author: Marvin, J. Emott, J.

text:
    Rapalee v. Stewart et al.

    A creditor who, with knowledge of an assignment by his debtor fraudulent in law, upon its face, enters into an agreement with Ms debtor and the trustees named in the assignment for the management of the trust property and the distribution of its proceeds in accordance with the terms of the assignment — the performance of such agreement having been entered upon—is precluded from impeaching the assignment for such patent defect.
    Such agreement constitutes a good defence, and as such new matter is not available without being pleaded, an intermediate order striking it out of the answer involves the merits, and is reviewable upon. an appeal from the final judgment in the action.
    A provision that the trust property “be converted into cash, or otherwise disposed of to the best advantage” by the assignee, is authority to sell 'on credit, and avoids the assignment.

      Appeal from the Supreme Court. The facts are sufficiently stated in the following opinions.

      Sanford E. Church, for the appellant.

      John K. Porter, for the respondent.
   Marvin, J.

Action by plaintiff, a judgment creditor of the defendants, Stewart & Tunnicliff, to set aside an assignment made by the debtors to the other defendants, Morgan & Smith. The assignment is attacked for fraud appearing in it, and for frauds not so appearing. The assignment bears date October 21, 1850. This action was commenced in January, 1853, upon a judgment recovered October 1, 1852. The defendants, among other things, denied that there is any sum justly, equitably and actually due to the plaintiff upon the judgment, because they say that Steeart & Tunnicliff, October 21, 1850, made a general assignment of, &c., for the benefit of their creditors, to the other defendants, and that the plaintiff was one of a class.of creditors preferred, whose debts amounted to more than $30,000, and that the plaintiff, knowing the facts, about December 21, 1850, entered into a written contract with the debtors and others; creditors, some of whom were of the same class of preferred creditors, the contract'being dated November 13, 1850. The contract is fully set out, and its substance, after reciting that S. & T. had made an assignment, and that their statement shows a large amount- of property, consisting of real estate, canal boats, &c., and expressing the belief that a settlement of said estate in .the ordinary way by the assignees would result in a great sacrifice of property, alike injurious to the interest of debtors and creditors, and also reciting that the New York creditors, who were not to be paid under the assignment, until after the parties to the agreement were paid had named B. W. Franklin and Spencer Booth, with Nelson Tunnicliff, one of the debtor firm, to act in conjunction with the assignees, in converting and disposing of the property to pay the creditors, in the order of preference mentioned in the assignment; the parties to the agreement consented and agreed that' the assignees, Tunnicliff, Franklin and Booth, should convert and dispose of the property to pay the creditors in the order of preference mentioned in the assignment, and to compromise with any or all of the creditors who might he preferred in the assignment, before the parties to the agreement, in such manner and on such terms as Morgan, Smith, Franklin and Booth should deem for the interest of all parties; and when the property should be disposed of and the proceeds fully paid to the parties to the agreement, to be in full of their claims against the firm. It was averred that Morgan, Smith, Tunnicliff, Franklin and Booth accepted and entered upon the trust.

Upon motion, at a special term, all this was stricken out, except the denial that there was anything equitably due upon the judgment, and such order was affirmed, on appeal to the general term.

An order was made, with the consent of the parties, that the action be referred to Charles Gr. Judd, to take -and state . the accounts of. the assignees, and to take testimony in the action, but not to decide the case. The referee made a report of the testimony taken by him, and the exhibits proved. They are very voluminous, occupying between 800 and 900 folios. He did not state the account as directed.

The cause was brought to argument at a special term, and the court found the judgment and execution and assignment as stated, and that the latter contained a power authorizing the. assignees to dispose of the assigned property upon credit, if they could do so with more advantage to the parties interested. And that the assignees, when this action was commenced, had in their hands money enough, the proceeds of the assigned property, to pay the plaintiff’s judgment and the costs’of the action, and upon these findings adjudged the assignment fraudulent and void', as to the plaintiff, “because it authorized a sale upon credit; ” and also that the assignees pay the plaintiff his judgment, with interest, besides the costs of the action. The.defendants filed exceptions, and appealed to the general term, where the judgment was affirmed.

It thus appears that the Supreme Court have made two “ actual determinations ” in this action, one, the order to strike out portions of the answer, and the other adjudging the assign ment void, as to the plaintiff, upon the ground, exclusively, that it contained a power authorizing the assignees to dispose of the assigned property upon credit, if they could do so with more advantage to the parties interested.

The defendants attack the order to strike out. The counsel for the respondents supposes that this question cannot be made in this court. He refers to one of the exceptions, filed after the trial, alleging an affirmance and ratification of the assignment by the plaintiff and others; and alleges that such exception is unfounded in fact, and not available here. This is undoubtedly so. But the question here does not arise upon any exception. It arises upon an express provision of the Code, declaring that “upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.” (§ 329.)

If the facts, pleaded by the defendants, involved the merits and necessarily affected the judgment, the order striking them out, is reviewable by this court, upon this appeal from the judgment. And if the matter thus striken out would have constituted a good defence to the action, it involved the merits, and the striking it out necessarily affected the judgment, as such matter was not available to the defendants unless pleaded as “new matter.” Would the new matter pleaded by the defendants, have constituted a good defence?

The statute declares an assignment, made with intent to hinder, delay or defraud creditors, void, as to the persons so hindered, delayed or defrauded. (2 R. S., 137, § 1.) Why is such an assignment void ? It is because the effect of it is to delay or defeat creditors in the collection of their debts, and when made with such intent, it is void. But if the creditors consent to the assignment, how can it be said that they are defrauded ? One cannot predicate a fraud of facts having his assent, upon a full knowledge of them. There can be no fraud, when all the parties interested are equally informed of all the facts, and mutually assent to them. It is true, in this case, the plaintiff was not consulted, at the time the assignment was made, but on being advised of its provisions, he acquiesced in them, and entered into an agreement with other creditors, showing an assent to and a ratification of the assignment; by which agreement the parties to it consented and agreed that certain other persons, one of them being the assignor debtor, should be joined with.the assignees, and should convert and dispose of the property, and pay the creditors in the order of preference mentioned in the assignment. Here is not only a waiver of any right to attack the assignment for fraud, but a ratification of it, by coming in and taking action, by agreement with other creditors, designed to prevent a sacrifice of the assigned property, by a disposal of it in the ordinary way, by the assignees; and by the agreement authorizing further delays and compromises, &c., &c. It would be a fraud upon all the other creditors to this agreement, if the plaintiff should be permitted to maintain this action, and by setting aside the assignment, gain a preference above them and secure the payment of his entire'debt. I think that the plaintiff was concluded, by his acts in reference to the assignment, from' attacking it upon the ground of fraud as to creditors.

I think the case much stronger than Hone v. Henriquez (13 Wend., 240), decided by the unanimous vote of the Court for the Correction of Errors. In that case, Hone had assented to the assignment. He was an auctioneer, and some of the assigned goods had been placed in his hands by‘the assignee, for sale, and he had sold them-; and as the assignment had been declared void, at the suit of other creditors, he claimed to hold the proceeds of the sales made by him, by virtue of a lien for the satisfaction of his debts. His claim was negatived, upon the ground that he was concluded by his assent to the assignment; that, as to him, he having assented^ to the assignment, it was not void, and he could not assert his lien as an auctioneer for the payment of the debt owing to him by the assignors.

If we should pass this question, arising upon the order, can the judgment stand upon the ground upon which it is placed by the court?

The assignment was in trust, that the property assigned “be converted into-cash, or otherwise disposed of to the best advantage, by the said party of the second part, to pay, first, the expenses of the trust hereby created, and the debts and demands mentioned and described in schedule A, hereto annexed, according to the directions and upon the conditions and contingencies stated in said schedule,” and which are constituted the first class to be paid in full. This provision was construed as containing a power authorizing the assignees to sell the property on credit, and for this sole reason the assignment was declared void, as to creditors.

The language is, '“ to be converted into cash, or otherwise disposed of to the best advantage,” &c., to pay expenses and these debts. It is a cardinal rule of construction, to ascertain the intention of parties to written instruments. Another rule is, that if an. instrument may fairly be construed in two ways, one of which will invalidate it and the other make it valid, the latter construction is to be adopted. The law does not suppose that parties intend to make an illegal and inoperative instrument or contract. The statute condemns sales and assignments made with intent to hinder or delay creditors. A voluntary assignment for the benefit of creditors may, and generally does, occasion some hindrance to, and delay of, the creditor; yet they are upheld, if no hindrance or delay,'other than such as'is ,incident to a.faithful execution of the legal trust, is interposed. The debtor must not require or authorize delay.

