text:
    GEORGE M. BROOKS, Respondent, v. HARRIS S. HIGBY and MERRICK CHAPMAN, Appellants.

      Draft — place of payment — certificate of notary — Right to-supply emdenpe upon appeal.

    In an action upon a draft upon one N. F. Mills, “ care of Morgan, Stoddard & Co., No. 114 South. Main street, St. Louis, Mo.,” the indorsers defended upon the ground that it had not been presented for payment and protested. Upon the trial the plaintiff produced a certificate of a notary, stating that he presented the draft “ at the place of business of N. F. Mills, St. Louis, to the person in charge thereof.” It appeared that Mills had two places of business at St. Louis, one of which was at No. 114 South Main street. Held, that the certificate failed to show that the draft was presented at the place where it was made payable.
    Upon the hearing of the appeal plaintiff sought to introduce another certificate showing that the draft was presented at No. 114 South Main street. Held, that it could not be received; that evidence of a fact imperfectly proved at the trial is in general received upon appeal only in cases of records or documentary evidence which prove themselves, and as to which no question can arise except such as is apparent on their face.

      Appeal from a judgment in favor of the plaintiff, entered on a verdict ordered by the court, and also from an order denying a motion for a new trial on the minutes.
    The action is on a bill of exchange drawn by George R. Mills on N. F. Mills, care Morgan, Stoddard & Oo., No. lié South Main street, St. Louis, Mo., payable to the order of the defendant Chapman, and indorsed by Mm and the defendant Higby, and accepted by the drawee. The defendants Higby and Chapman answered, and denied that the draft was duly presented for payment or protested, and alleged that the draft was usurious. At the trial, the plaintiff read in evidence, under objection and exception, the certificate of a notary, stating, among other things, that he presented the draft “ at the place of business of N. F. Mills, St. Louis, to the person in charge thereof, etc.” It appeared by evidence introduced by the plaintiff that N. F. Mills had two places of business at St. Louis, one of which was at No. lié South Main street and the other was elsewhere. The defendants moved for a nonsuit, on the ground that there was no evidence that the draft was presented at the place where it was payable. The motion was denied and the defendants excepted. The defendants called George R. Mills, the drawer of the draft, as a witness, who testified that the draft was discounted under an agreement with the plaintiff to pay him one-half of one per cent for exchange and two and a-half per cent (or at the rate of fifteen per cent per annum) for interest and discount. This evidence was controverted on the part of the plaintiff. At the close of the testimony the defendants’ counsel asked that the case be submitted to the jury, which was refused, and the defendants excepted. The court ordered a verdict for the plaintiff for the amount of the draft, to which, also, the defendants excepted.

      O. E. Stephens, for the appellants. • .

      H. E. Tvéner, for the respondent. ■
   Smith, J.:

As the draft was addressed to the drawee at a particular place in the city where he resided, and was thus accepted by him, the particular place thus designated was the place of payment, and a due presentment and demand of payment at that place was necessary in order to charge the indorsers. (Story on Prom, notes, § 227 and note 8, and cases there cited.) The certificate of the notary stated merely that the draft was presented and payment demanded “ at the place of business ” of the acceptor, without specifying the place. As it appeared that the acceptor had two places of business in St. Louis, the certificate furnished no evidence whatever that the presentment and demand were at the place where the draft was payable. The proof was fatally defective, and the motion for a nonsuit should have been granted.

The respondent’s counsel proposed to supply the defect on the argument at Toa/nc by the production of a fresh certificate of the notary showing that the draft was presented at No. 114 South Main street. The rule allowing evidence of a fact imperfectly proved at the trial to be exhibited at bar, in opposition to a motion for a new trial, is, in general, confined to records or documentary evidence which proves itself, and on which no question can arise in the cause, except such as is apparent on its face. (Bank af Charleston v. Emerich, 2 Sandf., 718; Dresser v. Brooks, 3 Barb., 429; Burt v Place, 4 Wend., 591; Armstrong v. Percy, 5 id., 535 ; Ritchie v. Putnam, 13 id., 524; Hugh v. Wilson, 2 Johns., 46.) Under the statute of 1833, a notarial certificate is but presumptive evidence, and may be explained or contradicted by the party against whom it is produced. The new certificate offered in this case cannot be received' at bar to conclude the defendants; if it is to be used against them they are entitled to an opportunity to meet it at the trial.

We are also of opinion that the evidence required the submission of the question of usury to the jury.

Judgment and order should be reversed and new trial ordered, costs to abide event.

Present — • Mullin, P. J., Taxcott and Smith, JJ.

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


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    JOHN SUTHERLAND, Administrator, etc., of JAMES M. FAIR, Deceased, Plaintiff, v. JAMES RONALD, Executor, etc., of JAMES F. DAWSON, Deceased, Defendant.

      Legatee — action for legacy — consti'uction of will.

    A legatee cannot maintain an action for the sole purpose of obtaining a construction of a -will.
    He may sue for his legacy in the mode prescribed by statute (2 R. S., 114, §§ 9, 10, 11), or in a proper case he may resort to a court of equity, but in the latter case all persons interested in the matter must he brought in as parties.
    Controversy submitted without action.
    The case submitted for adjudication states that the defendant’s testator executed a will dated the 21th of September, 1870, and died soon after; which will contained the following, among other bequests, to wit: “ After all my lawful debts are paid and discharged, I give and bequeath to my nephew, James M. Fair, the sum Of $1,000, to be placed on interest by my executor and paid, both principal and interest, to the said James M. Fair when he becomes of the age of twenty-one years.”
    That on the 29th April, 1876, said James M. Fair died at the age of fifteen years and eight months, leaving a half-sister, the daughter of the plaintiff, his next of kin; that the plaintiff has been appointed administrator of the goods, etc., of said Fair, and as such has demanded of the defendant payment of said legacy; that defendant, as executor of said will, has invested and kept at interest the sum of $1,000 bequeathed to said Fair, and that he is ready and willing to pay the same to the plaintiff if the will legally interpreted permits him to do so. The will gave the residue of the estate to the testator’s brothers and sisters living, and the children of such as were dead.
    The questions submitted are: First. Is the legacy to Fair a vested legacy which passes at his decease to his next of kin ? And second. If vested, is it payable m presmti to his administrator, or must the defendant retain it and its accumulations, until such time as James M. Fair would, if living, have arrived at the age of twenty-one years ? The case is submitted without argument, oral or written.

      H. O. Emgsbwry, for the plaintiff.

      Auslm, Smth, for the defendant.
   Smith, J.:

¥e have not had the benefit of an argument by counsel in this case. Our impressions, however, are very decided, that no judgment can be rendered, other than for the defendant, without prejudice to an action by the plaintiff for the legacy, under the statute, on fifing a bond as therein required. (2 R. S., 114; §§ 9, 10, 11.) A legatee cannot maintain an action for the sole purpose of obtaining a construction of a will. He may sue for the legacy, and the suit may involve construction, but if he sues at law, it must be in the mode prescribed by statute. At common law, a suit for a legacy did not fie. (Deeks v. Strutt, 5 T. R., 690; Pelletreau v. Eden, 18 Johns. R., 428.) He may, in a proper case, resort to a court of equity, or the executor may bring an action to obtain a construction of the will, but if either of the last two remedies be pursued, all persons having an interest, as, in this case, the residuary legatees, must be made parties. (See Hobart College v. Fitzhugh, 21 N. Y., 130; op. Marvin, J., pp. 133, 134.)

Proceeding dismissed without judgment, and without costs to either party.

Present — Mullin, P. J., Talcott and Smith, JJ.

Proceedings dismissed without judgment, and without costs to either party.


text:
    WILLIAM VAN DOREN, Respondent, v. ROBERT J. BALTY, Appellant.

      Tenants in common— chattel mortgage by one— sale of m'ticles — Oonvei’sion.

    Where the mortgagee of the interest of one tenant in common of a chattel causes the whole chattel to he sold at a public sale, by virtue of his mortgage, one who purchases and takes possession of the chattel at such sale, with notice of the rights of the other tenant in common thereof, is liable to the latter in an action by him for the conversion of his interest therein.
    Appeal from a judgment of the Livingston County Court, entered on a verdict in favor of the plaintiff, and also from an order of the said court denying a motion for a new trial.

