text:
    CATHARINE L. WING, Plaintiff, v. IRENE E. SCHRAMM, Defendant.

      Oha/p. 90 of 1860 — conveyance by ma/rried woman under — assent of husband to — effect of failure of.

    Under section 3 of chapter 90 of 1860, providing that “ any married woman possessed of real estate as her separate property may bargain, sell and convey such property, and enter into any contract in reference to the same; hut no such conveyance or contract shall be valid without the assent in writing of her husbanda conveyance by a married woman of her real estate was good as against all the world but her husband.
    The assent of the husband need not be given prior to, or at the time of the delivery of the deed, but may he subsequent thereto.
    Motion for a new trial on a case and exceptions.
    This was an action of ejectment brought to recover possession of certain real estate in the city of Brooklyn, with damages for the withholding of the possession of the same. The action was tried before tbe court without a jury. Tbe justice before whom tbe action was tried found that tbe plaintiff was tbe wife of Edmund Yenni from June 19,1856, to October 7, 1862, when tbe plaintiff obtained a decree of absolute divorce from tbe said Edmund Yenni; that tbe plaintiff became seized of tbe premises in tbe complaint mentioned, under and by virtue of a deed made to her as grantee therein, subject to a certain mortgage for $3,500 and interest, the amount of which said mortgage formed part of tbe consideration money therefor, and tbe payment whereof was assumed by her; that tbe balance of said consideration money expressed in said last-mentioned deed was paid by plaintiff’s said husband, Edmund Yenni.
    On or about September 5, 1861, tbe plaintiff executed and delivered to one Antoinette Yenni tbe deed of said premises, set forth and as alleged in defendant’s answer herein. Tbe.said deed was drawn and its execution procured, and tbe same was delivered to tbe grantee therein named by the plaintiff’s said husband,'Edmund Yenni, and tbe grantee therein named tools; possession of said premises thereunder.
    After tbe said decree of divorce, the plaintiff’s said husband, Edmund Yenni, at the request of tbe grantee therein named, who was then in possession of said premises, indorsed upon the said deed, and executed and delivered to said grantee a wilting in the words and figures following: “ I hereby consent to the within conveyance and approve of the same. New York, September 12, 1861. E. YeNNi.” (Seal.)
    The consideration expressed in said last-mentioned deed, to wit: $6,000, was made up and paid by the assumption of mortgages and other charges upon the property, and by the payment of $500 in cash, whereof the plaintiff herself received $300 and her said husband the balance, which was by him applied to the support and maintenance of his said wife.
    Afterwards, said Antoinette Yenni paid and discharged the said mortgage for $3,500, and all arrears of interest thereon, and also all taxes then due and owing upon said premises at the time of said conveyance. Afterwards said' Antoinette Yenni died, leaving her last will and testament, which was duly admitted to- probate, and the executor thereof, under and by virtue of the power thereby conferred upon him, for a good and valuable consideration by him received, conveyed the said premises to defendant by the deed mentioned and alleged in the answer herein, and the defendant received the same in good faith, and without notice or knowledge that said consent had been in fact indorsed upon said deed of September 5,1861, subsequent to said divorce.
    The defendant took possession of said premises upon the delivery of said deed to her, and since then has used and occupied the same, has made improvements, betterments and additions thereto, and has also paid the taxes, insurance, interest and repairs thereon.
    As conclusions of law, the justice found, “ that said deed of September 5, 1861, is not valid, and the plaintiff is not boun$ thereby, because the same was without the consent in writing of her said husband while he was her husband; that by reason of the premises the defendant has the rights of a mortgagee in possession, and as such is entitled to receive repayment of the amounts so advanced, allowed and paid by her said grantor, as the consideration for the conveyance to her of said premises as aforesaid, over and above the liens thereon at the time said conveyance by plaintiff was made, and all amounts subsequently paid by her or the defendant for like purposes, or for improvements, betterments, additions to, and assessments upon said premises, with interest upon the several items of the same, and upon payment thereof the plaintiff will be entitled to the possession of said premises.”

      O. E. Tracy, for the plaintiff.

      G. Ef. Eeynolds and Efehemiah Millcvrd, for the defendant.
   Dykman, J.:

On the 15th' day of April, 1857, the plaintiff was the wife of Edmund Tenni, and on that day he caused the premises in question to be conveyed to her. He paid all of the purchase-money that was paid, and she paid nothing. On the 5th day of September, 1861, the plaintiff, at the request of her husband, executed and delivered to his mother, Antoinette Tenni, a full covenant warranty deed of the premises, and the grantee took possession. At that time section 3 of chapter 90 of the Laws of 1860 was in force and had not been amended, and it reads as follows: “ Any married woman, possessed of 'real estate as her separate property, may bargain, sell and convey such property, and enter into any contract in reference to the same, but no such conveyance or contract shall be valid without the assent, in writing, of her husband, except as hereinafter provided.” This section was amended by chapter 172 of the Laws of 1862, by leaving out that part which required the husband’s assent.

The husband of the plaintiff did not make a written consent to her conveyance to her mother until after she obtained an absolute divorce against him in October, 1862, and then he made the following indorsement on the deed :

I hereby consent to the within conveyance and approve of the same.
New York, Septeinher 12, 1861.
E. YEN.NI.” [seal.]

The grantee in this conveyance died seized of the premises, and left a last will and testament, which contained a power of sale, and under that her executor conveyed the premises to the defendant, for value, in January, 1873. The consent of the plaintiff’s husband was then indorsed on her deed, and the defendant had no notice of any defect or irregularity. The defendant, therefore, is a bona fide purchaser.

If under this state of facts the plaintiff can recover these premises, then the law of 1860 will have worked a result'which shows that it was not amended any too soon. She never had any equity in the premises. She never paid a dollar on the purchase-money, and she made her full covenant warranty deed and suffered it to be spread upon the records, and then laid by until the defendant became the purchaser for full value, without sounding any note of alarm, or asserting any right.

Now, what is meant by the provision in section 3 of the Law of 1860? That no conveyance of a married woman shall be valid without the assent, in writing, of her husband. One thing intended was to give the husband some control over the alienation of his wife’s land, and it is very reasonable to suppose that that was the only aim and intention of the section. To provide that the conveyance should not be valid against him and his marital rights without his assent in writing. If this is the true construction, then the grantee in such conveyance took a title valid against the world, except the husband, and all that was necessary was the written assent of the husband to the conveyance.

When the plaintiff executed her conveyance for these premises it was valid as against her, and it only remained for her husband to signify his assent to the same in writing to render it valid and effectual in every respect, lie did assent to it in writing about a year after it was given. No-time is specified within which such assent shall be made, and the most that can be claimed for the plaintiff is, that until it was given she could have revoked her deed. She did not, however, make the revocation, and the assent was given. The demands of the statute were complied with, and it matters not that the assent was given after the delivery of the deed.

An objection against the validity of the husband’s assent is raised on the ground that he made it after his wife had obtained against him an absolute divorce; but if this provision was enacted for his benefit, to enable him to restrain her in the conveyance of her property, then he had the power and the right to make the assent after the divorce. He was the only person who could give such assent, and it was in the interest of justice that it should be given.

We think a new trial should be granted, with costs to abide the event.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.


source: Caselaw Access Project

author: DyKMAN, J.:

license: Public Domain

text:
    AARON A. DeGRAUW, Plaintiff, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Defendant.

      Liability of county, for negligence of county treasurer.

    In the year 1875 the plaintiff purchased certain lots of land in the town of Jamaica at a sale, for non-payment of taxes, held by the county treasurer of Queens county, in pursuance of chapter 135 of 1873, and received certificates therefor. The county treasurer failed to serve the notices of redemption upon the owners and mortgagees, as required by the act. After the time for redemption had expired, the plaintiff, his certificates not having been redeemed, tendered them hack to the county treasurer and demanded his money, on the ground that the failure of the county treasurer to serve the notices rendered the certificates void.
    In an action by him to recover said amount from the county, held, that the county was not liable for any loss or damage which might have occurred by reason of the default or negligence of the county treasurer in the discharge of the duties of his office.
    That the relation of master and servant did not exist between the county and its county treasurer.
    That in conducting the said sale the county treasurer was not in any sense acting on behalf of the county, but was simply discharging certain duties in relation to the unpaid taxes of the town of Jamaica, imposed upon him by the law under which the sale was had.
    Controversy submitted .upon au agreed statement of facts.
    On tbe 12th day of April, 1875, George W. Bergen, as county treasurer of Queens county, sold to the plaintiff, for non-payment of taxes, a number of lots, pieces or parcels of land, in the town of Jamaica and comity of Queens, and delivered to the plaintiff a certificate signed by said county treasurer for each lot or parcel purchased by him; the county treasurer did not serve or cause to be served either personally or by publication upon the owner or mortgagee of the lands. and premises so sold to said Aaron A. DeGrauw any notice of the sale, as required by the terms of chapter 135 of the Laws of 1873, and the acts amendatory thereof, nor were any such notices served at least six months previous to the expiration of fifteen months from the days of sale, as above stated, nor has he caused proof of such service, or of any alleged service of notice to be filed with the clerk of Queens county. None of the lands' have been redeemed from the sales made as above stated, and the plaintiff is now the owner and holder of the several certificates of sale heretofore issued and delivered to him by said George W. Bergen, county treasurer as aforesaid. Said Aaron A. DeGrauw has demanded from the defendants the payment and return to him of the sum of money specified in each of the said certificates as paid by him, with the interest on the several sums stated from the times respectively above mentioned, and has also tendered and offered, and now tenders and offers, to surrender or cancel the said certificates upon being paid the sum therein stated, with interest as aforesaid.
    The questions submitted to this court upon the case were as follows:

      1. Under tbe statute under wbicb tbe premises were sold, is tbe county treasurer required to serve notice upon tbe owner or mortgagee of tbe lands and premises sold, and within wliat time must sucb notices be served ? Tbis notice not having been served, will a service under chapter 361 of 18'T'T cure tbe defect and entitle tbe purchaser to a lease if tbe premises are not redeemed within tbe time specified in that act ?
    2. If sucb notices have not been served at least six months prior to tbe expiration of fifteen months from tbe day of sale, and tbe omission cannot be cured by tbe act of 18'T'T, is tbe defendant liable for tbe neglect or default of tbe treasurer in not serving said notices upon tbe owner and mortgagees of tbe premises sold %

    3. If tbe defendant is liable for sucb neglect or omission, to what extent is tbe plaintiff entitled to recover \ '

      John J. Armstrong, for tbe plaintiff.