An authority to sell the assigned property upon a credit, is an authorization of delay, and renders the assignment void. Is such authority expressed, or does it appear by necessary implication, in the assignment in this case ? The debtors say to the assignees: Convert the property into cash, or otherwise dispose of it to the best advantage, to pay expenses and debts. Here is authority to dispose of the property otherwise than for cash, or otherwise than by converting it into cash; and the authority is broad and general, the only limitation being, that it shall be “ to the best advantage,” to pay expenses and debts. Who is to judge what disposition will be to the best advantage? It must be the assignees. The discretion is conferred upon them of converting the property into cash, or of disposing of it in some other way which, in their judgment, will be more advantageous. This is a discretion not controllable by the law relating" to the general duties of trustees in such cases. In Jessup v. Hulse (21 N. Y., 168), the authority was, “to sell, dispose of, and convey,” &c., “ at such time or times, and in such manner, as shall be most conducive to the interests of the creditors,” &c., “and convert the same into money.as soon as may be consistent with the interests of said creditors.” This language was construed as not vesting in the assignee an absolute discretion, but as only stating, unnecessarily, what the law would give him, subject"to the control of the courts. Judge Selden says: “ The assignee is virtually directed to perform his duty, according to the rules and requirements of the law.” He adds: “If the clause in question púrported, in terms, to invest the assignee with any discretion, as coming directly from the assignor himself, it would be fatal to the assignment; as, if it had authorized the" assignee to dispose of the property at such time and in such manner as, in his judgment, would be most conducive to the interests of the creditors, or as he should deem expedient and best calculated to promote their interests.” I think that kind of discretion here condemned, is found in the present case, viz., to dispose of the property, otherwise than for cash, to the best advantage. The power of disposition is express, limited only in its exercise, to the best advantage; and as to what kind of disposition Will be to the best advantage, is left, necessarily, to the judgment and discretion of the assignees. The assignees are not required to convert the property into money, eventually. They may, under the power, for aught I see, sell the real estate on long credit, and take bonds .and mortgages, believing that they can use them, in paying debts, '.to the best advantage ; and all this might turn out so. But the law does not sanction such a trust, in a voluntary assignment to pay creditors.

In Woodburn v. Mosher (9 Barb., 255), the authority to the assignees was to convert the property into money “ within such convenient time as to them should seem best.” Here the convenient time of conversion into money was left to the discretion of the assignees. It was a discretion not controllable by the court. It was held that the assignment was void upon its face.

In Kellogg v. Slauson (1 Kern., 302), the trust was to sell and dispose of the property “ upon such terms and conditions as, in their (assignees) judgment, may appear best and wisest for the interests of the parties concerned, and convert the same into money.” This was construed as not conferring authority to sell on credit; that the language was consistent with an interpretation making the assignment legal and valid. The words “ terms and conditions ” were construed and limited to the manner of selling and disposing, as at public or private sales, in large or small quantities, &c. A broader construction, authorizing a sale on credit, it was said, would equally author- any and every illegal act, such as disposing of the pro- . y by lottery or at a raffle; that such construction was not c ’d for. It may be remarked, in that case the property was to jo converted into money. In the case under consideration I do not think we can limit the words “ otherwise dispose of to the best advantage,” to the manner of the sale or disposition intended to produce money. Here the words are used in contradistinction to the words “ converted into cash,” thus' confering an express authority to dispose of the property in a way not producing cash, and this authority is general, limited only by the judgment of the assignees, whether such disposition, otherwise than for cash,' will be to the best advantage. The argument that this power and discretion may find sufficient scope in making use of the property, by arranging with preferred creditors to take it in payment of debts, and that it may be so limited, is not satisfactory.

Upon the whole, I think the judgment of the Supreme Court upon this question, was right, and the judgment should be affirmed, but for the erroneous order; and for this cause I think the judgment and the order must be reversed.

Denio, Ch. J., Davies, Rosekrans and Balcom, Js., concurred.

Emott, J.

(dissenting). The assignment before us contains a clause to this effect, that all the assigned property is “ to be converted into cash or otherwise disposed of to the best advantage by the party of the second part, to pay, first, the expenses of the trust created, and the debts and demands mentioned or described ” in certain schedules annexed to the instrument. In the decision pronounced at the trial, as well as in the opinions delivered, both at the special and general term, it was held that this clause conferred a power to sell the assigned property on credit, and the assignment was declared to hinder and delay creditors, because it contained this clause.

In the two leading cases of Nicholson v. Leavitt and Burdick v. Post (2 Seld., 510, 522), it was decided that an assignment for the benefit of creditors is void, if it authorizes a sale of the assigned property upon credit. Since these decisions there has been, of course, no dispute but that authority to allow credit upon the sale of the assigned property will be fatal to an assignment by an insolvent debtor. The questions which have been agitated in the subsequent cases, have been questions of construction, whether the terms of the particular instruments in question conferred or imparted such an authority. In Brigham v. Tillinghast (3 Kern., 215), the assignment directed the assignees to convert the property, as soon as practicable and expedient for the best interests of all concerned, into cash or available means. It was decided that available means must be understood to be credits, -and,, therefore, this was an authority to sell on credit. Probably, but for this clause, that assignment might have been sustained upon the distinction which was adopted by this court in Jessup v. Hulse (21 N. Y., 168), that a direction to the assignees' to convert the property into cash as soon as was expedient for the interests of the parties, was valid, although had it been to make such a conversion as soon as they thought it would be expedient for such interests, it would be fatal. On the other hand, in Kellogg v. Slauson (1 Kern., 302), the assignees were authorized and directed to dispose of the property upon such terms and conditions as, in their judgment, might be best for the parties, and to convert the same into money. Here the assignment was sustained upon the ground that the discretion conferred upon the assignees was restricted to, or, at le'ast, would be satisfied by, regulating the manner of selling, whether in public or private, in bulk or in small quantities. If the discretion given by that deed had extended to the time either of sales or of payments, the deed could not have been sustained even by the distinction afterwards taken in Jessup v. Hulse. The assignees were to act in the matters left to their discretion as they should judge best for the parties interested, and not as should be the best for their interests. The case of Jessup v. Hulse, which is reported in the Supreme Court (29 Barb., 539), and in this court (21 N. Y., 168), was this: The assignee was directed to sell and convey the property at such time and in such manner as should be most conducive to the interests of the creditors of the assignor, and to convert the same into money as soon as might be consistent with the interests of said creditors. The Supreme Court holding that this language authorized the assignees to delay selling the property, or to delay the time of payment for it, until a time should arrive which they might consider best for that purpose, supposed that it came within the scope of the decisions against assignments authorizing sales upon credit, and pronounced against it. This decision was reversed in this court with singular unanimity. The reason given for the reversal was that the clause in question was, in effect, surplusage. Judge Selden said, in delivering the opinion of the court: “ If the clause in question purported, in terms, to invest the assignee with any discretion, as coming directly from the assignor himself, it would be fatal to the assignment, as if it had authorized the assignee to dispose of the property at such time and in such manner as, in hisjudg ment, would be most conducive to the interests of the creditors, or as he should deem expedient and best calculated to promote these interests.” And he subsequently observes: “The assignment in the present case contains no such language. It requires, it is true, that the interests of the creditors should be consulted in fixing the time, but it does not say that the assignee shall be the judge of those interests. Whatever discretion is vested in the assignee here, he derives, not from the terms of the assignment, but from the law, and. it is this which distinguishes the present case from all those in which the assignment has been condemned. The legal effect of this assignment is in no respect different from what it would be, if its language had been that the assignee should sell immediately, or at such time or times as his duty would require.”

The principles deducible from all the authorities upon these questions have been frequently stated. An insolvent debtor who makes a voluntary assignment, must devote his property absolutely and unconditionally to the payment of his debts. He may direct the order of the application, or of the payment of these debts, and he may select the agent by whom the application is to be made; but his power goes no. further. He can neither direct nor authorize any delay'in selling his property, or in collecting the proceeds of such sales, or in distributing such proceeds among his creditors; and an authority to his assignees to do either of these things is as objectionable -as a direction to a like effect. But an authority to do an act or to exercise discretion, which results necessarily from the duty of the assignee, or which is incident to his trust, is nothing more than an affirmance of his legal authority and obligation, and will not affect the assignment.

The question, in the present case, is not, whether the discretion conferred upon the assignee is to be exercised upon his own judgment, or by that of the law. According to the case of Jessup v. Hulse, the authority to convert the property into cash, or otherwise dispose of it to the best advantage, may be admitted to mean that he is to do the one or the other, if these expressions signify different things, as may be in law or in fact, and not in his judgment, to the best advantage. But the question then is, whether to dispose of the assignor’s property otherwise than by converting it into cash, is a disposition which the law will permit, and whether the power to make such a disposal of assigned property, is an authority which the assignors had a right to confer. In other words, whether disposing of the assigned property otherwise than by converting it into cash, will hinder, delay or defraud the creditors of the assignor. It seems to me that the bare statement of the question carries with it the answer. All' that a failing debtor can do, or authorize to be done, with his property, is to convert it into money, into cash, and to apply it to pay his debts. To dispose of it otherwise, is simply to do something else with it than what the law permits. This language, if it occurred in an instrument where such a power would be legal, might well be claimed to authorize á mortgage or a lease, or any disposition of the property referred to, which, in the judgment of the law or the parties, would be most for the advantage of those interested..' It is not an authority to sell the property and convert it into money, at such time or in such a way as may be for the interest of the creditors, but it is an authority to convert it into money or make such other disposition as may be for such interests. It is not an authority to do a lawful act, with a discretion as to time or manner, conferred and controlled by law, but it is a power to do a lawful act, or one wholly unlawful, in the discretion of the assignees, whatever may be the rule or the guide of that discretion.

The answer which is attempted to this is, that the interests of the creditors do not require nor permit any other disposition pf the assigned property than its conversion into cash; and as the action of the assignees is to be controlled by legal discretion, and not their own judgment, this clause imports nothing more than the alternative authority to convert into money. The judgment of this court in Jessup v. Hulse is invoked to sustain this construction. But it cannot be pressed into such a service. An authority to do an illegal act is not to be sustained or overlooked, because it may or may not be exercised; and the law to whose discretion its exercise is referred, would hold that such exercise would be contrary to the interests which are to be consulted. The argument is, that although the assignees are authorized to do what they have no right to do, yet they are authorized to do so only if it be for the best advantage of the creditors; and that, as the law will not decree an illegal act to be for their advantage, therefore the trustees are not authorized to do it at all. I have already said, that an authority to do what the law forbids, is as fatal as a direction to do it. The law exercises no discretion or control over illegal acts. When power is conferred to do what is legal and permissible, but the time and mode of acting is left to be determined by an exercise, of discretion, we are to infer that it is intended to leave the decision to the law’s discretion, and not to place the wishes or opinions of the parties above” the law, unless this is positively stated. But we have no right to say, that where power is given to do either a legal or an illegal act, the latter authority is nugatory, because the. discretion to do the one or the other will be controlled by the rules of law, and these will forbid the violation of the rights of creditors. Upon such a principle, it would be difficult to condemn an assignment for anything which it might contain, of a permissive character merely.

