author: Denio, Ch. J.

text:
    Almere Walker v. Nicholas H. Caywood et al.

    Under the provisions of the act of 1847, oh. 210, where a plank road company-takes and uses a public highway for its purposes, the road thus appropriated does not cease to be a public highway. The general right of the public to use it for the purpose of travel, with horses, carriages and on foot, remain unimpaired.
    The change effected by said act is, the general public, in consideration of the payment of certain tolls, is relieved from the burden of keeping it in repair, and the duties which, in this respect, before belonged to the commissioners of • highways and other local officers, is transferred to the plank road corporation.
    But these local authorities are not thereby ousted of their jurisdiction in respect to encroachments upon highways thus used by plank roads.
    The general public and adjoining proprietors have an interest in having a highway remain of the breadth originally intended, and in its continuing of a uniform width, and the commissioners of highways, as their official agents, are charged with the duty of instituting proceedings to remove all encroachments.
    Where a board of trustees of an incorporated village are invested with the authority “ to exercise the powers and duties of dommissioners of highways of towns within the limits of the village, &c., so far as these powers and duties are consistent with other parts of the act, and are applicable to the village,” and there is no provision in the act requiring such board to notify proprietors to remove structures encroaching upon the streets of the village, it seems, such board may proceed to remove such structures without giving sixty days’ notice as is required of commissioners of highways.
    The failure by the commissioners of highways to cause a public highway, long in use, to be opened to its full statute width for a period of thirty years, does not operate to extinguish the fights of the public to the parcels not so opened and worked.
    The statute requiring highways that have been laid out, to be opened and worked within six years, applies only to those cases where there has been a failure to open and work them at all, and not where the highway has been in full use for the whole time, though not in all places opened to its full width.
    Appeal from an order of the Supreme Court reversing a judgment for the defendants, rendered on a verdict, and granting a new trial, the defendants giving with their notice of appeal the stipulation for judgment absolute in ease they should be unsuccessful, according to the statute.
    The action was in the nature of trespass quaere claetisum fr'egit, for taking down the street fence of the plaintiff’s lot, in front of his house in the village of Weedsport, Cayuga county, and removing certain trees within his inclosure.

      The defendants justified as trustees of that village, under an order of the board of trustees, in terms directing that Seneca street, on the east side of which plaintiff’s premises were situated, be opened “in accordance with the earliest survey thereof on record.” The order defined with precision the line of the street across the lot of the plaintiff, and of three other adjoining proprietors of lots, as claimed by the trustees, cutting off from 2% feet to about 6J feet of the front of each lot, and making the line of the street across those lots straight. The order directed the change to be made within thirty days after the service of notice upon the proprietors, but proposed a longer time in case the owners would sign a written agreement to remove their fences within the extended time. The order was served on the plaintiff by reading it to him; but he neglected to sign the agreement or remove the fences. The other proprietors removed their fences to the new line, upon which the defendants, the president of the village, two of the trustees and the police constable, took down the plaintiff’s fence, which was of posts and boards picketed and painted, and about eighty feet long, dug up three or four fruit and ornamental trees and some currant bushes, leaving them, however, in a condition to be again planted.
    The defendants gave in evidence, from the book of town records, an order of two commissioners of highways of the town of Brutus, purporting to have been made in December, 1822, recorded the 16th day of January, 1823, and purporting to be the “ alteration of a road that leads from James Baynor’s to Weed’s basin-.” It states the termini, and the courses and distances of the road as altered.
    The evidence at the trial, in addition to the facts already stated, related principally to the location of the road according to the order of the commissioners, and tended to show that the line as fixed by the board of trustees, corresponded with the order of the commissioners. It was shown that the highway or street in question had, for several years before the trial, belonged to and been used by the Auburn and Cato Blank Bead Company.

      It was proved that at the time of m airing and recording the alteration in 1823, there was a fence in front of the plaintiff’s lot on the same line as the one taken down by the defendants, and that a fence had been continued on the same line until the commission of the alleged trespass. The west side of the road or street, at that point, was not fenced and had not been for several years prior to the trial. When the road was planked by the plank road company, about ten years before the trial, the traveled path so planked was placed four or five feet nearer the plaintiff’s fence than before.
    The questions of law were raised by sundry requests to charge, which were refused, and by the charge actually given, the plaintiff excepting to such rulings as were unfavorable to him. The plaintiff’s points were: 1. That as the road belonged to the plank road company, the defendants had no jurisdiction or control over it. 2. That the record of the road given in evidence was of no validity, for the reason that such road had not been opened and worked substantially as laid, within six years after the recording. 3. That if it were conceded that the fence and trees which were removed were in the road, the defendants had failed to show any authority to remove them. 4. That to justify themselves, the defendants should have served a notice to open the road or to remove the encroachments, in substance the same as that required of commissioners of highways in such cases, 5. That the defendants cannot justify their acts under the powers conferred upon them as commissioners of highways.
    These points, except the last, were virtually overruled in the charge as given, which was, in effect, that the case turned upon the question whether the plaintiff’s fence was an encroachment upon the highway as duly laid out. The judge, however, held that the defendants could not justify as commissioners of highways.

      William B. Mills, for the appellants.
    I. The defendants had all the rights, powers and duties of commissioners of highways for the village.

      “It shall be the duty of trustees, and they have the power to exercise the powers and duties of commissioners of highways of towns within the limits of said village.” (Laws of 1857, vol. I, 645, § 18.)
    “ To prohibit the incumbering of the sidewalks and streets of said village, and to cause buildings and other structures encroaching thereon to be removed, at the expense of the owners thereof.” (Id., 642, § 28, sub. 2.)
    “ To determine the existence of a public nuisance in any part of the village, and to compel its removal or abatement, and if not done within such time as the trustees may allow therefor, to cause the same to be removed or abated at the expense of the village.” (Id., 646, § 28, sub. 5.)
    II. Defendants were authorized to remove any encroachment upon the highway, without resorting to an action for penalties. (Penrudoch’s Case, 5 Coke, 101; Hart v. Mayor of Albany, 9 Wend., 572, 584, 593, 607; Estes v. Kelsey, 8 Wend., 555; Galatin v. Gardiner, 7 Johns., 106; James v. Hayward, 3 Croke, ch. 184; Ring v. Russell, 6 East, 427; McFadden v. Kingsbury, 11 Wend., 667.)
    1. The power given by statute to complain of encroachments, and, if not removed, to prosecute for penalties, is merely cumulative, and does not take away the common law right of summary removal. (Wetmore v. Tracy, 14 Wend., 250.)
    2. In this case the powers of the defendants are extended by statute to the right of removal in express terms, and the court says, that when trustees of a village are acting as street commissioners, their acts for the public good should be viewed with indulgence. (Graves v. Otis, 2 Hill, 246.)
    3. Length of time of the continuance of an encroachment gives no right, for the continuance of a wrong can never make a right. An individual may be estopped from asserting his right, but the public, never. (Mills v. Hall, 9 Wend., 315; Fowler v. Sanders, 2 Croke, 446.)
    III. The road as laid out is a public highway until it is lawfully discontinued or removed. (1 R. S., 513, § 54, 4th ed., 66.)