      The action was brought to recover damages for the alleged conversion of certain personal property described in the complaint. On the 27th July, 1872, John "W. Weaver, being the owner of a double harness, and also of the undivided half of a buggy wagon, the property of himself and Theodore S. Green, as tenants in common, mortgaged the harness and his half of the buggy to the plaintiff and William A. Green. Green subsequently transferred his interest in the mortgage to the plaintiff. On the 15th December, 1873, Weaver and Theodore S. Green mortgaged the buggy and harness to one Canderman to secure a precedent debt owing to Canderman. Canderman assigned his mortgage to John Olp, who, in March, 1874, caused the property to be sold by a constable at public sale, by virtue of his mortgage. The harness and the whole of the buggy were sold, and were bid off by the defendant. The plaintiff was present, and forbade the sale of the harness and of his half of the buggy, in the hearing of the defendant, who thereafter held possession of them and used them for his own individual purposes, claiming to own them exclusively, and denying that the plaintiff has any interest in them, and has refused on demand to deliver them to the plaintiff. The plaintiff recovered a verdict for the value of the harness and of one-half of the buggy. The action was originally commenced in a Justice’s Court, where, also, the plaintiff had a verdict, which was slightly increased in the County Court.

      F. O. Peeh, for the appellant.

      Q. M. Osgoodby, for the respondent.
   Smith, J.:

It is understood that the right of the plaintiff to recover for the value of the harness is not questioned by the appellant’s counsel, and the contention in the case relates to the buggy alone. As to that, Olp and the plaintiff were tenants in common at the' time of the sale by the former. Olp undertook and professed to sell the whole, and thus made himself liable to his co-tenant for a conversion of the share of the latter. This the counsel for the appellant concedes. But he contends that the plaintiff cannot maintain trover against Baity, the purchaser; that he is a co-tenant with Baity, and Baity’s possession i.s his possession. To that position we do not assent. As the sale of the plaintiff’s share was a wrong to the plaintiff, for which the seller is liable, it follows that the defendant, who participated in it by purchasing the whole, with notice of the plaintiff’s rights, and thereafter asserting an exclusive title to the property, is equally liable as a wrong-doer, and the plaintiff may I maintain an action against him for the conversion of his share. Undoubtedly -the plaintiff might waive the tort, and treat the defendant as his co-tenant at his election, but he is not confined to that remedy. The> wrongful act of Olp^texminated the co-tenancy, and the defendamos fiable, not as a co-tenant, but as a joint wrong- / doer with Olp. This results from the doctrine, now well estab-l fished, that -one tenant in common has no right to sell the share of l his co-tenant, and that such sale is a conversion for which he is j liable in trover. A purchase of property from one who has no ) power to sell, where the purchaser takes a delivery of it and retains the possession, claiming it under the sale, after notice of the title of the true owner, is a conversion of it. (2 Hilliard on Torts, 246; Hyde v. Noble, 13 N. H., 494; Parker v. Middlebrook, 24 Conn., 207.) The ease was tried in the County Court upon these principles, and the judgment and order should be affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment and order of County Court affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY E. WHITE, Appellant, v. THE COMMON COUNCIL OF THE CITY OF ROCHESTER, Respondent.

      Charter of the city of Rochester — chop 143 of 1861 — justice of the peace in — power of legislature to abolish — chap. 196 of 1876— Constitution, art. 6, § 18.
    The justices of the peace iu the city of Rochester whose election is. provided for in chapter 143 of 1861 are not justices of the peace within the meaning of that term as used in the Constitution, and the courts held by them are courts of inferior jurisdiction within the meaning of section 19 of article 6, and the legislature may abolish them and institute others in their stead.

      Appeal from an order of the Special Term in Monroe, denying the relator’s application for a mandamus to compel the common council of the city of Rochester, as a board of canvassers, to certify who was elected to the office of justice of the peace at the city election held in March, 1877.
    The charter of the city of Rochester, passed April 8, 1861 (Laws 1861, ch. 143), provided that there should be three justices of the peace of said city (§ 6), one of whom should be elected in each year, for a term of three years.- (§ 7.)
    By chapter 196 of the Laws of 1876, the legislature established a local court of civil jurisdiction in said city, called the Municipal Court of the city of Rochester, and conferred upon its judges the jurisdiction theretofore vested in the justices of the peace of the city. Section 16 of the act provided that thereafter no person should be elected to the office of justice of the peace in said city, and it expressly repealed all acts and parts of acts, and all provisions of the charter, in relation to a Justice’s Court in said city, inconsistent with the said act. At the charter election in said city on the 6th of March, 1877, seventy-eight votes were cast for the office of justice of the peace, of which the relator received a majority.
    Previously thereto the Municipal Court, created by the act of 1876, had been organized, and the judges thereof, appointed pursuant to the provisions of the act, had entered upon the duties of their office. A notice of the charter election was published as required by law, but no notice was given that a justice of the peace for said city would be elected.
    Statements of the inspectors of election showing the votes given as above stated, were filed and produced to the common council, and the relator thereupon requested that body to certify to his election, which was refused.
    It is claimed on behalf of the relator that the act of 1876, so far as it attempts to abolish the office of justice of the peace in said city, is unconstitutional.

      J. Van Voorhies, for the relator and appellant.

      J, B. Perlcins, city attorney, for the respondent.
   Smith, J.:

The act creating the Municipal Court ” of the city of Rochester, in effect abolished the office of justice of the peace in said city. The council for the relator claims that, in that respect, the act is unconstitutional, for the reason that the office of justice of the peace is established by the Constitution, and cannot be abolished by the legislature. He relies upon the provision in the concluding sentence of section 18 of article 6, that “ justices of the peace and district court justices shall be elected in the different cities of this State, in such manner, and with such powers, and for such terms, respectively, as shall be prescribed by law.” The remainder of the sentence is in these words: “ All other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of cities, or appointed by some local authorities thereof.” The sentence quoted was adopted in 1870, and its object was to provide that whenever the offices named should exist in a city, the power of choosing the incumbents should be vested in the electors of the city. The object was not to require every city to have justices of the peace and district court justices, or either of them; nor was it the intention to perpetuate those offices in cities where they then existed. The legislature was vested with power to abolish all local courts in cities and villages (art. 14, § 42), as well as to establish them. (Art. 6, § 19). This construction is confirmed by a reference to the debates in the convention which proposed the amendment adopted in 1869. Section 18 of article 6, as originally reported, was precisely as it now stands, except that it did not contain what is now the last sentence of the section. Mr. Murphy, of Kings, adverted to the fact that the section as proposed provided for the election of justices of the peace in towns, and said there was no provision for justices of the peace in cities, or for police officers, except in the general clause in regard to local courts of inferior jurisdiction thereafter to be organized. (Sec. 19, art. 6.) He insisted there should be no such distinction between the electors of cities and those of the country. (Proc. and Deb. of Con. of 1867-8, vol. 5, p. 3732.) He proposed to add a provision that justices of the peace and police justices shall be elected in the different cities, etc. His proposition was amended by substituting district court justices ” for police justices,” and was then adopted.

The justices of the peace created by the charter of the city of Rochester had not the same functions as justices of the peace in towns. Their civil jurisdiction was the same, but they had no criminal jurisdiction, except to issue warrants returnable before the police justice, and except also that upon a return to a criminal warrant stating the absence from the city or the inability of the police justice, the justice before whom the prisoner was brought, had jurisdiction of the case. (Charter, §§ 237, 247.) Their term of office was three years; that of justices of towns, four. As was said by Johnson, J., in Wenzler v. The People (58 N. Y., 522), “the office of justice of the peace in the State of New York has always been possessed of two jurisdictions - — the one civil, extending to specified actions and limited amounts ; the other criminal, conferred by statutes, naming them among other officers empowered to preserve the peace and to entertain criminal complaints.” By the charter of Rochester, the criminal jurisdiction usually possessed by justices of the peace was given to the police justice of the city. In Vender's Case the. question was whether police justices in the city of New York were included in the words “ justices of the peace,” as used in the. clause of the eighteenth section now under consideration. It was held they were not. “The argument is strong,” said the same learned judge already quoted, “that by justices of the peace were not meant officers having part only of the authority of justices, inasmuch as District Court justices have their civil jurisdiction, and would have been included under the designation of justices of the peace, if those terms bore the sense contended for by the plaintiff in error;" that is to say, if they included police justices. (P. 523.)