      Wm,. H. Onderdonk, for tbe defendant.
   DyKMAN, J.:

In tbe view we taire of. tbis case it will not be necessary to determine when tbe notice required by section 17 of chapter 135 of tbe Laws of 1813, to be served on tbe owners and mortgagees of tbe lands sold, must be served by tbe county treasurer, nor whether tbe fact being that no sucb notice was given, the difficulty can be obviated by a service under tbe provisions of chapter 361, of tbe Laws of 1877. We might possibly get over tbe troubles arising from tbe neglect to serve tbe notice by giving these two acts their most extensive sense, but it would only be to reach another obstacle which seems to be insurmountable, and wbicb we will proceed directly to examine without deciding tbe two questions above referred to.

Besides being political divisions tbe several counties in tbis State, are bodies corporate and have capacity to sue and be sued in tbe manner prescribed by law, and when any controversy or cause of action exists between a county and an individual, tbe same proceedings must be bad for tbe purpose of trying tbe same as in other suits between individuals and corporations, and in all sucb suits tbe county must sue and be sued in tbe name of the board of supervisors, except where county officers shall be authorized by law to sue in their name of office for the benefit of the county, (i R. S., 364, § 1; p. 384, §§ 1, 2.) '

Each county has a county treasurer who is its sole financial officer, and whose powers and duties are specially defined by statute, but who is in no sense the agent of the county. He is elected the same as pH other county and town officers to assist in carrying on the local machinery of the State government, and has assigned to him by law certain independent powers and duties. For lfis conduct as such officer he is amenable to the laws of the land and the judgment of his countrymen, but we have been referred to no case where a county has been held responsible either for the misfeasance or malfeasance of its county treasurer, and after an extended search we have been unable to find one. It is true the county treasurer stands as the financial agent of his county. He receives the money belonging to it and pays the same out upon proper order, and the receipt of money belonging to the county by its treasurer is a receipt by the county, and an action can be maintained against a county for the recovery of money illegally collected and paid to its treasurer. (Newman v. Supervisors of Livingston, 45 N. Y., 616.) In that case a tax had been illegally levied and collected against the plaintiff and paid into the treasury of the county. The action was not brought to recover for the misfeasance of any of the officers either .town or county, by whose instrumentality the wrong had been perpetrated, but it was brought for the recovery of money in the possession of the defendant which did not belong to it, and did belong to the plaintiff, and the action was maintained on that ground alone.

Chapman v. The City of Brooklyn (40 N. Y., 372) went upon substantially the same ground, and is no authority for the plaintiff. These eases only show that municipal corporations are not exempt from the liability which attaches to all corporations as well as to individuals, to refund money inequitably received.

A very different question is presented, however, when it is sought to make either an individual or a corporation liable for the wrongful or negligent acts of a third person, for before that can be done the relation of master and servant between the party sought to be held liable, and tbe tort feasor must first be established. This cannot be done between a county and its county treasurer.

In tbe case of Lorillard v. The Town of Monroe (11 N. Y., 392) it was sought to bold tbe town responsible for a mistake of the assessors in erroneously assessing property of tbe plaintiff, and then compelling him to pay an illegal tax, and the Court of Appeals there held that tbe assessors and collector were not in any legal sense tbe agents of tbe town in its corporate capacity, and that tbe town was not responsible for any mistake or misfeasance committed by them in tbe performance of their duty. There is no reason why tbe same rule should not be applied to county officers. Nobody ever supposed that a county could be held responsible for tbe misfeasance of a sheriff, or a county clerk or register, and yet there is as much reason why it should be liable for their negligence as for that of a county treasurer.

Neither can this action be maintained, on the ground that the money received from the plaintiff by the county treasurer was received in his official capacity as the funds of the county, and so received by the county itself, for, by the statute under which the sales were made and the money received, the county treasurer is required to pay all the money' received on the sales for unpaid taxes to the town of Jam’aiea. In fact, the whole act relates to that town only, and the county of Queens could not receive any of the money paid to the plaintiff, and there is no claim that it ever has.

Moreover, in making the sales to the plaintiff and receiving the money therefor, the county treasurer did not act in behalf of his county in any sense. The legislature selected him as a proper person to perform certain acts in relation to the, unpaid taxes in the town of Jamaica, and devolved certain duties upon him in that respect, but they have no relation to his official position. True, he is designated by his official title, but only as any other official, selected as he was, would have been. It would have been perfectly competent for the legislature to clothe any county or town officer or private individual with the same powers that were given to the county treasurer. Then there would have been no suggestion of apy liability of the county for the acts of such person, and yet the claim for liability now has no better foundation.

The plaintiff places reliance upon two provisions of tbe Revised Statutes which are as follows:

First. “All losses which may be sustained by the default of the collector’ of any town or ward shall be chargeable on such town or ward. All losses which may be sustained by the default of the treasurer of any county in the discharge of the duties imposed by this chapter shall be chargeable on such county, and the several boards of supervisors shall add such losses to the next year taxes of such town or county.” (1 R. S. [6th ed.], 985, § 5.)

Next, “All losses which may be sustained, and any deficiencies which may exist by reason of the def ault of the collector of any town or ward, shall be chargeable on such town or ward. All losses which may be sustained and any deficiencies which may exist by the default of the treasurer of any county in the discharge of the duties imposed by law shall be chargeable to such county ; ” the remainder of the section provides that if any judgment shall be obtained against such treasurer.for any deficiency on account of the State tax, the execution returned unsatisfied shall be conclusive evidence of such. deficiency, and it shall thereupon become a county charge and be added to the next year’s taxes. (1 R. S. [6th ed.], 960, § 69.)

It is entirely clear that these two sections have reference only to the accounts of the collector and the county treasurer and to defaults made by those officers in relation to these accounts, and were intended to provide that all deficiencies occasioned by such defaults were to be charged on and not to their respective towns and counties and the amounts thereof included in the tax levy for the next year. It certainly was not intended by these two statutes to enlarge the liability of either town or county for the acts of their officer.

Our conclusion is that the plaintiff cannot recover in this action, and that the defendant must have judgment, with costs.

Present — BaeNAbd, P. J., G-ilbeet and DvKMAN, J J.

Judgment for defendants upon submitted case, with costs.


author: BarNArd, P. J.;

text:
    AMOS M. RYERSON, Respondent, v. JOHN KAUFFIELD, Appellant.

      Oomim'sion — demand — when it must be proved.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The only question raised upon the appeal related to the second cause of action set forth in the complaint, which alleged that, by a contract entered into between the plaintiff and defendant, it was further understood and agreed by and between them, that the plaintiff should send to the defendant, in his (the said plaintiff’s) cans the milk sold and to be delivered under and by virtue of said ■contract, as hereinbefore set forth, and that the defendant should return to the plaintiff all cans so sent to and received by said defendant; that, in accordance with such' agreement, the plaintiff from time to time, sent a large number of cans to the defendant, containing the milk sent to and received by him as hereinbefore set forth; that the defendant received such cans containing such milk as aforesaid, and in violation of the said contract, neglected and still neglects to return a large number of such cans so received by him as aforesaid, to wit, the number of twenty cans, and that by reason of the facts and circumstances last aforesaid, the plaintiff has suffered loss and damage from the defendant in the further sum of sixty dollars. The question was, whether the facts so set forth showed a conversion of the cans.

      "With reference to tbis tbe court at .General Term said:

      “ There was no conversion of the milk cans established upon the trial. The defendant received the cans from the plaintiff under an agreement that he would return them to the plaintiff, and he has neglected so to do. There has been no demand made for their return. The possession of the defendant was lawful, and until he was guilty of some tortious act in reference to the property there was no conversion. {Hall v. JRobmson, 2 N. Y., 293; Jessop v. Miller, 1 Keyes, 321.) Mere omission is not conversion or equivalent to a conversion. {Hawlmis v. Hoffman, 6 Hill, 588 ; Scovill v. Griffith, 12 N. Y., 509.)”
    The judgment should be reversed and a new trial granted, .costs to abide event.

      Richa/rd L. Sweezy, for the appellant. Bacon de Dwryea,- for the respondent.
   Opinion by

BarNArd, P. J.;

Gilbert, J., concurred ; DyeaiAN, J., not sitting.

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.


author: Dyichan, J.;

text:
    THOMAS C. VAN BRUNT, Respondent, v. JOHN AHEARN, Impleaded, etc., Appellant.
    Complaint— alleging obstruction of highway — Public nuisance — when an action to abate, is maintainable.