      Traveling upon another track does not abandon the true line, but the public may at any time return to it. (Angell on Highways, § 224.)
    The public are entitled not only to a free passage along the highway, but to freely pass over any portion of it. (Angelí on Highways, § 226 ; Hawkins’ Pleas of the Crown, ch. Y6, § 49.)
    Where a highway has been laid out and established of a certain width by statute, the public are entitled to the full width, though not all opened and prepared for travel. (Angell on Highways, § 232; Commonwealth v. King, 13 Metc., 115; Harrow v. The State, 1 Iowa, 439.)
    IY. All roads laid out, altered or discontinued between 1805 and 1826, of which there is a record in the office of the town clerk, signed by two commissioners, are declared by statute to be legal highways. (1 R. S., 520, § 112 [1st ed., § 98], § 115; Parker v. Van Houten, 7 Wend., 145.)
    The street in question is the oldest and most traveled of any in the village, and it will hardly be claimed that there is no street there.
    What we understand to be claimed is, that the street is not, at the place in question, of the legal width. It is a right of way, either by usage merely, or else it is a legal highway according to the statute, and of the width required by law, which at that time was not less than four rods. (2 R. S., 277, § 22.)
    Y. A road laid out under, or declared to be a highway by statute, is a legal four rod road, and the public have a right to the use of it for the full width at any time, and anything which interferes with that right is an obstruction of and encroachment upon the road. (2 R. S., 277, § 22, as above; 1 R. S., 520, § 112; Harlow v. Hummiston, 6 Cow., 189; Wetmore v. Tracy, 14 Wend., 250; see other cases unefer second point.)
    YI. All the public streets in the village are, by the charter, . declared public highways, subject to the rights and duties of any incorporated company to keep them in repair and take toll thereon. (Laws of 1857, vol. 1, p. 660, § 68.)
    The road in question was therefore as much under the control of the defendants for all other purposes as any road in the village. Except keeping the line of travel in repairs, it was in the care of the defendants. If not, nohody had any power over it, except to the limited extent of the powers of a plank road company, and no one could require walks to be built, or anything else done to it. But the statute, as above, has expressly provided otherwise.
    VII. A highway duly laid out, and not opened and worked within six years, * * * shall cease to be a road for any purpose whatever. (1 R. S., 521, § 99 [4th ed., § 113].)
    The respondent claims that under this section the whole of the road must be opened and worked, and of the whole width, else it ceases to be a road for any purpose whatever.
    It cannot be claimed that non-user of a portion, suffering an encroachment, or not opening the road to the full width, can work a forfeiture of the whole road; yet, if this section of the statute is held to apply, and the road is to cease because not all opened, it all ceases; for such is the language of the statute. The statute can have no rational meaning except that where there is no part of the road opened and worked within that time, the whole thing is deemed abandoned, and it “ ceases tobe a road for any purpose whatever.”
    1. Except for that statute, a road laid out and recorded, but not used for twenty years, still continues a highway, and does not revert to the original owner; and not opening and working it does not divest the public of the right to open and use it as a highway. (Henshaw v. Hunting, 1 Gray, 203.)
    2. Every road laid out by statute is of the legal width of four rods. (Harlow v. Hummiston, 6 Cow., 189.)
    3. Showing the record, and that the road was opened and used as a public highway, was all that was necessary for the defendants. (Sage v. Barnes, 9 Johns., 365.)
    VIII. If the road was opened, used and worked substantially as laid out within six years, though not of the entire width, it became and continued a highway of full width, and defendants were authorized to open it of that width, and remove obstructions therefrom. (Bishop on Highways, 62; Jenkins on Highways, 57.)

      It is a road, either by statute or prescription. If by statute, it is of statute width—four rods; if by use, it rests entirely upon the facts of use without survey, except it is surveyed as a road by prescription.
    If the doctrine contended for be true, that the road must be opened, used and worked the whole width, to make it a legal road, no legal roads can be found; for if sufficient width for present use is opened and worked, it is as much as is ever done in almost any case.
    If not opened so as to be a road by statute, it “ ceases to be a road for any pwrpose whatever,” and hence, cannot be a road at all.
    The argument therefore is, that we have no road at all, unless the whole width is “opened and worked” within six years. It is not simply that it shall be opened the whole width, but opened and worked. The two conditions cannot be separated, and no one can claim that the whole length and breadth of the road must be worked to make it a legal road.
    It must be worked so far as it needs working; opened so far as the public for the time being demand it; and if it is not opened and worked within six years, it is reasonable to suppose it abandoned, and the statute so declares it.
    IX. The statute in relation to encroachment, is an argument which is conclusive upon the questions whether the road must have been opened and worked to the full width.
    The commissioners are authorized to order the fences removed, so that the road “ mcuy be of the breadth originally intended” Hot of the breadth originally opened, used or worked, but the breadth originally laid out and intended to be. (2 R. S., 521, § 103, 1st ed.)
    The language of that section is such as to show conclusively the legislative intent, and to give a legislative construction of section 99 (113, 4th ed.), the same as Bishop and Jenkins have given it, and the only one consistent with common sense.
    It is not possible in any case, to show that a road of a few years’ standing was ever opened, used and worked as laid out, in all its length and breadth. Human testimony is not certain enough, with the means of knowledge incident to the subject, to establish the fact if true, or to controvert it if not.
    The argument in this case then goes to the question, whether we have any roads laid out and opened according to statute, or whether other proof than what the statute requires will be required, and which the nature of the case will not admit of being made.
    We say, on the contrary, this road was duly laid out, opened and worked, according to the statute, is a road of statute width, and anything within its bounds is an encroachment upon it, and the defendants were authorized and required to remove it as they did.

      W. Porter, for the respondent.
   Denio, Ch. J.

The principle that a highway does not cease to be such for general purposes by being converted into a turnpike or plank road, is recognized in Benedict v. Gart (3 Barb., 459), and The Commonwealth v. Wilkenson (16 Pick., 175).

The next point to be examined is, whether, considering the plaintiff’s fence to have been an encroachment upon the street or highway, the board of trustees of Weedsport had jurisdiction of the matter, and could cause it to be removed. The act of incorporation (Laws of 1857, ch. 306) has the following provisions bearing upon the question: The board of trustees have the power conferred upon them “ to exercise the powers and cutíes of commissioners of highways of towns, within the limits of the village, except the assessment of highway labor, so far as these powers and duties are consistent with other parts of this act, and are applicable to the village.” (§ 27, subd. 18.) They am also clothed with the powers to prohibit the incumbering of the sidewalks and streets of said village, and to ocmse buildings and other structures encroaching thereon to be removed at the expense of the owners thereof, c&c.

The defendants cannot justify as commissioners of highways, for the reason (if for no other) that the time allowed the plaintiff, by the order to remove the fence, was too short, the general act prescribing sixty days, whereas the notice given in this case was only thirty; and it was on this account, I suppose, that the judge at the trial overruled the defense in that aspect of it. The defendants must therefore rely wholly on the last mentioned provision. The power seems sufficiently broad to embrace the case. ¡No notice to the proprietors is prescribed. It may be said to be an extraordinary power and one which might be readily abused. The defendants, however, seem to have proceeded with reasonable deliberation and indulgence in the present case, by giving a notice of thirty days, and allowing a further time if the plaintiff would submit; and they did no unnecessary damage in taking down the fence and removing the trees. If the locus m quo had been indisputably within a known and acknowledged street, probably no doubt could be entertained but that the defendants were fully justified.

This brings me to the remaining and principal question in the case, viz., whether the place on which this fence stood was legally a part of one of the streets of the village. The defendants are not aided by the provision of the charter which enacts, that all the public streets in the .village, laid down on the several maps thereof, heretofore laid out or dedicated to public use, are hereby declared public highways (§ 68), for no maps of the village were given in evidence. Nor do I think they are precluded from claiming the premises to be a part of a street by that enactment. I agree with the plaintiff’s counsel, in considering the motive of the provision to be to confer upon lands which had been dedicated to the public as ways, and had been treated as such by being laid down on the village maps in the character of streets, though never actually laid out or established by authority. But it could not have been the intention, and it is not, in my opinion, the effect of the incorporation of the village to subvert any of the existing highways of the town, or to extinguish any rights or easements which the public had acquired in highways, by force of existing laws, and under prior acts of administration. If, therefore, the site of this fence was within a legal public ¡highway prior to the incorporation of the village, it became one of the streets of the village immediately upon its incorporation, and all the provisions of the act of incorporation at once applied to it as a street.

