text:
    GEORGE W. KELLER and WILLIAM H. McCARTY, Respondents, v. DEWITT C. PAINE, Appellant.

      fraudulent conveyance of a boat — when a diligent effort to take possession, is sufficient to preserve the rights of the transferee — damages for the conversion of a canal boat — opinions of witnesses as to its value at different parts — what]offer the owner was willing to accept cannot be shown.

    March 24, 1881, between ten and eleven a. m., one Fink, at Selin’s Drove, Pennsylvania, duly executed and delivered to the plaintiffs a conveyance, absolute in form, of a canal boat then lying in the canal at Ilion, in New York State. Between two and three o’clock of that day the plaintiffs delivered the bill of sale to one Spahr with instructions to go immediately to Ilion and take possession of the boat. Spahr left that afternoon by the first train, reached Ilion on March twenty-fifth, took possession of the boat and filed a copy of the conveyance in the town clerk’s office at 4.20 P. m. The boat was conveyed to the plaintiffs to secure a pre-existing debt, and the conveyance was in fact a mortgage. About an hour and a-half before Spahr took possession of the boat the defendant, a sheriff, had levied upon it under an attachment issued on that day, in an action brought in the Supreme Court on the day before by a resident of Pennsylvania against Fink, to recover a debt due.

      Held, that under the laws of the State of Pennsylvania, in accordance with the laws of which State it was agreed that the controversy should be determined, the plaintiffs having been as diligent in their efforts to take immediate possession of the boat as it was possible for them to be, were entitled to priority over the attaching creditor.
    In an action to recover damages for the conversion of a canal boat, converted while lying in a canal at a port which was not a market for such boats, witnesses may be allowed to testify as to the value of the boat at various ports on the canals on which the boat is used.
    Upon the trial of such an action the defendant offered to show what the person who owned the boat, prior to the giving of the bill of sale and the levy of the attachment, had offered to sell it for. ■

      Held, that the evidence was properly excluded.
    Appeal from a judgment in favor of the plaintiffs, entered upon, tbe report of a referee.
    All the parties in interest are residents of the State of Pennsylvania, and the debts which they seek to enforce were contracted in that State by George P. Pink, a resident of that State. The defendant is the sheriff of Herkimer county and has been indemnified by the attaching creditors.
    Keller, one of the plaintiffs, built a canal boat which is the subject of this action, and August 31, 1880,sold it to George P.Fink, at Selin’s Grove, Pa., for $1,500, $550 of which was paid down and the remainder secured by Fink’s judgment notes, on which judgment was duly entered in the Common Pleas of Snyder county, Pa., February 16, 1881, for $950 with interest from August 31,1880. duly 10, 1880, McCarty, the other plaintiff, was liable as surety for Fink in about the sum of $660, as security for which McCarty took from Fink his judgment note for $1,000, dated July 10,1880. October 28, 1880, a judgment was entered on this note, in the Common Pleas of Snyder “county, Pa., for $1,000 with interest from July 10, 1880. In May or June 1882 (after this suit was begun), McCarty paid the $660 to Fink’s creditors.
    Shortly after the sale of this boat Fink brought it into the State of New York and late in the autumn loaded it at Buffalo with a cargo of wheat to be delivered at New York.' The boat reached Ilion on its way to New York and was there frozen in at the close of navigation in 1880. Fink remained with the boat until January, 1881, when he returned to Pennsylvania, leaving Daniel Boyer in charge of the boat.
    March 24, 1881, Fink was indebted to Kerr Bros. & Co., of Philadelphia, Pa., for upwards of $2,000, for the recovery of which an action was begun on that day in the Supreme Court of this State; and March 25, 1881, an attachment was issued, and on the same day the defendant attached the boat, and May 9, 1881, sold it to Kerr Bros. & Co. for $600. July 15,1881, Kerr Bros. & Co. entered judgment in this action for $2,171.22. The attachment and the proceedings thereunder were regular as against Fink.
    March 24, 1881, between ten and eleven a. m., George P. Fink duly executed and delivered to the plaintiffs a conveyance of the boat, the conveyance being in form an absolute bill of sale, reciting a consideration of $1,650. Between two and three p. m. of March 24,1881, the plaintiffs handed the conveyance to Samuel W. Spahr, with directions to go immediately to Ilion and take immediate possession of the property. Spahr left on the same afternoon by the first train and reached Ilion March 25,1881, and took possession of the boat about an hour and a-half after defendant had levied his attachment, and at 4.20 p. m. filed a copy of the conveyance in the office of the clerk of the town in which the boat then lay. Spahr continued in actual possession, living thereon, until the boat was sold by the sheriff, May 9, 1881, as hereinafter stated.
    This action was brought to recover damages for the conversion of the boat. The defendant seeks to justify under his attachment. The issues were referred, and upon the decision of the referee a judgment was entered for the plaintiffs, from which the defendant appealed.

      Thomas Richardson, for the appellant.

      Smith c& Steele, for the respondents
   Follett, J.:

The good faith of the claims of these three creditors was not litigated upon the trial. The question litigated, aside from the question of damages, and upon which the decision was thought to turn, was, whether the conveyance was a. bill of sale or a chattel mortgage: The appellant insists that the referee failed to determine, as matter of fact, from the conveyance and from the evidence de hors the conveyance, whether the transaction was a sale or a mortgage. This criticism is just and is vital, if the plaintiffs are not entitled to recover as mortgagees.

The referee finds (sixth finding) that the conveyance was made “ to pay and secure these obligations.” These obligations were precedent debts. In determining whether a conveyance taken in consideration of a precedent debt is a sale or a mortgage, the essential question is, was it taken in payment or as security ? It is obvious that the referee has left this question undetermined.

If the conveyance is taken as security it is a mortgage or pledge, but if taken in payment, or part payment, thus extinguishing the debt in whole or in part, it is a sale; this is the rule in New York and Pennsylvania and other States. (Todd v. Campbell, 32 Penn. St., 250; Robinson v. Cropsey, 2 Edw. Ch., 138; (Clark v. Henry, 2 Cow., 324; Smith v. Beattie, 31 N. Y., 542; Hickox v. Lowe, 10 Cal., 197; Moore v. Murdock, 26 id., 515; Sutphen v. Cushman, 35 Ill., 186; Turner v. Kerr, 44 Mo., 429; Jones’ Chattel Mortgage, chap. 1 and cases cited; Jones’ Pledges, § 15.)

The evidence in this case is insufficient to sustain a finding that the transaction was a sale. The consideration for the conveyance was pre-existing debts. There is no evidence that the conveyance was taken in satisfaction of the debts, or any part of them. Keller testified it was to secure the payment of these judgments that we took this bill of sale. We hold the bill of sale and judgments both •.against Mr. Fink. The judgments are not satisfied. I never paid anything for the bill of sale outside of what he owed me on the judgments.. If I should never recover the boat or its value, I should still hold the judgments against Fink. That is what I thought. I should have some paper —some good judgment notes. We bought the boat out and out, to secure the judgments ; to get our pay.”

McCarty, the other plaintiff, testified: “ This judgment that I hold against Fink reinains unsatisfied yet. The reason why 1 did not satisfy it when I got this bill of sale was because I hadn’t got anything yet; I had got a bill of sale, although I had realized nothing on it, and I did not know it was required or I would have done it .at any time; this bill of sale was for satisfying the judgment; as soon as I am paid what I paid for Fink I am willing to satisfy it at any time.”

The judgment in this case must be sustained, if at all, on the theory that the conveyance is a mortgage, and that under it the plaintiff acquired a lien prior to the attachment. The rights of these parties are not affected by the question whether the conveyance is a sale or a mortgage, whether the plaintiffs are vendees or mortgagees. In Pennsylvania the presumption arising from the failure to immediately deliver, is the same under mortgages and under absolute sales. (Jenkins v. Eichelberger, 4 Watts, 121; Clow v. Woods, 5 S. & R., 275.)

This case is greatly simplified by the mutual assumption of the parties that it is to be determined by the law of Pennsylvania, relieving the court from determining whether there was an “ immediate delivery ” of the boat within the meaning of the fifth section of the statute of frauds, and within the second section of the act regulating liens on canal boats (chap. 412, Laws 1864), and in case there was not an immediate delivery, from determining what rights the defendant acquired under the proceedings in rem. by reason of the failure to comply with the statutes. It was competent for the parties to make this agreement. (Wharton’s Conflict of Laws, § 369.)

The appellant expressly invokes in his brief the application of the laws of Pennsylvania to this case. On the trial it was stipulated that the statute of 13 Elizabeth (chap. 5) is in force in Pennsylvania, and no evidence was given of any statute of that State prescribing the mode of creating valid liens by chattel mort.gages or by conditional sales, as against creditors. It cannot be presumed that the statutes of this State relating to'this subject exist in Pennsylvania or that there are like statutes in that State. (Leonard v. Columbia Steam Navigation Co., 84 N. Y., 48; Wright v. Delafield, 23 Barb., 498; reversed on other points, 25 N. Y., 266; Story’s Conflict of Laws, § 637a.)

Chapter 5 (13 Elizabeth) was passed for the protection of creditors from fraudulent conveyances by debtors of lands or goods. ■Chapter 4 (27 Elizabeth) was passed for the protection of purchasers in good faith and for value, from the fraudulent conveyances of lands or interest in lands. (Davis v. Bigler, 62 Penn. St., 242, 247.) Subsequent purchasers of goods not being within either of these statutes it will not be profitable to examine the cases arising between purchasers unless they throw.light upon what acts amount to a delivery.