    Appeal from an order overruling a demurrer to the complaint.
    The complaint in this action alleges that the plaintiff is the owner of certain land fronting on a certain way, road or street, known as Catharine street. In one portion of the complaint the plaintiff states that he is entitled to a right of way through Catharine street, as an easement, and in another part he states substantially that Catharine street is a public highway., The plaintiff further states that his only means of access to his land is through Catharine street. It is then charged that the defendant, with another person, have wrongfully dug up this street and erected upon it a building, and placed across it a fence, so as to prevent all passing over it by tbe plaintiff, and tbat damage has resulted to the plaintiff by these wrongful acts; that the defendants continue the obstruction and refuse to remove them, and that since the erection of these structures he has been deprived of the use of this street. The relief demanded is that Catharine street be restored to its previous condition ; that the defendant be enjoined from further interfering with the plaintiff’s rights therein, and that the plaintiff recover the damages sustained.
    A demurrer to this complaint was interposed on the grounds following:

      First. That there is a defect of parties defendant.

      Second. That several causes of action have been improperly united.

      Thwd. That the complaint does not state facts sufficient to constitute a cause of action.
    After disposing of the two first grounds of the demurrer, with reference to the third cause, the court at General Term said:
    “ The complaint does state facts sufficient to constitute a cause of action. It alleges that the plaintiff is the owner of land fronting on Catharine street, and that his only public entrance to the said land and his only mode of access thereto was through that street; that he has a private right of. way as an easement over the said street to his lands, and also that it is a public highway, and that the defendants have fenced up the street and continued the obstructions so that the plaintiff cannot reach his land through the same. If the plaintiff has a right of- way over the street, then, although the obstructions are not a public nuisance, yet the plaintiff has the right to have it abated and to invoke the aid of the court to cause its removal. {Drake v. Rogers, 3 Hill, 604.)
    If the street is a public highway, then the obstacles are a public nuisance, and the plaintiff may maintain this action for its abatement, having alleged special damages peculiar to himself. {Dela/ney v. BUzzcurd, 7 Hun, 7; Knox v. Mayor, 55 Barb., 404.)
    The defendant’s counsel seem to regard this as an action for the abatement of a nuisance similar to the common-law action for that purpose, and that it was necessary to allege that the plaintiffs were the owners of the freehold affected by the nuisance at the time the acts complained of were committed, and that the defendants were tbe owners of tbe land wbereon tbe nuisance was erected. In tbis tbe counsel is in error. As bas been already stated, it is an action in equity, and tbe court can administer relief in tbis class of cases on broad principles of justice, without reference to technicalities wbicb prevailed formerly on this subject in courts of law. (Knox v. Mayor, supra.)”

      Frcmlc Groolce, for tbe appellant. Alfred B. Grwilcslicmk, for tbe respondent.
   Opinion by

Dyichan, J.;

Babnabd, P. J., concurred ; Gilbebt, J., not sitting.

Order overruling demurrer to complaint affirmed, with costs and disbursements.


author: BaeNAed, P. J.;

text:
    MARGARET S. WOODBRIDGE, Appellant, v. PELEG NELSON, Respondent.

      Oomersion of jyi'operty — what evidence sufficient to establish — order of arrest for.

    Appeal from an order made at tbe Special Term, setting aside an order of arrest.
    Tbe court, at General Term, said: “ Tbe facts so far as they are material for tbe discussion of tbe present appeal are few. On tbe 27th of January, 1877, tbe plaintiff owned certain household furniture wbicb she bad in her possession in tbe bouse, 24 Nassau street, Brooklyn. On that day she sold tbe furniture to defendant, and took in part payment for the same a note of $250, accompanied by a chattel mortgage. The note was payable at six months, and tbe mortgage was filed in tbe proper office. It was. designed and intended that tbe furniture should remain in tbe bouse 24 Nassau street, until after tbe note was paid. The defendant without plaintiff’s knowledge, moved three times before tbe note was due. Tbe plaintiff, in tbe last days of July, 1877, found him occupying rooms in Hicks street; be bad not taken tbe furniture there. Tbe plaintiff called there on the 30th of July, 1877, tbe last day of grace upon tbe note,' and was told by défendant’s wife that be was in Boston. Defendant’s wife also told plaintiff at tbis interview that she did not know where the furniture was. Plaintiff called twice at the same place in Hicks street, on the 4th. of August, 1877. Neither time was she able to find defendant. On one of these occasions defendant’s wife told her that her husband had gone to Boston and would return the tenth or elevénth of August; that she did not know where the furniture was. After being pressed by plaintiff, she said it was stored in Myrtle avenue, but she didn’t know where. On the tenth of August plaintiff again called at Hicks street and defendant and his wife had both moved away the day before. Plaintiff is unable to find her property or any property of defendant and is unable to find defendant, nor that he has any known residence. By the default in the payment of the mortgage the title became absolute • in plaintiff. No demand is necessary if the property has been converted by defendant. The .only question upon this appeal is, whether these facts would entitle the plaintiff to go to a jury upon the question of conversion if the facts remain uncontradicted upon the trial. I think they would. I think the jury would, without hesitation, find a conversion ■ in fact.
    The order should be reversed with costs, and the motion denied with costs.”

      Samuel W. Judson, for the appellant. John Cummms, for the respondent.
   Opinion by

BaeNAed, P. J.;

Gilbbet and Dykman, JJ., concurred.

Order vacating order of arrest reversed, with costs and disbursements.


author: Gilbert, J.

text:
    CHARLES T. HARVEY, Respondent, v. THE WEST-SIDE ELEVATED (PATENTED) RAILWAY COMPANY, Appellant.

      Account stated — cmthority of officer of cmporation to malee — Account rendered — what necessan'y to constitute it an account stated.

    Appeal from a judgment in favor of tlie plaintiff, entered upon the report of a referee.
    The action was brought to recover the amount due upon an account stated. The plaintiff, while vice-president of the corporation defendant asked Mr. Taylor, who was the book-keeper of the corporation, and who also performed the duties of secretary and assistant treasurer thereof, for a copy of his account on the books of the corporation. Thereupon Mr. Taylor gave him a transcript of his account on the ledger. This action is founded solely upon that transcript, which the plaintiff claims is an account stated. The referee sustained such claim and rendered judgment for the plaintiff for the amount which appeared by said transcript to be due him with interest.
    The court, at General Term, said: “We think the referee erred. No evidence was given which shows that Mr. Taylor was authorized to render an account to the plaintiff, which should be conclusive on the defendant. Without such authority an account rendered by him would not become binding on the corporation by the acquiescence of the plaintiff. Even if such an authority might be implied from the general duties of a treasurer or assistant treasurer, when such officer had rendered an account to a debtor of the corporation, it by no means follows that actual authority need not be shown when the legal effect of the act would be to liquidate or establish unsettled demands against the corporation. An officer who does not possess the power to create a debt against the corporation directly, cannot do it indirectly by sending an account which shows a balance due to the person to whom it is sent.
    In this case, however, Mr. Taylor did not assume to exercise such a power. He sent no account to be acquiesced in or rejected by the plaintiff. His attention was not called to the question whether the account was full or accurate or not. In short, he merely complied with the plaintiff’s request without any intention of binding the corporation. An essential element of an account stated, therefore, is wanting, namely, that it was rendered for the purpose of asserting a claim, or at least of establishing the balance' due thereby.
    Upon these grounds, namely (1), that no authority in Mr.-Taylor to bind the corporation by means of an account stated, was shown ; and (2), that Mr. Taylor did not intend or assume to exercise such a power. We think the judgment should be reversed and a new trial granted at the Circuit, with costs to abide the event.”

      Dudley Field, for the appellant. J. 8. Millard, for the-respondent.
   Opinion by

Gilbert, J.

Present — BabNAed, P. J., Gilbert and Dyeman, JJ.

Judgment reversed, with costs to abide event, and new trial granted at Circuit.


text:
    ANNIE JENNINGS, Respondent, v. STRATFORD P. DAVIDSON and CATHARINE O. DAVIDSON, his Wife, Appellants.

      Action for malicious prosecution — malice — inference as to.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages for malicious prosecution.
    Upon the appeal the court at General Term said: “ The plaintiff, to maintain her action, was bound to prove both want of probable cause and malice. Malice may be inferred from the want of probable cause. The court erred in charging the jury that ‘ the law infers malice when there is a want of probable cause.’ The jury might infer it, but it is not an absolute inference of law. The court refused to charge. the proposition ‘ that when there is want of probable cause, malice may be inferred,’ saying ‘ the jury are bound to infer it.’ This was also erroneous. (Heyne v. Blair, 62 N. Y., 19.)

      IJpon the whole case, I think there was abundant proof of probable cause. It is not necessary, however, to decide this question upon this appeal. A new trial may be supported by other evidence.”

      J. Warren Lawton, for the appellants. Mcvrtin J. Keogh, for the respondent.
   Opinion by

BaeNAed, P. J.;

G-ilbeet and DtemaN, JJ., concurred.

Judgment and order denying new trial reversed and new trial granted, with costs to abide event.


author: DÁvis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. BENJAMIN K. PHELPS v. THE COURT OF GENERAL SESSIONS OF THE COUNTY OF NEW YORK, Respondent.

      A civil justice in New York — not a/n officer or employe of the city gov&rn/ment unde/r §. 95 of chap. 335 of. 1873 — Indictment for obtaining money by false pretenses — what must be alleged, in.

    A civil justice of one of the District Courts in the city of New York is not “an officer of the city government or a person employed in its service ” within the meaning of section 95 of chapter 335 of 1873.
    An indictment alleging that the defendant, with intent feloniously to cheat and defraud the city of New York, and to get into his possession a certain sum of money belonging to said city, knowingly made certain false and fraudulent representations to an officer thereof whereby the latter was induced to pay the said money to a third person, but which does not allege that the defendant received the money or any portion thereof, either alone or in conjunction with others, is bad and should be quashed.