Ho question was made upon the trial touching the legality of the proceedings of the commissioners of highways of the town of Brutus, as evidenced hy the record of 1823. What was then done was said in that document to he an alteration of a road. How extensive the alteration was, and whether the whole line of the road at that point was through premises then for the first time appropriated, or whether its course was changed in some less degree, does not appear, and no question upon that point was made at the trial.

If it had appeared that only the parcel of ground sought to he taken into the traveled part of the street, by the acts of the defendants in removing the fence of the plaintiff and the other proprietors, in 1858, was the whole which was included in the alteration of 1823, a question of a different character would have been presented. If, by the terms of the alteration, the only change in the preexisting road was to add to its width the narrow strip of ground now in controversy, then, inasmuch as that land was never opened or worked during the space of more than thirty years which followed its appropriation, it might perhaps be considered as having been abandoned or become obsolete within the spirit of the statutory provision, which declares that highways laid out but not opened or worked within six years thereafter, shall cease to be roads. (1 R. S., 520, § 99; 2 R. L., 227, § 23.) But the language of the record of 1823 does not warrant this interpretation. It purports to establish a highway between the points, and upon the courses indicated, and has no reference to.any former road except what may be implied from the word alteration. But as that word could be equally applicable if the whole width of the road opposite- the plaintiff’s lots were then newly appropriated, and as the contrary was not contended for on the trial, I think we are bound to treat the document as establishing a highway at that locality by appropriating a strip of land of the statute width for that purpose. The question then arises whether the failure to open and work it to its whole width for the considerable period which has elapsed has operated to extinguish the rights of the public to the parcels not so opened or worked. The case is plainly not within the. section of the statute last mentioned. The road as an entirety has been opened and has been constantly in use as a public highway from the date of the record to the present time. Simply it has not at all places been opened for its whole width. If a highway could lose its legal character from such a cause, it is probable that very few of the roads laid out in the early settlement of the State would now exist as lawful roads. This road, though now passing through a village of sufficient population to be ere'cted into a municipality, would long since have lost its legal existence by the neglect of the adjacent land owners to remove their fences where they encroached upon the four rods; and, so far as I can see, any person might, upon that position, lawfully fence it -up, without incurring any penalty. . But the argument is not that the road has altogether lost its legal character by the omission to open it to its proper width, but that it has been curtailed in its proportions, and become of irregular and varying width; that its sides, which were defined by straight lines, have become crooked and wavering. I do not think this position is sound. If a road or way be established by prescription or user, as most of the highways in England are, the public use defines the extent of the easement, and so of roads by express or implied dedication, but the highways in the central and western part of this State have generally been established by public authority, and the evidence of their extent and boundaries is contained in the public records. The public use for the purposes of travel rarely corresponds precisely with-their boundaries as fixed by the record by which they are laid out and the statute applicable to the case. But the proprietors of the adjacent lands have it in them power to ascertain the limits of the road, and it is their fault if they erect their fences upon lands which have been legally appropriated for public use. The plaintiff in this case is chargeable with knowledge of the position of the center line of the road, and he knew that by statute it must be four rods wide. He neglected to remove his fence to the line of the road, and for a long course of years no notice was taken of his omission, and we may presume that neither travelers or the public, during the greater part of this time, suffered any practical inconvenience. There was a sufficient roadway for ordinary purposes. But in process of time a village has grown up, where but a few years ago there was a wilderness. It has now become important that the limits of the highways, which have become village streets, should be defined. Can the plaintiff set up the delay of the public officers in not sooner enforcing their rights. I think not.

The only statute of limitations which has any analogy to the case, is that which I have quoted, providing that highways laid out shall cease to be such if not opened and worked in six years; but that, as has been mentioned, applies only to cases where there has been a failure to open and work them at all, and not where the highway has been in full use for the whole time, but its width has been contracted by the fault of the land owners to remove their fences far enough back. Nullum tempus occurrit regi is an old maxim of the common law, which we have inherited from our English ancestors, substituting the public or the State for the'king, who, in England, represents the State. (See Broom’s Legal Maxims, 27.) Its scope has been greatly abridged by modern statutes of limitations, but I know of none applicable to the present ease. In Peckham v. Henderson (27 Barb., 227), the Supreme Court appears to have held, that the statute limiting the time within which the people of the State might bring an action to recover the seizin or possession of land (2 B. S., 292) precluded the commissioners of highways from removing encroachments upon highways which had existed twenty years. But I am clearly of opinión that that statute has no application to the present case. The State, in its corporate character, never had, and never claimed to have an estate or interest in the soil of this road. Certain local officers were empowered to lay out a public way, over the lands of others, and they and certain other officers were authorizéd to remove obstructions upon it when so laid out. There is no impleading of any person; and there is not, it seems to,me, anything in the language or the policy of that act which can he held to regulate the time within which an act, purely ministerial and administrative, shall be performed.

The position taken in the opinion of the Supreme Court, that it was not shown that there was the certificate of twelve freeholders to the laying out of the road, in 1822, nor that compensation for the damages had been made, was not taken at the trial. If it had been, it might, perhaps, have been shown, if necessary, that these conditions had been performed. But after the lapse of more than thirty years, and the acquiescence of the proprietors of the land, such an objection cannot now be sustained. It may be answered that the acquiescence did not extend to the small piece of land on which the plaintiff’s fence stood. The acquiescence was, however, in a highway as assumed to be laid out by the commissioners, and the record showed the dimensions of that road.

The jury having found that the plaintiff’s fence was an encroachment on the highway as laid out, thus determining the question of fact upon which the controversy depended in the defendants’ favor, I think the judgment at the circuit should not have been disturbed. I am therefore in favor of reversing the order appealed from, and of affirming the judgment rendered on the verdict.

All the judges concurring,

Judgment on the verdict affirmed.


source: Caselaw Access Project

author: Porter, J.

license: Public Domain

text:
    Albert Smith, Respondent, v. Robert Paton, Appellant.
    Where there was no usurious agreement, the question whether there was a usurious intent is immaterial.
    A judgment will not be reversed for the admission of evidence which was needless, when it is clear that it was also harmless.

      George W. Stevens, for the appellant.

      Gilbert Dean, for the respondent.
   Porter, J.

The action was on a note made by the appellant, and sold by the payees to the respondent. The defense was, that the note was made for the accommodation of the payees, and that it was discounted for them by the plaintiff at a usurious rate of interest. These allegations the defendant failed to establish by satisfactory proof. The referee found neither the fact of usury, nor facts from which it can legally be inferred; and the plaintiff was therefore plainly entitled to judgment.

The proof given on the trial, that the plaintiff did not intend to violate the statute, was alike needless and harmless; and the exception is therefore unavailing. The transaction was simply a purchase of business paper, and as there was no actual violation of the usury laws, the presence or absence of an intention to violate them was entirely immaterial.

The judgment of the Superior Court should be affirmed with costs.

Judgment affirmed.