It is unnecessary to enter into a general consideration of the way in which this statute has been construed and applied by the courts of England and States other than Pennsylvania. Those who are curious to do so may fully gratify their curiosity by the study of Twyne’s case, and ’ the notes thereto, in the last edition of Smith’s Leading Cases.

It has been uniformly held in Pennsylvania, under chapter 5 of 13 Elizabeth, that when an opportunity to make an actual delivery has occurred, and the goods (being capable of manual delivery) are not actually delivered, they may be taken by an execution creditor of the vendor. Under such circumstances a failure to deliver is fraud in law, and the absolute good faith of the parties to the transfer is no protection to the ,vendee as against execution or attaching creditors As succintly stated in one of the leading cases upon this subject: In such cases it is an inflexible rule of law that possession must accompany and follow the transfer, otherwise it is fraudulent inlaw.” (Clow v. Woods, 5 S. & R., 275; Babb v. Clemson, 10 id., 419; Streeper v. Eckart, 2 Whart., 302; Born v. Shaw, 29 Penn. St., 288.)

Clow v. Woods, which Justice Sharswood said, in McKibbin v. Martin (64 Penn. St., 356), “ is the Magna Charla of our law upon this subject,” distinctly recognizes the limitation contained in the foregoing proposition, in the following language: “ Put where, from the -nature of the transaction, possession cannot -be given, the parties ought, in lieu, to do everything in their power to secure the public from that deception which the possession of property, without the ownership always enables a person to practice. When a ship at sea is sold, the grand bill of sale is delivered, and that divests the vendor of - his last badge of ownership ; and when goods are too bulky to admit of manual possession the key of the room is handed over. In every case where possession is not given the parties must leave nothing unperformed, within the compass of their power, to secure third persons from the consequences of the apparent ownership of the vendor.”

In Born v. Shaw the exceptions to the general rule are stated in the following language: “ When possession is retained by the vendor it is not only evidence of fraud, but fraud per se. There are some exceptional cases. When, from the nature of the transaction, possession either could not be delivered at all or at least without defeating fair and honest objects intended to be effected by, and which constituted the motive for entering into, the contract, the cause might be regarded as an exception to the rule. Where possession has been withheld from the vendee, pursuant to the terms of the agreement, some good reason for the arrangement, beyond the convenience of the parties, should appear.”

In McKibbin v. Martin, (64 Penn. St., 352), Justice Sharswood said : “ But it often happens that the subject of the sale is not reasonably capable of an actual delivery, and then a constructive delivery will be sufficient; as in the case of a vessel at sea, of goods in a warehouse, of a kiln of bricks, of a pile of squared timber in the woods, of goods in the possession of factor or bailee, or a raft of lumber, of articles in the process of manufacture, where it would be not indeed impossible, but injurious and unusual to remove the property from where it happens to be at the time of the transfer. * * * In such cases it is only necessary that the vendee should assume the control of the subject, so as reasonably to indicate to all concerned the fact of the change of ownership. Where nothing of the kind has taken place it is the duty of the court to pronounce a mere symbolical delivery to be insufficient; but where there is evidence of such assumption of control, it is for the jury to say whether it was Iona fide or merely colorable, and whether it was enough to give notice to the world. The question in such case is, did the vendee do all that he might reasonably be expected to do in the case of a real and honest sale ?” In Barr v. Reitz (53 Penn. St., 256) the rule is expressed in about the same language, and other illustrations given.

In Cunningham v. Neville (10 S. & R., 201) it is said: “ There is nothing to distinguish this case from Clow v. Woods, except the circumstances of a symbolical delivery and a schedule of the articles assigned. The first is necessary only where peculiar circumstances preclude the possibility of actual possession; and then it is equivalent to actual possession, because the transaction is susceptible of no act of greater notoriety.”

In Wilt v. Franklin (1 Binn., 502) Keeley assigned his property for the benefit of creditors. The assignee resided twenty-three miles from the place of the assignment and did not hear of it until four days afterwards. No delivery of the goods was made on the day of the assignment. Two days before the assignee heard of the assignment a creditor of Keeley levied an execution upon the goods. The assignee took possession of the goods soon after the assignment. The execution creditor contended that there having been no delivery prior to his levy he was entitled to the first lien, under 13 Elizabeth. It was held that the assignee’s title was superior to the judgment creditor’s, upon the ground that every necessary step had been taken to effect an actual delivery at the earliest practicable moment.

In Metcalf v. Miller (45 Penn. St., 441) a mortgage was executed by a tenant upon growing barley; before it was harvested it was taken on execution. In the meantime the tenant had left the farm and another tenant had gone into possession. It was held that the mortgagee, having done all that it was possible for him to do, was entitled to the barley.

In Haynes v. Hunsicker (26 Penn. St., 58) lumber piled at a sawmill was sold; the vendee marked the piles with his name, but the roads were in such condition that he could not move the lumber. It was held that the vendee was entitled to priority, 'and said: “ In every sale of personal property there must be such a delivery and change of possession attending the transfer as the nature of the property is capable of, followed by removal and actual possession, as soon as the bulk and condition of the thing and the circumstances of the case will reasonably permit.” Long v. Knapp (54 Penn. St., 514) and McMarlan v. English (74 Penn. St., 296) were cases similar to Haynes v. Hunsicker, and like language was used by •the court. Crawford v. Davis (99 Penn. St., 576), the latest Pennsylvania case on the subject to which our attention has been called, recognizes the authority of the cases above cited. Other cases decided by the courts of Pennsylvania might be cited, but they all state the rule and the exceptions in about the same language.

In Gibson v. Stevens (8 How. [U. S.], 384) pork and flour had been purchased by bills of sale from divers parties. The goods were stored in warehouses in Ohio, and the purchaser did not take actual possession. The purchaser assigned these bills as security for money advanced, but the assignee did not take actual possession and a creditor of the first purchaser attached the goods. It was held that the assignee, of the bills was entitled to priority over the attaching creditor; that the symbolical delivery was sufficient.

The Supreme Court of the United States holds that the failure of the vendee to take immediate possession under a conveyance absolute on its face is fraudulent as a matter of law. (Hamilton v. Russel, 1 Cranch, 309.) But in cases of conditional conveyances it is, at most, but evidence of fraud. (Conard v. The Atlantic Ins. Co., 1 Pet., 388.)

By the statutes of California every transfer of personal property not accompanied by an immediate delivery, and followed by an actual and continued change of possession, is conclusively presumed to be fraudulent and void as against creditors. (1 Hittell’s Code, § 8440.) -

In Walden v. Murdock (23 Cal., 540) 300 cattle roaming at large on the plains, twenty- and twenty-five miles in exent, were sold by a bill of sale. The vendor and vendee went on to the plains and the vendee took possession of fifteen or twenty head. The range was pointed-out; nothing else was done. The. next day a creditor attached. The cattle were not caught' and branded until some months afterwards. This was held, considering the nature of the property, a sufficient “immediate delivery” to satisfy the statute.

In Meade v. Smith (16 Conn., 346) a bill of sale was executed in the city of New York at 9.30 a. m., of property at Greenwich, Connecticut. The vendee reached Greenwich at 4 p. m. of the same day, but in the meantime, and about noon, the property had been attached by a creditor of the vendor. It was held that the vendee was entitled to the property. Ingraham v. Wheeler (6 Conn., 277) is a very similar case. In Connecticut, however, the failure to make an immediate delivery is but presumptive evidence of fraud.

In Russell v. O'Brien (127 Mass., 349) goods had been purchased, to arrive subject to inspection at the port of arrival. The purchaser held a bill of sale. On arrival, and before inspection, the purchaser sent a cartman for the goods, who failed to get them because they were not out of the hold of the vessel. The next day' a creditor of the vendor attached the goods. The symbolical delivery was held good and the vendee entitled to the’goods.

In Massachusetts the failure to make an immediate delivery is.but presumptive evidence of fraud.

The cases cited are divisible into two classes: 1. Cases in which physical possession was not taken at the time of the sale or before the levy, but some slight dominion was exercised by the vendee over ponderous articles before the levy. 2. Cases in which physical possession was not taken at the time of the sale or before the levy, and in which the vendee exercised no dominion over ponderous articles before the levy, but exercised due diligence to take physical possession. The cases in the first class are not directly in point, but serve -to illustrate the rule as to what acts amount to a delivery within the statute of 13 Elizabeth, as administered in Pennsylvania.

The cases in the second class seem to be in point and decisive of the case at bar. "Within this class fall Wilt v. Franklin, Gibson v. Stevens, Walden v. Murdock, Meade v. Smith, Ingraham v. Wheeler and Russell v. O'Brien (supra). Under the facts thereinbefore stated it is clear, and the referee has so found, that the plaintiffs-were as diligent in their efforts to take immediate possession as it was possible for them to be. Nothing more could have been done. The plaintiffs are entitled to’ priority over the attaching creditor.A mortgagee in possession under a mortgage taken as security for a precedent debt, stands in tbe same position, as to a subsequent attaching creditor, as a mortgagee in possession under a mortgage taken as security for a consideration parted with at the date of the mortgage, and is entitled to the same priority.