In my judgment, the true view of the matter is that the courts held by the justices of the peace of the city of Rochester were inferior local courts, within the meaning of the Constitution (Dawson v. Horan, 51 Barb., 459), and the legislature consequently had power to abolish them.

The order should be affirmed, with ten dollar’s costs of appeal and disbursements.

Present — Mullin, P. J:, Taloott and Smith, JJ.

Order‘of Special Term affirmed, with ten dollars costs of appeal and disbursements, to be paid by the relator.


text:
    JAMES MATTESON and others, Appellants, v. WHEELER ARMSTRONG and others, Respondents.

      THU — constn'uetion of — suspension of power of alienation.

    A testator by bis will directed that his executors should receive aud collect tbe rents, issues and profits of bis estate, and, after paying therefrom certain legacies and annuities, pay over tbe remainder to bis widow for and during her natural life. Upon her death tbe executor was directed to pay out of tbe rents, etc., of tbe real estate, and out of tbe personal estate and tbe proceeds of tbe sale of real estate to a son and daughter of tbe testator $1,000 to each, in two annual payments; tbe first to be made at tbe expiration of one year from tbe death of tbe wife, and tbe same sum to a grandchild if be should arrive at lawful age (though it was not in any event to be paid over to him until one year after tbe wife’s death), and an annuity was given to said grandchild during bis minority.
    That “ after tbe payment and discharge ” of these legacies, tbe real and personal estate, ‘ ‘ as speedily as tbe same can be converted or divided, ” should be divided between tbe son, daughter, and grandchild. Held, that tbe trust estate terminated upon tbe death of tbe wife, at which time tbe legacies to tbe children and grandchild vested in them, and from and after that time they were entitled to tbe possession and enjoyment, as tenants in common, of tbe undivided property, subject to tbe power of conversion, division and sale, and that there was, therefore, no unlawful suspension of tbe power of alienation.
    Appeal from a judgment entered on a nonsuit ordered at the Oneida Circuit.
    The action is ejectment. The plaintiffs assert title as the heirs at law of Simon Matteson, deceased. The defendants claim under a grant executed by the surviving executor of the last will of said deceased, insisting that said executor had power under the will to convey. The plaintiffs contend that the alleged power is void, and that the premises descended to them.

      O. D. Adcmis, for the appellants..

      H. A. Foster, for the respondents.
   Smith, J.:

By the thirteenth clause of his will, the testator expressly gave a power of sale to his surviving executor. The clause is in these words: “ I do further empower and authorize my executor surviving my wife, if it shall become necessary after her decease, and shall be deemed by him advisable, to sell, convey and execute sufficient deeds of conveyance of the whole, or any part or parts of my real estate, provided the same is done to carry into effect the spirit and intention of this my said will.”

The appellants’ counsel contend that the scheme of the will was to suspend the power of alienation of the real estate for the term of at least two years after the death of the widow; and, as the power of sale was subservient to, and in aid of, such scheme, it was void, the suspension being illegal, and, consequently, the grantee of the executor took no title. The provisions of the will which are supposed by the counsel for the appellant to create an illegal suspension are, in substance, these: By the fifth clause, the executors (the testator’s wife and George H. Lynch) were directed to receive and collect the rents, issues and profits of the estate during the lifetime of the wife, and out of the same, and until the payment of the legacies provided for in the eighth clause, they were to pay an annuity of $200 to the testator’s son, James, and one of $100 to his daughter, Polly Ann Fuller. By the same clause, the surviving executor was. authorized and directed, after the death of the wife, to receive and collect the rents, etc, and dispose of the same as provided in subsequent parts of the will.

The sixth clause gave to the widow, during life, the residue of the rents, etc., of the real estate remaining after the payment of debts, and of the annuities provided for, and of interest on incumbrances, taxes, insurance and repairs, and of the legacies payable during her lifetime. By the eighth clause, the testator directed that the executor surviving his wife should, out of the rents, etc., of the real estate, and out of the personal estate, and out of the. proceeds of the sale of real estate, if necessary, pay to the testator’s said son and daughter $1,000 each, in two annual payments ; the first to be made at the expiration of one year from the decease of his wife, without interest. The ninth clause gave to the testator’s great-grandchild, Alfred "Wilson, $1,000, if he shall arrive at lawful age, payable out of the same funds mentioned in the eighth clause, but in no event payable within one year from the death of the testator’s wife, or before the payment of the said legacies to his children. Finally, it was provided by the tenth clause, that “ after the payment and discharge of the legacies provided for in the eighth and ninth clauses, and after providing for the annuity charged in the fourth clause — to wit, an annuity of $300 to the said Alfred Wilson, during his minority, for his education — if not terminated, the real and personal estate, “ as speedily as the same can be converted or divided,” shall be divided into four equal parts and disposed of as follows : two parts to be held by the surviving executors in trust, the income to be paid quax-tex-ly to the testatox-’s son, and on his death said parts to be divided among his heirs; one of said parts to be given to the testatox-’s said daughtex-, and the other to his grandchild, Edward Matteson.

A question arises upon these px-ovisions, whether the executors took an estate in trust or a mex-e power. In either case the power of alienation was suspended during the lifetime of the widow, inasmuch as the rents and profits were to be received by the executors and applied by them to the use of certain beneficiax-ies until her death; but there was no suspension after her death unless the executors took an estate in the land, and unless the px-ovisions postponing the time of payment of legacies to one and two years after the death of the widow, had the effect to tie up the estate in the hands of the executors during that period.

There are, certainly, no express words in the will, either devising the real estate to the executors, or creating a trust. In the case of Tucker v. Tucker (1 Seld., 408) it was held by the Court of Appeals that a trust will not be implied if all the duties enjoined upon the executors by the will, in regard to the lands, can be discharged under a power; especially, when by constx-uing the will to give the executor an estate the devise will be void, on accoxxnt of its suspending for too long a period the power of alienation. In that case, a testator, after chax-ging upon eight houses and lots 'an annuity to his widow of $1,500 dux-ing her life or widowhood, devised four of the houses and lots to four grandchildren for life, with remainders over in fee, and the other four to four children in fee, but dix-ected that neither of the houses and lots should pass to the possession or use of the devisees until the expiration of one year after the death or marriage of his widow; and in the meantime authorized his executors to rent the houses, collect the rents, make repairs, pay taxes, effect insxn-ance, and to divide the sux-plus income among the four

children. It was held that the executors took a mere power, and not a trust term, in the houses and lots. Even a general devise to executors in trust vests no estate in them, except for such of the declared purposes as require that the title be vested in them. This rule was laid down and applied in the case of Manice v. Manice (43 N. Y., 303). There, a testator devised and bequeathed all his residuary real and personal estate to his executors in trust, to receive the income and to apply it according to the directions of the will, during the life of the testator’s widow; upon her death to sell certain lots, and cause the residue of the estate to be appraised by three appraisers, one of whom should be chosen by the surrogate of the city of New York, to divide the whole into twelve equal parts; to convey three of them to the testator’s son W., in fee, or in case of his death to his then living lawful issue; to convey three other parts to the testator’s son E., in fee, and in case of his death prior to the time of such distribution, to his then living lawful issue; to hold and retain as trustees under said will two of said parts in trust, to invest, lease, etc., and receive the income, and apply it to the use of his daughter M., during her life, with remainders over after her death. And like trusts as to two others of said shares each for the benefit of his two daughters C. and E., respectively. It was held by the Court of Appeals that the estate of the trustees under the general residuary devise would terminate upon the death of the widow; that the trust to sell vested no estate in the trustees; that the trusts to appraise, divide and convey were unauthorized as trusts, but could be executed as powers; that upon the death of the widow the devises to the sons and trustees for the daughters respectively would immediately take effect in actual enjoyment; and that the trusts to sell, appraise and divide did not suspend the power of alienation, but that from the time of the death of the widow, and pending the division, the sons, and the trustees for the daughters, would be entitled to the possession and enjoyment, as tenants in common, of the undivided property, subject to the power of sale and division.

