author: Ellsworth, J.

text:
    Roath and others against Driscoll.
    Though a court of equity has the necessary power to restrain a party in the use of water, in a manner injurious to another; yet the court will not exercise this summary authority, where the right is doubtful, or the facts not definitely ascertained; it being the duty of the court rather to protect acknowledged rights, than to establish new and doubtful ones.

      A bad on his land a reservoir, made by excavating the ground a few feet below the surface, into which the water came, by percolation through the earth, and there it stood, in sufficient quantity for the use of his cattle ; but it never rose to a level with the adjoining land. At a short distance from this reservoir, be made another excavation, calling it a well, in which the water stood somewhat higher than in the former, but still never overflowed. By means of a syphon, he then brought the water from the well into a cistern, from which he used and distributed it, to his profit. B, afterwards, made an excavation on his ground, in which water stood ; the consequence of which was, that the water in A’s well did not rise high enough to pass therefrom into his cistern ; but how this effect was produced, the finding did not show. The acts of B were done for his own advantage, without any design unnecessarily to injure A. On a bill in chancery, brought by A against B, to restrain B in thus using the water, it was held, that A, by his prior use of water, under ground, acquired no exclusive right therein, as found, in or on B's land ; the law of surface streams not being applicable to such water.
    New-London,
    July, 1850.
    This was a bill in chancery, complaining of an injury to the plaintiffs, by means of a diversion of water, by the defendant, and asking for an injunction.
    On a hearing before the superior court, at Norwich, March term, 1850, the court made the following finding of facts.
    The plaintiffs now, and for a period of more than fifteen years next before the commencement of this suit, have ever been the owners of, and interested in, and in the lawful possession of, the lot or piece of land described in the bill, and the appurtenances thereof, in the manner and with the estate therein, as alleged in the bill. When the plaintiff's so became the owners of, and interested in said lot or piece of land, until they made the well hereafter mentioned, there was, and ever since has been, a reservoir of water, near the North-East corner of said lot or piece of land, which had been made artificially, by excavating the ground a few feet below its surface, and into which reservoir, when so excavated, the water came out of the ground, (and not by running thereinto from the surface of the ground,) and remained therein, to a certain heighth, and was a convenient watering-place for cattle ; but the water, at the place where said reservoir was made, did not run naturally, nor would it, if said reservoir had not been excavated ; and it did not, nor would it, after said excavation, rise to, or as high as, nor flow or run off from, or on, the surface of the ground there, after the plaintiffs so became the owners of, and interested in said lot or piece of land. And less than fifteen years before the acts of the defendant hereinafter mentioned, the plaintiffs, for the purpose of conveying the water, which then flowed in said reservoir, in an aqueduct, as hereafter mentioned, dug and made, at considerable expense, a well, a short distance South-Westerly from and higher than said reservoir ; and after the well was so made, the water, in consequence of the making of said well, ceased to stand or remain in said reservoir, as it had before done; but after the making of said well, it flowed and stood therein.
    The plaintiffs, after the making of said well, at considerable expense to them, caused to be constructed an aqueduct therefrom, consisting of subterranean pipes, in a Westerly direction, over the summit of a hill or rising ground, which is higher than the ground where said reservoir was made, to a cistern, built also afterwards by the plaintiffs, at considerable expense to them, where some of the plaintiffs resided; into which cistern the water from said well was conducted, by means of and through said aqueduct, on the principle of the syphon, the orifice of said aqueduct where it received the water from said well, being higher than where it discharged the water into said cistern; and having constructed said aqueduct and cistern, the plaintiffs contracted with sundry persons living in the vicinity of the cistern, to supply them with water, for domestic purposes, from said well, brought into said cistern, in consideration of a compensation agreed on, to be paid, by said persons respectively, to the plaintiffs there, for; and afterwards, and until the acts of the defendant, hereinafter mentioned, in pursuance of said contract, did supply such persons with water from said well, brought into said cistern, by means of said aqueduct, for their domestic purposes, and have received therefor a large sum of money, under the contract; and the water of said well, if it could be continued to be drawn by the plaintiffs, through said aqueduct into the cistern, would continue to be a source of great emolument and profit to them, in the compensation they might receive therefor, from said persons, and others whom the plaintiffs could supply with the water.
    After the construction of said aqueduct and cistern, and while the plaintiffs were supplying said persons with water, as aforesaid, the defendant, having lawfully obtained possession of a tract of land, belonging to Mary Meech and Lucy C. Kimmell, lying South of, and contiguous to, the portion of the land of the plaintiffs where said reservoir was situated, and excavated and made a reservoir on said tract so possessed by the defendant, Southerly of, and near to, but horizontally lower in depth than said reservoir and well of the plaintiffs, into which reservoir of the defendant, after it was so made, the water flowed out of and from the ground, but not from the surface of the ground, and stood therein, but at a less heighth than the surface of the ground, where said reservoir of defendant was, and did not and would not flow therefrom, on the surface; from which reservoir of the defendant, he has, since the making thereof, by means of an aqueduct constructed by him, conveyed the water therein off, in an Easterly direction, to the land adjoining other than said land of the plaintiffs, to whose land, said water hath not been, and cannot be, conveyed, through, or by means of, the defendant’s aqueduct. The consequence and effect of the defendant’s reservoir has been, that since the construction thereof, the water has not come into and stood at sufficient heighth in the plaintiffs’ well, to enable them to take it from their well, by means of their aqueduct, and convey it to their cistern, the heighth of the water in the plaintiffs’ well being so reduced in heighth, or lowered, in consequence of the defendant’s reservoir, that the level of the water in the plaintiffs’ well, has been lower than the Westerly end of their aqueduct, by which the water of their well has discharged into their cistern. Nor, since the making of the defendant’s reservoir, would or will the water come and stand in the plaintiffs’ well at sufficient heighth to enable them to convey the water from their well into their cistern, because the water in their well is, in consequence of the defendant’s reservoir, so reduced in heighth, that it is impracticable for the plaintiffs to lengthen or lower the end of their aqueduct; so that while the defendant’s reservoir continues as it now is, and was built, the orifice of the plaintiffs’ aqueduct, at their well (into which orifice the aqueduct should receive the water from the well,) shall be than the orifice thereof at the plaintiffs’ cistern, from which last mentioned orifice the aqueduct of the plaintiffs, should discharge the water of their well into their cistern; and the plaintiffs, therefore, since the construction, by the defendant, of his reservoir, have been, in consequence thereof, and will continue to be, unable to convey the water from their well, by means of their aqueduct, into their cistern, or to supply the persons, whom they had contracted to supply as aforesaid, with water from their well, as they had done before the making, by the defendant, of his reservoir, and as the plaintiffs might do, but for the making, by the defendant, of his reservoir; and have lost, and are losing, and will continue to lose, the profits and emoluments which would accrue to them from supplying said persons with water, as aforesaid, but for the defendant’s reservoir.
    But the court is not able, from the evidence, to find, and does not find, whether the water which flowed into the plaintiffs’ said well, was interrupted and prevented from continuing to flow into the plaintiffs’ well, by the defendant’s reservoir, after the defendant’s reservoir was built, or whether the water, which, before the making of the defendant’s reservoir, flowed into the plaintiffs’ well, would or did, naturally, first flow into the plaintiffs’ well, and thence was, or would be, naturally, drawn or abstracted, by the defendant’s reservoir; nor doth the court find, that the defendant made his reservoir, or his aqueduct therefrom, or did any of the acts by him done as aforesaid, for any improper or unnecessary purpose, or with any malicious or evil intention towards the plaintiffs, or for the purpose of injuring them. The water does not, and will not, naturally rise to the surface of the ground, where the plaintiffs’ reservoir or well, or where the defendant’s reservoir is made or located, and is obtained in said places, and made available for any useful purpose, only by excavating the ground at such places, and forming thereby a reservoir, receptacle, or basin, into which the water flows out of the ground, (but not from the surface thereof,) and stands in said reservoir, receptacle or basin, at a level lower than the top or surface of the ground, and does not rise to said surface; and hence the obvious difficulty, if not impracticability, of tracing, or ascertaining, with certainty or precision, the natural course or current of this subterranean water, or the manner in which it percolates through the lands of the plaintiffs and ihe defendant; it being only by percolation, that the water therein naturally runs and finds its way.
    On the facts thus found, the case was reserved for the advice of this court, as to what decree should be made in the cause, or what course should be taken therein.