Permitting Spahr to testify that he took possession of the boat was not error. He had described in detail his acts in taking and retaining possession of the boat, and this expression was used by the witness and received by the court, not for the purpose of proving the fact of taking possession, but as a general description of an act for the sake of brevity in passing and to avoid repeating at length the details of the act when necessary to refer to it. The remaining questions arise over the measure of damages fixed by the referee, and over the admission and rejection of evidence in respect to the measure of damages.

As a general rule the damages for the conversion of property is the market value at the time and place of conversion, but if the article has no market value at. the time and place of conversion, then the market value at places reasonably near to the place of conversion where the article has a usable or salable value. In this case it was shown that Ilion was not a market for boats, and that boats, especially of this particular kind, had no market value at that place. The referee finds its value to be $1,100 in the waters of this State and Pennsylvania, which it was best adapted to navigate. No exception was taken to the referee’s finding in this respect, or because the report did not specify the time or particular place at which the value of the boat was fixed. The only questions arising' upon the question of damages are presented by the exceptions to the admission of evidence. All of the witnesses who testified upon the question of value were boat builders or captains of boats. All had seen the boat in question. This made all of them competent to express an opinion upon the value of boats. The defendant insists that Livingston, Hanaker, Burns, McCarty and Keller, not having seen the boat since the September previous, were, for this reason, unqualified to give their opinion.

This boat was new August 31,1880, and had been used only during the fall of that year. There was no claim that it had been injured in any respect. Two witnesses at least testified that its natural wear during that time would lessen its value .only by about fifty dollars. Under the circumstances these witnesses were clearly qualified to give their opinion. (Judson v. Easton, 58 N. Y., 664.) All of the witnesses but Burns and Hanaker fixed the value at Ilion. . Hanaker says that when the boat came back from the State of New York it was worth $1,500. Burns estimates its value at the place where built. The value of a boat is not necessarily fixed by what it will sell for at any particular port. Permitting witnesses to give their opinion of its value at various ports on the canals on which it is used, is not error. (Wemple v. Stewart, 22 Barb., 154; Durst v. Burton, 47 N. Y., 167, 175; Harris v. Panama Railroad Co., 58 id., 660; Rice v. Manley, 66 id., 82.)

Nor was it error for the referee to refuse to allow the defendant to show what Fink had offered to sell the boat for. Fink was not a party in interest in the action, and had not been sworn. It has been intimated in some cases that offers are some evidence of value. But it is a class of evidence which it is much safer to reject than to receive. Its value depends upon too many circumstances. If evidence of offers is to be received it will be important to know whether the offer was made in good faith, by a man of good judgment, acquainted with the value of the article and of sufficient ability to pay; also whether the offer was cash, for credit, in exchange, and whether made with reference to the market value of the article, or to supply a particular need or to gratify a fancy. Private offers can be multiplied to any extent for the purposes of a cause, and the bad faith in which they were made would be difficult to prove. The reception of evidence of private offers to sell or purchase stands upon an entirely different footing from evidence of actual sales between individuals or by public auction, and also upon a different footing from bids made at auction sales. (Young v. Atwood, 5 Hun, 234.) The reception of ’this class of evidence would multiply the issues upon questions of damages to an extent not to be tolerated by courts aiming to practically administer justice between litigants.

The judgment is affirmed, with costs.

Hardin, P. J., and Yann, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: FOLLETT, J. :

license: Public Domain

text:
    ORRIN C. HINMAN, Respondent, v. ALBERT STILLWELL, Appellant.

      Oounty courts — may entertain motions for new trials made upon the minutes of the judge — cm appeal lies from orders made thereon to the General Term — no question will he considered hy the General Term that does not appear' from the appeal hook to have been presented to the Oounty Oourt — error, in entei'ing such an order without stating the grounds upon which it was made, is to he corrected hy motion and not hy appeal — motion for a new trial — how made.

    TFe plaintiff having recovered a judgment in a Justice’s Court, the defendant appealed to the County Court, where a new trial was Fad resulting in a verdict of no cause of action. A motion hy the plaintiff for a new trial upon the judge’s minutes was granted. TFe defendant appealed from this order and made a case which did not disclose the grounds upon which the motion was made or granted, nor were these grounds disclosed by the order itself.

      Held, that under section 999 of the Code of Civil Procedure county courts were authorized to grant new trials, on motions made upon the judge’s minutes, in actions originating in a Justice’s Court, and appealed to and retried in the County Court.
    That under section 1342 of the Code of Civil Procedure, as amended in 1881, an appeal lies from orders of the County Courts so granting or refusing new trials, to the General Term of the Supreme Court.
    That an appellate court will not consider questions which can only he presented by an appeal from the decision of an inferior court, unless it appears from the record that such questions were actually presented to such inferior court by an appropriate proceeding.
    That as the appeal hook in this case did not show whether or not the question, as to whether the verdict was contrary to the evidence, was presented to or determined by the County Court, that question could not be considered by the General Term.
    That as it did not appear that the questions raised hy the exceptions taken to the rulings made in the course of the trial had been presented to or passed upon hy the County Court on the motion for a new trial, that these questions could not be heard on the appeal.
    That as the order granting the new trial was entered by the plaintiff the defendant should not he made to suffer hy reason of its omission to state the facts which wore required to enable the General Term to review it, hut that the remedy of the defendant was hy a motion in the County Court to set aside the order'as irregular and not hy an appeal to the General Term.
    Except in a plain case, where the error complained of is manifest, a motion for a new trial should he heard at a Special Term, on a case made pursuant to section 997 of the Code of Civil Procedure, and not upon the minutes of the judge before whom the action was tried.

      Appear from an order, made by a county judge granting a motion made upon his minutes for a new trial.
    This action was brought in a Justice’s Court to recover $124.24 for goods delivered to George Davis, between December 4, 1880, and December 2% 1881. The plaintiff claims they were delivered on the order and credit of the defendant. The sole issue was, did the defendant authorize the sale and agree to pay for the goods ? The plaintiff had a judgment for eight dollars and thirty-seven cents damages and five dollars and eighty-two cents costs, from which the defendant appealed to the County Court, demanding a retrial, which was had, resulting in a verdict of no cause of action. The plaintiff moved upon\ the judge’s minutes for a new trial, which motion was granted, with fen dollars costs of the motion, and the costs of the trial to abide the event.
    The defendant appealed from this order and made a case which did not disclose the grounds on which the motion was made or granted, nor are the grounds disclosed by the order. A judgment has not been entered. .

      O. E. Baldwm, for the appellant.

      E. H. Babcoolc, for the respondent.
   FOLLETT, J. :

Section 999 of the Code of Civil Procedure is applicable to county courts, 'and authorizes theip to grant new trials on their minutes in actions originating in a Justice’s Court, appealed to and rfetried in county courts. (Subs. 4 and '7, § 3347, Code Civil Pro.) Subdivision 4, above cited, does not limit the right to actions begun in county courts.

Since the decision of Andrews v. Long (79 N. Y., 573), appeals to this court from orders of county courts, granting or refusing new trials made in actions originating in justices’ courts have been authorized. (Code Civil Pro., § 1342, as amended in 1881.)

The appellant3 insists that this order cannot be sustained on the ground that the verdict is contrary to the evidence, which position is controverted by the respondent. When there is a conflict in the evidence this question must be first determined by. the court below, on a ease, or by the trial judge on his minutes. This court is without original jurisdiction of this question. (Code Civil Pro., §§ 999 and 1002; Wright v. Hunter, 46 N. Y., 409; Boos v. The World Mut. Ins. Co., 64 id., 236; Bennett v. Matthews, 64 Barb., 410.)

It is a well settled rule that the trial court must be first asked to correct the errors of the jury. (Thurber v. Townsend, 22 N. Y., 517.) When there is no evidence to support the verdict the question becomes one of law, is the subject of an exception, and may be determined by the appellate court, although it has not been determined by the court below. (Cooper v. Transportation Co., 75 N. Y., 116, 121.)

An appellate court will not consider questions which can be presented only by an appeal from the decision of an inferior court, unless the questions are within the record. The questions need not have been actually determined by the court below, but they must have been presented to such court by an appropriate proceeding, which fact the record must disclose. The appeal book does not show that the question, whether the verdict was contrary to the evidence, was determined by the court below; that it was within the motion made, or was in anywise presented to such court.

It has been several times held that an appeal from an order refusing a new trial on the minutes, accompanied by such a record, does not present this question of fact to the General Term. (De Luce v. Kelly, 5 N. Y. Week. Dig., 32; Gray v. N. Y. Floating Elevator Co., 13 id., 140; Cooke v. Leonard, 17 id., 575; Alfaro v. Davidson, 39 N. Y. Supr. Ct. Repts., 463; S. C., 40 id., 289; McAleer v. Corning, 49 id., 522.) In the cases cited, motions for new trials were made by the defendants in the several cases, and were denied. The appeal book in the several cases did not show the ground on which the several motions were made, or what questions were determined by the orders. In all of the cases the court refused to consider the question of fact, because the records did not show that it had been determined by the court below. In Alfaro v. Davidson, the defendant was granted leave to take this question to the Court of Appeals (40 N. Y. Supr. Ct. Repts., 289), but an appeal was not taken.