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

text:
    Mary Elliott v. Thomas Gibbons.
    B. died intestate, leaving the plaintiff, his widow, and certain minor children, who were supported by their mother for the period of two years and upwards. G. was appointed general guardian of the minor children, and administrator of the estate of B. There was a large amount of property, especially real estate, to be made liable for the support of the minor children. During the period of two years, G. had let the plaintiff, the widow, and mother of his wards, have several sums of money amounting to nearly $3,000. The plaintiff sued the defendant for money had and received for her use. The defendant sought to set off the money paid to the plaintiff as above stated, against the claim established by the plaintiff. The court held,

    That upon the question, whether the money so paid by the defendant to the plaintiff, was paid to her for her use, or for the maintenance of her minor children, evidence that the guardian, at the time of making such payments, had no funds in his hands belonging to his wards, was, in judgment of law, too remote from the issue, and too conjectural, to be admissible.
    The action was brought to recover for money had and received by the defendant for the use of the plaintiff. The plaintiff established her claim to the amount of $2,964.25, and the defendant established a set-off of $105, for money paid to or for the usé of the plaintiff, which, with interest, amounted to $123.36. The report of the referee before whom the case was tried, was for the balance of the plaintiff’s demand over that of the defendant. So far there is no question as to the correctness of the judgment. But the plaintiff claimed to be allowed, as a set-off, a farther amount of about $2,500. It was for money alleged to have been advanced and paid by the defendant to the plaintiff, from August, 1855, to 14th September, 1857, in various small amounts, which were specified in a list of particulars produced on the trial. The question upon this account was, whether the advances were made by the defendant in his own right to the plaintiff, for her use, or were payments by the defendant as general guardian for certain minors, her children, to her, on account of their support, education and maintenance, which were provided and furnished by her. The facts were as follows: The plaintiff’s husband died intestate on the 25th of July, 1855, seized of a considerable real estate, consisting of vacant building lots, one lot which was productive of income to an extent not stated, and a dwelling house in which he lived. Besides his widow, the plaintiff, he left five infant children, and another was born after his death. The plaintiff continued to live in the dwelling house, and to take care of and bring up the children. The defendant came to live in the family a few months after the death of the deceased, and afterwards married one of the daughters, who died without issue about eight months after the marriage. The defendant was, in August, 1855, with other persons, appointed administrator of the deceased, and he was appointed the general guardian of the infant children in February, 1856. He, as general guardian, procured an order of the surrogate of Kings county, for the sale of three several parcels of the real estate, and sales were accordingly made to three several purchasers, the plaintiff, as widow, joining in the sales and releasing her right of dower and her life estate as the heir of her deceased daughter, the defendant’s wife. Her releases, which were given in evidence, were dated in February, May and June, 1858. The defendant received the purchase price of the lands thus sold, as general guardian of the infant children, including the portion of such price belonging to the plaintiff as doweress and as tenant for life of the estate left by her deceased daughter, all of which came into the defendant’s hands. It was the several sums thus belonging to the plaintiff, and which the defendant had received and had not paid over, which constituted the plaintiff’s claim established on the trial. The several sums advanced by the defendant to the plaintiff which were set down in the bill of particulars referred to, were expended by her in defraying the charges of keeping the family together and supporting the children; and the general question, as has been mentioned, was whether they were to be considered as advances made by the defendant, as guardian, to her, to remunerate her for her expenditures on account of the wards, or were payments to her personally which she was bound to repay, or to allow against her claim upon the defendant for her money in his hands. The referee found this question of fact against the defendant, and in his findings of fact stated that the defendant did not lend and advance to the plaintiff, or pay, lay out and expend for her, any other or greater sum than the §105 above mentioned, which he allowed against her claim.
    The defendant was examined as a witness on his own behalf, and after testifying that he had advanced moneys to pay interest on mortgages and to pay taxes and assessments, and in particular §300 to reduce a mortgage against the estate, he was asked by his own counsel this question: “ On the 15th day of September, 1857, how much money had you received from the real estate and such of the property as came into your hands as general guardian?” The question was rejected by the referee, on the plaintiff’s objection, as immaterial, and the exception of the defendant’s counsel thereupon interposed, is the only question which arises on this appeal. The remainder of the trial consisted in the evidence of the defendant and of the plaintiff, who was also examined as a witness on her own behalf, touching the alleged advances mentioned in the defendant’s bill of particulars and the circumstances under which they were made. The referee’s finding affirmed the fact of those advances to the amount claimed by the defendant, but affirmed that “ the whole of such advances and moneys paid, except the aforesaid sum of §105, were made by him to and for the use and benefit of the minor children of the plaintiff, and not to or for the use of the plaintiff.”
    The judgment on the report was affirmed at the General Term in an opinion prepared by Judge Brown, and the defendant thereupon brought this appeal.

      J. H. Reynolds and S. M. & D. E. Meeker, for appellant.
    I. There is no evidence to sustain either the fifth or sixth findings of the referee.
    - II. The referee erred in overruling the question proposed by the defendant at folio 27 of the case.
    The controversy before the referee was, whether the moneys advanced by the defendant to the plaintiff were advanced to her for her owm use, or by the defendant, as general guardian, for the use of the children.

      It had already appeared that the personal assets of Mr.’ Elliott were insufficient to pay his debts; that there was only one piece of real estate productive besides the homestead; that the homestead was occupied by the plaintiff; that there were twenty-six or twenty-seven vacant lots, all of which were mortgaged but four; that the defendant had advanced money to reduce the mortgages and to pay interest, taxes, assessments, &c., and the object of the question"was to show that, at the time when the advances set forth in the bill of particulars were made by the defendant, he had no moneys in his hands as general guardian, and it is submitted that that would have been an important fact for the referee to have considered in determining the question whether these advances- were made to the plaintiff for her own use, or by the defendant, as general guardian of the minors.

      P. S. Crooke, for the respondent.
    The plaintiff sues for money had and received by defendant, for her use, and which he refuses to pay her.
    The answer of defendant merely sets up a counterclaim for moneys lent and advanced to plaintiff, and money paid out for her.
    The only question raised before the referee was upon the counterclaim. Plaintiff had made certain advances to the support of a family consisting -of himself and the widow and children of his wife’s deceased father — the husband of plaintiff—of whose estate he was the administrator, and of the children he was the' guardian. The only question was, whether the advances were made to the plaintiff. The referee allowed $105 and interest as paid for plaintiff by defendant, and at the request of plaintiff.
    The whole question of law turns upon the disputed facts in the case, on which the referee rightly finds for the plaintiff. The conclusions of law are merely consequential upon the findings of fact.
    The opinion of Judge Bbowk, delivering decision of the General Term of second district, clearly sets out all the facts and law in this case.

      I. The evidence proved clearly, that the advances made by defendant were not made to the plaintiff, but were made by defendant as administrator and guardian for her children.
    II. The finding of the referee upon the question of fact is conclusive.
    III. The finding of the referee is correct, both in fact and in law.
   Denio, Ch. J.

The defendant was, during the whole time in which the several payments were made, an administrator of the deceased, and during the greater part of that time was the general guardian of his infant children. He might have lent these sums, which he claims, to the plaintiff in his individual character, and he might also have advanced them, after he became general guardian, in that character and on account of the plaintiff’s services and expenditures in supplying food, clothing, schooling and other necessaries for her children, who were his wards. The question on the trial was, in which character the advances were made; and the only point now is, whether the evidence which he offered to give, and which was excluded, had a legitimate bearing upon that question. We may assume that the object of the question, which was excluded, was to show that he had received only a small sum as guardian, and that it was less than the sums which he had expended for other purposes, and that he had, therefore, no trust funds in his hands, and must necessarily have made these advances to the plaintiff out of his own moneys. It is obvious enough that, having the power, with the authority of the court, which could be readily invoked, to bring the real estate of his wards to a sale, to raise funds for their support, he might have advanced moneys to a person who had been employed in taking care of them and supplying their necessaries, in anticipation of the proceeds of the sales, and of the collection which he might expect thereafter to make from the rents of the productive property. Whether the advances in question were made with such views, or were individual advances which created an indebtedness in his favor as soon as they were made, would depend upon the circumstances under which the payments were made, and mainly upon the communication between the party paying and the party receiving the money. The defendant could not recall the payments if they were really made as guardiah, on. the ground that he was not in funds for that purpose at the time they were made. If the case were equivocal and uncertain on the primary evidence, it would, no doubt, incline the mind one way or the other, according to the fact, to show that he had or had not trust funds in his hands. But I am of opinion that the inference which would arise would be a conjectural and not a legal one. In the judgment of the law it would be too remote from the issue.