I am unable to see how we can come to any other result, than that which was reached by the court below, upon this point, and as this is decisive against the validity of the assignment, it is unnecessary to consider any other question arising upon that instrument. There are one or two minor questions which must be adverted to. It is said that it was erroneous for the court to proceed with the trial of the cause, upon the testimony taken and reported by the referee, until he had executed the residue of the order of reference, and stated the accounts of the assignees. It was, 'however, entirely a matter of discretion with the court to do so or not, and we cannot review their decision in such a particular. It is also objected, that the court had no right to order payment of the plaintiff’s claim, without going through with an accounting, if not appointing a receiver. The answer to this objection is, that the answer admits the possession of assets by the assignees, claiming to retain the same until the issue of a litigation between certain preferred creditors as to priority in payment; and the judge found as a fact, upon the evidence, that the assignees had in their hands sufficient to pay the plaintiffs. We must take this, fact to be as found, and cannot review the decision establishing it. Upon such a state of facts, the court had the right to order the plaintiff’s judgment paid, and there was no reason why he should be compelled, to go through an accounting by the defendants, or to submit to the appointment of a receiver.

The defendants also complain of an order, striking out a part of their answer. It may, in some cases, be the duty of this court to review such orders. They may deprive a party of his defence, and thus involve the merits and affect if not produce the judgment. But the matter stricken out in this case was irrelevant, in the aspect in which it was pleaded. It did not prove that there was nothing due upon the judgment. It was evidence to establish, if anything, the ratification of the assignment by the plaintiff. But it was not pleaded in that connection or for that purpose. Besides, the allegation did not go far enough to conclude the plaintiff. All that was alleged was, that he had signed a paper, agreeing that five persons, of whom the assignors and one of the assignees were three, might dispose of the assigned property in a certain way, not the way pointed out in the assignment, and that upon receiving his share of the proceeds, he would release the assignees from their debt, thus, it is said, recognizing the fact of the assignment. • It was not alleged that any money had been paid to or received by the plaintiff, under this agreement ; and I do not see how he was estopped or concluded, by the mere execution of the paper, from attacking the assignment for fraud. At all events, the execution of such a paper neither satisfied the plaintiff’s judgment nor went to show it paid. At the trial, there was no offer or attempt to prove these facts in any other connection or for any other purpose. The only testimony concerning them, indeed, is contained in the record of the plaintiff’s judgment, which was read in evidence. In this, it appears that this agreement was pleaded as a defence to the plaintiff’s claim, and the defence overruled. The order striking out the allegations of the answer, to which I have adverted, was correctly made, as a question of pleading, and no question of the effect of the evidence in any other aspect is before us. The judgment of the Supreme Court should be affirmed, with costs.

Wright, J., concurred in this opinion. Seldew, J., did not sit in the case.

Judgment and order reversed, and new trial ordered.


source: Caselaw Access Project

author: Denio, Ch. J. Rosekeans, J.,

license: Public Domain

text:
    Gallarati v. Orser.
    The judgment in replevin having been for damages only, and not for the delivery of the property, the sheriff is not liable for such damages by reason of the failure to justify of sureties who, on the arrest of the defendant in replevin, had given an undertaking for the delivery of the property if adjudged, and for the payment of such sum as for any cause might be recovered against such defendant.
    To render him liable, there must be a judgment under the execution on which the property might be sought and delivered.
    Appeal from the Superior Court of the city of Hew York. Action by the assignee of one De Lachapelle. The latter had brought replevin against one Thompson, for certain personal property. The sheriff made return that the property had been concealed or removed, and an order was made for the arrest of Thompson, under subdivision 3, section 179 of the Code. The sheriff took a bond of Thompson and his sureties, in the form prescribed by sections 187, 211. The sureties being excepted to, failed to justify. Judgment was rendered against Thompson, not for a return of the property, and for its value if a delivery could not be had, but for the value simply. Execution was issued, in accordance with the judgmeat, for the assessed value of the property, absolutely and not contingently upon the inability to have a delivery thereof. The execution was returned unsatisfied, and the plaintiff in this action claimed that the sheriff was liable in the same mannef as the sureties of Thompson, and bound to pay the same damages which De Lachapelle had recovered, with interest. The defendant claimed that he was not liable, because there had been no judgment for the delivery of the property, and no execution, in the form prescribed by the Code, for such delivery. He raised this question by proper exceptions, at the trial, but the judge directed a verdict in accordance with the plaintiff’s claim. A new trial was denied at special and at general term, and judgment having been perfected, the defendant appealed to this court. The case was submitted on printed arguments, by

      A. J. Vanderpoel, for the appellant.

      F. H. B. Bryan, for the respondent.
   Denio, Ch. J.

The original plaintiff, having procured proper papers to be prepared for replevying the property, for the recovery of the possession of which the action was brought, and the sheriff having been unable to make replevin, in consequence of the concealment of the property by the defendant, an order for his arrest was obtained, pursuant to section 179, subdivision 3, and section 180, of the Code. The defendant having been arrested under that order, the plaintiff was entitled to an undertaking, with sureties, for the delivery to the plaintiff of the property, the possession of which was claimed in the action, if such delivery should be adjudged, and for the payment to the plaintiff of such sum as might, for any cause, be adjudged against the defendant; or, in default of such undertaking, the plaintiff had a right to have the.defendant held in custody. This undertaking was applicable only to cases of replevin where the property had been concealed, so that replevin could not be made. This was added, in 1849, to remedy a defect in the prior provision. (Laws 1849, p. 653, § 187.) It may be conceded, though the question is not, perhaps, entirely free from doubt, that under the provisions of section 201 of the Code, as it now exists, the sheriff, if he should discharge the defendant without his having given and justified bail to the effect above mentioned, would be liable, precisely as the sureties would have been liable if a proper undertaking had been given. This section 201 was written before the amendment of 1849, and primarily imposed upon the sheriff only the liability which he would have been under for discharging the defendant after an arrest in an ordinary action; but when the amendmént of 1849, above mentioned, had been made, and by another amendment in the same act of 1849, the right to surrender, in discharge of the undertaking required in replevin cases, had been denied (Laws 1849, p. 654, § 188, subd. 2), it would probably be correct to hold, that section 201 was thereby modified so as to impose on the sheriff the liability mentioned in the added clause in the undertaking. This construction is, I think, required, to give consistency to the several provisions.

In this case there was a judgment for damages only, and not for a delivery to the plaintiff of the property of which replevin was sought. This was a departure from section 277 of the Code, which prescribes the terms of a judgment. It is required to be for the possession, or for the recovery of the possession, or for the value thereof in case a recovery cannot be had, and of damages for the detention. The plaintiff is not entitled to waive the claim to the possession, and to have an absolute judgment, in damages, td the value of the property. (Fitzhugh v. Wiman, 5 Seld., 559, 562; 2 R. S., 536, § 49.) The only final process which has been issued was the ordinary writ of fieri facias, upon which a return of nulb bona has been made.

Upon this state of the case I think the defendant was not liable. The sureties would not have been responsible on such an undertaking, if it had been given; and if they would not have been, the sheriff is not. No delivery of the property has been adjudged, and no process for such delivery has been or could be issued, for there was no judgment upon which such a writ could have been based. The damages spoken of in the undertaking, for which the bail undertook to be liable, were such damages as might have been adjudged in connection with judgment for the delivery of the property, namely damages or the detention, or perhaps for any injury to it, and conditional lamages, in case a return could not be had. The words “ for any cause” are thrown into the section prescribing the terms of the undertaking (§ 211), but the damages there referred to must be such as may be awarded consistently with, and in connection with a judgment for the possession, and they would, no doubt, include the conditional damages which are required to be adjudged against the defendant, “ in case a delivery cannot be had.” The comprehensive words were added to embrace these, as well as the damages for detention. It is no answer to these views to say that the erroneous judgment which has been given, is not void, and perhaps not at this time voidable by the defendant The plaintiff and defendant might agree to almost any judgment, or the plaintiff, upon the default of the defendant, and his neglect to move or bring an appeal, might obtain a very improper or incongruous judgment. But we are not to assume that the court would not, if the plaintiff had required it, have rendered a legal judgment which would have concluded not only the defendant, but his sureties and the sheriff. The consent of the plaintiff to take a judgment not appropriate to the action, or warranted by law, would, if the-sureties and the sheriff were concluded, be changing their contract in a most material point. We cannot say but, if a proper judgment and an execution in conformity with it had been issued, the bail or the sheriff would have found the property and have caused it to be taken and delivered to the plaintiff, on the writ of retorno habendo. One of the most common principles in the law of principal and surety is that the latter cannot be charged beyond the fair import of his undertaking, nor where there has been any substantial change of the contract of the party for whose performance he has become responsible. To hold the defendant liable in this case would be a palpable denial of that principle. Tie judgment must be reversed and. a new trial awarded.

Davies, Wright, Selden, Emott, Balcom and Marvin, Js., concurred.