Cowles v. Watson (14 Hun, 41) is said to hold a contrary doctrine. In that case the plaintiff had a verdict for nominal damages, and moved for a new trial on the minutes. The order denying the motion recited that a verdict for nominal damages had been rendered; that a motion on behalf of the plaintiff for a new trial had been made on the minutes, and denied. Judgment was entered, a ease was made and the plaintiff appealed from the judgment and order. It was objected that the order could not be reviewed, because it did not appfear on what ground it was made. The court said: But two positions could be taken in support of the motion, and the important one is recited in the order, that of the assessment of the plaintiff’s damages at six cents.” Upon this ground alone the order was reversed, a new trial granted and the appeal from the judgment dismissed. This case was decided by the General Term which decided De Luce v. Kelly, Grag v. The New York Floating Elevator Company and Cooke v. Leonard, and by the same judges, and the eases are not in conflict.

Several exceptions taken' by the respondent to rulings upon the .admissibility of evidence ai’e contained in the appeal book, which he urges are sufficient to sustain the order granting a new trial, which position is controverted by the appellant. Unless the motion on the minutes for a new trial was made on the exceptions, the appeal from the order does not bring the exceptions into this court for review. (Dodge v. Mann, 85 N. Y., 643.) In the case last-cited a motion was made on the minutes for a new trial, on the ground that the verdict was contrary to the evidence and that the damages were excessive; but the motion did not include the exceptions taken as a ground for a new trial. The judge set aside the verdict as excessive. A case containing exceptions was settled, and the plaintiff appealed from the order (no judgment was entered) to the General Term, which reversed the order, and a judgment was then entered for the plaintiff. The defendant appealed to the Court of Appeals, which held that the exceptions were not before the General Term for review, were not in the Court of Appeals, and dismissed the appeal. It was held in Alfaro v. Davidson that an appeal from such an order, accompanied by such a record, did not present to the General Term the questions of law arising on the exceptions. The appeal from this order brings to- this court only the questions which the court below was asked to determine by the motion on which the order was granted. The record not disclosing that the court below was asked to, or that it did determine the questions of law arising upon the exceptions, those questions cannot be considered on this appeal. Not knowing whether the order was granted on questions of law or fact this court will not speculate as to the ground upon which it might have been granted.

In the cases cited (except Cowles v. Watson) the orders were affirmed because the defendants moving for the new trials were in fault in not specifying the grounds on which they moved. In the case at bar the appellant did not make the indefinite motion for a new trial on the minutes, but it was made by his adversary, who also entered the irregular order. Clearly this was not the fault of the present appellant and he shordd not suffer for the respondent’s irregular practice, as he may, if this order is affirmed and he is compelled to retry the case in the County Court without an opportunity of being heard in this court. Instead of appealing, the appellant should have moved in the County Court to set aside the order as irregular.

A motion for a new trial on the minutes is peculiarly^appropriate when the error complained of is manifest, but if a lengthened argument is required to make the error apparent, a motion should be made on a case. (3 Wait’s Pr., 423 ; 2 Whit. Pr., 433.) Except in a plain case, a motion for a new trial should be heard at Special Term, under section 1002, Code Civil Procedure, on a case made pursuant to section 997, Code Civil Procedure. When a motion is decided on the minutes and a case is afterwards made, the questions are not always presented in the same aspect to the appellate court that they were to the trial judge, and especially when the motion on the minutes was based upon errors of the court as well as upon errors of the jury.

It was said in Algeo v. Duncan (39 N. Y., 316): The power in question is to be cautiously exercised, and it is left to che sound discretion of the judge whether he will act upon his own minutes and the views entertained while the proceedings on the trial are fully in his mind and fresh in the mind of counsel, or whether there is so much of doubt that the case should stand over for more deliberate and careful scrutiny upon a case which shall bring all the evidence again before him; but the power is a useful one, to be exercised in a clear case, and a large saving of expense and delay to both plaintiff and defendant.”

This appeal presenting no question which can be reached by this court, the appeal must be dismissed and the defendant left to move in the court below to set aside this order if he shall be so advised. Should the order be set aside, the plaintiff will have a remedy by a motion for a new trial on a Case.

Both parties having slipped in their practice, no costs are allowed either on this appeal.

"Hardin, P. J., and Merwin, J., concurred.

Appeal dismissed, without costs, and defendant allowed to move in the County Court of Onondaga county to set aside the order appealed from.*


author: Per Curiam:

text:
    MARY L. FISHER and Others, v. MARY B. LYON and Others.

      Partition — if the clerk of the court is appointed guardian ad litem for an infant defendant in an action of partition, he must give security.

    Where, in. default of any person consenting to act as guardian ad litem for an infant defendant in an action of partition, the court appoints its clerk to act as guardian, it cannot relieve him from the necessity of furnishing the security required, by section 1586 of the Code of Civil Procedure, from guardians ad litem in such actions.
    Chapter 227 of 1833 authorizing the Court of Chancery to dispense with the security required by section 4 of 2 Revised Statutes, 817, in such cases, when' appointing either of the clerks to act as a guardian ad litem, was repealed by chapter 245 of 188<\ and has not been re-enacted.
    Application for an order appointing the clerk of the court the guardian ad litem of an infant defendant.
    The action was brought to partition lands, and it was sought to have the order relieve the clerk from the necessity of furnishing security. The motion was made upon the usual affidavits and papers. The application had been refused when presented at Special Term, and was made at the General Term in order to get its opinion on the question involved.
   Per Curiam:

This action is brought to partition lands. No person having consented to become the guardian ad litem of the infant defendants, the plaintiffs apply for an order appointing the clerk of the court without security.

By the Revised Statutes guardians of minors in partition cases were required before entering upon their duties to execute bonds in such sum and with such surety as the court should direct, conditioned for the faithful discharge of the trust, etc. (2 R. S., 317, § 4.)

By chapter 227, Laws 1833 (3 R. S. [6th ed.]_. 598), it was provided, in case a disinterested person did not consent to become the guardian of minors in partition cases, that the Court of Chancery might appoint either of the clerks of said court guardian, and dispense with the security required by the Revised Statutes. The section of the Revised -Statutes above cited, and chapter 227, Laws 1833, were repealed by chapter '245, Laws 1880. This section of tlie Revised Statutes was, in substance, re-enacted by section 1536, Code of Civil Procedure, but chapter 227, Laws 1833, has not been re-enacted.

It is urged that requiring an officer of this court to give security, is; in effect, requiring security of the court. The court acts through its agents, from whom security is required, except in cases otherwise provided for by law. A receiver is an officer of the court, but security is seldom or never dispensed with. The practice in partition cases has been regulated by statute in this State from the earliest times. (2 Jones & Varick, 185.) In Larkin v. Mann (2 Paige, 27) it was held that fhe practice prescribed by the statute in partition cases, must be followed by the Court of Chancery, so far as practicable. In this case the guardian ad litem was required to give-security. The policy of this State has been uniformly not to permit the title of infants to real,estate to be divested, except pursuant to statute.

We think the general power of this court over the persons and estates of minors does not authorize the court to dispense with security in partition cases, even though one of its officers be appointed. Section 472, Code of Civil Procedure, requiring the clerk to act, when appointed, does not dispense with the necessity of giving security.

The application for an order appointing the clerk without security is denied.

Present — Hardin, P. J., Boardman and Follett, JJ.

' The application for an order appointing the clerk of Lewis county as guardian ad litem for infant defendants in a partition action without security, is denied.


author: Vann, J.:

text:
    THOMAS M. RYAN, Appellant, v. JOHN HOOK, Respondent.

      United States District Court — jurisdiction of over a libel filed against a canal boat to enforce a claim for towing it— U. S. B. S., sea. 4251 — to what claims it is applicable. ''

    A United States District Court has jurisdiction over proceedings brought to enforce a claim made by a corporation for services rendered in towing from Hoboken to Albany a canal boat without masts or steam power, and the title acquired by a purchaser at a sale had, in pursuance of a decree made in such proceedings, is entitled to priority over a chattel mortgage upon the boat which had been duly executed and filed prior to the institution of the said proceedings.
    Section 4251 of the United States Revised Statutes, providing that “ nobanal boat without masts or steam power which is required to be registered, licensed or enrolled and licensed, shall be subject to be libeled in any of the United States courts for the wages of any person who may be employed on board thereof or in navigating the same,” does not apply to a claim for towing such a canal boat made by a corporation.
    Appeal from a judgment in favor of the defendant, rendered npon a trial before the court, without a jury, at the Oneida Circuit in March, 1880.
    This was an action of replevin to recover the possession of a canal boat known as the “¥m. Roberts.” The plaintiff claimed title’to1 said boat by virtue of a sale made -in September, 1878, pursuant to a decree in admiralty of the United States District Court for the eastern district of New York. The defendant’s claim of title thereto was under a sale in October, 1878, upon the foreclosure of a chattel mortgage, dated August 24, 1875, and given to secure a part of the purchase-money,
    The justice before whom the cause was tried found the execu■tion, delivery and filing in due form of said chattel mortgage, and the assginment of the same to the defendant. He further found -that on the 22d of August, 1878, a libel was filed in the United .States District Court for the Eastern District of New York, by the Eastern Transportation Line, against said canal boat, for towing her from Hoboken to Albany; that process in rem. was thereupon issued to the marshal of said district, who attached the boat, ■served personal notice upon the owner, published a notice for all persons interested to appear and intervene, and finally, under the •decree of the District Court, made upon default, sold her, and on the 12th of September, 1878, “in pursuance of said sale and said proceedings, duly executed and delivered a bill of sale ” to the pur-, •chaser, who subsequently transferred his right to the plaintiff; that thereupon the plaintiff took possession and held it until October 5, 1878, when the defendant took possession under said mortgage; that said mortgage was duly foreclosed, and before the commencement of this action the defendant acquired the rights of the purchaser under such foreclosure; “ that said canal boat was a quarter-deck scow, and was without masts or steam power.” The justice found, as matter of law, that the sale under the order of the District Court in admiralty did not cut off the mortgage under which the defendant claims, and ordered the complaint to be dismissed, with fiosts. Judgment having been entered accordingly, the plaintiff brought this appeal.