      Strong, for the plaintiffs,
    contended, 1. That the plaintiff’s had all the rights in the water of their reservoir, which any one could have in a natural spring on his own land. This was living water, which rose spontaneously, and was useful and valuable to the plaintiffs; and it was none the less their property, useful, or valuable to them, because it did not overflow, or constitute a running stream. Besides, they had been in the uninterrupted enjoyment of it, for more than fifteen years.
    2. That the plaintiffs had the same rights in the water of their new reservoir or well, drawn by a syphon. They might rightfully use it, as they best could, for their own benefit. They have none the less right to the water in the well, because they had not used it, in that manner, for fifteen years.
    3. That the defendant has injured the plaintiffs, by drawing off the water, so as to deprive them of the benefit of it. The court find the effect of the defendant’s excavation to be, to abstract the water from the plaintiffs. How this effect was produced, is not found, and cannot be ascertained, because the passage was under ground, and not open to inspection. It is sufficient that the court have found the fact that the water was abstracted.
    4. That this was an injury which entitled the plaintiffs to relief. [The counsel here commented on the cases of Thurs-ton v Hancock & al. 12 Mass, R. 226. and Greenleaf v. Francis, 18 Pick. 117.]
    5. That this was a proper case for an injunction.

      Foster, contra,
    contended, 1. That a party is not to be enjoined against a common right, without clear proof against him.
    2. That the use of under-ground water, for fifteen years, gives no right to him who thus uses it, against an adjacent or other owner, who has not used it: this would not be deemed an adverse user.
    3. That it does not appear from the finding of the court, that the defendant has injured the plaintiff in his aquatic rights. The court, in its finding, says expressly, that it does not find whether the water which flowed into the plaintiffs’ well, was interrupted and prevented from continuing to flow into it, by the defendant’s reservoir, or whether the water, which before the defendant’s reservoir, flowed into the plaintiffs’ well, would or did naturally flow into it, and thence was, or would be naturally drawn or abstracted, by the defendant’s reservoir. And the reason why these facts are not found, is the impossibility of ascertaining the course of streams of water under ground.
    4. That the facts which were found, did not entitle the plaintiffs to a decree in their favour. If otherwise, a man can be enjoined against digging a well, and using the water, on his own land, on the mere suggestion that an adjacent landowner wishes that well filled up, so that the water may rise on his own land. This can never be done. Greenleaf v. Francis, 18 Pick. 117. Acton v. Blundell. 12 Mees. & Wels. 324. Lasala v.Holbrook, 4 Paige 169 Thurston v. Hancock & al. 12 Mass. R. 220.
   Ellsworth, J.

This is an application to a court of equity, to prevent the defendant from using a certain reservoir of water, situate upon his premises.

The court, doubtless, possesses the necessary power; but it is not to be exercised as a matter of course, even when the plaintiff suffers some injury to his real estate. Whenever the right is doubtful, or needs the investigation of a jury, upon facts in dispute, a court of equity is always reluctant to interpose its summary authority; for it is rather the duty of the court to protect acknowledged rights, than to establish new and doubtful ones.

We think the case, even if its merits were less equivocal than they are, belongs to that class which renders the interposition of equity inexpedient and questionable: its multifarious and peculiar facts commend it to a legal investigation.

But as the case has been discussed on its broadest merits, and is one of novelty, and some practical importance, we are not unwilling, in giving judgment, to pass upon these merits, and, if possible, put an end to the subsisting controversy.

It appears, that the plaintiffs, for more than fifteen years before the commencement of this suit, were the owners of a reservoir of water, situate in the North-East corner of their lot, made by excavating the ground a few feet below the surface. In this reservoir, water stood, sufficient for the use of the plaintiffs’ cattle; but there never was any stream of water running into or from it. The water percolated through the earth, but never rose to a level with the adjoining land. Within fifteen years before this suit, the plaintiffs had opened another reservoir, at a short distance from the first, which they call a well, which was of the depth of a few feet, and at a place higher up the hill than the first. The water stood in the well somewhat higher than it did in the first reservoir, but never rising so as to run off; and no stream was known to run into it. The plaintiffs inserted an aqueduct into the well to carry water, upon the principle of the syphon, over higher ground, to a large cistern on other land, to supply themselves and their neighbours with fresh water, which they did at considerable pecuniary profit.

Recently, the defendant, on his lot adjoining the plaintiffs’, made a small excavation, in which the water appears, and stands naturally at a level below the water in the plaintiffs’ well; but no stream naturally runs into or from the defendant’s said basin; nor does the water rise to the surface of the land. From this basin the defendant, by a trough, carries the water to his lands adjoining.

It is found, that the defendant is acting from honest motives to advance his interests, without any design unnecessarily to injure the plaintiffs.

It is further found, that since the defendant made his basin as aforesaid, the consequence and effect has been, that water has not entered and stood at sufficient height in the plaintiffs’ well, to enable them to draw water through their pipes to their cistern. This is the injury complained of.

Now, although this effect is found to result from the defendant’s acts, yet it is not found, how this is the result; and the judge expressly says, he is not able to find, whether the water, which before entered the defendant’s well, was interrupted and prevented from passing into the well, by reason of the defendant’s basin; or whether the water would naturally first pass into the basin, and then into the plaintiffs’ land; nor indeed where was the origin of the water, or what its progress, or manner of percolating through the earth, nor where was its natural outlet, if there was any at all.

Now, two things are to be observed, in deciding upon the foregoing facts; first, to lay out of the case any artificial use of water, for more than fifteen years, by which the plaintiffs have acquired anew right; for the plaintiffs’ well, which has caused their first reservoir to become dry, (as is the fact,) is of less than fifteen years standing; and secondly, the mode of the injury cannot be ascertained from testimony in the case.

The case, when viewed most favourably for the plaintiffs, is simply this. Have they, by mere prior occupancy, acquired an advantage over the defendant, in the use of this water? Or, in other words, can one of two adjoining proprietors, by first opening a watering place, prevent other persons from doing the same, on their own land; though by so doing, water is prevented from percolating the land so as to supply the first made reservoir.

We have already said, that this case does not involve a right acquired, by artificial use for fifteen years; but in the following reasons it will appear, that as to adjoining proprietors who open the earth for reservoirs of water, this distinction is not the rule; for nothing is gained, by a mere continued preoccupancy of water under the surface. Why should any advantage be gained, by preoccupancy? Each owner has an equal and complete right to the use of his land, and to the water which is in it. Water combined with the earth, or passing through it, by percolation, or by filtration, or chemical attraction, has no distinctive character of ownership from the earth itself; not more than the metallic oxids of which the earth is composed. Water, whether moving or motionless in the earth, is not, in the eye of the law, distinct from the earth. The laws of its existence and progress, while there, are not uniform, and cannot be known or regulated. It rises to great heights, and moves collaterally, by influences beyond our apprehension. These influences are so secret, changeable and unconlroulable, we cannot subject them to the regulations of law, nor build upon them a system of rules, as has been done with streams upon the surface. Priority of enjoyment does not, in like cases, abridge the naturall rights of adjoining proprietors. No one, building upon the line of his lot, can prevent his neighbour from digging a cellar, though thereby his building may be seriously endangered and injured. These principles are elaborately discussed and decided in Thurston v. Hancock, 12 Mass. R. 220. Panton v. Holland, 17 Johns. R. 92. Callender v. Marsh, 1 Pick. 434. Lasa-la & al. v. Holbrook, 4 Paige, 169. Wyatt v. Harrison, 3 B. & Adol. 871. (23 E. C. L. 205.) Greenleaf v, Francis, 18 Pick. 117.

Further, we may say, that, by general consent of mankind, which is to be inferred from the nature of the right itself, each person must be left to enjoy any natural advantage belonging to his own land; and water, appearing and standing, either naturally or by artificial means, but never constituting a running stream, is such a natural advantage; were it otherwise, one man, by sinking a well, though comparatively unimportant, might prevent the sinking of other wells, and the improvement of the neighbourhood, by draining marshes, &c., and even the opening of mines of metal or coal; as the water might not percolate, with the same freeness or abundance as before. Besides, no man is bound to know that his neigh-bour’s well is supplied, by water percolating his own soil; and he ought not, therefore, to be held to lose his rights, by such continued enjoyment. He cannot know that the first well requires any other than the natural and common use of water under the surface; nor can he know from whence the water comes; nor by what means it appears in one place or the other; nor which of the persons who first or afterwards opens the earth, encroaches upon the right of the other. Tbe law has not yet extended beyond open running streams.

