them was for the purpose of introducing these declarations of the defendant. If so, and if this was one set of papers, forming a single record or proceeding, (and I think it was treated as such,) the evidence was admissible, notwithstanding it embraced other papers inad-' missible by themselves as independent- evidence, but not objectionable as forming inseparable portions of a single document or connected series of papers on file, which could not be dissected or mutilated; which other papers -it is perfectly obvious were never-intended to be used asprimary evidence in themselves of the facts recited in them.

These proceedings may have been offered for another purpose, to wit: for the purpose of showing the insolvency of the bank, judicially declared, and the appointment of a receiver within less than a month after the representations of its soundness and solvency were made by the defendant to the plaintiff. ' These judicial proceedings were averred in the complaint, and were, therefore, proper to be proved. The proceedings upon the ré-establishment of the bank themselves contained evidence—admissible evidence—of these proceedings, recognized the insolvency of the bank, the granting of an injunction and the appointment of a receiver, contained a certificate of the defendant of these facts, and also his testimony before referred to. They were moreover connected with and a part of. the proceedings taken to establish the insolvency of the bank, the granting of an injunction and the appointment of a receiver. They seem to me, therefore, to have been admissible, and to have been intended for one of the legitimate purposes before named. If designed simply to prove the re-establishment of the bank, they would be so wholly immaterial, indeed, so directly beneficial to the defendants, that I think we would be at liberty to overrule the objection on the ground that they could not by possibility prejudice his interests.

The referee saved to the party the right of subsequent specific objections, which not being made, we are at liberty to conclude the evidence was offered and received only for some of the lawful objects before mentioned; and I am not inclined to give effect to an objection technical in its character and failing to present itself in a clear and obvious aspect to the referee, himself a competent lawyer, for the purpose of overthrowing a decision which we can see was not unwarranted by the testimony in the case.

These remarks embrace, I think, all that is material to be specially considered in the points or argument of the counsel for the appellant. The objections to other portions of these proceedings, that the statements in the petition were mere hearsay; that the referee’s unsworn statement was in effect received in evidence; that his estimates were allowed to have weight in the final disposition of the cause; that evidence was received of subsequent losses and compromises; that there was no authority in law for the introduction of a certified copy of proceedings of that character—with other minor objections suggested in the points or on the argument are all disposed of, I think, by the remarks already made, and are susceptible of one of two conclusive answers:

1. As to many of them the objections were not taken at the hearing.

2. As to all of them, the papers were not admitted or used for any- such purpose, as is assumed in the objections.

I think, on the whole, that the merits of the case were fairly tried; that no well founded objections to the evidence appear in the case or were fairly presented to the mind of the. referee; and that the judgment of the court below ought to be affimed.

Denio, Ch. J. concurred with Hogeboom, J. Judgment reversed.