In the recent case of Heermans v. Robertson and others (64 N. Y., 332, 343) the rule is reiterated by the Court of Appeals that an intent to create an express trust will not be presumed in the absence of an express declaration to that effect, where the whole purpose of the deed, without peril to the rights of any person, can be accomplished under a power conferred by the deed.

I have referred to these cases thus fully, because, although they are not in all respects analogous to the case in hand, the rule of construction declared and illustrated by them is applicable to, and, in my judgment, decisive of the present case.

It may be assumed for the present purpose that the executors took an estate in fee during the lifetime of the widow. While she lived they were to receive the rents and profits, and apply them to the use of certain beneficiaries, the widow included. But that trust terminated upon her death, and the gifts to the testator’s daughters and grandchild, and the trust for his son, in the tenth clause, immediately took effect, and the donees were entitled to the possession and enjoyment, as tenants in common, of the undivided property subject to the power of conversion, division- and sale, as was held in the case of Manice. From and after the death of the widow, the rents and profits of the lands were no longer to be collected and applied to the use of any beneficiary from' time to time, but such rents as should accrue before the conversion or division were to be received by the surviving executor, and, with the personal property and the avails of a sale of real estate, were to constitute a fund for the payment of specific legacies, including the annuity to Alfred Wilson.

But it might happen that no rents and profits would come to the hands of the surviving executor after the death of the widow, for which the time of the payment of the legacies was postponed. The time of their vesting was not postponed, but they vested immediately on her death. Nor was there any postponement of the time when the lands should be sold or converted and the division be made. The surviving executor had a discretion in that respect. He had power to sell immediately after the death of the widow, or he could take time if he thought best; but his duty to sell or convert the realty was imperative, and if he had refused, the beneficiaries could have come into equity and compelled him to perform the duty in a reasonable time. The trust clause had not the effect to postpone the time for converting and disposing of the property till after the payment and discharge of the legacies, etc. The words after the payment, etc., of the legacies, etc.,” relate to the quamtMm of the estate to be divided; that is to say, the direction is, whatever shall remain after paying the legacies, etc., shall be divided, etc. In short, the surviving executor had the power, the instant the widow died, to sell and convert the entire estate, and at once set apart enough to provide for the legacies and annuity, and divide the remainder into shares, as directed by the tenth clause, without any delay whatever.

If these views are correct, it follows that there was no illegal suspension of the power of alienation, and that the executor had power to make the grant under which the defendants claim title.

The judgment should be affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


author: Taucott, J. :

text:
    ADELIA BOVEE, Appellant, v. MELVIN N. KING, Respondent.
    Sheriff— when protected in enforcing execution.

    This action was brought to recover certain wheat seized by the defendant, a deputy sheriff, by virtue of an execution issued to him in the name of the judgment creditor. Upon the trial the plaintiff offered to prove that the party at whose instance the execution was issued, who claimed to be the assignee of the judgment, was not the owner thereof, but that the judgment, in fact, belonged to the plaintiff. Held, that as the existence of the judgment and the issuing of an execution thereon were admitted, the defendant was protected in enforcing the same, and that he was not called upon to decide to whom the judgment belonged, or what were the relative rights of the parties claiming the same.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    A judgment for $2,JO8.35 was recovered by Lorenzo Sherwood and John BE. Yought against Lorenzo J. Bovee, October 26, 1866, and duly docketed. An execution thereon was issued to the deputy sheriff of Genesee county, who levied upon certain wheat, for the recovery of which this action of replevin was brought.

      Thomas Qorlett, for the appellant.

      L. JT. Btmgs, for the respondent.
   Taucott, J. :

This appeal is from a judgment entered on the report of a referee in an action of replevin for a quantity of wheat. The defendant is a deputy of the sheriff of Genesee county, and, as such, justifies the taking of the property in question by him as such deputy sheriff, under a judgment and execution against Lorenzo J. Bovee, the husband of the plaintiff, recovered by Sherwood and Nought.

On the trial the judgment, transcript, execution, and the official character of the defendant were admitted, and that the defendant levied on the property by virtue of the execution, which was the taking and detention complained of. The property, though claimed in this action by the wife, is found by the referee to have belonged to the husband, the execution debtor, at the time of the levy. That the finding of fact is correct, is not seriously questioned by the defendant; and, in fact, upon the evidence in the case, there can scarcely be a serious question as to the title. The wheat was raised by the judgment debtor on land rented by him, by his own labor and that of others employed by him, and was harvested in like manner. It does not appear that the plaintiff was in possession of the land, or had any thing to do with the matter, or ever herself pretended to have any title to or interest in the property. The only evidence that the plaintiff had any interest in the property is the statement of the judgment debtor, as a witness, that the land was, in reality, hired by him and the crop raised and harvested for the benefit of his wife. ¥e think the referee was fully justified in the finding that the property seized by the deputy sheriff was, in fact, the property of Lorenzo J. Bovee, the judgment debtor, and, as such, liable to levy and sale on the execution against him. And this would seem to dispose of the matter, but the counsel for the plaintiff presents and earnestly argues certain questions, arising upon proof of certain assignments of the judgment in favor of Sherwood and Nought, which questions arose on the trial in the following manner: The defendant offered in evidence an assignment-of -the judgment mentioned in the answer from Nought, the surviving plaintiff, to one Ferdinand H. Hall, and an assignment from Hall to Howard. These assignments were objected to by the plaintiff, as incompetent. It does not appear for what purpose they were offered, or upon what ground they were received; but they were, in fact, received in evideuce by tbe referee. The assignments, when produced, and as set forth at length in the case, appear to be full and absolute, and unconditional assignments under seal; first from Yought to Hall, dated June 11, 1870; second from Hall to Howard, dated July 18, 1874. "When the plaintiff resumed the case, her counsel offered to show that Hall (the assignee of Yought) had no authority to execute the assignment of the judgment to Howard. To this offer the defendant objected, on various grounds stated in the case, and the objection was sustained, and the plaintiff excepted to the ruling. The plaintiff then offered to prove that Hall paid no consideration for the assignment of the judgment by Yought, and this offer was rejected, and the plaintiff excepted to the ruling. The plaintiff then offered to show that the assignment from Yought to Hall, was to take effect conditionally, and that the condition had not been performed by Hall. This was objected to, and the objection was sustained and the plaintiff excepted. The plaintiff then produced certain papers, showing an assignment of the judgment by Yought, to-August 5, 1872, an assignment from these assignees of Yought to one Firmerich, an assignment from Firmerich to Oorlett, in November, 1875, and an assignment of the same judgment, from Oorlett to the plaintiff in this action in November, 1875, and offered to read them in evidence. The defendant objected to the reception of these papers in evidence and the objection was sustained, and the plaintiff excepted to the ruling. This action was commenced as early as the 26th of July, 1874, and the papers purporting to be an assignment of the judgment from Firmerich to Oorlett and from Oorlett to the plaintiff, were dated after the commencement of" this suit, which was one of the objections made to their reception in evidence. The plaintiff’s counsel contends that he had a right to impeach the assignment from Yought to Hall, and to show by parol that it was only conditional, notwithstanding it purports to be absolute and unconditional on the face of it, and to show that Yought was really the owner of the judgment on the 5th of August, 1872, and to introduce in evidence the assignment to Firmerich upon the ground as we understand him, that the evidence would show that Firmerich and not Howard was the owner of the judgment in question when the levy was made.