Nor can any light be obtained from the law of surface streams. Such streams are recognized as private property: and their use is regulated by principles of obvious equity and necessity. Their nature is defined; their progress over the surface seen, and known, and uniform. They are not in the secret places of the earth, and a part of it; nor is there any secresy in the influences which move them. As soon as they appear and pass over the surface, they assume a distinct character, and are subject to the great law of gravitation. The purchaser of land knows what he purchases, and what controul he can exercise over such a stream, and what are the rights of those above or below him. Each may use them as the common atmosphere; but none can injuriously interrupt their progress, or render them unfit for common use. Their laws are as fixed and public, as the laws of freehold estates. But what are the laws of water percolating in the earth? Speaking on this subject, Ch. J. Tindal says, in Acton v, Blundell, 12 M. & W. 348., “The ground and origin of the law which governs streams running in their natural course, would seem to be this ; that the right enjoyed by the several proprietors of the lands over which they flow, is, and always has been, public and notorious; that the enjoyment has been long continued, indeed, time out of mind, and uninterrupted, each man knowing what he receives, and what has always been received, and what he transmits, and what has always been transmitted, to the lower. The rule, therefore, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands from all ages; or perhaps it may be considered as a rule of positive law, the origin of which is lost, by the progress of time; or it may not be unfitly treated, as laid down by Mr. Justice Story, as an incident to the law and that whoever seeks to found an exclusive use, must establish a rightful appropriation, in some manner known and admitted by the law. But in the case of a well, sunk by a proprietor in his own land, the water which feeds it from a neighbouring soil, does not flow openly in the sight of the neighbouring proprietor, tut through the hidden veins of the earth, beneath its surface. No man can tell what changes these under-ground sources have undergone, in the progress of time ; it may well be, that it is only of yesterday’s date that they first took the course and direction which enabled them to supply the well.

“Again, no proprietor knows what portion of water is taken from beneath his own soil; how much he gives originally, or how much he transmits only, or how much he receives. On the contrary, until the well is sunk, and the water collected, by draining into it, there cannot properly be said, with reference to the well, to be any flow of water at all.

“In the case, therefore, of the well, there can be no ground for implying any mutual consent or agreement, for ages past, between the owners of the several lands beneath which the under ground springs may exist, which is one of the foundations on which the law, as to running streams, is supposed to be built. Nor for the same reason, can any trace of a positive law be inferred from long continued acquiescence and submission, whilst the very existence of the underground springs, or of the well, may be unknown to the proprietors of the soil.”

The case of Greenleaf v. Francis, is like the case on trial. This is the marginal summary or note; “In the absence of all right, acquired by grant, or adverse use for twenty years, the owner of land may dig a well on any part thereof, notwithstanding he therehy diminishes the water in his neigh-bour's well, unless in so doing. he is actuated by a mere malicious intent to deprive his neighbour of water."

We advise that the plaintiffs', bill be dismissed.

The other Judges were of the same opinion.

Bill dismissed.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Pearce against Olney.
    A court of equity will interfere to restrain the use of an advantage gained in a court of ordinary jurisdiction, where such advantage has been gained, by the fraud, accident or mistake of the opposite party.

      A, a manufacturing company in this state, having had dealings with B, a dealer in New-York, C, as the agent of A, purchased a quantity of iron of B, knowing that A was the party with whom he was contracting. Afterwards, B brought a suit for this iron, against C individually, in the superior court of the city of New-York, and process was duly served on C, by arresting his body. Soon after the suit was instituted, C called on D, the attorney of B, and explained to him the circumstances under which the contract was made, and the mistake in suing him individually, instead of A, his principal. D said to C, that he would see him again on the subject. This D did not do; but he, shortly after, wrote C a letter, informing him, that nothing would be done in relation to that suit, until further notice should be given him. C, relying on this communication, and hearing nothing further from D or B, did not appear, in person or by attorney, before the court to which the process was returnable; but D appeared, and obtained a judgment in said suit against C, without his knowledge, for 581 dollars, damages, and 32 dollars, costs. The record of such judgment stated, that on the first Monday of April, 1846, came, as well the plaintiff, by his attorney, as the defendant, in his proper person; and the defendant defends the wrong and injury, and says nothing in bar or preclusion of said action ; wherein the plaintiff remains therein undefended against the defendant. In November 1848, B brought, in this state, an action of debt on the judgment so obtained in New-York, during the pen-dency of which, C filed his bill in chancery to restrain B from enforcing his judgment. Held, 1. that the taking of judgment, under these circumstances, in the suit against C in New-York, operated as a surprise upon C, tantamount to a fraud, and justly called for the interpostion of a court of equity, unless prevented on the ground of some technical objection; 2. that the “ full faith and credit” required by the constitution of the United States, and the law of Congress, to be given to the judicial proceedings of other states, did not preclude such interposition, inasmuch as a court of equity here does not impugn the New-York judgment, but considers the equities subsisting between the parties, and acts upon them personally, restraining the one from pursuing a judgment so obtained, and protecting the other; 3. that the record of the New-York judgment, finding, that the defendant “appeared; in his proper person, and said nothing in bar or preclusion of said action,” does not necessarily conflict with the facts above stated, inasmuch as the plaintiff, in that suit, might, under the laws of New-York, have obtained a judgment and had a record made, like the judgment and record in question, without any actual appearance of the defendant.