Rosekeans, J.,

(dissenting). I concur fully in the views expressed by Mr. Justice Bosworth, in his opinion delivered in the court bélow, and think that the judgment should be affirmed, for the reasons stated by him. It is only necessary to add, that this court, in the cases of Ingersoll v. Bostwick (22 N. Y., 425), and Johnson v. Carnley (6 Seld., 570), held that the taking of judgment absolutely for the value of the property in an action of claim and delivery of-personal property, instead of taking such judgment upon the condition that delivery of the property cannot be had, is a mere irregularity, and, not a ground of reversal of the judgment on appeal. It has also been decided, in England and in this State, tha t bail cannot, in an action against them, take advantage of any irregularity in the judgment, or the execution issued upen it. (Campbell v. Cumming, 2 Burr., 1187; Pet. on Bail, 366,. and authorities cited; Gillespie, v. White, 16 Johns., 117.)

The judgment should be affirmed.

Judgment reversed and new trial orden 1.


author: Denio, Ch. J. Emott, J.

text:
    Fleming v. The People.
    In an indictment for bigamy, it is unnecessary to negative the exceptions, although they are referred to in the section defining the offence. (2 R S., p. 687, §8 et segi.) As matter of pleading, as well as proof, it lies upon the defendant to bring himself within the exceptions.
    The statute (2 R. S., p. 728, § 52) cures the formal defect, if it were one, of not negativing the provisos.
    General evidence that a marriage was celebrated according to the forms of the Church, or of a religious sect, implies the requisite assent of the parties. It is for the prisoner to go into particulars and negative their declaration of assent, before he can deny the apparent effect of the evidence.
    The plaintiff in error was convicted of the offence of bigamy in the Court of General Sessions of the Peace, of the city and county of New York, and was sentenced to imprisonment in a State Prison. The judgment having been affirmed in the Supreme Court, the convict procured a writ of error and brought the case here.
    The indictment charged, with the requisite certainty of time and place, that the accused married one Rowena Baldwin in 1855, and that afterwards, at a day named, in 1861, he married and took to wife, in the city of New York, one Jane A. Brett, “ the said Rowena being then and there living and in full life, against the form of the statute,” &c. On the trial, the defendant called the Rev. Dr. Jones, a clergyman of the Protestant Episcopal Church, who testified that on a day which he mentioned, in the year 1855, he married the defendant and Rowena Baldwin, at the house of a Mr. Perryman, in Stanton street, in New York, according to the church ceremonies, and that Mr. Perryman and fifteen or twenty persons were present. The defendant’s counsel put this question to the witness: “ Have you any distinct and independent recollection of anything that happened on that day ?” To which he answered: “ If I am asked as to the particular day of the month, I cannot; independent of my record, speak of that; but if I am asked in reference to performing a marriage ceremony between two parties, in Stanton street, in Mr. Perryman’s house about that time, I can speak from recollection.” The cross-examination was not further pursued. '
    Other witnesses on behalf of the prosecution testified that they were present at Perryman’s house in November, 1855, and saw the defendant married, by the Rev. Dr. Jones, to Rowena Baldwin, on the occasion testified .to by said Jones, and that the defendant and said Rowena for some time after lived together as husband and wife. None of the witnesses testified to anything that was said by the defendant or Rowena Baldwin, or by the clergyman, on that occasion, and no inquiries on that subject appear to have been made, further than has been mentioned. The prosecution examined Jane A. Brett, without objection, who swore that on the 31st December, 1861, a ceremony of marriage was performed between the defendant and herself, at No. 280 Second street, New York, ,by W. N. iCollins, a Methodist minister, and that certain persons, whom she named, were present. She said it was a regular marriage ceremony, which was performed by the minister, and that she had a.party at home. Two persons named by her as having been present, testified to the fact of the marriage, in the same general manner, and they identified the married parties, they being present at the giving of the testimony, and they said that the place of the marriage was the clergyman’s residence.
    After the close of the testimony, the defendant’s counsel requested the jury to be instructed, in substance, that the prose- ■ cution had not given sufficient proof of the alleged marriages, 1 because it had not shown what language was used by the officiating clergyman and by the parties to the alleged marriage, on the occasions referred to, and, moreover, that they should be instructed that the prosecution was obliged to negative, by proof, the exceptions mentioned in the ninth section of the statute relating to bigamy. The judge refused to give the instructions asked for, or either of them, and the defendant excepted. Verdict of guilty and judgment as above stated.

      H. L. Clinton, for the plaintiff in error.

      A. Oakey Hall (District Attorney), for The People.
   Denio, Ch. J.

The only question upon which any doubt can be entertained in this case relates to the sufficiency of the indictment. The statute declares, that every person having a wife living, who'shall marry any other person,'” except in the cases specified in the next section, shall be adjudged guilty of bigamy,” &c. (2 R. S., 687, § 8.) The next section declares, that the preceding one “shall not extend to” certain persons and cases, which are arranged in six classes. They embrace only cases where the former husband or wife shall have been absent for five successive years, without being-known to the party accused, within that time, to be living: or shall have been absent from the accused, and been continually remaining without the United States, fpr five years together: where the former husband and wife have been divorced for a cause other than the adultery of the accused : where a judgment of nullity of the former marriage has been pronounced: where such former marriage has been annulled for having been entered into by the accused within the age of legal consent; or where the former husband or wife of the accused has been sentenced to imprisonment for life. The objection is, that the indictment is insufficient on account of not having negatived these exceptions.

The indictment is in the precise form in use in England; but, in the British statute, the exceptions, which are, for the most part, the same as in ours, are introduced by way of proviso, thus : “ Provided always, that nothing herein contained shall extend,” &c. (Arch. Crim. Pl, 592.) Although, in our act, the exceptions are enumerated in a section subsequent to the one creating the offence, they are, as we have seen, referred to in the enacting clause, and I think the effect is the same as though they had been enumerated ih that clause. It is a virtual incorporation of them, in the enacting clause. The distinction between a proviso,- not referred to in the enacting clause, and a reference in that clause to exceptions subsequently enumerated, was incidentally considered by the judges of the Court of King’s Bench, in Steel v. Smith (1 Barn. & Ald., 94). That was the case of a proviso like the one in the British bigamy act; and it was held that the pleader need not notice it. The chief justice said: “ There are not, in this case, any words of reference or virtual incorporation ; but this is a distinct and substantive proviso.” And Abbott, J., said: “ Here are not in the enacting clause, any words such as ‘ except as hereinafter provided.” If any such words had been introduced, it might fairly have been contended that the subsequent proviso was incorporated with the enacting clause; and then the objection might have been supported.” The general rule of criminal pleading is, that where there is an exception or qualification in the enacting clause of a statute, to the effect that, in certain cases or under certain circumstances, the offence is not to be considered as committed, these must be negatived in the indictment. (Arch., p. 49; Commonwealth v. Maxwell, 2 Pick., 139; State v. Palmer, 18 Verm., 570.) I am of opinion, therefore, that this indictment is formally defective. Perhaps the defect is one which, in a technical sense, would be termed substantial; but I do not think it is such, within the meaning of the Revised Statutes upon the subject of indictments. It is there provided, that no indictment shall be deemed invalid, nor shall any trial, judgment, or other proceeding thereon, be affected by reason of any defect or imperfection in matters of form, other than those which are enumerated, which shall not tend to the prejudice of the defendant. (2 R. S., 728, § 52.) The operation of this statute upon indictments, in some respects defective, has been several times before the courts. The People v. Rynders (12 Wend., 425) was an indictment for forgery, under the statute which defined the crime to be the counterfeiting an instrument purporting to be the act of another; but that part of the description was omitted, though the instrument was set out. It was considered that the indictment was, to a certain degree, imperfect, but it was held to be cured by this statute. That case was followed by Charles v. The People, decided in this court. (1 Comst., 180.) The indictment was against the proprietors of a newspaper, for advertising tickets in an illegal lottery, but it failed to aver that the lottery was one the object of which was to dispose of money or property, though that was parcel of the statute description of the offence. The advertisement which was set out, however, showed this. The conviction was sustained on the authority of The People v. Rynders. The case of The People v. Powers, also in this court (2 Seld., 50), is much stronger. The indictment was for a second offence of petit larceny, but it failed to set out facts sufficient to show jurisdiction in the magistrates before whom the first conviction was had. This was clearly a matter of substance, according to technical rules, though it could not be pretended that the defendant was misled as to the crime of which he was accused. It was, however, considered a defect of form within the meaning of this statute, and the judgment against the prisoner was affirmed.

To show more fully the formal character of the defect in the present case, and at the same time to answer another objection taken on behalf of the plaintiff in error, it will be material to state, that the prosecution was under no necessity of giving evidence to show that the case was not within any of the exceptions. That was matter of defence, to be made out by the prisoner, if he was able to do it. Mr. Archbold’s treatise, already referred to, which, without doubt, conforms to the existing practice on criminal trials in England, lays down what evidence it is necessary for the prosecution to produce upon indictments for bigamy, and what the defendant may show in his defence. The fact of the continued absence of the former husband or wife, or a divorce dissolving the former marriáge, are set down as evidence to be given by the defendant, but no allusion to the necessity of the prosecution negativing these circumstances is made. (Archb., 595.) It is, moreover, a general rule of evidence, that where the negative of an issue does not permit direct proof, or where the facts come more immediately within the knowledge of the defendant, the onus probandi rests upon him. The cases upon this principle are referred to in Cowen & Hill’s Notes (p. 490, note 383, ed. of 1843). Among the cases are the familiar ones of a physician practicing without a license, and the selling of spirituous liquors without license.' The prosecution need not prove the want of the qualification. The circumstances referred to in the 9th section of- the bigamy act are highly exceptional and of rare occurrence, and rest peculiarly in the knowledge of the defendant. I think it clear, .that after.the prosecution has proved successive marriages of the defendant, and that the first husband or wife was living when the second marriage took place, the case of the prosecution is prima facie made out, and that it then lies with the defendant to show that he is protected by one or other of the exceptions. This consideration, while it disposes of the specific objection, taken on the trial, to the want of negative evidence, tends strongly to show that the defendant could not be misled by the allegations of an indictment which plainly stated all that the prosecution was bound to prove, though it did not negative the existence of circumstances which the defendant was at liberty to bring forward in his defence. Hence, I am in favor of holding the indictment sufficient.