      Clinton c& Qlark, for the appellant.

      Willard Hinkle, for the respondent.
   Vann, J.:

This case comes before us on the judgment record, exceptions to ■the findings and the notice of appeal, without any of the evidence. No question is raised, on the one hand, as to the validity of the chattel mortgage or the foreclosure thereof, or, on the other, as to the regularity of procedure in the District Court. The main question presented is whether the Admiralty Court had jurisdiction to -seize and sell the canal boat “Win. Roberts.”

The Federal Constitution provides that the judicial power of the United States shall extend to all cases of admiralty and maritime Jurisdiction. (Const. U. S. art. Ill, § 2.) This judicial power is vested in the Supreme Court and in such inferior courts as Congress may from time to time establish. (Id. § 1.) Under these provisions Congress established the district courts and conferred upon them exclusive oiiginal cognizance of all civil causes of admirality and maritime jurisdiction which is extended to all waters navigable from the sea by vessels of ten or more tons burden. (Act of Sept. 24, 1879, chap. 20, §§ 3, 9; 1 U. S. Stat. at Large, 75-77; U. S. R. S. §§ 511, 563.) After some conflict among the earlier decisions •of the Federal courts, it seems now to be settled that the admirality and maritime jurisdiction of the district courts extends not only to waters where the tide ebbs and flows, but also to all navigable waters of the United States, even including a river lying wholly within the boundaries of a State, when by its connection with other waters it forms a continuous highway over which commerce may be carried on with other States or foreign countries. (Ex parte Boyer, 109 U. S. R, 629; The Montello, 11 Wall., 411; S. C., 20 id., 430; The Daniel Ball, 10 id., 557; The Eagle, 8 id., 15; The Belfast, 7 id., 624; The Genesee Chief, 12 How. [U. S.], 444; The Magnolia, 20 id., 296; The R. H. Stokes, 22 id., 48.) While the jurisdiction of the district courts over the waters traversed by the “ William Roberts ” cannot well be disputed, a question is raised as to the jurisdiction of those courts over a canal boat.

In the case of the Ann Arbor (1 Blatchf., 205), decided by Judge Nelson, in 1858, the entire opinion is as follows <£I think that the proof, including that taken in this court, leaves the question of fact doubtful whether the tubs of butter claimed not to have been delivered at the port of destination were shipped upon the canal boat at Rome as averred in the libel. The proof is too doubtful to found a decree upon it for the libellants. I am also inclined to think that the canal boat is not a ship or vessel, upon the North river, or other navigable waters within the Admiralty jurisdiction, subject to maritime liens in the Admiralty for breaches -of contracts of affreightment. These boats are exclusively adapted to canal navigation. ’Of themselves they have no power as respects navigation upon public waters any more than a raft, an ark or a mud scow.” No authority was cited and the case does not appear to have been well considered.

In Hicks v. Williams (17 Barb., 523), it was held that a canal boat or scow is not a vessel of tbe United States within the meaning of the act of Congress declaring that no bill of sale, mortgage,, etc., of any vessel of the United States shall be valid, unless the same shall be recorded in the office of the collector of customs where such vessel is registered or enrolled. (9 U. S. Stat. at Large, 440.) The ground of this decision appears to be that only those vessels that have been registered with the collector of the district are to be deemed “ ships or vessels of the United States,” under the several acts of Congress in that regard. (1 U. S. Stat. at Large, 55, 287.)

In Thackarey v. The Farmer of Salem (Gilpin, 524, decided in 1831) it was held that a contract for the payment of labor on board of a vessel employed in carrying fuel to Philadelphia from the opposite shore of the Delaware river could not be enforced by a suit m rem. in admiralty, because, although the locality of the service was upon tide-water, the subject-matter of the service was not of a maritime nature, but was in the nature of ferriage. This case and Harris v. Nugent (3 Cir. C. C. R., 649) to the same effect, seem to have been overruled in Murray v. The Ferry Boat Nimick (2 Fed. R., 86-90); see, also, Steamboat Cheeseman v. Two Ferry Boats (2 Bond, 363); The Gate City (5 Biss., 200), and Monongahela Navigation Company v. Tug Bob Cornell" (1 Fed. R.,. 218); Mahoney v. City of Milwaukee (Id., 611).

On the other hand the more recent cases hold, and the weight of authority seems to be, that where. the services were maritime in nature, and were performed for the benefit of a canal boat without mean? of propulsion on board, but while it was. engaged in navigating; by means of towage, the navigable waters of the United-States, the Admiralty Court has jurisdiction.

In the case of The Canal Boat E. M. McChesney (8 Benedict, 150, decided by Judge Blatciifokd in 1875) a cargo of oats was-shipped on a canal boat lying in the Buffalo river, a navigable stream flowing into Lake Erie, to be carried to New York by way of the Erie canal and the Hudson river. The master of the boat signed a bill of lading for the cargo. While passing through the-Erie canal a part' of the oats weré feloniously abstracted from the cargo, with the knowledge and assent of the master. On the-arrival of the boat in New York she was libeled by the consignee to recover the value of the oats not delivered. A mortgagee of the boat intervened and defended the action, objecting to the jurisdiction, and claiming that his lien was superior. It was held that the Admiralty Court had jurisdiction to enforce such a contract, although part of the service was to be performed on the Erie canal, and although the boat was built to navigate the canal and had no means of locomotion in herself, and that the lien of the mortgagee was subordinate to that of the libelant. The court said: “ What- ■ ever narrow views may at one time have prevailed, the case of The Montello (20 Wallace, 430) is authority for holding that a vessel moved otherwise than'by the power of the wind or by steam power within herself, and thus carrying on commerce, is a subject of admiralty cognizance.” This case was affirmed, on appeal, by Chief Justice Waite, who “fully concurred” in the opinion of Judge BLATOHFORn. (The Canal Boat E. M. McChesney, 15 Blatch., 183.)

In The Canal Boat Kate Tremaine (5 Benedict, 60, decided by Judge Benedict in 1871) it was held that a canal boat having no ■masts, sails or- motive power of her own, and employed in transporting freight between Albany, New York and Jersey City, is subject to a maritime lien for wharfage, enforceable in a Court of Admiralty, and that the maritime law implies a lien on a vessel from every lawful contract of the master, made for the benefit of the vessel.

In Ex parte Easton (5 Otto, 68), it was held by the Supreme Court of the United States that claims for wharfage against a canal boat are cognizable in admiralty. The court, through Mr. Justice Clifford, said: “Nor is the nature of the service or the character of the contract changed by the circumstance that the water-craft, which derived the benefit in the case before the court, was without masts or sails or other motive power of her own. * * * Neither canal boats nor barges ordinarily have sails or steam power, but they usually have tow-lines; and it clearly cannot make any difference as to their liability for wharfage whether they are propelled by steam or sails of their own, or by tugs, nr horse or mule power, if it appears that the boat or barge actually occupied a berth at the wharf or slip, at the commencement of the trip, as a resting place, or for the purpose of loading or unloading cargo or receiving or for landing passengers.”

In The Canal Boat W. J. Walsh (5 Benedict, 72), it was held that a lien exists upon a canal boat for. towage services rendered to her in the harbor of New York, which an Admiralty Court has jurisdiction to enforce.

In The Acadia (1 Brown’s Ad. R., 72), and The General Cass (Id., 334), it was held that towage services are maritime in character. To the same effect are The Canal Boat D. C. Salisbury (Olcott, 71); The F. B. Nimick (2 Fed. Rep., 86, 89).

The learned justice who decided this case at the circuit held that section 4251 of the United States Revised Statutes deprived the Admiralty Court of jurisdiction. That section is in these words: “No canal boat without masts or steam power, which is required to be registered, licensed, or enrolled and licensed, shall be subject to be libeled in any of the United States Courts for the wages of any person who may be employed on board thereof or in navigating the same.” It is a re-enactment of a statute passed July 20, 1846, entitled “ An act to exempt canal boats from 4the payment of fees and hospital money.” (U. S. R. S., §§ 4587 and 4804 ^9 Stat. at Large, 33.) This statute exempted the masters and owners of canal boats from the payment of any marine hospital tax, and conversely took from the persons employed to navigate such boats the right of receiving any benefit from the marine hospital fund and the right to libel for wages.