      New-London,

    July, 1850.
    The neglect of a corporation to perform some corporate duty, required by its charter-as to elect its officers annually-although sufficient to work a forfeiture of corporate rights; yet before such forfeiture is judicially determined, it cannot be taken advantage of collaterally.
    This was a bill in chancery, praying for an injunction against the further prosecution of an action at law.
    At the term of the superior court, held in September, 1849, a committee were appointed to enquire into and report the facts alleged in the bill. That committee made their report substantially as follows: That the Norwich Foundry Company was duly organized, according to the laws of this state, as a joint stock corporation, for the purpose of carrying on the iron foundry business, in all its branches, and located and doing business at Norwich in this state ; that the plaintiff was a stockholder therein ; that at the time of the making of the contract with the defendant hereinafter mentioned, the plaintiff was, and ever since has been, employed by said company, as their general agent, and has acted as such, especially in the matters of buying, selling and manufacturing iron ; that on the 3d day of July, 1845, he was appointed secretary of said company, not having previously held that office ; that during the two years next preceding the month of April, 1845, said company had extensive dealings with the defendant, buying of him large quantities of iron for their foundry, which purchases were made by the plaintiff, in the name of, and as agent for, said company: that on the 19th day of April, 1815, the defendant agreed with said company, through the pláintiff, as their said agent, (but not as their secretary, as stated in the bill,) to sell to said company fifty tons of No, 2. Columbia pig iron, as follows: 25 tons at 36500/100 dollars per ten, on a credit of six months from May 1st, 1845; and 25 tons, on a credit of six months from June 1st, 1845; which fifty tons of iron was, by the terms of said agreement, to be of a quality equal to certain iron bought of the defendant, by said company, prior to the 7th day of December, 1844, as Columbia pig iron, No. 2. and superior to certain other iron, bought, by said company, of the defendant, on said 7th day of December, 1844, as and for iron of that name ; and said company then agreed with the defendant, to buy of him said fifty tons of iron, of the quality and description aforesaid, for the price and on the terms aforesaid ; that subsequently, the defendant made out and sent to the said company, the ordinary mercantile bill of sale for said fifty tons No. 2. Columbia pig iron, but has never sent or delivered to said company, fifty tons of iron so bought oí him by them as aforesaid, nor any part thereof. But the committee find, that on or about the 9th day of May, 1845, the defendant shipped to said company five tons of iron as and for a part of said purchase of fifty tons, which said company, upon trial and examination thereof, found was not equal in quality to the iron previously bought, by said company, of the defendant, as Columbia pig iron, No. 2. but was altogether inferior thereto, and was in no wise superior to the iron bought by said company of the defendant, on said 7th day of December, 1844; nor was said five tons of iron suitable for the purposes for which said fifty tons were purchased, and was not such iron as said company bargained with the defendant to buy of him as aforesaid, but was of a quality far inferior thereto. But whether the said iron was No. 2. Columbia pig iron, the committee are not satisfied, and do not find.
    The committee further find, that on the 16th day of May, 1845, immediately after said company had examined and tried said five tons of iron, and found it thus different from, and inferior to, that which they had bargained for, as aforesaid, the plaintiff, as agent of said company, ordered the defendant not to ship the remaining forty-five tons, if similar to the aforesaid five, as said five tons was of a poorer quality than that which said company had bargained for, and was such iron as said company could not use: and so said company refused to accept and receive the same. The committee find, however, that said company were always ready and willing to accept, and receive, and pay for said fifty tons Columbia pig iron No. 2. of the quality above-mentioned, as bargained for and agreed upon, by them, with the defendant; but the defendant never delivered, or offered to deliver, the same, nor any part thereof, to said company, nor to the plaintiff.
    The committee however find, that the defendant, on the 17th day of June, 1845, did offer to deliver to said company, in fulfillment of said agreement, on their part, forty-five tons of iron, of the same kind and quality as said five tons shipped and delivered as aforesaid, and always insisted, that said iron, so offered to be delivered, was such as had been bargained for, by said company; and that said company should accept and receive the same; and the only reason why the same was not delivered, was, that said company would not accept it, but ordered the defendant not to deliver it, for the cause above assigned.
    The committee further find, that the plaintiff did not bargain for said iron, nor for any iron, of said Olney, the defendant, in his own name, or for his own private account, but only in the name and for the account, and as agent for, said foundry company; and that he did not, in any manner, pledge his private credit or responsibility for the performance of said contract with the defendant; all which was well known to the defendant.
    The committee further find, that on the 1st of February, 1846, the defendant, by his attorney, commenced a suit against the plaintiff, returnable before the superior court, holden within and for the city of New-York, on the first Monday of March, 1846, and on or about said last-mentioned day, filed his declaration therein, containing divers counts, founded wholly on said contract made with said company, relative to said fifty tons of iron; in all which counts, however, and in all the proceedings thereon, said Olney falsely assumed said contract to have been made by said Pearce, individually, and on his own personal credit; whereas, in fact, it was made by said foundry company, and the credit of the said Pearce was in no wise pledged for the fulfillment thereof.
    The committee find, that the said Olney commenced his said suit, by causing a writ of capias to be issued and served upon said Pearce, at the city of New-York, and duly returned to the superior court in and for said city; that before the session of the court to which said suit was returnable, and on the day nest following the service of said capias, said Pearce called on said attorney, who had commenced, and who prosecuted said suit for said Olney, and informed him, that a mistake had been made in suing him individually, instead of said foundry company, and that said company was the proper defendant in the cause, and proposed to have the whole matter amicably adjusted; that said attorney thereupon agreed to see said Olney, in regard to the matter, and meet said Pearce again; that subsequently, on the same day, said Pearce received from said attorney, at his, said Pearce’s lodgings in New-York, a communication in writing, informing him, said Pearce, that he, said attorney, had called at said Olney’s store, but did not find him; and that nothing further should be done in relation to said suit, until said Pearce should receive further notice from him, said attorney- The committee find, that said Pearce did not receive any further notice from said attorney, nor from said Olney, nor from any other person, concerning the further prosecution of said suit; and that, relying on said communication, so received by him from said attorney, he did not employ any counsel in the cause, and did not appear, by himself or attorney, before said court; to which said capias was returnable, but supposed and believed, that said suit was to be no further prosecuted against him. Said Olney, however, caused said capias to be returned to said superior court to which it was returnable, and said suit to be there further prosecuted, by said attorney ; and at the April term of said court, 1846, viz. on the 17th day of April, 1846, obtained judgment, before said court, against said Pearce, for the sum of 581 dollars, 7 cents, damages, and 31 dollars, 86 cents, costs of suit.
    The committee find, that said judgment was rendered against said Pearce, without his knowledge or suspicion; and that he was not aware of the fact that such judgment had been obtained, or said capias returned, until the 7th day of November, 1848, the day on which service was made upon him of the writ, in the suit upon said judgment, now pending in this court, against the prosecution of which said Pearce now prays this court to enjoin.
    The committee further find, that if the facts aforesaid constitute a good and legal defence to the suit in which said judgment was rendered, by the superior court of the city of New-York, said Pearce had a good and legal defence to said suit.
    They further find, that said Pearce intended to appear in said suit, and make said defence therein, and would have done so, but for the communication received by him as aforesaid from said Olney's attorney; and so the committee find, that said Pearce, without any fault on his part, was deprived of all opportunity to make his defence in said suit.
    The committee further find, that on the 7th day of November, 1848, said Olney, by George Perkins, Esq., his attorney, brought his action of debt upon the judgment aforesaid, against said Pearce, by writ duly issued and dated on the 1st day of November, 1848, and served on the said Pearce, which said writ was returnable and duly returned to the superior court, holden at Norwich, within and for the county of New-London, on the third Tuesday of March, 1849, and is still pending in said court, and prosecuted by said Olney, by his said attorney, George Perkins, Esq.
    The committee find, that said foundry company, on the 2d day of January, 1841, made an election of directors, and other annual officers, according to law; but, from that time until the third day of July, 1845, no election of directors of said company took place, because at no time during that period, was there a quorum of the stockholders of said company together. And the directors and other officers, so elected on said 2d day of January, 1841, continued to hold and exercise their respective offices until said 3d day of July, 1845, when a new election of directors was made, by said company.
    The committee also find, that said company did, annually, in the month of January, in the years 1842, 1843, 1844, 1845 and 1846, make a certificate, containing the amount of their capital actually paid in, the amount invested in real and personal estate, the amount of their debts and credits, at the time of making such certificate, as nearly as the same could be ascertained, with the name of each stockholder, and the number of shares held by him, at the date of said certificate; which certificate was duly deposited with the town-clerk of the town of Norwich. But the committee find, that neither of said certificates, so made and deposited, by said company, was signed the president and secretary of said company, but each of them was signed, by J. Huntington, 2d, treasurer, and by him alone.
    Against the acceptance of this report the defendant remonstrated, alleging certain matters, which the court found not to be true, and alleging further, that the present plaintiff appeared in said action against him in the superior court of the city of New-York,

    As to the last-mentioned allegation, the court found, that the record of the judgment in that action, was as follows:
    “City and County of New-York. ss:

      James N. Olney, plaintiff in this suit, by Edmund Terry, his attorney, complains of Abner T. Pearce, defendant in this suit, who was served with process, by the name of A. T. Pearce, being in custody, &c. of a plea of trespass on the case upon promises.
    For that whereas, &c.
    “And it is suggested to the said court, now here, that the declaration in this suit has been duly filed with the clerk of this court, at the city-hall in the city of New-York, and that a copy of said declaration, and a notice requiring the defendant to plead thereto, within the time required by the rules of this court, were duly served on the said defendant, by posting the same in the office of the clerk of this court, according to the rules. And now, at this day, that is to say,on the first Monday of April, of April term, in the year one thousand eight hundred and forty-six, to which day the said defendant had leave to the declaration aforesaid to imparle, and then to answer the same before the justices of the said court, at the city-hall in the city of New-York, come as well the said plaintiff, by his attorney aforesaid, as the said defendant, in his proper person; and the said defendant defends the wrong, and injury, when, &c., and says nothing in bar or preclusion of the said action; whereby the said plaintiff remains therein undefended against the said defendant: therefore, the said plaintiff ought to recover against the said defendant his damages, by occasion of the non-performance of the premises and undertakings in the said declaration mentioned ; and as it is unknown to the said court what damages the said plaintiff has sustained, by reason of the premises, the sheriff of the city and county of New-York is commanded, that by the oath of twelve good and lawful men of the said city and county, he diligently inquire what damages the said plaintiff has sustained,” &c.
    The court also found, that said record was in evidence before the committee, on the hearing of the parties in this case before them, and constituted evidence before them, in relation to said judgment, and the rendering thereof; and if said record was conclusive evidence, that the present plaintiff appeared in said action in which judgment was so rendered against him, and it was not competent for him, before said committee, to prove, by parol evidence, that he did not so appear in said action, then the court found that he did so appear in said action: but if said record was not so conclusive, and it was competent for the plaintiff to prove, by parol evidence, before said committee, that he did not appear in said action in which judgment was so rendered against him, then the court found, that he did not appear in said action.
    The case was thereupon reserved for the advice of this court, upon the questions whether said record was conclusive evidence that the present plaintiff appeared in said action ; and whether it was competent for him, before the committee, to prove, by parol evidence, that he did not appear in that action; and also as to what decree should be passed in this suit.