"Without considering in detail the various objections made to the

reception of the evidence offered, we think it sufficient to say that the evidence touching the assignments of the judgment appears to us to have been wholly immaterial on both sides. The execution which had been delivered to the defendant as deputy sheriff for execution, was in favor of the plaintiffs in the judgment. By it the sheriff was required to satisfy the amount directed to be levied, out of the personal property of the defendant Leonard J. Bovee. A valid judgment on which the execution was issued was admitted, as was also the official character of the defendant. The rule is perfectly well settled, that a valid judgment and execution is a perfect protection to the officers making a levy. Savacool v. Boughton (5 Wend., 170); Parker v. Walrod (16 id., 514) and numbers of other cases wherever the authority of the common law is established. The sheriff could not know anything in respect to the various assignments of the judgment, and the disputed rights and claims of the various parties under them. He has only to look at his process, which, if regular on its face, and proceeding from a court of competent jurisdiction, justifies him in seizing the property of the defendant. La certain cases, as where the property is claimed by an assignee or transferee of the judgment debtor, it is said that the sheriff must also show a valid judgment, in order to attach the title of the transferee as being a fraud on creditors.

It is immaterial to discuss that question here, as the recovery of the judgment was fully admitted. Even if the judgment has been paid or has been extinguished by a discharge in bankruptcy, the officer holding a valid execution is protected. (Ruckman v. Cowell, 1 N. Y., 508; Mcguinty v. Herrick, 5 Wend., 240; Lewis v. Palmer, 6 id., 367.) It is even held that whei’e the court from which the process is issued has proceeded without jurisdiction, if the process does not disclose the want of jurisdiction, and the case is one in which the court might have had jurisdiction, proof that the officer pei’sonally knew the facts which showed that the coui’t was without jurisdiction is inadmissible. He has only to look to his process and in some cases to the judgment. (People v. Warren, 5 Hill., 440.)

The whole controversy concerning the ownership of the judgment under the assignments was a matter ali/tmde the record, and to which the officer was a stranger and in respect to which he could not be called upon to determine tbe relative rights of tbe parties. If tbe suit bad been against tbe plaintiff in tbe judgment or against tbe party who caused tbe execution to be issued, perhaps a different question might have arisen, but as against tbe deputy sheriff we do not see but bis justification is complete.

Tbe judgment should be affirmed.

Present — Mullin, P. J., Taícott and Smith, JJ.

Judgment affirmed.


author: Talcott, J.:

text:
    ROBERT RENFREW, Appellant, v. ANGUS McDONALD, Respondent.

      Oomeyance in, fraud of creditors — action by fraudulent grantor to recoven' property conveyed.

    This action was brought to set aside a conveyance oí certain premises, made by the plaintiff to the defendant to delay and defraud the holders of certain notes, alleged by the plaintiff to have been fraudulently procured from him. The complaint alleging great intimacy with and confidence in the integrity of the defendant, and that the conveyance was made by his advice. Held, that the plaintiff was properly nonsuited.

      Ford v. Harrington (16 ÍT. Y., 285), and Freelove v. Odie (41 Barb., 318) distinguished.
    Appeal from a judgment in favor of tbe defendant, entered upon an order dismissing tbe plaintiff’s complaint at Circiiit.

      Hovey <& White, for tbe appellant.

      J. G. Ooelvrcme, for tbe respondent.
   Talcott, J.:

This is an appeal from a judgment at tbe Monroe County Special Term, upon a dismissal of tbe plaintiff’s complaint. The complaint was dismissed upon tbe opening of tbe plaintiff, before any proofs in tbe cause were introduced. No statement of tbe oral opening by the counsel for the plaintiff is given. It must, therefore, be assumed that the opening of the plaintiff was a statement of his case, substantially as recited in the complaint, and the question which arises is, whether, upon the statements of the complaint, the plaintiff was entitled to recover.

The action is brought to set aside a conveyance of certain premises alleged to have been made by the plaintiff to the defendant, to hinder and delay and defraud the holder of certain notes, made by the plaintiff, in the collection thereof. The notes, the collection of which the plaintiff sought to hinder, delay and evade by the conveyance to the defendant, are, by the plaintiff, alleged to have been fraudulently obtained from him by the holder. The plaintiff alleges great intimacy with and confidence in the defendant, and that it was through the advice of the defendant he was induced to make the conveyance for the fraudulent purpose aforesaid. That the defendant falsely and fraudulently represented that he, the plaintiff, could not defend an action brought on the said notes, and that the defendant sought opportunities to and did finally impress upon the mind of the plaintiff, that he would be ultimately stripped of all his property if he did not make such transfer, and proposed to the plaintiff to make a pretended purchase of the property and pay something thereon, and that the defendant represented that in a short time he, the defendant, would convey said property to plaintiff’s wife, so that the same would be saved to the plaintiff. And the plaintiff further alleges and charges, that relying upon the defendant’s honesty, integrity and good faith, and believing that he, the plaintiff, was about to be ruined by such notes, he united with his wife in a deed of conveyance of the said property to the defendant. That the defendant'paid to him at the time $1,000 as a part of the nominal consideration of the conveyance. That the plaintiff was not in want of'the said $1,000, and would not have taken the same except that the defendant insisted that it was necessary to the validity of the conveyance, and that it was agreed between them that the plaintiff was to hold said consideration for the benefit and subject to the order of the said defendant, and the defendant was to hold the conveyance for the benefit of the plaintiff, and either to reeonvey the property to the plaintiff upon request and account to him for the rents and profits, or convey the same to the plaintiff’s wife, and account to her for the rents and profits, all of which the plaintiff believed he would do when requested to make such conveyance. That the plaintiff believes the defendant well knew, or had good reason to believe that the notes could not be enforced against the plaintiff, and that the advice of the defendant as to the propriety of the plaintiff’s making the conveyance was given with the fraudulent purpose of taking advantage of the confidential relations existing between them, and with intent to defraud the plaintiff out of his interest in the property. That the plaintiff has frequently demanded a reconveyance of the property to himself or his wife, but the defendant has refused to reconvey the same or to account for the rents and profits, and the plaintiff offers to pay back the $1,000, with interest, and any other amount which may be equitably due to the defendant for his services and time spent and expenses incurred in the business connected with the said conveyance, and in caring for and managing the said property.

The case presented by the complaint is a hald case of a conveyance of the property in question, with an express intent to hinder, delay, and defraud the creditors of the plaintiff. The allegation that confidential relations existed between the parties; that the defendant was the adviser of the plaintiff in the transaction, and was sometimes a hoarder, at the defendant’s house, are allegations of a character that might truly be made, in most cases, of such conveyances. It is not unusual, we suppose, that confidential relations, growing out, not of any legal relation or employment, but of mere personal friendship, have existed between the fraudulent grantor and his grantee. The fact that the defendant advised and participated in a scheme to cover up the property of the plaintiff for the purpose of shielding it from the plaintiff’s creditors, involving, as it did, the elements of fraud and deception on the part of the defendant, should have admonished the plaintiff that in relying upon the “ honesty, integrity, and good faith ” of the defendant he was but “leaning upon a broken reed.” Nemo cmdimdus est dllegans swum iwrjpitucbmem is a maxim of equity as well as law, which has, from time immemorial, been applied to a plaintiff who applies to a court of equity, seeking relief from the embarrassments and disappointments in which his attempt to defraud creditors has involved him, when his reliance upon the idea that there is “ honesty among thieves ” has proved, in his case, unsafe and disastrous. (Manny v. Philips, 1 Paige, 472; Bolt v. Rogers, 3 id., 154; Gale v. Gale, 19 Barb., 249 ; Chamberlain v. Barnes, 26 id., 160 ; Gardenier v. Tubbs, 21 Wend., 169 ; Proseus v. McIntyre, 5 Barb., 424; Story’s Eq. Jur., § 371, etc.)

It is true the Court of - Appeals, in the case of Ford v. Harrington (16 N. Y., 285), held that this rule did not apply to a lawyer who. had advised his client to make such a conveyance to himself, but solely, as we understand the case, in consequence of the professional position of the defendant, and the confidence which the grantor had reposed in the grantee as a legal advisor. In the case of Freelove v. Cole (41 Barb., 318), where the grantor was of weak mind, and had been influenced to make the conveyance by the grantee, who practiced as a lawyer in justices’ courts, the Supreme Comt of the seventh district held the case to be, in principle, within the case of Ford v. Harrington, because the grantee was, though not a licensed attorney, a person who held himself out as a lawyer practicing in justices’ courts. And we know that persons so holding themselves out and practicing are many times relied upon as lawyers by laymen who do not sometimes know the difference between such a person and a licensed attorney and counselor. It appears that the case of Freelove v. Cole (supra) went to the Court of Appeals and was there affirmed; that is to say, that a case with the same title appears to have been affirmed in the Court of Appeals (Index to 41 Vol. N. Y. Rep., p. 619); but we have been unable to discover any report of any opinion delivered in the Court of Appeals, and assume that the case must have been affirmed as coming within the principle decided in Ford v. Harrington; and that, in substance, the relations of confidence between the grantor and grantee were founded upon the supposed professional position of the latter.