      Qucere, whether, if the indictment charged that the person who made the false pretenses obtained the money, it would be sufficient upon the trial to show that some other person actually received it.
    Where it is claimed that there is a misjoinder of counts in an indictment because the first count charges a misdemeanor only, and the second count a felony, the proper remedy is to put the district attorney to his election, or to ask the court to give proper instructions to the jury as to their verdict; such misjoinder does not entitle the defendant to have the indictment quashed, except in the discretion of the court.

      CeRtioeaei, brought by tbe district attorney, to review tbe judgment and decision of tbe Court of General Sessions, quashing an indictment theretofore found in that court against one John Flanigan.
    Flanigan, it was charged, while a civil 'justice of the Tenth Judicial Court of the city of New York falsely certified upon the pay roll of his court to the comptroller of the city, upon the forms provided by him for that purpose, that one Benjamin F. Iiaskin had rendered services as a stenographer to said court and was entitled to pay therefor, when in fact the said Iiaskin was not a stenographer and had never rendered any service as such.
    Upon these allegations Flanigan was indicted. The indictment contained three counts: First count charged that, by reason of the premises substantially above set forth, “ Flanigan, justice, as aforesaid, and being a person holding a public trust, office and employ, ment in said city and county of New York, etc., unlawfully, knowingly and corruptly did willfully neglect to perform the duty imposed upon him by law as such justice,” viz., “ to correctly state and certify to the said corporation the services rendered in said court by the several persons attached thereto,” etc. Second count charges the same facts as being an abuse of powers. Third count charges the same facts, as the obtaining of money from the corporation by false pretenses.
    The motion to quash was based on the following grounds: 1st. That there is a misjoinder in uniting the two first counts, which are for misdemeanor, with the third for false pretenses claimed to be a felony. 2d. That the two first counts cannot be maintained except upon the theory that Flanigan, as such district justice, was an officer of- the corporation of the city of New York, within the meaning of chapter 335 of the Laws of 1873 (Session Laws of that year, p. 484), and especially of section 95 thereof (p. 509), and that he was not such officer. 3d. That the count for false pretenses cannot be maintained, inasmuch as the party who made the pretense does not appear to be the party who obtained the money.
    The motion to quash was granted by the city judge upon the two latter grounds, no opinion being expressed by him on the question of joinder.

      B. K. Phel/ps, for the plaintiff in error.

      WillÁam F. Ki/ntmng and John Fla/nagan, for the respondent.
    The third count in the indictment charging false pretenses is fatally defective in substance and is demurrable. The court properly quashed it. (3 Rev. Stat. [6th ed., Banks Bros.], 948, § 58; Bex v. Garrett, 1 Dears. O. C., 232; see Graves’ Criminal Statute, 136; 3 Russell on Crime, 618, note d [4th ed.]; Bex v. Wa/oel, 1 Moody C. C., 224; Bex v. Eagleton, 1 Dears. C. C., 515 ; Bex v. Wetohel, 2 East P. 0., 830.) '
   DÁvis, P. J.:

If it be conceded, that there is a misjoinder of counts in the indictment because the first count charged a misdemeanor only, and the second a felony, that fact would not entitle the defendant to have the indictment quashed; for two reasons:

1. The motion to quash is addressed to the discretion of the court, and its refusal, when based upon a misjoinder of counts, would not be error. '

2. The proper remedy in such a case is, by motion at • the trial, to require the prosecuting attorney to elect upon which count of the indictment he will proceed; or to ask the court to give proper instructions to the jury in relation to their verdict.

The first and second counts of the indictment were quashed on the ground that the defendant was not “ an officer of the city government, or a person employed in its service.” These counts were based on section 95 of the act of April 30, 1873. (Laws of 1873, chap. 335, pp. 484, 509.) Section 95 of that act declares that “ any officer of the city government, or person employed in its service, who shall willfully violate or evade any of the provisions of this act, or commit any fraud upon the city' * * * shall be deemed guilty of a misdemeanor.”

■ The defendant was a civil justice of the tenth judicial District Court of the city of New York. The question whether he, as such justice, was an officer of the city government or a person employed in its service, was disposed of by Quin v. The Mayor (44 How. Pr., 266), which was affirmed by this court and reaffirmed by the Court of Appeals (53 N. Y., 627), on the opinion given at Special Term, by FaNoher, J. It is there held that the District Courts formed part of the judicial system of tbe State, and that their justices are not local officers of the city, within the meaning of section 97 of chapter 335 of the Laws of 1873. It seems necessarily to follow, that they are not officers within the meaning of section 95 of the same act.

The same question has been before the courts in respect to the clerks of the District-Courts, and it was held both by this court and by the Court of Appeals, affirming the judgment of this court, that such clerks are not local officers of the city and county of New York, for the same reason that the justices of those courts are not such officers. (Whitmore v. Mayor, 5 Hun, 195; S. C., 67 N. Y., 21.) The same point was also adjudicated in the same way by the Superior Court of the city of New York. (Landon v. Mayor, 7 J. & S., 467.) The question can no longer be considered an open one ; and the- judgment of the Court of Sessions quashing the first and second counts of the indictment must, for that reason, be affirmed.

The question as to the third count of the indictment would seem by the opinion of the court below, to have been disposed of, in part at least, upon a concession of the district attorney, that the count could not be sustained, and an expression of his willingness that it should be quashed. But it is now insisted that this part of the opinion of the court below is the result of a misunderstanding; at all events, the same concession is not made here, but, on the contrary, it is urged that the indictment properly charges the crime of obtaining money by false pretenses, as defined by the statute. (3 E. S. [6th ed.], 948, § 58.)

The count.charges in substance that the defendant, being a justice of the Tenth District Civil Court of the city of New York, with intent feloniously to cheat and defraud the mayor of said city of New York, and to obtain and get into his possession the sum of $166.66, in money, of the proper moneys of the said corporation, did then and there feloniously, unlawfully, knowingly, and designedly, falsely pretend, represent, and upon the pay-roll of the said Tenth District Civil Court, for the month of September, 1874, certify in writing to the comptroller of the said city, that Benjamin F. Haskin, whose name appeared upon said pay-roll as .stenographer of the Tenth District Court, had performed services in said court for the corporation aforesaid as such stenographer, from the first to the thirtieth day of September, 1874, inclusive, as in the said pay-roll set forth; and that there was then due to him for such services, from the corporation aforesaid, the sum of $166.60 in money. That the comptroller believing said false pretenses, representations and certificate in writing, so made as aforesaid by the said justice, and being deceived thereby, was induced by reason thereof to deliver and cause to be delivered and did then and there deliver and cause to be delivered to the said Benjamin F. Iiasldn a certain sum of money, to wit, the sum of $166.66, in money; and the said Has-kin did then and there designedly receive and obtain the said sum of money by means of the false pretenses, representations and certificate aforesaid, with intent on the part of both the said defendant and the said Haskin feloniously to cheat and defraud the said mayor, etc., of New York, of that sum.

It then avers that the said Haskin had not rendered services as stenographer during the time named in said pay-roll, and that the said mayor, etc., were not indebted to the said Haskin for services rendered as stenographer to said court, in the sum named or in any other sum, nor was the said Haskin .entitled to demand, require or receive any sum of money whatever from the said mayor, etc., on account of services rendered or alleged to be rendered by him as such stenographer, as the said defendant at the time he made the aforesaid false pretenses, representation and certificate well knew.

And then follows the general conclusion, averring as the legal éffeet of the charge, that the said Haskin and said defendant, by means of the false pretenses, representations and certificate aforesaid, so made by the defendant, unlawfully, falsely, knowingly and designedly, did receive and obtain from the comptroller the sum of money aforesaid.

The charging part of the indictment does not allege that the money or any part thereof was obtained or received by the defendant ; and the question presented to this court is whether it. is sufficient to charge that by reason of an alleged false representation made by the defendant, the money or property of another has been obtained by a third person. The count would unquestionably be good if the charging part had .alleged that the pretense was by the defendant, and the obtaining and receiving the money under the pretense was by Haskin and the defendant, for this would set out a sufficient obtaining by tbe defendant. Where a false pretense is made by one party and moneys obtained thereon by two or more, it is enough to charge that the person who made the pretenses is one of the parties by whom the money or property was obtained. But it is not so clear that it is sufficient to allege that the defendant made the false pretenses upon which some other person obtained money.

As matter of pleading we think the indictment is bad, for it should be in form a charge that the person who made the pretenses obtained the money and property, even if it would be sufficient to show, on the trial, that some other person actually received it. There may be cases, perhaps, in which the courts would hold that under our statute of false pretenses it would be sufficient, in order to uphold.the allegation, that the defendant who made the pretenses obtained the property, to show that it was delivered or received by some other person by reason of such false pretenses. But in such case the pleading should distinctly aver the obtaining to have been by the person prosecuted in and by the indictment. The charging part of this indictment does not allege that the defendant obtained or received any sum of money; on the contrary it avers that the defendant, as such justice, affixed his certificate to the pay-roll, upon which one Haskin obtained and received money from the city as his salary as stenographer when, in fact, he rendered no such service. And we do not think this defect is cured by the averment as to the legal effect of the facts charged, contained in the concluding portion of the indictment.

A similar question was before the courts under an English statute (Vict., 24, 25, cap. 96, § 88 ; Reg. v. Garrett, 1 Dears. C. C., 232), in which it was held in substance, that it must be shown under the statute that the property was obtained by the prisoner. Maulé, J., said: “ The word £ obtain ’ means the same as the word ‘get,’ in its sense of ‘acquire.’” Pabke, B., said: “The word ‘ obtain ’ seems to mean, not so much a defrauding, or depriving another of his property, as the obtaining of some benefit to the party.” And in consequence of that decision a new statute was passed, covering a case where one party, by a false pretense, caused or procured money or property to be delivered to another person for his use or benefit, or for the use or benefit of any person, with intent to defraud. (3 Russel on Crimes, 618, note b; Roscoe’s Crim. Ev. [7th ed.], 473.)