From the title, history and object of this statute it is clear that the expression “ wages of any person ” cannot mean the wages of any corporation, such as the libelant in the case under review appears to have been, because it obviously refers to the wages of the crew. (United States v. Bowen, 100 U. S., 508, 513.) It relieves tbe “fresh water sailor” from indirect taxation, and as an equivalent deprives him of certain rights that those who pay the tax enjoy. Upon comparing the statute of 1846 with its re-enactment in sections 4251, 4587 and 4804 of the Revised Statutes, it is evident that the word “ person ” does not include “ corporation,” as otherwise the act would refer to sick and disabled corporations, and prevent them from going to a marine hospital, unless the same word is used in two senses in the same statute. Moreover, persons “ employed on board ” of a canal boat, such as tbe cook, or “ in navigating tbe same,” as the crew, including the driver, who is not on board, cannot include a corporation engaged in towing such boat. Navigating does not mean towing. “Navigate” means to steer, direct or manage a vessel, and implies that the act is done by those on board of the vessel itself. (Webster’s Dict.; Falconer’s Marine Diet.) “ Tow ” means to drag a vessel forward in the water by means of a rope attached to another vessel, and implies that the act is done by those on board of the latter. (Id.) The tug simply furnishes means of traction to the canal boat, which must be steered or navigated by those on board of her. As said by the court in the case of The Canal Boat Kate Tremain (supra): “ The canal boat * * ' * when she avails herself of the power of a tug * * * as really and truly navigates as does the ship, and becomes liable to many of the peculiar vicissitudes which attend a ship.” (See, also, The Arctic Fire Insurance Company v. Austin, 69 N. Y., 470.)

The word “ wages,” as used in this statute, is presumed to have been used with its ordinary meaning of compensation to a hired person for his services. In works on maritime law it is defined to be the compensation allowed to seamen for their services on board a vessel during a voyage. (Abbott on Shipping, 615; 3 Kent’s Com., 185.) Thus its popular meaning and its meaning in admiralty law are. substantially the same. To hold that it means towage would give it a strained and peculiar definition. A doubtful construction should not prevail in order to deprive a court of jurisdiction previously granted to it. It is clear that the district courts had jurisdiction of such cases before the passage of the act of 1846. Hence the intent of Congress to deprive them of that jurisdiction should be clear and explicit, or they should be held to still possess it. The natural construction is that Congress intended to deprive persons employed on board of a canal boat, or engaged in navigating-her, of the right previously enjoyed by them, of libeling for seamen’s wages; but not to deprive a steam-tug of her right to libel for towage. Before the passage of the act the crew of a canal boat, employed in the navigable waters of the United States, were, in a legal sense, seamen, liable as such to pay the hospital tax, and having the right to libel for wages, and to enjoy the benefits of the marine hospitals. The burden and the privilege were taken away by the statute and the object stated in the title thus accomplished.

In the case of The J. S. Woodward (6 Fed. Rep., 636), the question presented was, whether the crew of a canal boat could libel for wages, and it was held that under this statute they could not, thus giving it the construction here indicated.

v We think that the district court had jurisdiction, and that the sale in admiralty cut off the prior mortgage. (The Amelie, 6 Wallace, 18.) The same effect is given to liens for towage and other services by a statute, of this State. (Chap. 182, Laws 1862, p. 956.) The plaintiff, therefore, was in rightful possession, and the’ defendant was a wrong-doer in depriving him of it. Even if, through a mistake in the bill of sale, the plaintiff was in possession ■only as equitable owner, his right to remain in possession was good as against the defendant, and as against all the world unless it was the firm of which the plaintiff was, but the defendant was not, a member, nor in privity therewith. (Johnson v. Carnley, 10 N. Y., 570; Frost v. Mott, 34 N. Y., 253.)

The judgment should be reversed and a new trial granted, with .costs to abide the event.

Hardin, P. J., and Follett, J., concurred.

Judgment reversed, new trial ordered, with costs to abide event.


author: Vann, J.: Follett, J.

text:
    JAMES G. ROSS, Respondent, v. SAMUEL P. WIGG, Appellant.

      Statuteforbidding the use of a fictitious firm name — not applicable to a contract made' in Canada by a resident thereof— who may take am affidavit out of this State to be used in it — Code of Ckil Procedure, sea. 844 — it applies to foreign countries— form of jurat and of the certificate of the clerk — 1870, chap. 208.
    ■On December 18, 1882, tbe plaintiff, who tben resided, and for a long time prior thereto had resided, and carried on business in Canada under the name of “Ross & Co.,” entered into a written agreement at Quebec, which was dated and made at that place, by which, under the name of Ross & Co., he sold to the defendant the lumber business, then carried on by the plaintiff at Oswego, in the State of New York, at which place the plaintiff had been conducting a ■branch of his business under the said name of “ Boss & Oo.” By the terms of the agreement the defendant was to remit all his receipts from the business as fast as received, with certain specified exceptions, to the plaintiff in Canada, and to pay the whole amount due within nine months from January 1, 1883.
    In an action by the plaintiff to recover the amount due upon the contract, brought in March, 1884:

      Held, that the action could not be defended upon the ground that the contract was void under the statute of this State prohibiting the transaction of business under fictitious names.
    That such statute did not apply to commercial copartnerships located and doing business in foreign countries which are permitted to use “ their styles or firms of their houses in this State.”
    The word “ State,” as used in section 844 of the Code of Civil Procedure, providing that “ an oath or affidavit required, or which maybe received, in an action, special proceeding or other matter may be taken without the State, except where it is otherwise specially prescribed by law, before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds to be recorded in this State,” refers, in each instance, to the State of New York and not to the State in which the oath or affirmation is taken, and such oath may be taken by any person authorized by the laws of this State to take and certify the acknowledgment of deeds to be recorded in this State, even though he be not authorized to take the acknowledgment to deeds to be recorded in the State where he resides. (Follett, J., dissenting.)
    This section applies to oat'hs and affirmations taken in foreign countries as well as to those taken in the different States of the Union. (Follett, J., doubting.)
    It is not necessary that the certificate of the officer taking such an oath or affirmation should expressly state that the officer knew, or had satisfactory evidence, that the person making the oath was the individual described in and who executed the instrument'as is required in the certificate of. acknowledgment of deeds by chapter 208 of 1870.
    The certificate of the clerk of the County Court of the county of York, Canada, to an oath made before the county judge of that county, complied in all respects with the requirements of the said act of 1870, except that instead of saying that the clerk was “ well acquainted with the handwriting of such judge and verily believes his signature genuine,” it said that “the name of said Judge -John Boyd subscribed to the above jurat is to me known to be the autograph signature of said Judge John Boyd.”

      Held, that this was a substantial compliance with the statute.
    The facts which will authorize the issue of a warrant of attachment and an order of arrest in an action upon a contract, upon the ground that the defendant is about to dispose of and remove his property with intent to defraud his creditors, considered and held to exist in this case.
    Appeal from an order of Justice Churchill made at chambers, •denying a motion to vacate an order of arrest and a warrant of .attachment.

      On the 18th of December, 1882, the plaintiff resided at Quebec, Canada, and had for a long time carried on business under the name of “ Ross & Oo.,” without having any partner. For six years prior to that date he had been engaged in the lumber business at Oswego, N. Y., under said firm name, having no partner therein. On that day, at Quebec, Canada, by a written agreement then and there dated, he, in the name of “ Ross & Oo.,” sold said lumber business carried on at Oswego, N. Y.,-including stock on hand, accounts, etc., to the defendant for the sum of $87,743.32, of which no part was paid down or secured. The defendant, who at the time was the confidential agent and manager of the plaiútiff, agreed to remit to him all collections and receipts from said business weekly as fast as received. By the terms of the agreement he was permitted to use, not exceeding $8,000, from such collections, to erect a dock, which sum he was to repay within two years from January 1,1883, with interest at seven per cent, payable semi-annually, and a commission of two and one-half per cent per annum. Interest on the purchase-price was to be computed every six months, at the rate of seven per cent per annum, and the whole amount, excepting the $8,000 was to be paid within nine months from January 1, 1883. The defendant was also to pay all of the debts of the plaintiff contracted in said business and unpaid at the time of the sale.
    Subsequent to such sale the plaintiff paid, on account of such outstanding debts, two drafts, drawn in November, 1883, amounting to $6,521.25, the defendant having neglected and refused to pay the same. Between December 21, 1882, and June 23, 1883, the plaintiff, by the name of “ Ross & Oo.,” accepted for the accommodation of the defendant six drafts, amounting to $17,735.23, and paid the same as they matured. Each of the eight drafts above named was drawn, dated and made payable in Canada. Upon this indebtedness, amounting in all to the sum of $111,024.65, exclusive-of the $8,000 not yet due, the defendant paid $29,791.21, the last considerable payment having been made August 1, 1883. About the 1st of March, 1884, the plaintiff commenced this action, which is upon contract, to recover from the defendant the balance unpaid of $81,233.44. Upon the verified complaint, alleging the foregoing among other facts, and the affidavits of the plaintiff and one Pousette, setting forth said cause of action, and tending to show that the-' defendant was about to dispose of and remove his property, with intent to defraud his creditors, an order of arrest and, a warrant of attachment were granted by Justice Churchill on the 7th of March, 1884. The sheriff of Oswego county thereupon attached certain property of the defendant, but of what value does not appear, and on the 10th of March, 1884, arrested the defendant and confined him in the jail of said county, in default of the bail required by the order of arrest, to wit, $20,000.
    The affidavit of said Pousette was taken before a judge in Canada, whose certificate was as follows, viz..:
    “ The above affidavit was subscribed and sworn to before me, the undersigned, the judge of the County Court of the county of York, the same being a court of record of the Province of Ontario, having a seal, at the court-house in Toronto, Ontario, this March 4, 1884.
    (Signed) . “JOHN BOYD, .
    “ Judge C. O. G. Y.”