Though the ancient rule, that in pari delicto melior est conditio possidentis may be considered to have been somewhat shaken by the remarks in the opinion delivered in the Supreme Comt, yet we do not consider it as overthrown or abrogated. The effort was in both cases to show that the parties were not in pari delicto, in consequence of the reliance and confidence placed in the grantee, because he assumed to advise and act in a professional capacity. In the case at bar nothing is alleged by way of excuse for the attempted fraud, except wbat might be with more or less truth alleged in every case. The recipient of property with intent to defraud creditors possesses the intimacy and confidence of the fraudulent debtor, and advises the attempted fraud and consents to be made the instrument thereof. To allow the grantor in such a -case to set aside the grant and be restored to all he parted with for the illegal purpose, would be to afford great encouragement to future attempts of that character. We think the learned judge at the Special Term correctly held that the plaintiff could not, upon the settled principles of equity, maintain his action.

The judgment should be affirmed, with costs of the apjieal.

Present — Mullin, P. J., Taicott and Smith, JJ.

Judgment affirmed, with costs of the appeal.


text:
    JONATHAN L. BOOTH, Respondent, v. THE FARMERS AND MECHANICS’ NATIONAL BANK OF ROCHESTER, Appellant.

      Joint obligation — what will operate as payment of — Assignment of judgment-— reservation in.

    Payment by one of the obligors, of an obligation which as between the parties is joint, enures to the benefit of all, and the party so paying cannot keep the debt alive as against the others by taking an assignment of the same either to himself or to a third person.
    Defendant recovered a judgment against four partners upon a note for which all were jointly liable. Subsequently the plaintiff, knowing the relation existing between the partners, took, at the request and pursuant to negotiations of Flint, one of the partners, with defendant, an assignment of the judgment from the defendant, paying nothing therefor to the defendant, but transferring certain land to Flint. The assignment provided that the assignee should not have any right or claim against Flint, and that it should not affect Flint’s liability to the defendant. Flint paid the amount of the judgment to the defendant either at the time of the assignment to plaintiff or some time thereafter, when a satisfaction-piece was given by defendant, and the judgment was discharged of record. Held,

    That payment of the judgment by Flint operated to discharge it as to all the partners,

      That defendant was not liable to plaintiff for executing such discharge, notwithstanding it was shown that the other judgment debtors had property upon which such judgment, if not discharged, would have been a lien.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court. The ease has already been reported in 4 Lansing, 301; 50 New York, 396; 65 Barbour, 457; 1 Thompson & Cook [Sup. Ct. Rep.], 45.

      II 2i. Sellen, for the appellant.

      W. F. Gogswell, for the respondent.
   Talcott, J.:

The complaint in this action, which is what would formerly have been known as an action on the case, alleges that the defendant, on or about the 29th of December, 1860, recovered a judgment in the Supreme Court against Archibald McLean, Hector McLean and Theodore S. Goddard, impleaded with Charles L. Flint, for the sum of $3,503.21 damages and costs, docketed in the county of Monroe, and that a transcript thereof was duly docketed with the clerk of the county of Livingston, December 31, 1860; that on the 11th of December, 1861, the said judgment still being in full force and wholly unsatisfied, the defendant, for a valuable consideration, assigned all its right, title and interest in the said judgment to the plaintiff; that after the recovery and docket of the judgment the said McLeans and Goddard, or some of them, were seized of certain real estate in the counties of Monroe and Livingston, and especially that said Goddard was seized of certain real estate, describing various parcels thereof, each situated in one of said counties, which real estate but for the discharge of said judgment, as thereinafter set forth, would have been subject to the lien of said,judgment, and would and might have been sold to satisfy the same, but that by reason of said discharge Goddard was enabled to and did sell and .convey certain portions thereof to bona fide purchasers, who took the same without notice of the assignment of the judgment to the plaintiff, or of any defect in the discharge of the said judgment. It is also averred that the defendant did, on or about April, 1864, receive the amount of the said judgment with interest, without stating from whom the said amount was received or for what purpose. This receipt is stated to have been before the 11th day of April, 1861. The complaint then alleges that on the 11th day of April, 1861, the defendant discharged the said judgment by a discharge duly executed and acknowledged, and that such discharge was on the 12th day of April, 1861, filed with the clerk of Monroe county, and the said judgment was thereupon duly discharged of record; that the said McLeans and Goddard are wholly insolvent, and that the judgment cannot be collected of them, or either of them; wherefore, the plaintiff avers that he has lost the judgment, which otherwise might have been collected, and has sustained damages to the amount of the judgment and interest, for which he demands judgment.

On the trial the plaintiff gave in evidence a judgment roll recovered by default for want of an answer, with proof of service of the complaint upon the McLeans and Goddard. The complaint in that action was against the McLeans and Goddard and Charles L. Flint, and set forth as the cause of action a promissory note for $3,100 made by the McLeans and Goddard, and payable to the order of Flint, and indorsed by Flint to the defendant. The plaintiff also proved the docket of the said judgment in Monroe county, on the 29th of December, 1860, as a judgment in favor of the defendant against the McLeans and Goddard, impleaded with Charles L. Flint, for $3,180.07 damages and twenty-three dollars and fourteen cents costs.

The plaintiff then proved an assignment of the judgment by the president of the defendant, dated December 11, 1861. The assignment was entitled in the action, giving as the defendants’ names the McLeans and Goddard, impleaded with Flint, and was as follows: “ For a valuable consideration the Farmers and Mechanics’ Bank of Rochester doesliereby sell, assign, transfer and set over unto J. L. Booth all the right, title and interest of the said bank in, to and under said judgment, always saving, reserving and providing that the said -assignee shall not have, nor shall this assignment transfer to him, any right or claim against Charles L. Flint, who was an indorser on the note on which this judgment was obtained, nor affect his liability to said bank.”

The plaintiff then proved a satisfaction-piece of the said judgment, executed by tbe president of tbe defendant, dated .and acknowledged on the 11th of April,>1864, in which the judgment was described as against the McLeans, Goddard and Flint, without the use of the word impleaded, and in which the judgment was stated to be against Charles L. Flint and others.

The plaintiff then proved a deed of certain lands in Monroe county from one George W. Richards to said Theodore L. Goddard, for the consideration of $400, dated and recorded in August, 1866, and a deed from Goddard and wife to one Newell R. Skinner, dated and recorded in February, 1861, and gave evidence tending to show that Skinner paid $400 for the premises, and that they were worth that amount, and rested his case. The plaintiff had given no proof of the payment of any money to the defendant, except as it would be inferred from the recital in the assignment to the plaintiff and from the satisfaction-piece. It appears that when the plaintiff rested the counsel for the defendants asked the plaintiff’s counsel to elect on what ground he claimed to recover.

The plaintiff’s counsel stated in reply that he claimed to recover for the wrongful satisfaction of the judgment. First. The full amount of the judgment, on the ground that the defendant had received the same. Second. The amount which the plaintiff had lost by the discharge of the judgment, to wit, $400 and interest. The court then ruled that the plaintiff must recover for the wrongful satisfaction of the judgment, and that, as the case then stood, the only question was the amount of damages. The defendant proved the record of a judgment by default against Charles L. Flint upon the same complaint contained in the record introduced by the plaintiff, but upon proof of service of the summons and complaint, on Flint, on the 25th of January, 1861. This judgment was for $3,514.48 damages, with one dollar and ninety-two cents costs and disbursements, amounting in all to $3,516.40, and was obtained, apparently, upon a severance of the action originally commenced against the McLeans, Goddard and Flint, by reason of the non-service in the first instance upon Flint.