There is no force in the position, that the prosecution was obliged to prove the language used by the married parties and the officiating clergyman, on the occasion of the marriage ceremonies. Prima facie the fact of a marriage, celebrated according to the forms of a religious denomination, embraces the requisite assent of the married parties to take each other as husband and wife; and if the party, whose interest it is to dispute the marriage, is satisfied with a general statement of the ceremony," and will not inquire more particularly as to what took place, he cannot be permitted to deny the apparent effect of the evidence. I am in favor of affirming the. judgment of the Supreme Court.

Emott, J.

I do not think the case comes within the rule cited by the counsel for the plaintiff in error, either as to pleading or proof. The clause contained in the section defining the offence of bigamy, is rather in the nature of a proviso than an exception. The statute does not make the condition or the character of either party to the first or second marriage a part of the offence. It makes every second marriage, during the life of the first or "second wife, 'a crkne, but provides that the statute shall not apply to certain cases enumerated in another section, and which are cases of desertion, divorce or discharge from the marriage relation by a sentence to perpetual imprisonment. The averment and the proof to justify a second marriage in any such case are to come from the defendant. Hawkins’ Criminal Law (b. 2, ch. 25, § 113) gives the rule that there is no need to allege, in an indictment, that the defendant is not within the benefit of the provisos of a statute, whereon it is founded, and this even as to those statutes which in their purview expressly take notice of the provisos, as by saying none shall do the thing prohibited, otherwise than in such special cases, &c., as are expressed in the act. So Chitty’s Criminal Law (283), says it is not necessary to allege that the defendant is not within the benefit of the provisos of the statute, though the purview should expressly notice them, as by saying that none shall do the act prohibited, except in the cases thereinafter excepted. This rule is precisely applicable to this statute, and so are the cases. Southwell's Case (Popham, 93), which both these authors cite, sustains their views. It was an indictment against a Jesuit for coming or remaining within the realm more than forty days after the end of the session of Parliament. The statute (27 Eliz.) upon which the indictment was founded forbade Jesuits coming or remaining after the specified time, otherwise than in such special cases, and upon such special occasions, and for such time only, which are expressed in the act. The report states that after deliberation taken, and consideration and conference among themselves had, by the judges, they all resolved that “ the better course was to omit this in the indictment, notwithstanding it be comprised in the body of the act, in the same manner as if it had been only in a proviso; in which case it is for the prisoner to help himself, as in cases of such a proviso, if he can do it; for the words, ‘ other than,’ &e., are but as referring to the provision subsequent in the statute, in which case this matter shall be used but as the proviso itself shall be; and according to this it hath been commonly put in practice by all the justices, in all .places, after the statute, until now.” I am not inclined, at this day, to adopt any stricter rule of criminal pleadings than the judges of the time of Queen Elizabeth. The judgment upon this conviction should be affirmed.

Davies, Wright, Selden and Marvin, Js., agreed with Emott, J., that, independently of our Revised Statutes, the indictment was good at common law.

Judgment affirmed.


author: Balcom, J. Wright, J. Emott, J.,

text:
    Lowenberg v. The People.
    The General Sessions of New York, having protracted its regular period of sitting, in the trial of a cause, was lawfully in session for the purpose of passing judgment in another cause in which a conviction had been had prior to the commencement of the trial which prolonged the sitting.

      It seems that the Court of General Sessions of the county of New York is within the statute (ch. 208 of 1859) authorizing Courts of Sessions in any county to continue its sitting at any terra, as long as may be necessary : Per Balcom, J,
    The act in relation to capital punishment (ch. 410 of 1860) did not abolish the penalty of death for murder in the first degree.

      It seems that the mode of execution by-hanging was established by the common law, and, not having been abrogated by that statute, was the legal method of execution while such act was in force, notwithstanding its repeal of the Revised Statute prescribing that punishment: Per Balcom, J.
    It is not a sufficient challenge for principal cause that a juror bad formed an opinion that the prisoner had killed the person for whose murder he was indicted. Killing being but one element of the crime, is consistent with the prisoner’s innocence of murder.
    Upon a conviction under the act of 1860, the court could not fix the day of execution.
    The proper form of sentence under the act of 1860 indicated: Per Balcom, J.
    Where the Court of General Sessions improperly sentenced the prisoner to be executed on a fixed day, that being the only error in the proceedings, and the Supreme Court, after the day fixed for execution had passed, affirmed the judgment, without fixing a new day for execution, held, that the erroneous part of the sentence being void and having become, by the lapse of time, incapable of any operation, the error was cured.
    Writ of error to the Supreme Court. The plaintiff in error was convicted in the Court of General Sessions of the county of New York of murder in the first degree, on the 11th December, 1861, and was sentenced, on the 4th January, 1862, “ to suffer the punishment of death for said murder, on Friday the 20th day of February, 1863, and that he be confined at hard labor in state prison until such punishment shall be inflicted.” The case was taken by writ of error to the Supreme Court, proceedings being stayed, and after the day specified for the execution had passed the judgment was affirmed; no day being there assigned for executing the sentence. The prisoner sued out a writ of error from this court. The other material facts appear in the following opinions.

      H. L. Clinton, for the plaintiff in error.

      Nelson J. Waterbury, for The People.
   Balcom, J.

The term of the Court of General Sessions, at which the prisoner was tried and sentenced, was commenced on Monday; the 2d day of December, 1861, and was continued until the 4th day of January, 1862, when the sentence was ■:pronounced. 'The prisoner was tried and found guilty by the 'jury, on the-11th day of December, 1861. The trial of one Jefferds was commenced in that court, on the 18th day of that month, and was concluded, by a verdict of guilty, on the 24th day of the same month. On the 28th day of that month, the ■district attorney moved that judgment be pronounced upon the prisoner and Jefferds. But the pronouncing of judgment in each case was postponed,' at the request of the counsel for the prisoner, until the 4th day of January, 1862.

The prisoner’s counsel now insists that the Court of General Sessions was unlawfully continued, as to the prisoner, beyond the third week in December, 1861. The law fixing the terms of that court, until the year 1846, was, that the same should commence on the first Monday of every month, and might continue and beheld until and including Saturday in the third week thereafter. (2 R. S., 317, § 31.) But, by chapter two of the Laws* of 1846, it was provided that, whenever the trial of a cause shall have been commenced in that court, “ and the same shall not be concluded before the expiration of the term of said court, it shall be lawful for the said court to continue in session until the conclusion of said trial, and to proceed to judgment, if they shall so deem necessary, in cases where convictions shall be had.” (Laws of 1846, p. 4.) . The trial of Jefferds had been commenced and was not concluded until the term prescribed by statute, prior to the year 1846, had expired; the court, therefore, was lawfully continued in" session until the 4th day of January, 1862; which was two days before the first day of the January term in that year. There can be no doubt that it was lawful for the court to sentence Jefferds on the 4th day of January, 1862; and I am of the opinion, it was also lawful for the court to proceed to judgment against the prisoner in this case on that day. The court then was legally in session, and was authorized to proceed to judgment in cases where convictions were had. It was not restricted to proceeding to judgment in the case on trial at the expiration of the December term. The language of the statute is too broad and com prehensive to admit of such a restricted construction. It is, that the court may “proceed to judgment, if they shall so deem necessary, in cases where convictions shall be had.”; This authorized the court tb pronounce judgment upon any number of prisoners at any time before its final adjournment; for the term was lawfully continued, because the trial of Jefferds was not concluded when it would have expired, if no cause had then been on trial.

It must be presumed that the authors of the law of 1846 knew what every lawyer then knew, to wit: that prisoners were seldom sentenced at the time they were found guilty by the jury, but generally at the close of the term, after all the cases ready for trial had been disposed of. Sentence was sometimes delayed to. enable counsel to prepare and engross exceptions, and for other reasons; and during such delays other cases were taken up and tried; and having this knowledge, the legislature would have used different language if the intention had. been to restrict the court to pronouncing judgment, after the expiration of the regular term, to the single case on trial when such term expired.

It is certain that the court lawfully continued its sittings beyond the third week in December, 1861, if chapter 208 of the laws of 1859 (Laws of 1859, p. 465) is applicable to it. That act provides that it shall be lawful for the Court of Sessions of any county of this State ” to continue its sittings at any term thereof, so long as it may be necessary, in the opinion of such -court, for the dispatch of any business, or the determination of any cases that may be pending before such court. The Court of General Sessions of the Peace in and for the city and county of New York is but a Court of ' Sessions of the county of New York, and is designated in the act of 1859, by the words, “the Court of Sessions of any county of this State.” A Court of General Sessions of the Peace and a Court of Sessions of any county are one and the same tribunal. It is the criminal court of the county, whether held by the same or different magistrates. (People v. Powell, 14 Abbott’s Reps., 91.) I am therefore of the opinion the act of 1859 authorized the Court of General Sessions of the city and county of Hew York to continue in session until it passed sentence upon the prisoners in this case.