      E. Perkins, for the plaintiff,
    contended, 1. That courts of chancery have power to enjoin against the prosecution of a judgment at law, when, by reason of any equitable circumstances of which such courts have cognizance, it is unconsci-entious for the judgment creditor to pursue it. 2 Sto. Eq. 194, 5. 2 Sw. Dig. 137. Carrington v. Holabird, 17 Conn. R. 537. Mitf. Pl. 131. Floyd v. Jane & al. 6 Johns. Ch. R. 479. Countess of Gainsborough v. Gifford, 2 P. Wms. 424. Dilly v. Heckrotte & al. 8 Gill & Johns. 170.
    2. That courts of chancery exercise this power, not by virtue of any controul over the courts of law rendering the judgments, but solely by reason of their jurisdiction over the person of the party, seeking, against good conscience, to enforce such judgments, and over those equitable circumstances, which make it against conscience for him to do so. 2 Sto. Eq. 194. 2 Sw. Dig. 137. Sheffield v. Duchess of Bucking-hamshire, 1 Atk. 630.

      3. That though the judgment of a court in one state is, by the constitution of the United States, and the law of Congress, to have the same faith and credit in other states as in the state where it was rendered; yet it is to have no more faith and credit, and to stand upon no higher ground, than a domestic judgment. The fact, therefore, that the judgment in question was rendered by a court of the state of New-York, does not preclude the superior court of this state from enjoining against its prosecution, provided such court would enjoin against a domestic judgment, rendered under similar circumstances. Much less can this jurisdiction of our court be questioned, if by the law of New-York, a court of chancery in that state, could relieve against this judgment. Winchester v. Jackson, 3 Haywood’s R. 313. 36. (Am. Ch. Dig. 19.) Now, the courts of chancery of New-York, possess this jurisdiction, and would enjoin against the judgment in question. Floyl v. Jayne, 6 Johns. Chan. R. 479. Foster & al. v. Wood, Id. 90. Duncan v. Lyon, 3 Johns, Chan. R. 356. McDonald v. Neilson, 2 Cowen, 193.
    4. That the facts found by the committee require the exercise of this equitable power. They find, that Pearce did not owe Olney one dollar, and never had any dealings with him, in which his personal credit was involved; and that this Ol-ney well knew, when he commenced his suit against Pearce; that Pearce had a good and perfect defence against that suit, which he intended to make, and was only prevented from doing so, by the written assurance of the attorney of Olney, that nothing furl her should be done in the cause, until he, Pearce, heard from him ; and that he did not know or suspect, that the suit had been proceeded with, until two years afterwards, when he was sued, in this state, upon the judgment.
    5. That the omission of the Norwich Foundry Company, to choose annual officers, and make annual returns, did not work a dissolution of the corporation. Spencer v. Champion, 9 Conn. R. 536. Bethany v. Sperry, 10 Conn. R. 201. Kellogg v. Union Co., 12 Conn. R. 7.
    6. That the record of this judgment, that the defendant, in that suit, appeared, in his proper person, is not conclusive against him, and does not preclude him, in this suit, from proving, by parol evidence, the fact, that he was not actually present, and had no opportunity to defend. In the first place, lithe record meant art actual appearance, instead of a mere technical legal appearance, this evidence would be admissible. It is not offered to show, that the judgment, as a proceeding at law, is invalid or irregular, but simply to prove, that the conduct of the party in obtaining it, was such, that he cannot now conscientiously avail himself of it. Every case in which a court of chancery enjoins against a judgment, is made out, by evidence that contradicts the record of the judgment, in the same manner, and to the same extent, that this does. To reject this evidence would be to make the very success of the fraud an invincible shield for its protection-to make even the courts of justice the very instruments of fraud. Aldrich v. Kinney, 4 Conn. R. 380. But secondly, by the law of New-York, this record means nothing more than that technical appearance, which is necessary to authorise the court to render judgment. It is one of the fictions of law, like that by which judgments are recorded as rendered on the first day of the term, and is always explainable, when justice requires it. Van Schaick v. Trotter, 6 Cowen, 599. Mann v. Carley, 4 Cowen, 148. Vanderpool v. Wright, 1 Cowen, 209. Em-met v. Bradstreet, 2 Cowen, 449. Ross &. al. v. Hubble & al., 1 Caines’ R. 512. De Wandelear v. Coomer, 6 Johns. R. 328.

      G. Perkins, for the defendant,
    contended, 1. That under the constitution of the United States, requiring full faith and credit to be given, in each stale, to the public acts, records and judicial proceedings of every other state, (art. 4. § 1, 2.) and the acts of Congress, made in pursuance thereof, in an action brought in one state, on a judgment rendered in another state, the party may go behind the record for one purpose only-and that is, to enquire whether the court rendering the judgment, had jurisdiction of the cause and the parties; but that where the party appeared, or had legal notice to appear, the judgment is final and conclusive, and no enquiry can be made into the merits thereof. Gleason v. Dodd. admr. 4 Metc. 333. 337. Watson v. New-England Bank, Id. 344. Hall v. Williams, 6 Pick. 232. 241. & seq. Wood & al. v. Watkinson & al. 17 Conn. R. 500. Aldrich v. Kinney, 4 Conn. R. 380. 383. & seq.

      2. That if the facts showing jurisdiction, appear on the record, no evidence can be received to contradict them. Should those facts, by reason of mistake or otherwise, be untrue, the aggrieved party must resort to the authorities of the state where the judgment was rendered, for redress. Hall v. Williams, 6 Pick. 239, 240. and the other cases above cited.
    3. That in the case before the court, Pearce unquestionably had legal notice; and that is all that is necessary to give the court jurisdiction.
    4. That if the plaintiff is not precluded, on this application, from showing facts inconsistent with the record, then there is no need of his coming here; for he may show those facts on the trial of the pending action of debt on judgment. There is nothing in the way of his setting them up as a defence to the action at law, but the record of the New York court; and the protection of that, if not available in chancery, is not at law. The obligation of “faith and credit,” will not press more weightily upon the latter court than the former. Why should the same court, acting under the same constitution and laws, be more fastidious in suffering a party to go behind the record of a sister state, in one capacity than another?
    5. That in either of the alternatives presented, a court of chancery will not exercise the extraordinary power sought by the bill.
   Hinman, J.

The object of injunctions to stay proceedings at law, is, to prevent injustice, by an unfair use of the process of a court. They are granted on the ground of the existence of facts, not amounting to a defence to the proceeding enjoined against, but of which courts of equity have jurisdiction, and which renders it against conscience that the party enjoined should be permitted to proceed in the cause. It is well settled, that this jurisdiction will be exercised, whenever a party, having a good defence to an action at law, has had no opportunity to make it, or has been prevented, by the fraud or improper management of the other party, from making it, and by reason thereof, a judgment has been obtained, which it is against conscience to enforce. Indeed, this falls directly within, and is but an illustration of, the general rule, that equity will interfere to restrain the use of an advantage gained in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, in all cases where such advantage has been gained, by the fraud, accident or mistake, of the opposite party.

The application of these principles to the facts in this case, is obvious. A suit was commenced in New-York, against the present plaintiff, by virtue of which, and of the process thereon, he was arrested, and such proceedings were had, that a judgment for about six hundred dollars was obtained against him, on a cause of action founded wholly on a contract, with which, personally, he had nothing to do; but was entered into by him, as the agent of the Norwich Foundry Company, a corporation with which the plaintiff in that suit had had previous dealings, and was well known to him, at the time, as the party with whom he was contracting. If this was all, the plaintiff would have no remedy, however unjust it might be, to compel him to pay that judgment. Still, as he was duly served with process in that suit, it was his duty to make defence in it ; and an injunction ought not to be granted to relieve him from the consequences of his own neglect.

It is found, however, that he not only had a good defence, but it was his intention to make it; and he would have made it, had he not been led, by the conduct of the attorney of the plaintiff in that suit, to suppose that the suit was abandoned. Very soon after the suit was instituted, the present plaintiff, then defendant, called on the attorney, and explained to him the circumstances under which the contract was made, and the mistake in suing him individually, instead of the company for whom he acted ; and when they parted, the attorney said, he would see the defendant again on the subject. This he did not do ; but shortly after, wrote him a letter, notifying and informing him, that nothing further would be done in relation to that suit, until some further notice should be given him. This, though not an abandonment of the suit, at the time, yet coming from the attorney of the plaintiff, after the information communicated to him, by the defendant, was an assurance on which it was very natural to rely ; and, after waiting a reasonable time, and receiving no further notice on the subject, we think he had a right to suppose the demand, as against him, personally, was given- up and abandoned. And it seems quite obvious, that the taking of judgment in that case, without any intimation of an intention to do so, or any further notice in relation to the suit, or the subject matter of it, must operate as a surprise upon the defendant, which is tantamount to a fraud, and justly calls for the interposition of a court of equity. Indeed, that such is the result to which the bill and the facts found, by the committee, necessarily lead, is hardly questioned ; unless it is prevented, on the ground taken in some one or more of the technical objections, which have been suggested in the argument.