The defendant then read in evidence the depositions of the plaintiff, of Charles L. Flint, Archibald H. McLean and Theodore S. Goddard, it having been proven that Hector McLean, one of the makers of the note on which the judgment was recovered, and Jacob Gould, tbe president of tbe defendant, who had executed tbe assignment of tbe judgment to tbe plaintiff, and tbe satisfaction-piece of file same, bad both died previous to tbe commencement of this action. The plaintiff testified that be knew Flint, Archibald H. McLean and Goddard, and bad been jointly interested with Flint in tbe sale of patent-rights. That tbe assignment of tbe judgment was delivered to him, tbe plaintiff, by Mr. Gould, tbe president of tbe defendant, on or about tbe day of its date. That tbe negotiation, whereby tbe assignment was procured, was made by Flint with tbe bank and its attorney. That be understood from Flint that be bad arranged with tbe bank concerning tbe judgment before tbe assignment, and that be, tbe plaintiff; paid nothing to tbe bank, but that be gave for tbe assignment a release to Flint of bis, tbe plaintiff’s, interest in 1,100 acres of land situate in Iowa, Wisconsin and Minnesota, which be and Flint bad theretofore owned in common. That McLean, Goddard and Flint were engaged in some grain operations, and Flint told him that tbe note on which tbe judgment was recovered was made to be discounted by tbe defendant’s bank, and were to be, and were, used in tbe joint business of tbe McLeans, Goddard and Flint, and that be supposed at tbe time that tbe McLeans and Goddard were irresponsible; that be understood the judgment was against all four of tbe defendants, and did not regard it as good for anything at tbe time, but thought Goddard might'be good for it at some time.

Tbe witness Charles L. Flint testified that himself, Archibald McLean and Goddard were in partnership during tbe year 1860, and for about two years, buying and selling grain and dealing as commission merchants at Rochester and other points. That tbe firm name was “ O. L. Flint & Co.,” though be thinks sometimes tbe name of “ Flint & Goddard,” and sometimes tbe name of “ Flint, Goddard & Go.,” may have been used as tbe style of tbe firm. That tbe note on which tbe judgment was recovered was given to raise money in tbe business of tbe firm, and was a “ company matter,” and tbe proceeds were used and applied in tbe business of tbe firm, and that be (tbe witness) bad settled with and paid tbe bank, in full, tbe amount due on tbe said judgment. That be held tbe judgment against tbe McLeans and Goddard for tbe $3,400 note, and assigned tbe judgment held by him to Booth, tbe plaintiff, and that be sold the judgment because he regarded it as of little value. That he paid the judgment against himself in April, 1864, and that such payment operated, so far as the bank was concerned, to satisfy the judgment obtained by the bank against the McLeans and Goddard. That he took Lorn the president of the bank a certificate of the satisfaction of the judgment against himself, containing some reference to the judgment held by the bank against the makers of the note, and the witness was evidently under the impression that he had personally assigned the judgment to Booth, and had forgotten that the assignment was made by the president of the bank.

Archibald H. McLean testified that he was a partner with his father, Hector McLean, and that the said Hector and himself were interested together in the firm of McLean, Goddard & Flint, and that the note on which the judgment was recovered was made and used in the business of the firm for the purchase of barley shipped on joint account, and was indorsed by Flint for the same purpose. That Flint received the proceeds of the barley purchased, and had told the witness that he (Flint) had paid the judgment to the bank. This witness had no knowledge of the satisfaction-piece or the assignment. Goddard was also examined, and testified, in substance, that he was connected with Flint and the McLeans in the purchase of grain, and that the $3,400 note was given in the business of the copartnership, and that Flint had agreed with the witness to satisfy the judgment against him (the witness), and after-wards told the witness he had done so. He knew nothing about the satisfaction or assignment.

The defendant then introduced in evidence a satisfaction-piece of a judgment for $3,516.43 damages and costs, which judgment was therein stated to be filed and docketed the 22d day of February, 1861, in the county of Monroe, entitled in the name of the defendant as plaintiff against “ Charles L. Flint, impleaded ” with the McLeans and Goddard, executed and acknowledged by Jacob Gould, president of the defendant, dated April 11,1864, and filed in Monroe county clerk’s office, April 12, 1864. o

It was admitted that the handwriting of the assignment was that of the attorney of the bank, but the name of the assignee was inserted by another hand. The defendant, after certain offers not necessary to be mentioned, rested, and moved for a dismissal of the complaint on several grounds; amongst others, “ because all the defendants in the judgment in question were partners, and payment by one of them satisfied the judgment.”

The court, however, upon the request of the plaintiff’s counsel, directed a verdict for the plaintiff for the $400, with interest, to which direction the defendant’s counsel excepted.

It is undisputed that the note in question was made and indorsed to raise money for the use of the partnership composed of the makers and indorser, and that between the parties thereto it was a joint obligation of the partnership, and that the payment by any one of the joint debtors inured to the benefit of ah, and satisfied the obligation, especially as it appears from the testimony of Flint that his intention was to satisfy the debt. However it may be in the case of a third person who has purchased the note or the judgment for value, having no notice of the actual relations of the parties to the debt, but relying upon the apparent relations upon the face of the paper, yet as between the parties themselves the debt was in equity a joint'debt, and the rights of the parties as between each other'the same as though the judgment had been recovered against them jointly; and that Flint could not, after having paid the judgment, keep the same alive as against his co-partners, either by having it assigned to himself or by using the name of a third person as assignee. The rule on this subject is fully and concisely stated in the case of Harbecks v. Vanderbilt (20 N. Y., 397, opin. of Selden, J.): “When one of several defendants, against whom there is a joint judgment, pays to the other party the entire sum due, the judgment becomes thereby extinguished, whatever may be the intention of the parties to the transaction. It is not in their power by any arrangement between them to keep the judgment on foot for the benefit of the party making the payment. If, therefore, in such a case, the latter take an assignment to himself, or unless under special circumstances even to a third person for his own benefit, the assignment is void and the judgment satisfied.”

Flint at some time paid the money in full on this judgment to the bank. He knew and now admits as between the parties to the judgment it was the joint obligation of all, probably put into the form of a promissory note made by three of the parties, payable to the order of, and indorsed by, the other, in compliance with the practice of banks which usually require such form. Flint, after having paid the debt, could not keep the judgment on foot for his own benefit by taking an assignment to himself or in the name of a third party. From the case it does not appear at what time the judgment was paid by Flint, but it is evident, according to the plaintiff’s own testinony, that Flint claimed to have arranged with the bank and settled the judgment prior to the time when he procured the assignment to the plaintiff, who paid nothing whatever to the bank for. the assignment, but did, as he claims, in consideration thereof, relinquish to Flint his (the plaintiff’s) interest in some western lands which they owned together. The probability is that the money was paid to the bank about the time when its president executed the assignment to the plaintiff, and that, having an assignment made to a third party, was a scheme on the part of Flint to attempt to keep the judgment on foot against his co-defendants. But Flint knew all about the relations of the defendants in the judgment, and that they were in fact, as between themselves, jointly bound for the payment of the judgment. Booth, the plaintiff, it seems from his own testimony, was substantially informed of the real facts at the time of the assignment. He purchased the judgment, in fact, of Flint, after having been informed in substance that Flint had paid it to the bank. He paid no consideration for it to the bank, and acquired no better right to the judgment than Flint himself had or could sell. But suppose the money was not paid by Flint at or before the time of the assignment to the plaintiff, but was paid afterwards and at the time when the satisfaction-pieces of the two judgments — one against the makers and the other against the indorsers — were executed, on the 11th July, 1861, how does the case then stand ? Flint, undoubtedly, paid the judgment. The assignment to the plaintiff was of the judgment as it appeared in form, against the makers only, and expressly provided that the assignee should not have, and that the assignment should not transfer to him, any right or claim against Flint, an indorser on the note on which the judgment assigned was obtained, “ nor affect his liability to the bank.”