      A clerk’s certificate was attached in these words, viz.:
    “ Dommion of Qcmada, Provi/nce of Ontario, County of York, ss. :

    “I, Walter McKenzie, who am clerk of the County Court of the county of York, in said Province of Ontario, hereby certify that said County Court of the county of York is a court of record of said Province of Ontario, in the Dominion of Canada, and that said Court has a seal; that John Both, Esq., is the judge of said court, and that the name of said Judge John Botd subscribed to the above jurat is to me known to be the autograph signature of said Judge John Boyd.
    “ Witness my hand and the seal of said court, at the city of Toronto, in said Province of Ontario, this March 4, 1884.
    (Signed) ' • “WALTER MoKENZIE,
    [l. s.], “ Glerk of the County Court of the Gounty of York.”

    On the 19th of March, 1884, the defendant moved to vacate both the order of arrest and the warrant of attachment upon the same papers on which they were granted, and before the same justice who granted them. The motion was heard at chambers, March twenty-second, and denied March 28, 1884, but without prejudice to any application that might be made upon affidavits or other proof to vacate said provisional remedies, or to compel the plaintiff to elect between them, under section 719 of the Code of Civil Procedure, or to reduce the amount of bail required by the order of arrest. From the order denying said motion the defendant brings this appeal.

      W. H. Kenyon, for the respondent.

      George N. Bxvrt and W. F. Gogg swell, for the appellant.
   Vann, J.:

As the motion to vacate was founded only on the original papers, the statements contained therein are, for the purposes of this appeal, to be regarded as true, and, if they establish a prima; facie case against the defendant, he should be required to satisfactorily answer or explain them before asking that important remedies for the temporary security of the plaintiff should be set aside.

It does not appear that any of the several contracts set forth in the complaint was entered into in violation of the usury laws of this State or of the statute prohibiting persons from transacting business under fictitious names. (3 R. S. [7th ed.], p. 2253; Laws of 1833, chap. 281; Laws of 1819, chap. 317.) These statutes are penal laws and have no extra territorial force. (The Western T. and C. Co. v. Kilderhouse, 87 N. Y., 430.) A contract will not be adjudged illegal when it is capable of a construction making it valid. (Lorillard v. Clyde, 86 N. Y., 384; Ormes v. Dauchy, 82 id., 443.) The principal contract upon which this action is founded is the bill of sale which was both dated and executed at Quebec, Canada. It purports to transfer a lumber business at Oswego, in this State, including stock on hand, accounts and mortgages. The plaintiff, a resident of Canada, had conducted this business at Oswego under the name of “Ross & Co.,” and apparently had thus acquired the property and interest transferred. Assuming that he had carried on the business in violation of law he did not forfeit the property he had acquired thereby or place it outside of legal protection. (Wood v. Erie R. R. Co., 72 N. Y., 196, 200.) If he violated the statute he was liable to punishment therefor, but the property thus acquired was still his and was subject to sale and transfer by any of the modes known to the usages of business. As the bill of sale was given not to carry on, but to terminate and close out the lumber business, it is doubtful if it could be held invalid, even if it had been executed and was to be performed within this State. Such a transaction does not come within the evil which the statute was designed to prevent, as it does not impose upon the public or induce credit to be given upon a false basis. (Wood v. Erie R. R. Co., supra.) Moreover the act in question (Laws of 1833, chap. 281), does not apply to commercial copartnerships located and transacting business in foreign countries, as they are permitted to use “ their styles or firms of their houses in this State.” (Laws of 1849, chap. 347.) The two statutes when construed together appear to authorize a single person, located and transacting business under a firm name in a foreign country, to use such firm name in carrying on a branch of that business in this State.

The bill of sale does not in terms state where it is to be performed, but as it binds the defendant to “remit” to the plaintiff, weekly, all collections, the presumption is that he was to remit to the plaintiff at his place of residence. But if it is silent as to the place of performance, the rights and liabilities of the parties under it are to be determined b,y the lex loci conhraetus. (2 Parsons on Contracts, 582; Pomeroy v. Ainsworth, 22 Barb., 118, 130; Northrup v. Foot, 14 Wend., 249.) Therefore if it was valid by the laws of Canada, where it was made and dated, it is valid everywhere. (Merchants Bank of Canada v. Griswold, 72 N. Y., 474; Potter v. Tallman, 35 Barb., 182; Story on Conflict of Laws § 282.) The burden of showing that it was invalid by the laws of that province rests upon the defendant. (Cutler v. Wright, 22 N. Y., 472; Thompson v. Ketcham, 8 Johns., 189.) All of the contracts except the bill of sale were by their terms to be performed in Canada. The acceptances were all drawn, dated, made payable and actually paid by the' plaintiff there. Whether, therefore, the action is based upon the drafts themselves or upon the implied promise to pay, springing from the fact of payment by the plaintiff for the benefit of the defendant and at his request, they are Canadian contracts and are to be governed by the laws of the place where they were made.

The affidavit of Alfred P. Pousette was considered at the time of the original application for these provisional remedies, but not •upon the motion to vacate, as the learned justice held that it was not certified as required by section 344 of the Code of Civil Procedure. By that section, any 6ffieer authorized by the laws of this State to take and certify the acknowledgment and proof of deeds without the State, to be recorded in this State, is authorized to take an affidavit without the State to be used in an action in this State. The section is new and its object, according to the' report of the commissioners who prepared it, was to empower all officers authorized to take acknowledgments to administer oaths. (Vol. 3, Commissioner’s Report, § 817, note ; Tiiroop’s Code, § 844.) The word “State,” as used in this section, in each instance, means the State of New York. It was enacted with reference to the laws of this State,1 not of some other State. The section does not mean, as claimed by the appellant, that the affidavit may be taken before an officer authorized by the laws of a foreign State, or the State of his residence, to take and certify the acknowledgment of deeds. The expression, as used in tliis section, “ before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds,” means an officer thus authorized by the laws of this State. There are many such officers and many statutes have been passed upon the subject, which were in force at the time of the enactment of the Code of Civil Procedure. (3 R. S. [7th ed.], 2226; Laws 1829, chap.-222; Laws 1845, chap. 109; Laws 1847, chap. 170 ; Laws 1848, chap. 195; Laws 1850, chap. 270; Laws 1858,’ chap. 259; Laws 1863, chap. 246; Laws 1870, chap. 208; Laws 1875, chap. 136.) By some of these statutes the officers authorized to take acknowledgments are empowered to take affidavits, and the commissioners in their note to section 817 (now 844) say: It is thought better that all officers authorized to take acknowledgments should be empowered to administer oaths, and that their acts should be authenticated in the same manner in both cases.” We think that this is what the legislature intended in enacting the section in question.

By chapter 208, Laws of 1870, acknowledgment of deeds may be taken before the judge of any court of record .within the Dominion of Canada. By virtue of this act, and of section 844 of the Code, Judge Boyd was authorized to take the affidavit of Mr. Pousette, but a question is raised as to its authentication. The act of 1870 (supra) provides that no acknwledgment shall be valid unless the officer taking the same knows or has satisfactory evidence that the person making it is the individual described in and who executed the instrument. It .also requires that a certificate of the clerk should be attached, authenticating the court, office, officer, liis handwriting, etc. It is insisted that the affidavit was not properly certified because the judge did not state that he knew Mr. Pousette or had satisfactory evidence of his identity. Section 844 of the Code does not require that the certificate of the judge should state this.. The statute of 1870, by implication at least, does require it in the case of deeds. Nearly all other statutes relating to the acknowledgment of deeds, whether taken within or without the State, also require it, yet it is not required in the jurat of an affidavit. Section 844 does not state what the certificate of the judge must contain, but simply requires that the affidavit must be “ certified by him to have. been taken before him.” It does require that the judge’s certificate should be authenticated by a certificate of the clerk as to his official character and the genuineness of his signature. In other words, the form of the clerk’s certificate is, while the form of the judge’s certificate is not, prescribed by tlio statute, so far as ah affidavit is concerned. Thus the analogy of all other statutes relating- to jurats and acknowledgments is observed. We do not hold that it would be proper for an officer, either within or without the State, to take an affidavit without either knowing the affiant or having satisfactory proof of his identity. We simply hold that such fact need not be certified by the officer in the jurat.

The certificate of the clerk literally follows the requirements of the act of 1870 in all respects, except that instead of stating in the language of the statute that “ he is well acquainted with the handwriting of such judge, and verily believes his signature genuine,” he certifies that “the name of said Judge John Boyd, subscribed to the above jurat, is to me known to be the autograph signature of said Judge John Boyd.” We think this is a substantial compliance with the statute, because it not only implies all that the statute requires, but includes more and furnishes a better safeguard, (Meriam v. Harsen, 4 Edw. Ch., 70; affirmed, 2 Barb. Ch., 232; Jackson v. Gumaer, 2 Cow., 552; Jackson v. Livingston, 6 Johns., 149.)