It is insisted, that under the constitution of the United States, requiring full faith and credit to be given to the judicial proceedings of other states, it is not competent to the court to impeach the judgment of the superior court of New-York ; it being shown, that that court had jurisdiction of the cause, by the regular service of process on the defendant in that suit. And cases are cited to sustain this position. This doctrine is correct enough, no doubt, properly understood and applied ; but it has no application here. There is no attempt to impeach the validity of the New- York judgment. In granting an injunction against proceedings at law, whether in a foreign or domestic court, there is no difference ; the court of equity does not presume to direct or controul the court of law; but it considers the equities between the parties, and acts upon the person, and restrains him from instituting or prosecuting an action. 2 Sto. Eq. § 875.

These are well settled principles; and, in view of them, the only question in the case, must be, whether the circumstances are such as to require of the court, that the defendant should be restrained from pursuing a judgment which he has obtained, in the manner in which he procured this, in New-York.

It is further claimed, that the corporation for which the plaintiff acted, in the making of the contract, on which the case in New-York was founded, had ceased to exist; and, as there was no principal to be bound by the acts of the agent, that the plaintiff was himself personally liable, although he professedly acted as agent of another.

There is no foundation for this claim. The finding of the committee, indeed, shows, that the corporation failed to elect a board of directors, annually, as they should have done ; and that, after January, 1841, there was no subsequent election, until 1845; the board elected in 1841, in the mean time, acting until the election in 1845: and that the certificates required, from time to time, to be deposited with the town-clerk, were signed by the treasurer, instead of the president and secretary, as they should have been. But this court has repeatedly decided, that the neglect of a corporation to perform some corporate duty required by their charter, although sufficient to produce a forfeiture of corporate rights; yet, before such forfeiture is judicially determined, it cannot be taken advantage of collaterally. Derby Turnpike Co. v. Parks, 9 Conn. R. 522. 536. Kellogg v. Union Co. 12 Conn. R. 7.

Again, it is claimed, that the record of the judgment rendered in New-York, shows, that the defendant in that suit, appeared, and was in fact present in court, at the time judgment was rendered against him ; and as it is an agreed fact, that he was duly served with process, it is insisted, that this record of the defendant's appearance, is conclusive; and that no evidence can, properly, be admitted to contradict the record, in this respect, without directly impugning the full faith and credit which is due to the record.

What force there might be in this objection, if the appearance mentioned in the record necessarily meant, that the defendant in that suit was actually present in court, when said judgment was rendered, and said "nothing in bar or preclusion of said action," it is unnecessary to determine. We are satisfied, that no such meaning can be given to the record of the defendant's appearance in that case.

By the statutes of New-York, as they existed at the time this judgment was rendered, it was provided, that "upon the service of a capias ad respondendum upon any person, which does not require the defendant to be held to bail, he may indorse his appearance on such writ, or if he refuse to do so, the sheriff may return the writ personally served. And upon such writ being returned, with the appearance of a defendant indorsed, or, of his having been personally served, the clerk of the court shall enter the appearance of the defendant, upon whom the same was served; and thereafter, proceedings may be had against such defendant, as if he had actually appeared. 2 Rev. Stat. of N. Y. part 3. chap. 6. P. 347, 8.

Under this statute, it was obviously competent for the plaintiff in that suit, to have obtained his judgment in New-York, without the appearance of the party, defendant, m person ; and yet, the record would be the same as if there had been an appearance in fact; because it is made the duty of the clerk, under the circumstances mentioned in the statute, to enter the appearance; and it is there provided, that the same proceedings may be had, as if there had been an actual appearance.

It was, without doubt, under this statute, that that judgment was obtained ; because it is found, by the superior court, that the plaintiff did not appear in said action, unless, indeed, the record is conclusive evidence to the contrary. But a record is never conclusive evidence of a fact, which is either not true, or which is as probably false as true. It is, no doubt, a rule in New-York as in England, that there must be an áp-pearance, in order to obtain a judgment. This appearance, however, in very many cases, is a mere fiction, provided for by statute, in order to avoid the effect of a technical rule ; and should not be permitted to work injustice, contrary to the truth of the fact. It was formerly a fiction of law, that all judgments were rendered on the first day of the term ; but, in practice, they very seldom were so in fact. And in England, they are frequently signed in vacation ; and it has always been held, where the purposes of justice require it, that the true time of obtaining judgment, may be shown.

Upon the whole, then, we are satisfied, that none of the objections of the defendant, in this application, ought to prevail.

We, therefore, advise the superior court, to grant a perpetual injunction against the defendant’s further prosecuting his action of debt on the judgment recovered in New-York.

In this opinion the other judges concurred.

Perpetual injunction granted.


text:
    Warren against Skinner.
    Windham,
    July, 1850.
    An agreement to accept a part of a debt, as a satisfaction of the whole, is a nude pact; and the payment of a part only, in pursuance Of such agreement, is no satisfaction.
    The cases where such agreement and payment constitute an accord and satisfaction, are where the agreement is not a nude pact, but rests on a new and adequate consideration.
    Instances specified.
    This was an action on a promissory note, made by the defendant, in the city of New-York, August 11th, 1840, promising to pay to S. C. & S. Lynes, or order, the sum of 197 dollars, 32 cents, on demand, with interest ; which note, S. C. & S, Lynes indorsed to Henry E. LI. Gilbert, and he indorsed it to the plaintiff. The defendant pleaded non assump-sit, with notice of a special defence.
    The cause was tried at Brooklyn, January term, 1850.
    On the trial, the plaintiff produced the note, with the in-dorsements thereon, described in the declaration ; the genuineness of which were not disputed.
    The defendant thereupon offered parol evidence to prove, that said note, on the first of March, 1844, became the property of the legal representatives of John Gilbert, deceased, and so remained until the 10th of May, 1845 ; that in March, 1844, it was by them placed in the hands of the Rev. N. S. Hunt, for the purpose of effecting a settlement with the defendant, Mr. Hunt then being their agent for that purpose ; that afterwards, in the course of the year 1844, Mr. Hunt put it into the hands of the plaintiff, as agent of said representatives, for the purpose of negotiating a settlement with the defendant: that while it was so in the hands of the plaintiff, solely as agent as aforesaid, and he having no interest therein, it was mutually accorded and agreed, by and between the plaintiff, as such agent, and the defendant, that the defendant should pay to the plaintiff, and that the plaintiff should accept and receive of the defendant, in full satisfaction of all the sums then due on said note, the one-half of the principal thereof; that the sum of fifty dollars of said half, should be paid by the defendant to the plaintiff, as agent, in a few days thereafter, and the balance of said half, as soon as the defendant should be able to pay it; he having, before that time, suspended payment, and being then poor, without any present means to meet such balance.
    The defendant also introduced evidence to prove, that after the making of said agreement, viz. on the 1st of May, 1845, he paid to the plaintiff, as such agent, the sum of fifty dollars; and as soon thereafter as he could procure the means for so doing, he fully paid and satisfied to the plaintiff, in money and cloth, the full balance of said one-half of the principal of said note, in full satisfaction and discharge of said note, and in complete fulfillmentof the agreement so entered into between the parties ; all which payments the plaintiff as agent of the owners of the note, received in fulfillment of said agreement, and in full satisfaction and discharge of the note.
    The plaintiff objected to the parol evidence offered by the defendant; but the court overruled the objection, and admitted the evidence.
    The defendant then claimed, that if all the facts, which he had so attempted to prove, by such evidence, were proved, they constituted a bar to any recovery upon the note; and prayed the court so to decide. The court did not so decide, but held, that they were not a bar to a recovery, and rendered judgment that the plaintiff recover of the defendant the balance remaining unpaid upon the note.
    The defendant, thereupon, claiming the decision to be erroneous, moved for a new trial.

      Welch and Carpenter, in support of the motion,
    contended, That the facts proved on the trial constituted a complete de-fence to the plaintiff’s action. To establish this position, they cited and relied on the following authorities. 2 Sw. Syst. 6. 1 Sw. Dig. (by Dutton,) 463. 2 Greenl. Ev. 24, 25. 1 Smith’s Lead. Ca. 323, 4, 5. Heathcote v. Crook-shanks, 2 Term R. 24. Chitt. Cont. 30, 1, 2, 3. and notes. 747. and note 1. Spruneberger v. Dentler, 4 Watts, 126. Stafford v. Bacon, 2 Hill, 353. S. C. 25 Wend. 384. Boyd v. Hitchcock, 20 Johns. R. 76. Le Page v. McCrea, 1 Wend. 164. Kellogg v. Richards, 14 Wend. 116.