If the evidence had been received, the plaintiff should have been permitted to show that he was greatly attached to his infant wards, and was of a disposition which would lead him to make personal sacrifices or incur liabilities for their benefit in anticipation of expected funds. The loaning of money is a contract, and whether a particular advance was a loan or a payment on account, must depend upon the facts and circumstances having a direct bearing upon the question ;■ and the ability or disposition of the party paying, though it. may lead to a presumption of a certain kind, does not, as I think, raise legal presumption.

The defendant did not put any question which tended to-discriminate between those payments made before and those' made after he was appointed guardian.

. I am in favor of affirming the judgment appealed from.

Hogeboom, J.

Application having been made to the county court of' Kings county, on behalf of . the infant children of Mr. Elliott, by the defendant, as their general guardian, for authority to sell the interest of the infants, in three several parcels, of' their real estate, such proceedings were had that that court ordered their sale; and that the defendant pay to the plaintiff, out of the purchase-money paid him therefor, for her dower right and life estate, upon her releasing the same to the purchaser, three several sums, amounting in the aggregate to $2,770.62.

The plaintiff released her dower and life estate, and defendant received the money therefor from the purchasers and refused to pay the same to the plaintiff.

The answer alleges, that at the time when these moneys were received by the defendant, the plaintiff was indebted to him for moneys lent and advanced to her, and paid, laid ont and expended for her, to the amount of $2,665.97, and insists that they constitute a counterclaim.

The issues were referred to George G. Eeynolds, Esq., to hear and determine, who, by his fifth finding of fact, finds that the defendant did not lend and advance to the plaintiff, or pay, lay out or expend for her, any greater sum than $105; but by his sixth finding of fact, finds that the defendant did advance to the plaintiff, and pay, lay out and expend the whole amount claimed in the answer and the bill of particulars, $2,665.97; but that the whole of such advances and moneys paid, except the above $105, were made by him to and for the use and benefit of the minor children of the plaintiff, and not to or for her use.

To these findings of fact, exceptions were taken.

For the purpose of proving that the defendant had had no moneys in his hands as general guardian to advance, the question was asked by and of the defendant, to wit, how much money he had received on the 15th day of September, 1857, from the real estate and such of the property as came into his hands as general guardian. The question was objected to and overruled and the defendant excepted.

The questions of fact having been decided against the defendant, the question of law arising on the appeal turns on the admissibility of this evidence.

The sole point made on this appeal is, that the referee erred in overruling the foregoing question proposed by the defendant.

• The main controversy before the referee was, whether the moneys advanced by the defendant to the plaintiff were advanced to her for her own use, or as compensation for the board of defendant and the children, or by the defendant, as general guardian, for the use of the children.

It had already appeared, as the defendant claims, that the personal assets of Hr. Elliott were insufficient to pay his debts; that there was only one piece of real estate productive besides the homestead; that the homestead was occupied by the plaintiff; that there were twenty-six or twenty-seven vacant lots, all of which were mortgaged but four; that the defendant had advanced money to reduce the mortgages and to pay interest, taxes, assessments, &c., and the object of the question is claimed to have been to show that, at the time when the advances set forth in the bill of particulars were made by the defendant, he had no moneys in his hands as general guardian, and it is claimed that that would have been an important fact for the referee to have considered in determining the question, whether these advances were made to the plaintiff for her own use, or by the defendant, as general guardian of the minors.

Notwithstanding this argument, I am unable to see the pertinency of this question. The true question was, not how much money the defendant had in his hands, but how much he had advanced to the plaintiff, and on what account. It was not material whether he had funds in his possession when he made the advance, but for what reason and on what account he made it. Hor is the date fixed in the question material, for it would seem that the conveyance of the plaintiff’s interest was at a subsequent date. At all events the pertinency of the question is not apparent on the face of the record, and it should have been shown by an offer to prove additional facts, or an explanation to the referee of the manner in which it became material. Unaccompanied with such explanation, I think the referee was right in rejecting the evidence. The judgment should be affirmed.

All the judges concurring in this opinion, the judgment was affirmed.


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

text:
    George M. Chapman, Executor of Eunice Chapman, deceased, v. John W. Brooks and others.
    Pledge. A creditor may assign the principal debt to a third person, and give him the benefit of any pledge which he holds to secure the payment of such debt.
    Pledgor. So long as nothing is done to deprive the pledgor of the right to redeem on" payment of the amount due on the principal debt, the pledgor is not injured.

      It seems, that evidence of the declarations of a witness contrary to the testimony given by him upon a material point, maybe given to impeach his credit, though the rule is otherwise when the questions are put to the witness to impeach his general character. Per Demio, Oh. J.
    This action was brought, to recover the amount of two promissory notes, dated April 15th, 1857, payable to the order of Isaac L. Hunt, six months after date, at 215 Pearl street.
    The complaint contained an averment that the plaintiff was then the lawful owner and holder of the notes, and that the defendants were indebted to her; therefore, &e.
    The defendants, in their answer, deny that the plaintiff ever purchased the said notes, and also that plaintiff is the owner and holder of them, or either of them, and they aver payment of the notes to the holder before any transfer to the plaintiff. Upon the trial the defendants proved payment of the amount of the notes, to Isaac L. Hunt, the payee, at 215 Pearl street, on the 28th January, 1858, in part cash, in part other notes of Gordon, Brooks & Backus, and an abatement of twenty-five per cent. The notes of Gordon, Brooks & Backus were subsequently paid. At the time of the settlement, the notes now in suit were not produced or surrendered.
    It was also proved that at the time of the settlement, the notes in suit were held by George M. Chapman, as collateral security for moneys loaned by him to Isaac L. Hunt, in 1857; that George M. Chapman held the notes, in May, 1858, at which time Hunt had a settlement with Chapman in regard to the loans. That Hunt informed George M. Chapman of the settlement, about the time it was made, and gave to Chapman two of the notes received from Gordon, Brooks & Backus, for $806.67, which notes were afterwards paid, and the proceeds paid to Chapman, and credited by him to Hunt in their, account. That during 1857 Chapman had discounted some notes for Hunt, besides those which were given as collaterals on other notes ; and George M. Chapman testified, the two notes of Gordon, Brooks & Backus were brought to him as collateral for a subsequent loan, before May, 1858. At the time of the settlement, in May, 1858,-Hunt gave a memorandum note-for $20,880.39, dated 5th May, 1858, payable to G. M. Chapman & Co., which was to be in full for all memorandum checks due the firm, or either of them, dated prior to . 5th May, 1858; and there was annexed to the note a list of collaterals, among which were the two notes in suit, and two of the notes received by Hunt from Gordon, Brooks & Boot, on the settlement with Hunt, which were afterwards left with George M. Chapman.
    In March, 1860, there was another settlement, and a new list was made up of the collaterals then held by Chapman for Hunt’s indebtedness, in which were the notes in suit. After ' Hunt had testified that he informed Chapman of the settle.ment he had made with the defendants, he was recalled and examined by the plaintiff ás to a conversation between him and Chapman in regard to the notes in suit, to which the' defendants objected, which objection was overruled, and the defendants excepted. This alleged conversation was in 1860, and all of it was denied by Hunt. Chapman was then called and examined as to the conversation, and stated that Hunt then told him these notes had been paid to him, and he had used the money; that he, Chapman, told him he had collected the money in fraud of his mother. To both questions the defendants excepted.
    It was also proved by Chapman, that he ánd his mother were' in partnership; that she advanced the capital and they divided the profits. That .he made the loan in suit with his mother’s money; that Hunt requested him. only to keep one account, and that he and his mother would keep their accounts between themselves. He further stated he never delivered up any collaterals to Hunt until he received others in their place.
    The defendants requested the court to charge the jury, if the notes in the suit were pledged to the firm of G. M. Chapman & Co., the plaintiff could not maintain the action. The judge refused, and the defendants excepted.
    The jury found a verdict for the plaintiff, which was affirmed by the General Term, and the defendants appealed to this court.