We are of the opinion, therefore, that the third count of the indictment was also properly quashed, because its charging part did not contain any averment that the money was obtained by the defendant named in the indictment.

The order and judgment should, therefore, be affirmed.

Brady and Ingadls, JJ., concurred.

Judgment and order affirmed.


author: Davis, P. J.:

text:
    GEORGE OPDYKE and others, Plaintiffs, v. GEORGE A. MERWIN and others, Defendants.

      Usmy — Contract — by what laws to be governed.

      W., a resident of Connecticut, drew, in that State, a draft upon the defendant, a resident of New York, directed to him at his place of business in New York, and the same was accepted by him, payable in New York, solely for the accommodation of the drawer and returned to W., in Connecticut., with the expectation that it would be negotiated in that State. W. discounted the draft in Connecticut at the rate of three per cent per month.
    In an action upon the draft brought in this State, held, that as the draft had no existence as a contract until discounted in Connecticut, and as the acceptor understood that it was to be used in that State, tbe acceptance must be regarded as a Connecticut contract; that the question of usury and its effect upon the validity of the draft was to be governed by the laws of Connecticut and not by the laws of New York, and that the mere fact that the paper was payable in this State did not render it subject to our law as to usury.
    Motion for anew trial on exceptions ordered to be heard, in the first instance at the General Term, after a verdict directed by the court.
    This action was brought by the plaintiffs, as owners and holders of two drafts drawn by John IT. Wingfield of Connecticut upon, and accepted, payable in the city of New York, by the defendants, then residents of that city. The drafts were dated in New Haven and directed to the defendants at their place of business at No. 60 Duane street, New York. They were accepted for the accommodation of the maker and were returned to him with authority to use them in the State of Connecticut where they were discounted at the rate of three per cent per month.

      Miller, Peet <& Opdyke, for the plaintiffs.
    The production of the drafts by plaintiffs was presumptive proof that they were the legal owners, for value, in the usual course of business and before maturity, and conclusive proof of the same in the absence of proof of illegality or fraud in the inception of the drafts or that the drafts had been lost or stolen. (1 Dan. on Negotiable Inst., § 812; Collins v. Gilbert, 94 U. S., 753; Ross v. Bedell, 5 Duer, 462, 467; Charles v. Marsden, 1 Taunt., 224; Grant v. Elliott, 7 Wend., 229; Com. Barde v. Norton, 1 Hill, 501; Ramey v. Towers, 4.Ex. L. and Eq. R., 537; Berry v. Alderman, 24 id., 318 ; see, also, Grocers’ B'cmJc v. Penfield, 7 Hun,' 279; affirmed by Court of Appeals, 2 Abb. [N. Cas.], 305; Bchepp v. Carpenter, 51 N. Y., 602; Mechs. and Trs. Bank v. Crow, 60 id., 85.)

      Joseph N. Dickson, for the defendants.
    On the trial no evidence of ownership was offered, except mere naked possession. This is not sufficient when the note has been shown to be of illegal inception or without consideration. (Edwards on Bills, * 686 ; BtaUcer v. McDonald, 6 Hill, 96; Wardmell v. Rowell, 9 Wend., 170 • Vallet v. Parker, 6 id., 615 ; Bañley v. Bidwell, 13 Mees. & Weis., 73; Reath v. Bansom, 2 Barn. & Adolp., 297.) The court erred in declining to direct a verdict in favor of defendants on the ground that the drafts were void for usury, and the plaintiffs could not maintain an action upon them against defendants. The place of performance of the contract in this case was New York. The place of acceptor’s residence shall be the place of payment} unless otherwise stipulated. (Freese ads. Brownell, 10 Am. R., 239; Edwards on Bills, *495.) In considering what is “the place of contract,” with a view to determine what law governs it, the engagements of the maker and indorser of a note are to be treated as independent contracts. (lee v. Belleck, 33 N. Y., 615.) As to the acceptor of a draft the law of the place where it is payable governs as to the question of legal interest and legality generally. It is the place of performance. (Jewell v. Wright, 30 N. Y., 259 ; Cutler v. Wright, 22 id., 480; Everett v. Vendryes, 19 id., 436 ; Curtis v. Leamitt, 15 id., 9, 227 ; Story on Conflict of Laws, §§ 282, 291.) When a note made and dated in this State is negotiated in another State at a rate of discount exceeding seven per cent the laws of New York control, and no action can be maintained upon tbe note here. (Jewell v. Wright, 30 N. Y., 259; Olayes v. Hoolcer, 4 Hun, 231.)
   Davis, P. J.:

A verdict was directed in tbis case at Circuit, and tbe exceptions were ordered to be beard in tbe first instance in tbis court.

One Winterfield, wbo resided at Stamford, in tbe State of Connecticut, made tbe drafts in suit in that State. They were drawn upon tbe defendants in tbis action, in tbe firm name of George A. Merwin & Co., at No. 160 Duane street, in tbe city of New York, wbicb was tbeir place of business. Tbe defendants then resided in tbis city. Tbe drawer forwarded the drafts to tbe defendants, wbo accepted tbe same in tbeir. firm name and returned them to him. Tbe acceptance was purely for tbe accommodation of tbe drawer, and without any consideration between him and tbe acceptors. After receiving back tbe accepted drafts, tbe drawer forwarded them for discount to one Beach, a banker, at New Haven, Connecticut, by whom they were discounted, at tbe rate of three per cent per month, and tbe proceeds were used by tbe drawer in bis business at New Haven. Tbe drafts were afterwards indorsed by Beach to tbe plaintiffs, and on presentation for payment, payment was refused.

By tbe laws of Connecticut, wbicb were proved on tbe trial, the rate of interest in that State is seven per cent a year, but tbe effect of receiving more, is tbe forfeiture of tbe “ money or property so received to any person wbo shall sue therefor, within one year thereafter.” Tbe plaintiffs’ counsel asked tbe court to direct a verdict for tbe plaintiffs, in accordance with tbe provisions of tbe statute of Connecticut. Tbe court so directed, deducting tbe excess of interest over and above seven per cent, and to tbis direction tbe defendants excepted. The defendants’ counsel moved to dismiss tbe complaint for want of proof of ownership of tbe drafts by tbe plaintiffs. He also moved, that tbe court direct a verdict for tbe defendants, on tbe ground that the rate of discount was usurious under tbe laws of tbis State and tbe acceptances were invalid. Tbe court refused and tbe defendants duly excepted.

As to tbe exception of tbe defendants to tbe denial of tbe first motion to dismiss tbe complaint it is enough to say that tbe production of the note, and the indorsement thereon by Beach to the plaintiffs, was prima facie evidence of ownership, and sufficient to entitle the plaintiffs to recover under the evidence in this case, unless the alleged defense of usury was established. (Mechanics and Traders' National Bank v. Crow, 60 N. Y., 85.)

As to the exception to the second motion of the defendant, unless the case is distinguishable from Jewell v. Wright (30 N. Y., 259) and Clayes v. Hooker (4 Hun, 231), it must be deemed to be disposed of by the case of Dickinson v. Edwards, decided at the present term of this court (post p. 405), holding the above cases to be sta/re decisis of the question therein involved.

But that case and this are not precisely analogous in their facts. In this case the drawer resided in Connecticut, he drew the drafts in that State; they were accepted in the State of New York by the defendants, solely for his accommodation, and returned to him, of course, with authority to use them in the State of Connecticut, and doubtless with the expectation that they would be so used. They were discounted in that State, and in that act each of them had its legal inception. Inasmuch as the acceptances had no legal existence as contracts until the delivery of them to Beach upon the discounting, and as such delivery must be held to be authorized by the acceptors, the acceptances must be regarded as contracts made in the State of Connecticut, notwithstanding the signatures of the defendants to the acceptances were given in New York. The drafts under the facts proved, were mere waste paper in the hands of the drawer until the delivery to Beach, and in legal effect the acceptances can only be considered a consummated contract by such delivery. The transaction of discount under the laws of Connecticut was a lawful one, so far as the validity of the paper is concerned, for the only effect of reserving more than seven per cent under those laws is a forfeiture of the excessive interest when sued for within a year. The acceptances were, however, payable at the place of business of the defendants in the city of New York, where alone they could lawfully be presented and payment demanded. But it has been held that the mere fact that paper is payable in this State which has been made and discounted in another State, at a rate of interest greater than is allowed by our statute, does not render it void by our laws if Valid by the laws of tbe State where it was made and discounted. (Balme v. Wambough, 38 Barb., 352; Bank of Georgia v. Lewin, 45 id., 340; First National Bank v. Morris, 1 Hun, 680, and cases there cited.) It must be conceded that these cases, impugn the general rule that contracts are to be governed by the law of the place where they are to be performed; but the severe consequences of usury have often been deemed a sufficient,reason for making such exceptions. Under the authorities already cited, we feel ourselves justified in holding that the drafts in suit are contracts governed by the laws of Connecticut, and that the question of usury was properly disposed of by the court below; leaving it for the court of last resort to determine whether Jewell v. Wright disposes of the question adversely to this view.

The result is, that the plaintiffs are entitled to judgment upon the verdict, with costs.

Ordered accordingly.

Ingalls, J., concurred; Brady, J., dissented.

Judgment ordered for the plaintiff on the verdict, with costs.


text:
    EDWARD B. DICKINSON, Respondent, v. WILLIAM Y. EDWARDS, Appellant.