      J. A. Hovey and Burnham, contra,
    insisted, That in cases of contract for the payment of a sum of money, the payment of a less sum will not be a good satisfaction; unless it was either paid and accepted before the time when it was to have been paid, or at a different place from that appointed for the payment; nor will an agreement for the payment of a less sum, be a good satisfaction, unless a better security is given. 2 Greenl. Ev. 28. § 28. 493. § 519. (3d ed.) Chitt. Cont. 747. 763. 1 Saund. Pl. & Ev. 20. 2 Stark. Ev. 16. Blanchard v, Noyes, 3 N. Hamp. R. 518. Fitch v. Sutton, 5 East, 230. Down v. Hatcher & ux. 10 Adol. & El. 921. (37 E. C. L. 69) Cumber v. Wane, 1 Stra. 426. Boyd v. Hitchcock, 20 Johns. R. 76. Acker v. Phoenix, 4 Paige, 305. Here, there was nothing to take the case out of the general rule, or to bring it within any of the exceptions.
   Ellsworth, J.

It is no longer a question, whether payment of part of a debt is a satisfaction of the whole, either considered as payment, or as an accord and satisfaction. The payment of 100 dollars, is not, of itself, the payment of 200 dollars; nor is it an accord and satisfaction; for an accord is an agreement; but there is no agreement, without a consideration; and receiving part only, is no consideration for an agreement not to collect the rest; it is a mude pact.

These principles are settled in the cases cited at the bar; we would particularly refer to Cumber v. Wane, 1 Stra. 426. Heathcote v. Crookshanks, 1 Term R. 24. Good v. Chees-man 3. B. & Adol. 328. (22 E. C. L. 85.) Fitch v. Sutton, 5 East, 230. Acker v. Phoenix, 4 Paige, 305. Boyd v. Hitchcock. 20 Johns. R. 76. 78. Chitt. Cont. 747. 1 Smith's Lead. Ca. 249. 2 Greenl. Ev. 28. 493. (3d ed.)

The same cases show, that while the principle is as already stated, there are important exceptions, or rather, they show in what cases an agreement to pay, or the payment of part, is an accord and satisfaction. In the excepted cases, the agreement is not a nude pact, but rests on a new and adequate consideration; as where the debtor pays a part of the debt before it is due, or at a different place, or in a collateral article, agreed to be received in full payment, or in some manner not required by the original contract: so when there is an assignment of property, creating a fund for distribution among creditors, or a new note for part, with security: so where creditors agree with their debtor, that they will discharge him, upon his paying or securing a percentage of their debt, that he may start anew in business, and the debtor fulfills, or does his part towards fulfilling, such agreement; it has been held, in some instances, especially in Good v. Cheesman, before cited, that this is a good bar to a recovery ; the agreement, though unexecuted, and therefore, in strictness, no satisfaction, still, as the debtor had done all he was obligated to do, and had given his creditors a new and valid contract or security for the percentage, it was held to be sufficient. And generally, an arrangement entered into by creditors, upon the insolvency of their debtor, to forbear to sue him, or wholly to relinquish the balance of their debts, if the debtor will pay, and does pay, the percentage agreed upon, the debtor has a right to set up this arrangement as a full discharge ; otherwise, the creditor, who breaks the agreement with his debtor, would perpetrate a fraud upon others, scrupulously adhering to the arrangement: and certainly, if property has been assigned by the debtor, under such an arrangement, the defence is most perfect.

In Evans v. Powis, 1 Welsby, H. & G. 601. Parke, B. says, in substance, that the mutual agreement among creditors with their debtor, to take a part of their debts, is a valid agreement, as each agrees to give up a part of his debt, in order to bring about a common object, which is a sufficient consideration to support the agreement; and if this agreement is performed, or performance is tendered according to the terms of the agreement, it is a good accord and satisfaction. But if it is not performed, nor performance tendered, it is a mere accord or agreement, and no satisfaction, and is no bar to an action on the original indebtedness, which still remains. Where, however, the agreement is expressly received in satisfaction of the debt, as it may be, and is sometimes, then, the agreement alone may be pleaded as an accord and satisfaction. The language in part, is, “ Both creditors having had a right to be paid in full, and each a chance of being paid more than the other, if he pressed the debtor, each mutually agrees to forego that right and chance, and be content with less. The engagement of one creditor to take a smaller sum, is the consideration for the engagement of the other to do the same.”

There is another class of cases, constituting an exception to the general rule, as where damages being in dispute or un-liquidated, are settled or liquidated, by agreement, or where the parties make a compromise; here the adjustment or compromise is a consideration for the new promise, or accord and satisfaction.

The other claim of the defendant, that the delivery of cloth in payment of the balance, on one of the fifty dollar instal-ments, was a payment of the debt in a collateral article, and thus a good accord and satisfaction of the whole original debt, is without foundation. It was not received on the original debt, but as cash on the last fifty dollars.

We do not advise a new trial.

In this opinion the other Judges concurred*

New trial not to be granted.


text:
    Dyer and others against Cady.

      B having indorsed a note made by A, for A’s benefit, A mortgaged certain goods to B, for his security, which B took into his possession. C, an officer, then attached these goods, in a suit brought by D, a creditor of A, and took them out of B’s possession, and afterwards sold them at the post. The note indorsed by B having become the property of the bank, B Gaused a suit to be brought thereon, in the name of the bank, against A, by writ of attachment, which B put into the hands of C, directing him to attach the same goods, subject to the former attachment. In a suit afterwards brought by B against C, for taking the goods on such former attachment, it was held, 1. that the mortgage made by A to B (having been found to be bona fide and valid,) the conduct of B, in regard to the suit brought by him, in the name of the bank, against C, did not affect B’s rights under his mortgage; nor, 2. estop him from a recovery against G, for taking the goods on the first attachment.
    The rule regarding estoppels in pais, repeatedly sanctioned by this court, is, that where one, by his words or conduct, willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is precluded from averring* as against the latter* a different state of things, as existing at the same time.

      Windham,
    July, 1850.
    This was an action of trespass de bonis asportatis, with a count in trover, both counts being for the taking and conversion of the same goods. The suit was commenced in January, 1849.
    The defendant pleaded the general issue, with notice of special matter to be given in evidence.
    The cause was tried at Brooklyn, January term, 1850.
    On the trial, the plaintiffs claimed title to the goods in question, by virtue of a mortgage bill of sale from William. H. Case, the former owner, dated April 18, 1848. The object of this bill of sale, as the condition showed, was, to secure the payment of a certain promissory note of said Case, dated April 1, 1848, for the sum of 430 dollars, payable to William Kennedy, one of the plaintiffs, in sixty-five days from the date ; also to secure Ebenezer Case and William Dyer, the two other plaintiffs, against their liability as indorsers of another promissory note of said W. H. Case, dated February 14, 1848, for the sum of 500 dollars, payable to the order of said Ebenezer Case, and indorsed by him and said Dyer, for the benefit of the maker, to the Mount Vernon Bank ; and also to secure said Ebenezer Case, against his liability as indorser of another promissory note of said W. H. Case, dated April, 1848, for the sum of 550 dollars, payable in sixty days. These notes were produced in evidence, accompanied with evidence that said Ebenezer Case had, as indor-ser, been compelled to pay and take up the two last-mentioned notes.
    The plaintiffs then introduced evidence to prove, that immediately after the making of the bill of sale, they took the goods into their possession, and kept them until the 16th of May, 1848, when they were taken forcibly out of their possession, by the defendant.
    It was proved and admitted, that on that day, the defendant, as a deputy-sheriff, attached said goods, as the property of William H. Case, by virtue of two writs of attachment against him, one in favour of Hammond, Warren & Co., and the other in favour of Daniel M. Prentice, creditors of said Case ; that those creditors afterwards obtained judgments in their suits, took out execution thereon, and .placed them in the hands of the defendant, for collection; that he levied them upon said goods, and afterwards, on the 21st of August, 1848, sold them, at the public sign-post, and applied the avails thereof in satisfaction of those judgments. For such taking and conversion, the plaintiffs claimed, that they had a right to recover, in this action.
    The defendant claimed, that he was justified in doing these acts, upon the ground that said bill of sale was fraudulent and void, as against the creditors of W. H. Case.