The moving papers show that the defendant was indebted to the plaintiff in*the sum of $89,233.44, of which ail but $8,000 had been past due for five months, during which period only fifty dollars had been paid thereon; that this debt was for the purchase-price of and for moneys advanced in a lumber business that he was conducting, ■ and from which he received large sums of money; that instead of remitting his collections to the plaintiff weekly, as he had agreed in writing to do, he retained substantially all that he received during the period of seven months immediately preceding the granting of the provisional remedies in question, and although he admitted that he had large sums on hand, yet he refused to pay the same to the plaintiff; that he ceased to make payments on this debt in August, 1883, yet continued after that to sell and reduce his stock and property until not more than $40,000 worth remained; that he had substantially no property aside from said business wñich he had purchased from the plaintiff wholly on credit in December, 1882, and which he had promised to pay for by October, 1883, with the exception of $8,000; that in March, 1884, when the provisional remedies were granted, he was owing the plaintiff $89,233.44, or $1,490.12 more than the original purchase-price, so that his indebtedness to the plaintiff ■during the fourteen months that he had carried on the business had increased instead of diminished; that in November, 1883, he refused to give plaintiff a mortgage upon a dock, then recently constructed by him, for the amount of plaintiff’s money invested therein; that during the same month, and after his large debt to the plaintiff was past due, he attempted to settle $10,000 that he had taken from the lumber business upon the lady to whom he was engaged 'to be married, and actually paid over the money to trustees for her benefit, stating that he did it so that if anything happened in regard to his business she would have that sum to fall back upon; that at the same time he further stated that he had plaintiff in his hands and could do with him as he liked; that he ¿ever intended to pay him at the time agreed upon, and should not pay him until he got ready; that he intended to bring plaintiff to his terms, and could fix his property in twenty-four hours so that he could get nothing out of it; that said $10,000 was subsequently repaid him by the trustees upon tbe refusal of the lady’s father to allow the-marriage to take place; that in January, 1884, he said to plaintiff: “ Why do you watch me so ? This is the fourth time you have been here; if you are not satisfied, buy me out,” and upon the plaintiff then offering to buy him out he refused to sell, defied the plaintiff and told him to do his best; that in February, 1884, he admitted that he had $20,000 that he could pay to plaintiff, but refused to do so unless the plaintiff would give him credit to draw for a like amount, and when this was declined he said to plaintiff : If you push me for payment I will not spare you; I will make you lose all I can;” that subsequently he withdrew even that offer, but offered to pay $10,000 if plaintiff would allow him to draw for a like amount, and when the plaintiff declined this, but asked him to pay said $10,000 on his debt, he refused, saying that he would hang on to the money; that on February 12, 1884, he told said Pousette that he intended to sail for England in.about ten days; that on the seventeenth of that month he mortgaged to his brother for $1,700 a piece of real estate worth $4,000, but which was subject to prior mortgages for $2,276 ; that the defendant is a widower with one child, and never resided in the United States until he purchased said business; that on the fourth of March he was in the city of New York with three trunks, and on the sixth and seventh of March plaintiff received telegrams from his agent to look after the movements of defendant in that city, stating that the defendant was expected to sail for Europe on the eighth; that on the seventh the clerk of the hotel where the defendant boarded, in Oswego, informed the plaintiff that the defendant had gone to Europe ; that the week before the defendant told the plaintiff that he intended to go to England.

We think that these, with other facts not recited, made out a prima facie case, and gave the justice jurisdiction. Where a debtor who owes a large debt that is past due,, and has a large sum of money that he ought to pay upon that debt, refuses to pay anything to his creditor upon demand made, without giving any explanation for such refusal, slight evidence of a threatened removal or disposition of his property will authorize the inference of fraudulent intent. Where a man of very small estate is largely indebted and attempts to settle upon his intended wife a large sum. of money, wholly disproportioned to his property, so that if anything should happen to his business she would have something to fall back upon, it is evidence of fraudulent intent. Where a debtor declares that he does not intend to pay his chief creditor until he gets ready, but does intend to bring him to terms, and that he can speedily fix his property so that such creditor can get nothing out of it, and subsequently, when asked to pay something on account from nearly $20,000 he had on hand, refuses and threatens that if pushed for payment he will make said creditor lose all he can, such declarations and threats are not consistent with an honest purpose, and without proof of any furtive act, tend to show that he is about to remove or dispose of his property with intoht to defraud. (Gasherie v. Apple, 14 Abb., 64; Livermore v. Rhodes, 27 How., 506.) (When, under all these circumstances, it iurtmer appears that the debtor, having l’ecently stated that he was going to England, gives a mortgage of $1,700 to his brother, leaves his business and is found in the city of New York with three trunks and with $20,000 in money either in his possession or unaccounted for, apparently intending to sail for England the next day, we think that the conditions of the statute relating to .orders of arrest and warrants of attachment are fully complied with and that it is incumbent upon the defendant to answer or explain these allegations before a provisional remedy based thereon is set aside.

The order appealed from should be affirmed, with costs and disbursements!

Hardin, P. J., concurred.

Follett, J.

(dissenting):

The affidavit of Pousette was verified before a judge of a county court of the Province of Ontario, which court has a seal. The clerk of the court 'certified, under seal, that the person before whom the affidavit was taken was at the time a judge of the court, .and that the signature was genuine, but fails to certify that the judge was authorized by the laws of the Province to take and certify the acknowledgment and proof of deeds to be recorded in that Province.

Section 25 (2 R. S., 396), authorizing affidavits to be taken in foreign countries before a judge of a court having a seal, was repealed by chapter 417, Laws 1877. Affidavits in foreign countries may now be taken before commissioners appointed pursuant to chapter 136, Laws of 1875 (3 R. S., [7th ed.], 2230), or before the officers authorized by the fifth and sixth sections of chapter 3, part 2 of the Revised Statutes,' to take the proof and acknowledgments of deeds conveying real estate, and also by any consul or vice-consul or minister resident of the United States appointed to reside at any foreign port or place. . (Chap. 206, Laws 1854.)

It is assumed by the counsel for the respective parties that the word State,” in section 844 of the Code of Civil Procedure, embraces foreign countries, and that the section is applicable to affidavits taken without the United States, which I greatly doubt. Rut conceding the correctness of the assumption for the purposes of this case, I think the affidavit is not properly certified. An affidavit, verified before an officer of another State, cannot be used in an action or special proceeding in this State (except where it is otherwise specially prescribed by law) unless the officer before whom tlie affidavit is verified is authorized by the law of liis State to take and Certify the acknowledgment and proof of deeds to be recorded in his State; and -the official character of the officer, the genuineness of the signature, and that lie is authorized to take and certify the acknowledgment" and proof of deeds to be recorded in liis State, must be certified under the name and official seal of the clerk, register, recorder, or a prqthonotary of the county in which such officer resides, or by the clerk of any court thereof having a seal. (Code Civil Pro., § 844, chap. 195, Laws 1848, as amended •by chap. 557, Laws 1867, 3 R. S. [7th ed.], 2224.) This section of the Code evidently has reference to the statute cited, and they must be read and construed together. Chapter 208, Laws of 1870, authorizes the officer before whom the questioned affidavit was taken to fake the acknowledgment of deeds to be recorded in this State. The argument is that, by the section of the Code above cited, the ■authority to take affidavits to be used in the courts of this State is •vested in and limited to such officials of other States as are by the •statutes of this State authorized to take acknowledgments by virtue of holding certain designated offices in other States. I think the intention was to vest the power of taking affidavits in all officers of other States authorized by the laws of the State of their residence, to take and certify the acknowledgment and proof of deeds to be recorded in the State of the officer’s residence, and that the section does not authorize officials of other States to take affidavits to be read in the courts of this State, unless they are authorized by the law of the State of their residence to take acknowledgments of deeds to be recorded in the State of their residence, except in cases specially authorized by statute.

The clerk of a county, or of a court of another State, could not have official knowledge that a particular officer within his jurisdiction was authorized by the laws of this State to take the acknowledgment of deeds and could not make the required certificate. Some light may be thrown on this section and the reason for it, by briefly considering the course of legislation on the subject of acknowledgments taken in other States and territories.

Authority to take acknowledgments has from time to time been conferred by the statutes of this State upon designated officials of other States and territories. But is was found that officers accustomed to the discharge of such duties were designated by different official titles in the various States and territories, and it was inconvenient to designate appropriate officials in all the States and territories by their official titles. To avoid this difficulty, and to enlarge the number of officials who should possess this authority, chapter 195, Laws 1848, was passed (and amended by chap. 557 Laws 1867), vesting the power to take acknowledgments of instruments to be recorded and read in evidence in this State, in any officer of any other State or territory authorized, by the laws thereof to take the proof and acknowledgment of deeds. It was the intention of the legislature not to restrict, but to enlarge the class of officials of other States authorized to take and certify affidavits to be used in this State. The affidavit of Pousette, verified March 4, 1884, is not certified as required by the section of the Code above cited, and cannot be considered on this appeal.

This construction of section 844 is in accordance with Phelps v. Phelps (6 N. Y. Civ. Pro. Rep., 117; affirmed, 32 Hun, 642); Williams v. Waddell (5 N. Y. Civ. Pro. Rep., 191); Harris v. Durkee (Id., 376.) Excluding the affidavit of Pousette the evidence is insufficient to sustain the order of arrest and attachment. The order of the Special Term denying the motion to vacate the order of arrest and set aside the warrant of attachment should be reversed, with costs.

Order affirmed, with ten dollars costs and disbursements.