The prisoner was convicted of murder in the first degree, and sentenced under the act of April 14, 1860, entitled “An act in relation to capital punishment, and to provide for the more certain punishment of the crime of murder.” (Laws of 1860, p. 712.) The crime was committed after that act took effect. But the prisoner’s counsel contends that that act abolished all punishment for 'murder “of the first degree.” Section one was as follows: “Ho crime hereafter committed, except treason, and murder in the first degree, shall be punished with death in the State of Hew York.” By section four it was provided: “When any person shall be convicted of any crime punishable with death, and sentenced to suffer such punishment, he shall, at the same time, be sentenced to confinement at hard labor in the State prison until such punishment of death shall be inflicted.” Section 5 declared that “no person so sentenced or imprisoned shall be executed in pursuance of such sentence within one year from the day on which such sentence of death shall be passed, nor until the whole record of the proceedings shall be certified by the clerk of the court in which the conviction was had, under the seal thereof, to the governor of the State, nor until a warrant shall be issued by the governor, under the great seal of the State, directed to the sheriff of the county in which the State prison may be situated, commanding the said sentence of death to be carried into execution.” That act expressly repealed section 25 of that portion of the Revised Statutes, entitled “ of crimes punishable with death,” which declared that the punishment of death shall, in all cases, be inflicted by hanging the convict by the neck, until he be dead. (2 R. S., 659, § 25.) And it amended section one of the same portion of the Revised Statutes, so as to read as follows: “ Every person who shall hereafter be convicted, first, of treason against the people of this State: or second, of murder; or third, of arson in the first degree, as those crimes are respectively defined in this title, shall be punished as herein provided.” Provision was made in section 18 of the act of 1860 for the execution of persons, by virtue of the warrant of the governor, who should, become insane after being convicted of murder in the first degree, provided they should subsequently become sane. Punishment with death was recognized by section 19 of the same act. And I am of the opinion that part of section 11, of the portion of the Revised Statutes above mentioned, which stated that the warrant for the execution of the sentence of death, made out by the court, should appoint the day on which such sentence should be executed, was repealed by the act of 1860, which provided for the fixing of the time of execution, if ever, by the governor. The designation of the time for executing the sentence by the governor was entirely inconsistent with the appointment of such time in the warrant for the execution of the sentence, made out by the court. Hence, conferring authority upon the governor to fix the day for executing the sentence, necessarily took away the authority before vested in the court to appoint such day.

It seems to me, that the act of 1860 clearly affirms the common law right to execute persons convicted of murder in the first degree. It nowhere professes to abolish the penalty of death for that crime; and the right to inflict it is recognized in several different sections. The fact that "the act so amended a section of the Revised Statutes, above quoted, as to declare that persons convicted of murder should be punished as therein provided, and that the section prescribing the mode of taking the lives of persons so convicted was expressly repealed, does not make the common law mode of inflicting the death penalty inapplicable to cases where that punishment is recognized by such act or the Revised Statutes as amended by that act. The words, “shall be punished as herein provided,” in the act of 1860, were applicable so far as that act prescribed the extent and mode of punishment, but no farther. And if the authors of such act intended, by the repeal of the statute declaring that the punishment of death should, in all cases, be inflicted by hanging the convict by the neck, so to alter the law as to make it impossible ever to inflict the penalty of death upon a murderer, they did not go far enough to make such intention effectual; for they stopped short of abrogating the common law, by which the mode of executing murderers had become fixed and certain. That mode was by hanging the convict by the neck until he was dead, unless he was a slave. This is shown in a very learned opinion delivered by Justice Campbell, in The People v. Doane.

The prisoner’s counsel challenged Durant as a juror for principal cause, on the ground that he had formed or expressed an opinion as to the guilt or innocence of the prisoner. But the most that was established against his competency was, that he had formed an opinion that the prisoner killed Hoffman, which he had never expressed. This was not an opinion as to the guilt or innocence of the prisoner. He might have killed Hoffman and still been innocent of any criminal offence. The court, therefore, properly overruled the challenge to Durant for principal cause; and as he was not challenged for favor, there was no error in permitting him to sit as a juror in the case. The rule respecting such challenges, was correctly stated by Beardsley, J., in Freeman v. The People (4 Denio, 33). He there said: “Every challenge for principal cause, must be for some matter which imports absolute bias or favor, and leaves nothing for the discretion of the court. The truth of the fact alleged, and that alone, is in. question. Its sufficiency, as a ground of challenge, is conceded by omitting to demur and taking issue on the fact. It is otherwise, on a challenge for favor. That must be determined by triers, who are to pass upon the question of actual bias or favor.” Within this rule, the ground of challepge to Durant was not proved. Before it could be said it was established, the proof must have been that he had formed and expressed an opinion as to the guilt or innocence of the prisoner, or at least that he had formed such an opinion. It is clear, that the forming of an opinion that the prisoner had done one act necessary to be shown, among others, in order to convict him, was not the forming of an opinion that he was guilty of murder or of any other crime.

The foregoing views lead to the conclusión, that the prisoner was lawfully convicted of murder in the first degree.

But I am of the opinion, the Court of Sessions erred in adjudging that the prisoner should suffer death on a particular day. The day on which he should be executed, if ever, should have been left for the governor to designate. The proper sentence would have been, that the prisoner suffer death for the crime of murder in the first degree, in killing Samuel Hoffman, at the city of Hew York, on the 14th day of November, 1861, whereof he has been duly convicted, by being hung by the neck until he be dead, by the sheriff of the county in which he shall be imprisoned, at such place and time, after the expiration of one year from the date of his sentence, as such sheriff shall be commanded, by a warrant issued by the governor, under the great seal of the state; and that he be confined in the State prison, at hard labor, until such punishment of death shall be inflicted.

The court fixed a day for the execution of the prisoner, so he was to be confined in the State prison at hard labor more than thirteen and a half months before he could be executed, when by the act of 1860 he could be so confined only one year, if the governor should so determine, and issue a warrant for his execution.

The Supreme Court could not lawfully affirm this judgment. Its duty was to reverse it. [The majority of the court differed from the learned judge in this conclusion, as will appear at the close of the case.]

When the case was before that court, the statute was as follows: “If the Supreme Court shall reverse the judgment rendered, it shall direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case. (2 R. S., 741, § 24.) The act of 1863 (Laws of 1863, p. 406), amending this section, was passed after the judgment was pronounced, and, therefore, is ex post facto as to this case, and cannot influence our decision in it. We must, therefore, determine whether, according to the common law, the Supreme Court should have directed a new trial, or that the defendant he absolutely discharged, according to the circumstances of the case.

In The King v. Elliss (5 Barn. & Cress., 395), the prisoner was sentenced to be transported for fourteen years, when, according to law, he could only be transported for»seven years, and the Court of King’s Bench reversed the judgment, and discharged the prisoner, holding that there was no ground to send it back to be amended. In The King v. Bourne and others (7 Adol. and Ellis, 58), it was held, where an erroneous judgment is given by an inferior court, on a valid indictment (as by passing sentence of transportation in a eaáe punishable only with death), and the defendants bring error, the appellate court can neither pass the proper sentence, nor send back the record to the court below, in order that they may do so; but the judgment must be reversed, and the defendants discharged. In Shepard v. The Commonwealth (2 Metcalf, 419), the prisónér was sentenced to be imprisoned four years, when the limit was •three, and the Supreme Court of Massachusetts reversed the judgment and discharged him. And that court subsequently, in Christian v. The Commonwealth (5 Metcalf, 530), laid down the following rules, namely: “ When a judgment in a criminal case is entire, and a writ of error is brought to reverse it, though it is erroneous in part only, it must be wholly reversed. The court, after reversing a judgment in a criminal case, cannot enter such judgment as the court below ought to have entered, nor remit the case to the court below for a new judgment. These rules were approved by Bronson, Ch. J., in The People v. Taylor (3 Denio, 91.)

My conclusion is, as the only error the Court of Sessions committed was in giving a wrong judgment, in part, against the prisoner, no new trial can be legally granted; and'that the judgment must be wholly reversed, and the prisoner discharged.

I regret that I am forced to this conclusion, for it is quite clear that the prisoner is guilty, and will escape just punishment. But this result cannot be avoided, for it is for the legislature, and not the courts, to alter the laws, in order to prevent the guilty escaping the punishment they deserve.

Wright, J.

(dissenting.) The defendant having been tried and convicted, in the Court of General Sessions, the case may be reviewed on the merits. (Laws of 1855, ch. 337.) I have, therefore, attentively examined the evidence, and think it justified the verdict. The case, it is true, in its general aspect, is somewhat remarkable. A man of education, of apparently reputable standing, and ordinarily peaceable disposition, upon the most trivial provocation, with a deadly weapon, assaults and kills a fellow tenant. But the fact of killing was not disputed ; and the testimony tended to the conclusion, that the act, in the language of the statute, was “ willful, deliberate and premeditated.” The accused stabbed his victim, not once, but thrice, and in such places as he knew would inevitably produce death. The pretext that this was done in self-defence was wholly unsupported by the evidence. The only witness of the transaction disproved any violence on the part of the deceased; and a subsequent examination of the person of the prisoner showed no marks of an assault, except that the skin was slightly ruffled over his left eye.

Apart from the merits, however, there is a question of grave importance. The defendant was indicted under the statute of 1860, for the crime of murder. (Laws of 1860, ch. 410.) That statute defined the crime anew, dividing it into first and second degrees. The defendant was found guilty of murder in the first degree, and was sentenced to suffer the punishment of death, some thirteen months afterwards, and to be confined at hard labor in the State prison, until such punishment should be inflicted. It was urged, on motion in arrest of judgment, that there was no authority in law for pronouncing any sentence upon a conviction for murder in the first degree. I confess that I discover difficulty in successfully meeting the objection, if the ordinary rules applicable to the construction of penal statutes are to be applied.