      Usury — contract— by what two governed.

    The defendant signed and delivered at the city of New York a promissory note, dated at that place, whereby, three months from its date, he promised to pay to the order of B. & Q-. $300 at the New York National Exchange Bank. The note was made solely for the accommodation of the payees. The note was sold in Boston, Massachusetts, by the payees at a rate of discount usurious under the laws of this State.
    In an action by the plaintiff, to whom it had been transferred by the purchaser, held, that the question of usury was governed by the laws of this State and that the note was void.

      Jewell v. Wright (30 N. Y., 359) followed.
    Appeal by defendant from an order made upon the minutes of the justice before whom the action was tried, setting aside a verdict and granting a new trial.

      E. P. Bellamy and W. 8. Packer, for the appellant.

      W. B. Beach, for the respondent.
   Davis, P. J.:

This action was brought upon a promissory note which is in words and figures following:

“ $300. New York, November 14, 1874.
Three months after date, I promise to pay to the order of Messrs. Bailey and Gilbert, three hundred dollars at the New York National Exchange bank. Yalue received.
W. Y. EDWARDS.”

This note was written and signed by the maker and delivered to the payee above named at the city of New York. The jury found that it was purely an accommodation note without consideration as between the maker and the payees. The payees, Messrs. Bailey and Gilbert, indorsed and sold, the noté at Boston, in the State of Massachusetts, to one Pulcifer, who afterwards assigned it to the plaintiff. The note was sold at a rate of discount which would make it usurious and void by the laws of this State.

The jury, under a charge properly submitting the question in controversy between the parties, found a verdict for the defendant upon the defence of usury alleged in the answer, and the learned judge upon the motion for a new trial, based upon his minutes, granted the same, holding in substance that the note being accommodation paper had no legal inception until its sale and delivery in Boston, and must, therefore, be regarded as a contract made in Massachusetts, and in respect to the rate of interest not affected by the laws of the State of New York. This decision is in direct conflict with and necessarily overrules the decision of the Court of Appeals in Jewell v. Wright (30 N. Y., 259). That case was inquatuor pedibus in all material respects, with the present. In that case the promissory note of the defendant Wright, payable to the order of the defendant Dunlap, was signed and indorsed and delivered to the defendant Taylor, at Lockport in this State. It was payable at the Niagara County Bank at Lockport, one year from its date, and was made and indorsed solely for the accommodation of Taylor. Taylor took it to Connecticut, where it was discounted, at the rate of twelve per cent, such discounting being its first negotiation. The Court of Appeals held that the note was governed by the laws of this State where it was made payable, and having been discounted at a greater rate than seven per cent, was void under our statutes against usury. The proposition that such a note is to be governed by the laws of the State where it was made payable, is sustained in Jewell v. Wright, by the citation of numerous authorities, among which were Davis v. Garr (2 Seld., 124), Jacks v. Nichols (1 Seld., 178), Curtis v. Leavitt (15 N. Y., 9), Bowen v. Newell (13 id., 290), Everett v. Vendryes (19 id., 436), Cutler v. Wright (22 id., 472), and Jewell v. Wright was followed by this court in Hildreth v. Shepard (65 Barb., 269).

The authority of Jewell v. Wright has been questioned, and may be said to have been seriously impaired by a number of cases since decided, in this and other courts. (Bank of Georgia v. Lewin, 45 Barb., 340; Balme v. Wambough, 38 Barb., 352; Bowen v. Bradley, 9 Abb., [N. S.] 395; Tilden v. Blair, 21 Wall., 241; First National Bank v. Morris, 1 Hun, 680.)

In the last of these cases, while Daniels, J., criticised and doubted the correctness of the decision in Jewell v. Wright, he also said, still it may well be doubted whether a proper sense of decorum is consistent with the position that the decision in Jewell v. Wright, as long as it has not been overruled by the court pronouncing it, can properly be disregarded by this court. That case was determined, however, upon the question settled by Rosa v. Butterfield (33 N. Y., 665), to'wit: that the sureties of a corporation can not defend an action on the ground of usury since by the statutes of this State the right to plead usury as a defense has been taken away from corporations.

Jewell v. Wright is followed in Clayes v. Hooker (4 Hun, 231), a case strongly analogous in its facts to the present.

Without entering into a discussion of the questions presented in the several cases above mentioned, it is enough to say that we feel constrained in this case, which is in all respects similar to that of Jewell v. Wright, to follow that decision, while it remains undisturbed by the court in which it was pronounced.

The order granting tbe new trial should be reversed, witb costs, and with leave to tbe plaintiff to prosecute an appeal to the Court of Appeals.

Brady and Ingalls, JJ., concurred.

Order granting new trial reversed, witb costs, and witb leave to the plaintiff to appeal to tbe Court of Appeals.


text:
    FRANCIS BROWN and FRANCIS GORDON BROWN, Appellants, v. JOSEPH W. SMITH, Respondent. JOHN D. WING and another, Appellants, v. THE SAME, Respondent. PETER A. WELCH and others, Appellants, v. THE SAME, Respondent.

      Mdnufactmers’ act, chap. 40 of 1848, and chap. 333 of 1853 — certificate of payment of stock — must be sworn to — Issue of stock for property purchased — liability oj holder to creditors.

    The certificate as to the payment of the capital stock of a manufacturing corporation, required to be filed by section 11 of chapter 40 of 1848, must be sworn to, and a mere acknowledgment is not a sufficient compliance with the provisions of the statute.
    Where, in pursuance of section 10 of the said act, as amended by the act of 1853, stock has been issued to a person for the value of a manufactory and other property which has been purchased by the company, there being no fraud in the valuation of the property, he is not liable to the creditors of the company because of a failure on the part of the president and a majority of the trustees to file the certificate required by section 11 of the said act.
    Appeals from judgments in favor of tbe defendant, entered upon tbe report of a referee.

      Gha/rles JE. Tracy, for tbe appellants.

      Frelvng JE. Smith, for tbe respondent.
   Davis, P. J.:

The precise question upon which the learned referee disposed of this case in favor of the defendant was not presented or passed upon in any of the numerous authorities cited by the respective counsel. The actions were brought against the defendant, as a stockholder of a manufacturing corporation, organized under the general manufacturing act (chap. 40 of the Laws of 1848), as amended by chapter 333 of the Laws of 1853, to enforce a personal liability created by section 10 of the original act, on the ground that a certificate that the capital stock has been paid in, had not been made and recorded in the office of the county clerk, in accordance with the provisions of section 11 of the act.

A certificate was made by the president of the company and a majority of the trustees, certifying that the number of the shares of the capital stock of the company, was fixed at 1,400 of the par value of $100 each, and that the full number of such shares had been issued by the company, for which $30,000 had been paid in cash, and $110,000 in real estate and machinery. The execution of the certificate was duly acknowledged by the president, and the trustees ivho subscribed the same, and it was recorded in the office of the proper county, but it was not sworn to by any of the officers as required by the eleventh section of the act.

The referee held that the certificate was fatally defective, because it was not sworn to. In this, we think he was right, because the statute plainly requires a verification by oath, and a mere acknowledgment is not a proper substitute for that requirement. The officers of the corporation might feel free to acknowledge such a certificate, and yet wholly unwilling to verify it by oath.

The amendatory act of 1853 is in pari materia, with the act of 1848, and both are to be read together to ascertain the intention of the legislature. Section 10 is to be read as though section 2 of the act of 1853, had originally formed a part of it. For this purpose it should read as follows':

“ Section 10. All the stockholders of every company incorporated under this act, shall be severally, individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by sucb company shall have been paid in, and a certificate thereof shall have been made and recorded as prescribed in the following section : * * * But the trustees of such company may purchase mines, manufactories, and other property necessary for their business, and issue stock to the amount of the value thereof, in payment therefor; and the stock so issued shall be declared and taken to be full stock, and not liable to any further calls; neither shall the holders thereof be liable for any further payments under the provisions of this section, but in all statements and reports of the company to be publishedj this stock shall not be stated or reported as being issued for cash paid into the company, but shall be reported in this respect according to the fact.”

The defendant in this case is the holder of stock to the amount of $25,000 ; his shares were issued to and accepted by him, at the par value thereof, in part payment of a manufactory and other property necessary for the business of said company and purchased of him by the trustees for said company; his stock was issued and accepted as fully paid stock, and he never held or owned any other stock of said company. No question of fraud in the valuation of the property sold by him to the company is made, and it seems to be assumed, under the findings of the referee, to have been purchased at its fair value. The question presented, is whether such a stockholder is liable to the creditors of a corporation, under the provisions of the tenth section as amended, because the president and trustee failed to file the certificate in the form prescribed by the eleventh section of the act of 1848. The tenth section, as above read in connection with the amendment, provides that the stock issued in payment for the purchase of property to Ihe amount of the value of such property, “shall be declared and taken to be full stock and not liable to any further calls, nor shall the holders thereof be liable for any further payments under the provisions of the tenth section.” It seems clear that the holders of such stock when the same is issued in conformity to the said section, and taken as full stock, are exempted from two things: First. From liability to any further calls.

Second. From liability for any further payments under the provisions of the tenth section of said act.

It is obvious that the calls mentioned refer to future payments, as provided for in the act, to make the stock issued, “ full ” or fully, paid stock ; payments of that kind are referred to in the last clause of section 10, which is in these words: “And the capital stock, so fixed and limited shall all be paid in, one-half thereof within one year and the other half thereof within two years from the incorporation of said company, or said corporation shall be dissolved.” The words, “ not liable for further calls,” doubtless refer to this provision, and perhaps to assessments that might thereafter be made by the company for the purpose of making up deficiencies for losses of capital. But whatever was meant by this provision, it is clear that it has no relation to the personal liability to the creditors of the company.