      G. N. Titus, for the appellant.
    I. The court erred in overruling the several objections of the defendants’ counsel to the questions asked of Isaac L. Hunt and George M. Chapman, in regard to a conversation between them in the summer of 1860, and in admitting the testimony of George M. Chapman and Carlton Smith as to that conversation.
    1. The alleged conversation between Hunt and Chapman, in the summer of 1860, was res inter aUos acta, and inadmissible as evidence against these defendants in any form or for any purpose. (Mitchell v. Webb, 17 Penn. [5 Harris], 339.)
    2. The questions were improper, and the testimony in regard to that conversation was inadmissible for the purpose of discrediting Hunt. He was called as a witness by the plaintiff, and she could not discredit him. (Bull. N. P., 297; 1 Phil. Ev., 308, 309.)
    The questions objected to were not asked upon cross-examination of this witness; if they had been, several of them were objectionable, as they related to his supposed statements about matters foreign to the issue on trial, to wit, his use of the money received in payment of the notes; also to Chapman’s own statements.
    It is a well settled rule, that a witness cannot be cross-examined as to any fact which, if admitted, would be collateral and irrelevant to the issue, for the purpose of contradicting him by other evidence, and in this manner to discredit Ms testimony. (1 Phil. Ev., 272; Harris v. Wilson, 7 Wend., 57.)
    If Hunt had authority to collect the notes, the use he made of the money was immaterial, and his admissions or statements on that subject, in the summer of 1860, were irrelevant to the issue. ' • •
    3. The questions propounded to George M. Chapman were leading, and improper even for the purpose of discrediting Hunt.
    Whether the question between two witnesses be a question of credit or of mere memory, leading is equally objectionable.
    Mr. Phillipps, in Ms Treatise on Evidence, says:

      “ If the question is one of credit, then it is undoubtedly due to the person whose veracity is impeached, that the contradictory statement supposed to have been made by him, should be distinctly proved without the and of leading questions, and without any undue imfmenceP

    If the witness attempted to be discredited, denies having made the statements inquired oí) and a witness is called to prove that he did, the particular words must not be put, but the. witness must be required to relate what passed. (1 Phil. Ev., 269-271.)
    4. Chapman was permitted not only to answer leading questions, and to state Mr. Hunt’s admission as to Ms use of the money, but to testify to his own declarations in relation to the alleged impropriety of Mr. Hunt in that matter.
    Chapman’s declarations were inadmissible for any purpose ; so was his testimony in regard to the admission of Mr. Hunt.
    The supposed contradictory statement of the witness, whose veracity is impeached, must be of a material fact, relevant to the issue on trial, or the testimony is inadmissible. (1 PM1. Ev., 272; 1 Greenl. Ev., p. 602, § 462.)
    The plaintiff’s counsel, after proving that Hunt said in that conversation, that the notes had been paid to him, wMch was consistent with his statement previously given upon the trial, interrogated Mr. Chapman about matters not involved in the issue, in reference to which no inquiry has been made by the defendant, and thus put in evidence the declarations of Chapman, made more than two years after Hunt had notified him of the settlement of the notes in suit.
    The defendants had proved Hunt’s authority to collect these notes, if the jury credited his testimony rather than Chapman’s.
    They proved notice to Chapman of their settlement in March, 1858, no objection thereto being made until the summer of 1860, at which time .Chapman says he first heard of their payment.
    Any impeachment of Hunt’s veracity, in view of this conflict of testimony, was prejudicial to the defendants’ rights.
    II. The court erred in rejecting the testimony of John A. Hatt, which was offered to prove Hunt’s authority to collect the notes in suit.
    1. It is a familiar rule of law, that an acquiescence in the assumed agency of another, when his acts are brought to the knowledge of the principal, is equivalent to express "authority. (2 Kent Com., 7th ed., marg. pag., 614; Story on Agency, §§ 54, 56; Cairnes v. Bleecker, 12 Johns., 300; Com. Bank of Buffalo v. Warren, 15 N. Y., 577.)
    Chapman’s acquiescence in the settlement of these notes; after the notice to him proved by Hunt, established the agency and completed the proof of payment.
    2. Hunt’s authority to collect could also be established by proof that Chapman was in the habit of intrusting to him, for collection, the collateral notes which had been received fi’om him.
    The plaintiff gave evidence on this point, and the defendants, in offering Hatt’s testimony, were following up the line of proof which she had introduced.
    The testimony was improperly excluded.
    III. The plaintiff did not establish, upon the trial, any transfer to her of the notes in suit, nor that she was the owner of them.
    1. They were pledged, with other notes, either to George M. Chapman, or to George M. Chapman & Co., as collateral security for money loaned to Mr. Hunt; and whether pledged to Chapman or to his firm, neither of them had any right or anthority to transfer them to the plaintiff.
    As pledgee of the notes, neither of them had any rights therein, except to collect them on account of the loan made thereon. ( Wheeler v. Newbold, 16 N. Y., 393.)
    2. The plaintiff did not discount these notes. The proof was conclusive that money was loaned upon them as collateral, and that the money so loaned was the money of the firm.
    IY. The court erred in refusing to charge the jury that if the notes in suit were pledged to the firm of Gr. M. Chapman & Co., the plaintiff could not maintain this action.
    1. The complaint alleges and the answer denies that the plaintiff is the lawful owner of the notes in suit.
    The denial of the answer is not met by proof that the notes were pledged to a firm of which the plaintiff was a member. If the jury had found as a fact that the notes were pledged to G-. M. Chapman & Co., this action could not be maintained. Mrs. Chapman could not have been the lawful owner, nor the real party in interest, and the jury should have been so instructed by the judge. (Wheeler v. Newbold, 16 N. Y., 392.)
    2. The law requires that the action shall be prosecuted in the name of the real party in interest. The members of a firm constitute the “ real party in interest ” within the meaning of section 111 of the Code.
    At the time of its enactment, all partners were bound to join in a suit for the collection of a partnership debt. (1 Chit. Pl., 12, 15; Dobb v. Halsey, 16 Johns., 34; Armine v. Overseers of the Poor, &c., 4 Wend., 406; Secor v. Keller, 4 Duer, 416.)
    That rule of pleading has been embodied in the Code, sections 111, 113.
    3. There is no proof that the firm of Gr. M. Chapman & Co. has been dissolved, although they ceased importing in 1855.
    4. The language of section 111 of the Code is imperative. The objection that its mandate is disregarded cannot be •deemed waived under section 148 if not taken by answer.-

      By omitting to instruct the jury as requested, the court in effect withdrew from their consideration the question, whether “ Isaac L. Hunt indorsed the notes,” * * * over to Gr. M. Chapman & Co., as collateral security for the moneys loaned upon “his memorandum check, when the finding of that fact by the jury would have been fatal to the plaintiff’s right of action.
    The refusal of the court to charge the jury as requested was error.
    V. The judgment should be reversed, and a new trial granted. (Whitney v. Lynde, 16 Vt., 579; 32 Barb. S. C., 25; Van Hoesen v. Van Alstyne, 3 Wend., 75.)