The Revised Statutes declared that every person convicted of murder, as defined therein, should suffer death for the same. (2 R. S., 656, § 1.) It was further declared, that the punishment of death should in all cases be inflicted by hanging the convict by the neck until dead. (§ 25.) By the act of April, 1860, section one of title one of chapter one of part fourth of the Revised Statutes, was amended so as toread as follows: “ § 1. Every person who shall hereafter be convicted, first, of treason against-the people of this state; or, second, of murder ; or, third, of arson in the first degree, as those crimes are respectively declared in this title, shall be punished as herein provided;” and the section of the Revised Statutes prescribing the mode of inflicting the putiishment of death, was expressly repealed. (Act of 1860, §§ 7, 11.) As thus amended, there was no penalty prescribed in the Revised Statutes for the crime of murder, nor indeed of treason, the amendment displacing the words, “shall suffer death for the same,” and inserting in lieu thereof the words, “shall be punished as herein provided;” that is, as provided in the act of 1860. The effect was, to repeal the provisions of existing statutes for the punishment of death on convictions for the crime of murder. The offence was left without any legal penalty attached to it. The question therefore is, whether, in 1860, in defining the crime anew, and dividing it into degrees, the legislature prescribed the punishment. If there was an omission, through neglect or design; to specifically declare the punishment to follow a conviction for murder in the first degree, as defined in the act, the court was without legal authority to impose any punishment upon the convict. The defendant was convicted of murder in the first degree, under the act of 1860, and the authority for his punishment must be found in it. Although murder was an offence at common law, yet murder in the first degree, and murder in the second degree, are offences entirely of statutory creation. 3STor can resort be had to the preexisting law, to ascertain the punishment and, the mode of its infliction; for that was displaced by a repeal, to make room for the substituted system, and cannot be resorted to for any purpose. . ,

The act of 1860 did not specifically prescribe any punishment for the offence of murder in the first degree. The extent that can be claimed is, that the legislative intention, that the penalty should be death, is inferable from the provisions of two or three sections. The act begins with the declaration, that “no crime hereafter committed, except treason, and murder, in the first degree, shall be punished with death in the State of Hew York." What shall constitute murder in the first and second degrees, is then declared. By section 4 it is provided, that “ when any person shall be convicted of any crime punishable with death, and sentenced to suffer such punishment, he shall at the same time be sentenced to confinement at hard labor in the State prison until such punishment of death shall be inflicted. The presiding judge of the court at which such conviction shall have taken place shall immediately thereupon transmit to the governor of the State, by mail, a statement of such conviction and sentence, with the notes of testimony taken by such judge on the trial." The 5th section provides that “ no person so sentenced or imprisoned shall be executed in pursuance of such sentence within one year from the day on which such sentence of death shall be passed, nor until the whole record of the proceeding shall be certified by the clerk of the .court in which the conviction was had, under the seal thereof, to the governor of the State, nor until a warrant-shall be issued by the governor, under the great seal of the State, directed to the sheriff of the county in which the State prison may be situated, commanding the said sentence of death to be carried into execution." The sixth section declares specifically, that “every person" convicted of murder in the second degree shall be sentenced to undergo imprisonment in one of the State prisons, and be kept in confinement at hard labor for his or her natural life." The 8th section amends section 18 of title 1 of chapter 2, part 4 of the Revised Statutes, in respect to the inquisition of the jury in ease of an insane convict, and provides that, “if it be found by such inquisition that such convict is insane, the sheriff shall convey said convict to the lunatic asylum for insane convicts, there to be kept at the expense of the State until such time as the superintendent thereof shall certify to the governor that said lunatic is sane, and the governor may, thereupon, issue his warrant for his execution, if he was convicted of murder in the first degree, or may direct that he be imprisoned in one of the State prisons, according to law.” The 9th section is as follows: “ § 9. The provisions of this act for the punishment of murder in the first degree shall apply to the crime of treason; and the punishment of murder in the second degree shall apply to all crimes now punishable with death, except as herein provided.” By section 11 all the provisions of the Revised Statutes are repealed that related to the term of execution for capital offences; that made it the duty of the judge to transmit to the governor a statement of conviction and notes of the testimony; that authorized the governor to require the opinion of the judges or attorney-general ; that provided for an inquisition in relation to pregnancy of female convicts, and empowered the governor, if the female was no longer quick with child, to either issue his warrant for her execution, or, in his discretion, commute her punishment to perpetual imprisonment; that authorized the Supreme Court to issue a warrant for the execution of the sentence after the day originally fixed for such execution had passed; and that provided that the punishment of death should be inflicted by hanging.

From this synopsis of the act, it appears that it contains no special provision for the punishment of murder in the first degree. It seems, however, to have been supposed that the act did provide for the punishment of that offence, for the 9th section declares that “ the provisions of this act for the pun ishment of murder in the first degree shall apply to the crime of treason.” This can only be explained, ór the act rendered intelligible, upon the supposition that the bill, as originally prepared, contained a separate provision for punishing, capitally, the newly created offence of murder in the first degree, and that it was accidentally or designedly omitted in the bill that became a law. It can scarcely be explained on the theory, that in the 1st section of the act there is an implication, in the nature of a negative pregnant, that the crime should be punished with death, for the implication is equally strong, that treason was to be punished in that way; and hence, in this view, the provision of the 9th section would be unmeaning.

Assuming, however, that it may be implied from the 1st or the 4th and 5th sections of the act, that the legislature intended to punish murder in the first degree with death, after a year’s imprisonment at hard labor, it remains true, that the act does not, in terms, prescribe that or any other punishment for such offence. The draftsman of the bill may have supposed that in the sections referred to he had declared the offence punishable with death; but it is manifest that neither in these sections, nor elsewhere in the act, is there any express provision for the punishment of the crime. Unless, therefore, the authority to punish crime, and the power to punish, by death, the particular crime of which the defendant was convicted, may be deduced by implication or inference, no such power existed in this case.

I suppose that there is no more inflexible rule, or one better settled, than that a penalty cannot be raised by implication, but must be expressly created and imposed. Penal statutes, both as regards the definition of the crime and the punishment, are to be taken strictly and literally, and cannot be extended by construction. If the legislature creates an offence, and omits in terms to annex a penalty, there is no authority in the courts to punish. They cannot, in extension of the letter of the law, assume anything by implication. These principles are elementary, and too well sustained by authority to need discussion. (Dwarris on Statutes, 634; Daggett v. State, 4 Conn., 60; United States v. Wiltberger, 5 Wheat., 95; Commonwealth v. Duane, 1 Binney, 601; Berry v. Ripley, 1 Mass., 167; Law v. Killmer, 1 Dutcher, 522.) “ It is the legislature,” says Chief Justice Marshall, in United States v. Wiltberger, “ not the court, which is to define a crime and ordain its punishment” What is this case? The legislature has defined the crime of murder in the first degree, but made no provision for its punishment. It is said that there are portions of the act raising a strong implication that the legislature intended to punish the crime with imprisonment in the State prison and death; and hence the statute is to be construed as prescribing that punishment. No penal statute, involving the life or liberty of a citizen, was ever so construed; but, on the contrary, the principle that the offence described, and. the punishment, must come within the letter and spirit of the statute, runs through all the adjudged cases.

At the time, therefore, that the defendant was tried and convicted, and the Court of General Sessions assumed to sentence him, there was no law for the punishment of the crime of which he was convicted. There certainly can be no force in the suggestion that, the legislature having failed to specifically provide for punishing murder in the first degree, the ninth section of the act applies the punishment for murder in the second degree to the first-named crime. Such a construction would have neither implication nor the letter of the statute to rest upon. If this convicted criminal shall escape punishment, it is but another consequence of the imperfect and inconsiderate legislation of 1860, in respect to capital offences and their punishment. The fault lies, not with the judicial, but with another department of the Government.

On the ground, therefore, that there was no authority for the judgment pronounced against the defendant, I am of the opinion that such judgment should be reversed and the defendant discharged.

Emott, J.,

concurred in this opinion. Denio, Ch. J., Davies, Selden and Marvin, Js., concurred with Balcon, J., in the opinion that the court had power to pronounce'sentence of death. All the judges concurred that the judgment was erroneous in fixing the day of execution. But Denio, Ch. J., Davies, Selden, Rosekrans and Marvin, Js., were for affirmanee, upon this ground, as understood by the Reporter: So much of the sentence as fixed the day of execution was absolutely void. The day so fixed being more than a year subsequent to the sentence, the Governor, but for the stay of proceedings upon the entire judgment, might have directed the execution to take place on any day after the expiration of a year. The convict having procured the stay of proceedings until the day of execution had passed, the error had, by his own act, become wholly immaterial, and he could not require the Supreme Court to reverse a judgment otherwise unobjectionable, on account of a separable addition thereto, void in itself, and which the lapse of time had rendered wholly nugatory. JSTo error being found in that part of the judgment which remained, capable of any operation, the Supreme Court were right in affirming it. Wright, Emott and Balcom, Js., were for reversal.

Judgment affirmed.


author: Selden, J. Marvin, J.

text:
    Youngs, Administratrix, et al., v. Wilsow et al.