It is impossible to find in the tenth section any thing to which the language, “ neither shall the holders be hable for any further payments under the provisions of the tenth section,” can apply unless it he the liability to pay to the creditors of the corporation an amount equal to the amount of the stock held by such stockholder. And unless that provision be held to exempt the holders of such stock, when issued fairly and without fraud for property purchased for which the stock is issued in payment, from that liability, it seems to be wholly without meaning.

The liability, as originally created in the tenth section, is limited by two things, both of which, to exempt the general stockholder must be fully complied with :

First. That the whole amount of the capital stock, fixed and limited by the company shall have been paid in.

Second. That a certificate of such payment, shall have been made and recorded as prescribed in the eleventh section. ■

If the legislature intended to exempt stock paid for property from liability to the creditors of the company, it, of course, intended to cover such liability, whether it arose from the fact that the capital stock had not been paid in, or having been paid in, that the prescribed certificate had not been duly made and recorded. That the legislature intended to put stock thus issued, for property, upon a different footing from that of other stockholders, is, to some extent, indicated by the last provision of section 2, of the act of 1853, which says: “ But in all statements and reports of the company to be published, this stock shall not be stated or reported as being issued for cash paid into the company, but shall be reported in this respect according to the fact.” It has been held in several cases, that where stock issued as full stock, has been issued for the purchase of property to an amount in excess of the value of the property, fraudulently or in bad faith, the protection of the amendatory act of 1853, against liability to the creditors of the corporation, does not extend to the holders of such stock; and it has been also held, that the question of fraudulent valuation is one of fact which may be litigated between the creditor and the stockholder. If a fraudulent valuation is given of the. property purchased, then, very clearly, the stock has not been issued, “for the amount of the value thereof, in payment therefor as required by the statute ; ” and the holder of such stock is not entitled to the exemption created by the amendment of 1853. (Boynton v. Andrews, 63 N. Y., 93; Boynton v. Hatch, 47 id., 225; Schenck v. Andrews, 57 id., 133.)

Boynton v. Andrews, is a case where it appeared that the whole capital stock of a company, amounting to $100,000, was issued in payment of the property of the value of less than $50,000; and that a certificate was filed in conformity to sections 10 and 11 of the act of 1848. The facts were undisputed; and the court held as a matter of law, that the whole amount of capital had not been paid in, and directed a verdict for the plaintiff. In the course of the opinion, the court say : “ The real question in cases of this character is, whether the property was placed and taken at a high valuation with a fraudulent intent of evading the provisions of the statute.” It is obvious, that that case did not raise the question before us; it presented a question of fraudulent evasion of the statute, upon which the court projDerly held that no exemption could stand. And the court held, also, in substance, that the act of 1853, created no exemption from personal liability where the stock was not fully paid up, by reason of a fraudulent or evasive over valuation of the property purchased, and for which it was issued.

In Schenck v. Andrews (46 N. Y., 589), the question arose upon demurrer. The defendant’s answer set up that the trustees of the corporation purchased a manufactory necessary for their business for $100,000, the value thereof (and the full amount of -the capital), and issued the whole of said capital stock to the vendor thereof for such manufactory and property, which stock so issued was declared by said company and was taken by said vendor as “full” stock. The answer was demurred to and the demurrer was sustained at the Special and General Terms of the Supreme Court, and judgment given for the plaintiff. The Court of Appeals reversed the judgment, holding that the answer set up a defense against liability to the creditors of the company. In the opinion of the court, Grover, J., says, “ it is entirely clear that this section (speaking of section 2 of the act of 1853), designed to exonerate the holders of stock thereby authorized, from the liability to the creditors, imposed by section 10 of the act of 1848.” And again, speaking of stock issued under the provisions of that section, he said, “ when so paid, * * * the owner is not liable to the creditors of the company under section 10 of the latter act,” * * * “ Whether the property purchased was necessary to the. business of the company, and whether the price paid therefor was no more than its fair value, are questions of fact, to be determined like other similar questions if controverted.”

The question presented in that case differs from the present, only in the circumstance that the whole of the capital stock had been issued in payment for property, and that a certificate of that fact had been duly filed under the' eleventh section. It cannot, therefore, be said to be conclusive of the questions of this case, because here the sworn certificate had not been filed. But, we think, the referee was right in holding that, “ when the amendment of 1853 declared that the holders of stock of .this character are not to be liable to any further payments under the tenth section, * * * they are excepted from the operation of the tenth section of the original act, and all liabilities thereby imposed.”

We think no liability was imposed upon the defendant by the alleged creation of additional stock, for several reasons:

First. The stock was not regularly created.

Second. None of it was ever issued, either to the defendant or to any other person, and in respect of it there were, therefore, no stockholders to be liable.

Third. It was a transaction irregular as to the defendant, and inchoate as to the company. And the referee seems to us to have been quite right in the view that the facts shown in relation to it were immaterial.

The judgment should be affirmed.

Brady and Ingalls, JJ., concurred.

Judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE COMMISSIONERS OF PUBLIC CHARITIES AND CORRECTION OF THE CITY OF NEW YORK and MARY L. SMITH, Respondents, v. GEORGE W. SMITH, Relator and Appellant.

      Divorce — decree, when void because fraudulently obtained.

    In proceedings instituted against the relator before a police justice in the city of New York for abandoning his wife and children the defense was an absolute divorce procured by him in Utah. The decree, which was granted November 8, 1876, showed that the relator appeared by counsel; that the wife did not appear in person or by counsel, but had been served by publication; that a decree was taken by default on the ground “ that the said parties could not live in peace and union together and their welfare requires a separation, and that the plaintiff wishes to become a resident of Beaver county, in the territory of Utah.”
    The wife testified that her husband left his family in Brooklyn, in September, 1876, telling her that he was going to Cincinnati to open a sewing machine agency; that she was never in Utah and never knew of the suit until a copy of the decree was served upon her in December, 1876. Held, that the decree was fraudulently obtained and was an absolute nullity.
    Certiorari to review the decision of the* Court of Special Sessions of the city and county of New York, affirming an order made by one of the police justices of the city.

      W. O. Traphagen, for the appellant.
    The judgment of a court of a sister State should have the same credit, validity and effect in every other court in the United States which it had in the State where rendered. (MoHlm'oyle v. Cohen, 13 Peters, 312 ; Wa/rrm Mfg. Co. v. TElma Ins. Co., 2 Payne, 501; Hampton v. MeConell,
      3 Wheaton, 234; Barber v. Barber, 21 How. [H. S.], 591; 2 Bishop on Marriage and Divorce, 203.) A decree of divorce, valid and effectual by the laws of the State in which it was obtained, is valid and effectual in all other States. (Cheever v. Wilson, 9 Wall. [H. S.], 108, citing Barber v. Barber, 21 How. [H. S., 591.)

      A. W. Tenrvy, for the respondents.
    A decree of divorce obtained by the husband in another State against the wife who was not within the jurisdiction of the court, was not served with process and did not appear to defend, is absolutely void and will not be enforced in the courts of this State. (Kerr v. Kerr, 41 N. Y., 272; Hoffman v. Hoffman, 46 id., 30; Kcrnvp v. Kamrp, 59 id., 212 [216]-; Todd v. Kerr, 42 Barb., 317; Holmes v. Holmes, 4 Bans., 388; Moe v. Moe, 2 Sup. Ct. [T. & 0.], 647.) The divorce of the relator was obtained by manifest fraud and is, therefore, void. {Dobson v. Pearce, 12 N. Y., 156 ; Annett v. Terry, 35 id., 260, and cases above cited.) When a foreign judgment is made the basis of an action it may be shown that it was obtained by fraud, and the party injured thereby need not be driven to the inconvenience and expense of a suit in equity to set it aside. {PhilUppson v. Lord Hgremont, 9 Q. B., 587-605 ; Lord Brandon v. Becher, 3 Clark & Fin, 510; Sheddon v. Patrick, 1 Macq., 535; Reg. v. Saddlers Co., 10 H. L., 431; Tommey v. White, 4 id., 313.)
   Davis, P. J.:

The relator, George W. Smith, was arrested in April, 1877, on the complaint of the Commissioners of Charities and Corrections of the city of New York, charged with abandoning his wife and children in violation of chapter 508, section 3 of the Laws of 1860. Hpon a hearing befo're the police justice, who issued the warrant, he was convicted of being a disorderly person under the provisions of said act, and an order was made requiring him to pay to said Commissioners of Charities and Corrections the sum of ten dollars, weekly, toward the support of his family, for the period of one year next ensuing. The relator appealed from that order to the Court of Special Sessions of the Peace, and on the 3d of November, 1877, the appeal was duly heard before that court, composed of Geo. E. Kasmire, Henry Murray and N. K. Wheeler, police justices duly assigned to hold the Court of Special Sessions at that time. After hearing the parties, the said court on the fifteenth of November dismissed the appeal and affirmed the order theretofore made by Justice Smith, and required the said relator to enter into a bond, with surety, conditioned for the payment of the said sum of ten dollars weekly. The relator sued out a writ of certiorari to review the last-named decision and order. • It appears by the return of the police justices composing the Special Sessions, that the case was brought to trial before them on the 3d of November, 1817, and submitted for decision; that on the fifteenth of November, the • court, the same justices being present, unanimously affirmed the decision appealed from, and the papers were handed to the clerk of the court, by the presiding justice, marked “affirmed;” that the decision of affirmance was not publicly announced till the twenty-second of November, and when the announcement was made, but two of the justices who heard the case were present. On that day Mr. Justice Bixbt sat as a member of the court instead of Mr. Justice Kasmire, but took no part in the decision of the case. Upon this state of facts we think the decision of the court must be regarded as having been made on the fifteenth of November, when all the justices who heard the appeal were present, and when the papers were handed to the clerk by the presiding justice, with the decision marked thereon. The subsequent public announcement was of no legal importance, and cannot affect the validity of proceedings already complete. The delay had occurred, it seems, for the accommodation of the relator to enable him to be present, with bail, on the twenty-second. The hearing before the Special Sessions was heard by consent of the parties, upon the evidence taken and proceedings had, before the police justice, which had been returned to the Special Sessions by him. The proof showing the marriage and the alleged abandonment, and sustaining the complaint in other respects, was sufficient in our opinion to uphold the order. The only defense interposed was a decree of divorce purporting to have been obtained by the relator against Mary L. Smith, his wife, in the Probate Court of Beaver county, in the Territory of Utah, on the 3d of November, 1876. The paper purporting to be a decree shows upon its face, that the plaintiff appeared by his counsel and that the defendant neither appeared in person nor by counsel; that she had been served by the publication of a summons for, forty days, in said Territory, and that the complaint of the plaintiff was taken pro oonfesso. The decree appears to have been granted on the ground “that the said parties cannot live in peace and union together, and that their welfare requires a separation, and that the plaintiff wishes to become a resident of Beaver county, in the Territory of Utah,” and is an absolute decree dissolving the marriage relation and releasing both parties from the bonds of matrimony, and all the obligations thereof and declaring them severally at liberty to marry again. The respondent proved in answer to this alleged defense that the relator left his family in September, 1876, they then residing in Brooklyn, telling his wife he was going to Cincinnati to open an agency for the sale of the Whitney sewing machine; that she, his wife, was never in the Territory of Utah ; was never served with any process in the suit, and never appeared personally or by attorney; that the first notice or knowledge she had of the suit was when she received a copy of the decree of divorce, in December, 1876, and that after he left her in September, she first heard from him by receiving a copy of the decree of divorce. Upon this state of facts nothing seems clearer than that the decree was fraudulently obtained. The relator was a resident of this State where his wife and family also resided. • lie left, informing his wife that he was going to open an office and enter into business in Cincinnati. He immediately commenced proceedings in Utah, where neither he nor she appear ever to have been, and obtained a decree from the Probate Court upon the publication of a summons of which she had no notice or means of knowledge. The decree shows upon its face that he had not become a resident of Utah, but only contemplated becoming one, which statement of itself was doubtless false. Under such circumstances to give any force to the decree would be a gross abuse of justice, for the fraud of the relator is too palpable to be questioned. Under numerous authorities in this State, the decree was an absolute nullity unavailable for any purpose. (Kerr. v. Kerr, 41 N. Y., 272; Hoffman v. Hoffman, 46 id., 30; Kamp v. Kamp, 59 id., 212; Todd v. Kerr, 42 Barb., 317; Holmes v. Holmes, 4 Lans., 388; Moe v. Moe, 2 S. C. R. [T. & C.], 647; Dobson v. Pearce, 12 N. Y., 156; State of Michigan v. Phœnix Bank, 33 id., 25, 27.)

The proceedings and order of the Special Sessions should be affirmed, and the cerüora/ri dismissed with costs.

Brady and Ingalls, JJ., concurred.

Proceedings and writ affirmed; cerüora/ri dismissed.


text:
    MOSES SINGER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Assault with intent to commit a rape — 3 Rev. Stat. (0th ed), 988, § 49 — consent of child under ten yea/i's of age.

    In an indictment under the statute providing that every person who shall be convicted of an assault with the intent to commit robbery, burglary, rape, manslaughter, etc., shall be punished as therein provided, it is sufficient to allege that an assault was made upon a female child, “with intent then and there, willfully and feloniously, to commit a rape against the form of the statute,” etc., and it is not nocessary to allege that the intent was to “carnally and unlawfully know ” the said child.
    Where an assault with intent to commit rape is made upon a female child under the age of ten years, the fact that she assented thereto does not alter the nature of the crime or diminish the guilt of the accused.
    Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of an assault with an intent to commit a rape.

      W. F. Howe, for the plaintiff in error.

      B. K. Phelps and Horace Bussell, for the defendants in error.
   Davis, P. J.:

The prisoner was indicted for an assault with intent to commit a rape. There are two counts in the indictment; the first count charges that the prisoner, willfully and feloniously, made an assault and battery upon one Statia Gluth, she being then and there a female child, under the age of ten years, to wit, of the age of six years, with intent willfully and feloniously to ravish and carnally know her, against the form of the statute, etc.

The second count charges an assault upon the same person; she then and there being a female child of the age of six years, with intent then and there in and upon her, the said Statia Gluth, by force and violence to then and there willfully and feloniously commit a rape, against the form of the statute, etc.

The jury f ound the prisoner guilty under the second count of the indictment. The point was made on the trial, and the court was asked in substance to charge that there could be no conviction under the second count, because the intent was not alleged to be, camall/y and unlawfully to know the child. The court overruled the point, and refused to charge as requested, and an exception was taken.

The language of the statute under which the second count of the indictment was framed, is as follows: “ Every person who shall be convicted of an assault with the intent to commit any robbery, burglary, rape, manslaughter, or any other offense, punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in a State prison for a term not exceeding five years, or in a county jail not exceeding one year, or by a fine, not exceeding $500, or by both such fine and imprisonment.” (2 R. S., 666, § 39; 3 id. [6th ed.], 938, § 49.) We think that under this statute the offense was sufficiently charged in the second count of the indictment.

The charge is, that the prisoner, “with force and arms, in and upon the said Statia Gluth, she the said Statia Gluth being then and there a female child under the age of ten years, to wit, of the age of six years, willfully and feloniously made an assault with intent then and there in and upon her, the said Statia Gluth, by force and violence to then and there willfully and feloniously to commit a rape, against the form of the statute,” etc. The crime of rape, where the subject thereof is an infant child is, by statute, “the carnally and unlawfully knowing a female child under the age of ten years.” Inasmuch as the indictment charges a felonious assault upon a female child of the age of six years, with the intent willfully and feloniously to commit a rape, we think the facts constituting the offense are set forth with sufficient particularity. It would perhaps be better pleading in such a case, to allege the intent to have been to carnally and unlawfully know a female child under the age of ten years; yet that was not necessary, although the proof must establish the intent to have been to accomplish an act within the description of the statute. The statute in relation to the assault uses the word “ rape,” and it seeins to us only necessary, in connection with that word, to specify the circumstances of the crime charged, in such manner that the accused cannot be misled in respect of the matters intended to be proved; and that is fully accomplished by the count of the indictment in question.

The child in this case testified to her own age, stating that she was between six and seven years; and no point was made on the trial as to the sufficiency of this evidence. Further proof could readily have been supplied if any question had been suggested, and for that reason it is not competent now to object to the sufficiency of the proof on that subject.

It appeared by her testimony that the child consented to the acts done by the prisoner, and it is insisted that where there is consent there cannot be an assault in law. This point is completely covered by the case of Hays v. The People (1 Hill, 351). In that case the prisoner was indicted and convicted of an assault with intent to commit a rape upon a female child under ten years of age, and the court held that “ the assent of such an infant being void as to the principal crime, is equally so in respect to the incipient advances of the offender. That the infant consented to, or even aided in the prisoner’s attempt, cannot therefore, as in the case of an adult, be alleged in his favor, any more than if he had consummated his purpose.” A female child, under ten years of age, is incapable in law of consenting to the act which constitutes rape under the statute, and hence the question of consent becomes wholly immaterial on the trial of an indictment, either for the principal offense, or for an attempt to commit the crime. The absence of consent is not an element in the crime of rape when committed upon a female under ten years of age, and its presence is wholly immaterial. It is illogical therefore to say that the presence of consent is material where the offense charged is an assault with intent to commit a crime in which that element is in every sense immaterial. In changing the common law of rape in such cases, we think the legislature have necessarily changed the offense of assault with intent to commit that crime, so far as it could be affected by proof of consent by tbe infant.

In this case the child, in giving her testimony, made statements which if received and credited precisely as given, tended to establish that the crime of rape was actually perpetrated. The court was asked by the prisoner’s counsel to charge that if any thing was proved it was rape, and that the prisoner could not be convicted of the crime charged in the indictment because the principal offense was proved to have been committed. The court held that the jury had a right to find upon the evidence a lesser offense than that of rape, and that it was for the jury to say if the offense charged in the indictment had been sustained.

The court was not asked to instruct the jury, that if they found that a rape was actually perpetrated there could be. no conviction under the statute for an assault with intent to commit that crime; but the request was in substance that the case be wholly taken away from the jury upon the evidence, the court determining that the crime of rape was as a matter of fact, established by the evidence. "We think under the circumstances of the case that it was no error for the court to decline to do this. The jury had the child before them. They had proof of her age, and were entitled to judge from her manner and appearance, and the description which she gave of what occurred, whether or not she intended to testify, and whether she knew, that the alleged intent of tJie prisoner was so fully consummated, as to constitute the crime of rape. She stated facts also, quite inconsistent with the idea of the complete penetration of her person which she seemed to think had taken place; and the extreme youth of the child and all the surrounding circumstances as described by herself and the other girl who was present, seem to us to have justified the jury in finding that nothing more than an attempt to have carnal connection was committed. We do not see in the case any substantial error that would justify us in interfering with the conviction and judgment.

The judgment should, therefore, be affirmed.

Brady and Ingadls, JJ., concurred.

Judgment affirmed.