      James Emott, for the respondent.
    I. The plaintiff had a right to examine Hunt as to the statements sought to be proved by the questions found at folios 70, et seq.

    This was not as to matters collateral and irrelevant.
    The defendants claimed that Hunt had received satisfaction of the notes from them, and that Chapman had adopted and ratified his acts.
    Hunt so testified directly to a ratification by Chapman, and the defendants showed that the notes of Gordon, Brooks & Backus, given on such settlement, had been indorsed by Gr. M. Chapman & Co., which fact was claimed to corroborate Hunt’s testimony.
    Also, the defendants claimed to show that because no steps were taken by plaintiff to collect prior to 1860, that the plaintiffs had, therefore, regarded the notes as settled.
    It was, therefore, proper to contradict Hunt’s testimony by showing statements made by him inconsistent with his evidence, that Chapman had acquiesced in the settlement, after being informed of it, by silence, by the reception of the amount received, and by delay and neglect in commencing legal proceedings to enforce the claim.
    The form of the question was correct.
    They were necessarily leading, the inquiry being as to the precise words used.

      Again, if the question had been “what conversation passed,” without the particular words being put, other and improper evidence might, have been introduced from the answers given.
    The questions are in accordance with the common practice on trials:
    At all events, no special objection was taken by defendants, and-the verdict cannot be disturbed upon general objection, when, had the objection been special, it might have been obviated at circuit.
    II. The request was for the charge of the judge upon a point as to -Which there was absolutely no evidence whatever in the case.
    There was no allegation that the notes were ever the property of G. Iff. Chapman & Co., in the answer. Hunt testifies, “they were held by George M. Chapman;” he reiterates it with the utmost distinctness. Again, at the close of the testimony, Hunt reasserts that the transaction was with “ George Iff. Chapman alone.” “ I did not hear George Iff. Chapman speak of the firm of G. Iff. Chapman & Co., during the year 1857, as being a firm then in existence,” and finally, he says, “ I never received money from G. M. Chapman & Co.” The memorandum is of “ notes in the hands of G. Iff. Chapman.” There is no evidence bearing upon this point, except where the note is made payable to G. Iff. Chapman & Co., and the account or list of collaterals is .headed, “left with G. M. Chapman & Co.”
    But the court will particularly observe that the note states that it is in full for amount “ due said firm, or either member thereof,” and that the account or list was so made out as expressly testified by Chapman, and that without contradiction by Hunt or any witness, at Hunt’s request, and was to comprise all claims, both of G. Iff. Chapman and of his mother, the plaintiff, and that at the time, Chapman offered to separate the accounts.
    The court will, of course, distinguish the notes in suit from the notes of Gordon, Brooks & Backus, which were confessedly given to G. Iff. Chapman & Co, This may bo fully tested by the court, by examination of the case, and it is confidently claimed by the respondent, that there is no evidence in the case which would have supported a recovery, had Chapman & Co. been plaintiff instead of Mrs. Eunice Chapman.
   Ingraham, J.

The exceptions to the decision of the court in overruling the objections of the defendants’ counsel to the questions asked of Isaac L. Hunt and George M. Chapman in regard to a conversation between them in the summer of 1860, are not well taken. Hunt had been examined by the defendants, and in that examination he had stated that he had informed George M. Chapman of the settlement he had made with the defendants of the notes in suit, about the time the settlement was made, when he gave Chapman the two notes of Gordon, Brooks & Backus, in 1858. After the defendants rested, the plaintiff recalled Hunt and asked him as to this conversation with Chapman in 1860. It was admissible to show that Hunt had made a different statement of this transaction at another time, and by this conversation in 1860, to show that his former statement was untrue.

The objections that the-questions were leading, were not taken on the trial, and are no ground of objection here; and if the object was to contradict him, it was proper to put the question directly to the witness, before the contrary statements could be proved by another witness. The whole purport of the examination was to show a different account of the transaction, at that time, from what he gave on the direct examination, and to discredit Hunt’s statement that he acted with the knowledge and assent of Chapman and with authority to collect the notes.

The witness Holt was asked what Chapman told him to do with other notes that Chapman left with him for Hunt. This was excluded. It was in regard to a matter foreign to the controversy in this action. What Chapman told him to do with other notes could not affect the plaintiff’s claim to these notes.

Whether the plaintiff was or was not the owner and holder of the notes in suit was a question of fact for the jury, The plaintiff had the possession. In addition, George M. Chapman had testified that he loaned his mother’s money to Hunt; that he and she were in partnership, and she advanced the capital.

If the money loaned belonged to the plaintiff, her right to collect the notes, which were collateral to the loan, is undoubted. If the money belonged to the firm, there is no doubt as to the right of the firm, in distributing the assets, to assign one portion of the debts to one member and another portion to the other. The securities pledged would follow the original loan in the hands of either of the partners. It would not be a transfer of the pledged securities vitiating the pledge. There can be but little doubt that the accounts were all kept together at the request of Hunt; Chapman so testified,- and the note given on the settlement pm-ported to be given to the firm, and appropriated the collaterals to pay all memorandum checks due the firm or either of the members. Under such an appropriation by Hunt, a third party can hardly be allowed to dispute the title of a member of the firm upon the ground that the pledge had been illegally transferred. These views dispose of the exception to the refusal of the judge to charge, that if the notes were pledged to the firm of G. M. Chapman & Co., the action could not be maintained. The case of Wheeler v. Newbold (16 N. Y., 392) does not conflict with this note. That case only holds that a creditor has no right to sell a note pledged as security at a loss, but must wait till it becomes due; but it is by no-means an authority for the position, that a creditor may not assign the principal debt to a third person and give him the benefit of the collateral securities to secure the payment of the principal debt. So long as nothing is done to deprive the pledgor of the right to redeem on payment of the amount due on the principal debt, the pledgor is not injured.

The evidence was sufficient to warrant the jury in finding that the original loan was the money of Mrs. Chapman; or, 2d. If the loan was to the firm, that, in the division of the assets, these secm-ities were set off to Mrs. Chapman for moneys advanced by her to the firm. Or, if originally loaned by Q-. M. Chapman, he could assign to Mrs. Chapman the note for the principal debt, and the collateral securities would inure to her benefit and be applicable to the payment of the amount due until wholly paid.

There was no error in the ruling of the judge in his charge or refusal to charge. ,

The judgment should be affirmed.

Denio, Ch. J.

The appeal in this case presents questions upon the ruling of the judge in admitting certain inquiries which were objected to by the defendants’ counsel, and rejecting a. question put by the defendants’ counsel to a witness, which was objected to by the plaintiff’s counsel, and in declining to charge in favor of a position of the defendants.