    It was proved and admitted, that before the payment of the note to the Mount Vernon Bank, the plaintiff, Dyer, had caused a suit to be instituted thereon, for the benefit, and at the expence, of himself and Ebenezer Case, the indorsers thereof, in the name of said bank, by writ bearing date July 28th, 1848 ; which writ said Dyer placed in the hands of the defendant, as deputy-sheriff, with directions to attach said goods, subject to the two prior attachments ; that the defendant accordingly made such attachment, on the 1st day of August, 1848; that said writ was duly returned to the court to which it was made returnable, and the suit was continued in court, until the December term, 1849, when it was withdrawn, by the plaintiffs.
    The defendant claimed, that if the bill of sale was fraudulent and void, as against the plaintiffs, or either of them; or if the jury should find, that either was not entitled to recover, their verdict must be in favour of the defendant. And so the court instructed the jury.
    He further claimed, that as the suit in favour of the Mount Vernon Bank, was brought by the plaintiffs, Dyer and E. Case, for their benefit, and at their expence ; and the writ in that suit was by them placed in the hands of the defendant, as deputy-sheriff, with directions to attach the property in question, subject to the two preceding attachments, as the property of W. H. Case; and the defendant having so attached such property ; these acts of Dyer and E. Case, as between them and the defendant, constituted a waiver of their right to the property, by virtue of said bill of sale, and estopped them from denying that said property was the property of W. H. Case. And the defendant prayed the court so to charge the jury.
    Upon this part of the case, the court instructed the jury, that the defendant was not liable to the plaintiffs in the present suit, for any acts by him done under their directions, or the directions of either of them, in relation to the attachment in favour of the Mount Vernon Bank ; nor was he liable on the count in trover, so long as he held the goods under that attachment. But if they should find, that a good title had been conveyed to the plaintiffs, and that the defendant was a trespasser in taking the goods out of their possession, such trespass was not waived, by reason of their acts in relation to the subsequent attachment in favour of said bank; nor were they estopped from recovering for the subsequent conversion, by selling the goods upon executions in favour of other creditors. The conduct of the plaintiffs, in relation to that suit, was, however, a proper subject for them to consider, in determining the validity of the defendant’s title.
    The jury returned a verdict in favour of the plaintiffs ; and the defendant thereupon moved for a new trial, for a misdirection.

      E. Perkins, in support of the motion,
    contended, 1. That if either of the plaintiffs was not entitled to recover, the verdict must be for the defendant. Pettibone & al. v. Phelps & al. 13 Conn. R. 445.
    2. That the plaintiff, Dyer, was precluded from a recovery. His conduct in relation to the suit brought by him, and for his benefit, in the name of the Mount Vernon Bank, against W. H. Case, and especially, his direction to the defendant, to attach the goods in question as Case’s property, was equivalent to an express admission that those goods were Case’s property, and liable to be taken, by attachment, or in execution, in favour of his creditors. Upon this admission, the defendant has acted, and perfected the lien of the two first attachments, by selling the goods upon the executions obtained in those suits. He did, as he was bound to do, if the goods were the property of Case. They manifestly belonged either to Case, or to Dyer. But Dyer virtually told the defendant, that they were not his, but Case’s. Dyer is now estopped to deny that they were Case’s, as between him and the defendant. 1 Greenl. Ev. 207. Whitaker v. Williams, 20 Conn. R. 98.

      Strong and J. A. Hovey,

    1. That the attachment of these goods, at the instance of Dyer, in the suit of the Mount Vernon Bank against W. H. Case, was no waiver of Dyer's rights under the mortgage.
    2. That the doctrine of estoppel by matter in pais, was not applicable to this case. In the first place, the defendant was not misled, by any thing that Dyer did or said ; nor was his position thereby varied. Secondly, the conduct of Dyer, was correct, and consistent with the facts in the case. Notwithstanding the previous mortgage and attachment, creating liens on these goods, W. H. Case still had an equity of redemption therein, which a creditor of his might well attach.
   Hinman, J.

While the goods in question were in the possession of the plaintiffs, who held them, by virtue of a mortgage from William H. Case, the former owner, the defendant, a deputy-sheriff, attached them, as the goods of Case, took them into his possession, and afterwards sold them at the post, on an execution, regularly issued, on the judgment rendered pursuant to his attachment. They were mortgaged, to secure a note to one of the plaintiffs, and to secure the other two plaintiffs against their indorsement of other notes, made for the accommodation of said Case. After the seizure by the defendant, Mr. Dyer, one of the plaintiffs, caused a writ of attachment to be issued on one of the notes indorsed by him, and held by the Mount Vernon Bank, which he placed in the hands of the defendant, with directions to attach the same goods, subject to the attachment by virtue of which he first took them. This being done, the suit was continued in court until December, 1849, when it was withdrawn. The present suit was commenced in January, 1849.

The judge who tried the cause, held, that the conduct of the plaintiffs in relation to the suit commenced by Dyer, was a proper subject for the jury to consider, in determining as to the validity of their mortgage title ; but, if the jury should find, that a good title had been conveyed to the plaintiffs, and the defendant was a trespasser, in taking the goods out of their possession, such trespass was not waived, by reason of their acts in relation to that suit; nor were they estopped from recovering for the subsequent conversion, in selling the goods upon executions in favour of other creditors.

There was nothing objectionable in this. On no ground has the defendant any reason to complain of it. There was, obviously, an outstanding equity of redemption in the mort~ gagor, which Mr. Dyer might well attach, subject to the plaintiffs' mortgage and the defendant's prior attachment; and the court cannot see, that it was not his only object to take that. As his attachment was consistent with the validity of his mortgage, it was impossible to infer, from his conduct, merely, any admission of the invalidity of the latter. An estoppel must be certain, in order to conclude a party from proving the truth; and ought not to be made out by inference or argument.

But if it is admitted, that the conduct of Mr. Dyer amounts to an admission that the mortgage title was invalid, it would not, under the circumstances, estop him from proving the contrary. It would only be evidence to be considered by the jury, on that question. ,

The rule, on this subject, which this court has repeatedly sanctioned, is, that where one, by his words or conduct, willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is precluded from averring, as against the latter, a different state of things, as existing at the same time. Pickard v. Sears, 6 Ad. & El. 469. (33 E. C. L. 115.) Brown v, Wheeler, 17 Conn. R. 345. Roe v. Jerome, 18 Conn. R. 138.

This is a rule founded on the clearest principles of justice, and has generally been acted upon. Some of the cases, we are aware, state the principle a little more broadly ; but in none of them, has it ever been intimated, that an admission, which has not had the effect to mislead a party, could amount to an estoppel, whatever might be its force as evidence, merely; and the last well considered case on the subject, while it admits the principle to be correct, seems, rather, to limit, than to extend it. Freeman v. Cook, 2 Excheq. Rep. 654.

But, taking the rule in its broadest sense, it is a perfect answer to the defendant’s claim. The admission, here, was, subsequent to the act which fixed the defendant's liability. He could not, therefore, have been misled by it; and his position is the same, now, as if Mr. Dyer had never attached.

It is said, however, that the defendant sold the goods, subsequent to the last attachment; and the plaintiffs are estopped from claiming damages for this act. If this were admitted, it would not benefit the defendant. The jury have found, that the plaintiffs had a good title, by virtue of their mortgage ; and that the defendant, was a trespasser, by reason of the original taking. Of course, the rule of damages was the value of the goods. At what time, the defendant chose to sell them, or, whether he chose to sell them at all, is of no importance, except to show the object for which he took them.

But, there is no evidence that they were sold upon the strength of Dyer’s conduct. The inference is the other way; they were taken to secure certain debts ; and they were sold to pay them : the inference is, therefore, that they were sold pursuant to the original design, rather than on the strength of the subsequent conduct of any body.

There is no foundation for the application of the technical doctrine of estoppel, to any part of this case. Mr. Dyer and his co-plaintiffs, had, as they all supposed, a title to the property, by virtue of their mortgage. That did not prevent their pursuing any other remedy for the collection of the mortgage debt, or any part of it. In principle, it is not unlike the case of a party, who has two securities, for the same debt: he may pursue them both, till he gets his pay. And if he had fears as to the validity of the mortgage title, we do not see any objection to his attaching the property, for the purpose of making himself as safe as he could, under the circumstances. A party in possession of property, under a claim of title, does not weaken his title, such as it is, by purchasing an outstanding claim in some third person.

We are satisfied there was no error, in the ruling of the court, and do not advise a new trial.

In this opinion the other judges concurred.

New trial not to be granted