    A mortgage, duly recorded, is not void, as to purchasers or creditors, for uncertainty, when, being conditioned to secure liabilities already incurred, it does not specify the amount.
    Appeal from the Supreme Court. Action to foreclose a mortgage. The complaint set forth a bond, executed by Moses W. Eastman to George Youngs and Abel Hunt, bearing date June 4, 1849, in the penal sum of two thousand four hundred dollars, with a condition similar to that of the mortgage next mentioned.
    It also set forth a mortgage, bearing the same date and between the same parties, by which Eastman conveyed to Youngs and Hunt certain lands in Yates county, which were particularly described, which conveyance was made subject to the following condition, viz.: “ That if the said Moses W. Eastman shall well and truly pay, and save harmless, and indemnify the said George Youngs and Abel Hunt, and each of them, of and from all liabilities which they, or either of them, may have at any time heretofore contracted to and for the said Moses W. Eastman, either as surety, indorsers or guarantors, or othérwise, whether now due or yet to grow dtfe, and shall save harmless the said George Youngs and Abel Hunt, and each of them, of and from all damages, costs and ■ charges on account of the same,” then the conveyance was to cease; but in case “default should be made in the payment of all or any part of the said liabilities, as the same should become due,” the lands were to be sold and the amount due, with costs and charges, to be deducted from the proceeds, ancf the surplus, if any, paid to the mortgagor.
    The complaint also stated, tha't the mortgage was duly recorded in the clerk’s office of Yates county, on the day of its date; that Youngs had paid debts of Eastman, on which he was liable as surety or indorser, at the time when the mortgage was executed, which amounted to $724 61 [of - which a particular account was given].; and that the estate of Hunt remained liable on a note given by Eastman to one Owens, on the 24th day of December; 1846, for $263, on which said Hunt was indorser, which, with interest, still remained unpaid; that the mortgaged premises had been conveyed to the defendant, James Miles, who, with the other defendants, claimed some interest in the premises', which interest had accrued subsequent to the lien of the mortgage. There was the usual prayer, for a foreclosure, and a sale of the mortgaged premises, and payment of the plaintiffs’ demands and costs out of the proceeds.
    The usual judgment of foreclosure for the sale of the mortgaged premises, and the payment, out of the proceeds of the sale, of the costs and expenses, and the amounts found due to the several plaintiffs, was entered at a special term ; from which judgment Lewis 0. Wilson, only, appealed to the Supreme Court at general term. On the hearing of that appeal, the judgment at the special term was reversed, and the complaint dismissed, as against the appellant, with costs, on the ground that the mortgage was fraudulent and void, as against creditors of the mortgagor, for uncertainty in respect to the debtor debts it was intended to secure.
    From that judgment the plaintiffs brought the present appeal. After the bringing of such appeal both the appellants died, and the personal representatives of the appellant Youngs were substituted in his place. There had been no substitution as to the executors of Abel Hunt, and it was assumed, on the argument, that as to them the appeal was at an end.

      S. H. Welles, for the appellants.

      D. B. Prosser, for the respondent.
   Selden, J.

I cannot concur with the court below in the opinion that the mortgage in question was void as against creditors or purchasers. There is no pretence, and could be none, that it was not valid between the parties to it. It described the debts which it was intended to secure, with-such certainty that there could be no difficulty in determining what debts were, and what were not, embraced in the description. In such cases, the maxim, that that is certain which may be made certain, applies. It is not requisite that the condition should be so completely certain as to preclude the necessity of extraneous inquiry. (Monell v. Smith, 5 Cow., 441; Robinson v. Williams, 22 N. Y, 380; Stoughton v. Pasco, 5 Conn., 442; Merrills v. Swift, 18 id., 257; United States v. Hooe, 3 Cranch, 73; Kramer v. The Farmers' and Mechanics' Bank, 15 Ohio, 253.)

The mortgage having been.duly recorded, if not fraudulent in fact, was as effectual against subsequent creditors and purchasers as it was against the mortgagor. If it was sufficiently certain to' be valid against the party who made it, it was equally. certain and valid against all persons claiming under him. If valid between the parties it was a mortgage, and as it was duly recorded, it was not within the provision of the statute which declares void, as against subsequent purchasers, unrecorded conveyances. The only statute bearing upon the question is the following:

“ Every conveyance of real estate within this State, hereafter made, shall be recorded in the office of the clerk of the county where such real estate- shall be situated.; and every such conveyance not so recorded shall be void, as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” I can discover nothing in this statute to justify the distinction between certainty as against the party, and certainty as against subsequent creditors or purchasers, which forms the basis of the judgment of the court below. If the instrument was certain enough to amount to a conveyance, it was a recorded conveyance, and valid as such.

A purchaser, with notice of any outstanding equity against his vendor, takes the place of such vendor and acquires his rights only (Frost v. Beekman, 1 Johns. Ch., 301; 3 Sugden on Vendors and Purchasers, 440); and notice of circumstances sufficient to put a party upon inquiry, has the same effect as actual notice of the facts which could be learned on reasonable inquiry. (3 Sugden, 468; Dunham v. Dey, 15 Johns., 569; Peters v. Goodrich, 3 Conn., 150; Williamson v. Brown, 15 N. Y., 359.) The registry of the mortgage was equivalent to actual notice of its existence and contents, and the purchaser, with such notice, is bound by all the equities which the holder of the mortgage had; against the mortgagor, whose place he takes. (Stoughton v. Pasco, 5 Conn., 442, 447.) The condition of the purchaser in the present case is precisely the same as it would have been at common law, if he had purchased with actual notice of the prior mortgage. In that case it cannot be doubted that he would have taken-subject to the mortgage, if • it was valid against the mortgagor.

The rule adopted in Connecticut, in Hart v. Chalker (14 Conn., 77), on which the court below placed much reliance, is, that “ where a mortgage is given to secure an ascertained debt, the amount of the debt ought to be stated.” I am not disposed to question the wisdom of this rule, although it would sometimes be inconvenient and do injustice, and its propriety is not free from doubt (see 5 Conn., 449); but I cannot deduce it from our statute, which merely provides that conveyances not recorded shall be void against purchasers. The mortgage of Eastman was valid between the parties ; it was a conveyance, and it was recorded, and therefore was not made void by the statute.

It is only with reference to the question of an actual intention to defraud creditors, that the indefinite description of the debts intended to be secured by the mortgage could be material. What influence such indefiniteness might have in that respect, we are not called upon to determine. There is no allegation in the answer which could raise that question, and if there had been, we could not notice it, in the absence of any finding by the court below upon the question of fact. (Grant v. Morse, 22 N. Y., 324.) I am, therefore, of opinion that the court below erred in declaring the mortgage void, as against Wilson.

Upon the other questions presented by the case, so far as they related to the rights of George Youngs (and to that extent only are they now before the court), I entertain no doubt that they were correctly decided by the special term. The judgment of the general term should, therefore, be reversed, and that of the special term affirmed, as to the relief granted by that judgment to George Youngs.

There are no appellants here representing the estate of Abel Hunt, and the judgment dismissing the complaint as against the executors of that estate, will not be affected by the judgment of this court. The propriety of bringing on the argument of the appeal, without the presence of parties representing that estate, is very questionable, but as neither of the parties before the court interposed any objection on that account, the defect in the proceedings, if it be one, has not been regarded.

Marvin, J.

The judgment of the special term, in favor of the plaintiffs, was reversed by the general term, upon the sole ground that the mortgage was fraudulent and void, as to subsequent creditors, on the ground of vagueness and uncertainty in respect to the debts it was intended to secure.

It is conceded that a mortgage given to secure future contingent liabilities may be valid, but the position is, that, in case the debt exists or the liability has been incurred at the time the mortgage is executed, it must be truly stated, so as to enable creditors, upon examining the record of the mortgage, to ascertain the amount of the debt or the nature and character of the liability assumed.

The validity of the mortgage is not questioned upon the ground that there was, in fact, no valid 'Consideration between the parties to it. In my opinion, the court erred in reversing the judgment. There was a good and sufficient consideration for the mortgage. The consideration expressed was $2,400 money; but this was not the true consideration. It has long and often been held, in this State, that the real consideration of mortgages or deeds may be shown by parol, though different from that expressed in the instrument; and this court, in McKinster v. Babcock (26 N. Y., 378), applied the rule to a chattel mortgage, in which the consideration expressed was money, when, in truth, the real consideration was the indorsement of the note of the mortgagor, and the mortgage was given by way .of security. This court sustained the mortgage, the referee having found as a fact that it was .executed in good faith, and not with intent to hinder, delay or defraud . creditors. So in this case, the parol evidence upon the trial showed what the consideration actually was, and it was sufficient, viz,, liabilities assumed by the mortgagee for the mortgagor, and the amount which had been paid of such liabilities. It may be said in this case, as was said in the case just referred to, and also in Shiras v. Craig (7 Cranch, 34), by Chief Justice Marshall, in which the real transaction did not appear on the face of the mortgage, that such cases are liable to suspicion; that they must sustain a rigorous examination, and that it is always advisable fairly, and plainly to state the .truth. And in this case, I will say that it would have been far better to have specified the liabilities assumed, so that the creditors of the mortgagor brothers interested would be able more readily to examine into the facts, and ascertain whether they were trué or fictitious. But, if the consideration is actually valid and sufficient, and it is found as a fact, upon sufficient evidence, that the instrument was not executed with intent to hinder, delay or defraud creditors, the court cannot declare the instrument void, as to creditors, upon the ground that the consideration, as expressed, is vague and uncertain. (See Robinson v. Williams, 22 N. Y., 380, in which many of the cases are referred to.)

The judgment of the general term should be reversed, and that of the special term affirmed.

Denio, Ch. J., Davies, Wright, Selden, Emott and Balcom, Js., concurring,

Judgment accordingly.