1. The action was brought to recover the amount of two promissory notes made by the defendants to the order of Isaac L. Hunt. The plaintiff sued as indorsee of Hunt, who had indorsed them in blank. The notes were at six months, and matured August 15th, 1851. There was no question but that Hunt negotiated both notes before their maturity. The defense was, that after such negotiation and after the maturity of the notes, the makers entered into a compromise with Hunt, the payee, paying a part in money, giving other notes with another name for a further part which had been paid, the residue being abated to effect the compromise. George M. Chapman, to whom Hunt had negotiated them, received them from him as collateral security for money loaned. The defendants attempted to show that Chapman was cognizant of and assented to the compromise, and that he received two of the new notes given upon that arrangement on account of or as a substitute pro tcmto for the notes in suit. Hunt, who was examined as a witness on behalf of the defendants, swore that he informed Chapman of the settlement he had made with the defendants about the time of making it, and the witness then gave him the two notes which were received on the compromise, which were passed to the credit of the witness. It was also shown that Chapman about this time held a large number of notes, besides these sued on, which he had received from Hunt, which were business notes in-his hands, and which he had delivered to Chapman as collateral security for other moneys loaned him, and moreover that there was a practice by which Hunt occasionally withdrew some of the collateral notes and substituted others with the assent of Chapman. The theory of the defense appears to have been, that the notes sued on were adjusted by Hunt with the makers, and that that adjustment was assented to hy Chapman at the time, or soon after it took place, and that two of the notes received on the compromise, which have been subsequently paid to Chapman, were received by him on account of the notes in suit. Chapman, who was examined as a witness for the plaintiff, denied this, and testified that until the summer of 1860, he had no knowledge of the compromise, and that he did not assent to it. An issue was thus made between the two witnesses, on the point of Chapman’s assent to the settlement which Hunt had made with the defendants. The plaintiff’s counsel then undertook to show that at a certain place, during the summer of 1860, Hunt communicated to Chapman that he had arranged the notes with the defendant, the maker, in the manner stated, and had apologized for that act by saying that his necessities had driven him to it, and that Chapman reproached him severely for his conduct. A series of questions were addressed to Hunt by the plaintiff’s counsel, with a view to show this state of facts, but Hunt answered negatively to all of them. The questions were objected to, and exceptions taken to the rulings by which they were admitted. The plaintiff’s counsel recalled Chapman, who affirmed by his testimony the existence of the conversation, in substance, as mentioned; and another witness, who stated he w^as present at the time and place indicated, corroborated him. Exceptions were taken to the decisions by which this testimony was received against the objections of the defendants’ counsel. It was competent for the plaintiff to discredit Hunt, by proving that he had made statements irreconcilable with his testimony, that Chapman had assented to the discharge of the notes sued on, soon after they were compromised. The whole conversation inquired of, in the questions addressed to Hunt, and afterwards proved by Chapman and the other witness, would tend to contradict the former on a point material to the case. If he mentioned the settlement to Chapman, for the first time, in 1860, which was long after the alleged ratification, and then apologized for his conduct, and if he made no answer to the reproachful language of Chapman, it could not well be true that the transaction had been long before made known to and been approved of by Chapman. The reproachful language used by Chapman on that occasion, had not of itself any relevancy except to show, by the omission of Hunt to justify himself by stating the fact, as he now alleged it to be, a tacit admission of his having, up to the time of the conversation, no authority or assent of Chapman to the transaction. Evidence of the declarations of a witness contrary to the testimony given by him upon a material point, may be given to impeach his credit, though the rule is otherwise as to questions put to a witness to impeach his general character. In that case the answer of the witness cannot be contradicted. (Patchin v. The Astor Mutual Insurance Co., 3 Kern., 268.)

2. One Hatt was called as a witness, by the defendants’ counsel, and testified, that he was in the business with Hunt in 1857, and that Chapman had, at same time, left with him collateral notes which he said he had received from Hunt. The witness was then asked to state what Chapman directed him to do with those collaterals, on the application of Hunt. The question was excluded on the objection of the plaintiff’s counsel, and an exception was taken. Prima facie, what was said by Chapman, in connection with notes which had been transferred to him, as collateral security, other than the notes sued on, would have no bearing upon the present controversy, but would tend to raise an issue foreign to the one on trial. It is possible that it may have been intended to prove a course of dealing respecting notes which had been so taken, which would tend to show an authority in Hunt to settle the notes in suit with the makers; but such an intention could not, without explanation, be inferable from the questions put. It frequently happens on trials, that subjects apparently irrelevant to the issue may be shown to be material, by connecting some other facts with them, showing a relation between the apparently immaterial matter and the issue in the suit. Where such is the case, it is the duty of the counsel to state the proposition which he proposes to establish, or the fact which he expects to prove, that the judge may see its bearing, and determine as to its materiality. The counsel did not pursue that obvious course in the present case, but contented himself with excepting to a decision overruling a question which presumptively had nothing to do with the merits of the case. The exception was not well taken.

3. The remaining point relates to the refusal of the judge to charge as requested by the defendants’ counsel—that if the notes sued on were pledged to G. M. Chapman & Co., the plaintiff could not maintain the action. The notes were made payable to the order of Hunt, and were transferred by him under his indorsement in blank, which, of course, made them further negotiable by delivery without indorsement. The note was produced and given in evidence on the trial, by the plaintiff’s counsel. This was sufficient presumptive evidence of a transfer to her. Whether, when it was negotiated by Hunt, the transfer was to G. M. Chapman & Co., or G. M. Chapman alone, or to Eunice Chapman, the plaintiff, was unimportant. If it was to her, no further transfer was necessary. If to the firm, or to G. M. Chapman, her possession of the paper was evidence that she had become the holder. The other evidence did not raise any question which would have enabled the jury to find against .the allegation of a transfer to her. The proof was, that the firm of G. H. Chapman & Co. consisted of the plaintiff and the , witness, G. M. Chapman. It was an importing house, but ceased doing business as importers in 1855, and the witness, Chapman, had the charge of settling up the business of the firm, and was collecting the large assets belonging to it, the whole capital belonging to the plaintiff, and half the profits to the witness. He swore that the loan to Hunt, for which the notes were pledged, was of money belonging to the plaintiff; though for convenience only one bank account was kept, which I infer was in the name of the firm, or of Gr. M. Chapman. But a private account, as he said, was kept between the partners. If this testimony was accurate, when the money was drawn to make the loan, it was charged to her in the separate account, and the security became hers. This evidence was wholly uncontradicted, and the jury could not legally have found against its effect. It must, therefore, have been6- erroneous to submit a question upon it to the jury. But suppose the loan was of moneys of the firm, and the security when taken from Hunt became the property of the two partners. It was sued in the name of one of them, but if the defendant would take advantage of that circumstance, he should have set up the non-joinder in abatement. This was not done by denying, as the defendants did, that the plaintiff was the lawful holder or owner of the notes. But if he had set up the non-joinder, the evidence above mentioned, and the further testimony which was given, that E. M. Chapman, who was the plaintiff’s agent, as well as the managing partner, directed the suit to be brought in her name, would have overcome the defense.

I conclude that none of the positions taken on the appeal are sustainable, and that the judgment should be affirmed.

All the judges concurring,

Judgment affirmed.


text:
    James S. Carpenter v. James C. Willett, &c.
    An action against the sheriff for an escape cannot he supported, where the process by virtue of which the arrest was made is void.
    To authorize a justice of the District Courts in the city of New York to adjudge a party subject to arrest under a judgment against him, the right to arrest must be stated in the judgment, and must form a part of the same.
    This was an appeal from a judgment of the Superior Court of the city of Yew York, and was decided in this court at the December Term, 1864.
   The opinion was given by Wright, J. A party had been arrested on an execution issued out of the third District Court of the city of Yew York. The judgment on which the execution issued did not state that the defendant was subject to arrest and imprisonment therein. The law (1857, ch. 344) provides that “ when a judgment is rendered in a case where the defendant is subject to arrest and imprisonment therein, it must be so stated in the judgment and entered on the docket.” The court held the execution to be void,' for the reason stated in the head-note.

This case is reported in 28 How., 225.