The object of this reservation of the liability of Flint, the indorser, from the assignment of the judgment against the makers, after both judgments had been obtained, is not apparent, unless it was intended as a part of an attempt on the part of Flint to keep the judgment alive as against his partners, after having paid it himself. It was, however, for anght we can see, a perfectly valid arrangement, if the parties saw fit to make it. If there was nothing about it, except what is disclosed, it does not seem to have been an agreement to which any objection lies, as being either makim m se or mal/um prohibitmri. The assignment on the face thereof, then, placed the parties in this position: Booth, the plaintiff, was entitled to collect the amount of the makers, if he could, and the bank reserved to itself the right to collect and receive the amount of Flint, if it could. The other parties never paid any thing. Flint paid to the bank the whole amount of the judgment. The bank had a right to receive it, notwithstanding its assignment of the judgment against the other parties to the plaintiff; by the express provisions of the assignment itself. The payment of the judgment by Flint was, as we have seen, a satisfaction thereof as against all the defendants, and the other defendants would have a right to demand satisfaction of the judgment so far as they were bound by it. The assignee who took the assignment with a reservation of the liability of Flint, not having paid the bank any thing for the assignment, and especially with notice of the relations of the parties to the debt, took it with a liability for all the consequences which might follow from the reservation by the bank to itself of the liability of Flint, and from his payment of the judgment. It is noticeable, also, in the case, that as Flint had received the proceeds of the barley purchased with the proceeds of the discount of the note, it seems to have been understood by the parties that Flint was to pay the debt to the bank, and that he informed some of his partners that he had paid the judgment, and they rested in this belief.

This only tends to show the propriety of the rule, that a payment by one of the obligors of an obligation which, as between the parties, is joint, inures to the benefit of all, and that the party so paying cannot keep the debt on foot as against the others. It properly becomes the subject of an accounting between the partners. If, then, the money on the judgment was paid by Flint to the bank, at or before the assignment of the judgment to the plaintiff;, the plaintiff acquired no title to it, except such as Flint had, and by the payment it was satisfied, as the plaintiff had notice. If the money was not paid by Flint until tbe 11th of April, 1861, still, as the bank had reserved the liability of Flint, it had the right to receive payment from him, notwithstanding its assignment, and the payment by Flint equally discharged and satisfied the judgment against the other parties. The judgment was satisfied as to the other parties, by the payment by Flint either before or after the assignment, because in either case the bank had a right to receive the money, and it was the reception of the money from Flint which satisfied and extinguished the judgment against the other parties.

The execution and delivery of the satisfaction-pieces, both bearing the same date, and probably both delivered to Flint at the same time, did not injure the plaintiff. The judgments were, in fact, satisfied by the payment, and the plaintiff having paid no value to the bank, having purchased the judgments from Flint, one of the defendants, and with full notice of the material facts, and having consented that the bank should reserve the liability of Flint, was not injured by the reception of the payment from Flint, which payment was the circumstance which in fact satisfied the judgment as to the other parties, and legally prevented the plaintiff from enforcing the same, as against the parcel of real estate of which Goddard was seized in 1866.

If we are correct in the view we have taken of the relative rights of the parties to the note on which the two judgments were recovered, Goddard, on showing the true state of facts, could have prevented a sale of his real estate on the judgment which had been satisfied.

The defendants’ counsel makes other points against the plaintiff’s right to recover, but it appears to us that the foregoing reasons are sufficient, and without examining the other objections, we hold that the judgment must be reversed on the merits.

Judgment should be reversed and new trial ordered, costs to abide the event.

Present — Mullin, P. J., Talcott and Smith, JJ.

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


author: Talcott, J. :

text:
    JAMES MATTESON, Plaintiff, v. JOHN F. MOULTON, Defendant.

      Aceepia/nee of Mils of exchange — 1 B. 8. (2d ed.), 757, § 11 — failure to retwm Mil.

    Section 11 of Revised Statutes (2d edition), 757, providing that “ every person upon whom a hill of exchange is drawn, and to whom the same is delivered for acceptance, who shall destroy such hill or refuse within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the hill accepted or non-accepted to the holder, shall he deemed to have accepted the same,” applies ouly to cases in which the acts of the drawee are of a tortious character, and imply an unauthorized conversion of the hill hy the drawee, and not to cases in which the hill is willingly left in the hands of the drawee hy the holder, and no demand therefor is made.
    Motion for a new trial on a case and exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict in favor of tbe plaintiff directed by tbe court.

      Henderson da Wentworth, for tbe plaintiff.

      W Woootbwry, for tbe defendant.
   Talcott, J. :

Tbis is a motion for a new trial on a verdict directed by tbe court at tbe Cattaraugus Circuit. Exceptions sent to tbe General Term in tbe first instance.

Tbe action was upon an inland bill of exchange, drawn by one McDonald on tbe defendant for $526.76. Tbe bill was never accepted by tbe defendant in writing, as required by tbe statute, wbicb provides tbat no person witbin tbis State shall be charged as an acceptor on a bill of exchange unless bis acceptance shall be in writing, signed by himself or bis lawful agent (1 K. S. [2d ed.], 757, § 6); and unless be is made liable as an acceptor under tbe subsequent eleventh section, be is not liable upon tbe bill. Tbe said section 11 is as follows : Every person upon whom a bill of exchange is drawn, and to whom tbe same is delivered for acceptance, who shall destroy such bill, or refuse witbin twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or non-accepted to the holder, shall be deemed to have accepted the same.”

The bill was sent by a third party with directions to leave it at the office of the defendant, which was done, and, so far as appears, no demand of acceptance was ever made. The defendant did not destroy the bill, for he produced it on the trial. The defendant never refused to return the bill; in fact, he was not directly required to return it, and no direct demand of the bill was ever made upon him. Two days after the making of the bill and the delivery of it to his agent at his office, the plaintiff called at the office and ascertained that the bill had been left there, and was informed by the agent that they were hard up and would not pay that day, but received no promise that the bill should be paid at any future day. The plaintiff went away and left the bill unaccepted at the. office of the defendant. Two or three days after this, the plaintiff met the defendant at the hotel, in the same place in which the office of the defendant, before spoken of, was located, and had a conversation with the defendant about the bill, informing the defendant that he (the plaintiff) had such a bill and that it was at defendant’s office. The following conversation, as testified to by the plaintiff, then ensued between the parties: I wanted to know whether he was going to pay it or not, and if not, I wanted the order; and he (the defendant) said he could not pay it then, but as soon as he had completed five miles of the railroad running into Jamestown he should have the money. I asked him how long that would be, and he said ten days or two weeks. I told him it was considerable of an amount, and I wanted to know whether I should get my pay on it or not. He said I would get my pay on it inside of two weeks. I told him I wanted my pay on the order, and he said I would get my pay on the order as soon as he completed five miles of the railroad, Buffalo city was going to pay him, and that he would get done inside of two weeks.” This conversation occurred in June, and it does not appear that any thing else took place between the parties until the sixth day of October, when they again met, and the plaintiff asked the defendant about pay on the bill, and the defendant stated that “ he had been disappointed about pay.” The plaintiff also stated that the defendant had never returned the bill or offered to return it. We do not think that the evidence established a refusal to return the bill, within the eleventh section of the statute above referred to. The refusal mentioned in the statute, as it seems to us, refers to something of a tortious character, implying an unauthorized conversion of the bill by the drawee. In this case it is obvious that the plaintiff willingly left the bill in the possession of the defendant, and in no way gave the defendant to understand that a redelivery of the bill was required, relying probably upon the expectation that it would be ultimately paid. The attempt to charge the defendant with the payment of the bill upon the ground of a promise is, as it appears to us, simply an attempt to charge the defendant with a liability on the bill upon a parol acceptance. If an action can be maintained under such circumstances, the provisions of section 6 of the statute before referred to would be rendered wholly nugatory.

Besides, as to the promise, there was no evidence to show that the five miles of railroad, on the completion of which the promise to pay the bill was conditioned, had been completed.

The defendant moved for a nonsuit on the ground, First. That there was no acceptance of the bill in wilting. Second. That there was no demand of the bill before suit. Third. That there was no refusal to deliver the bill. Fourth. That the plaintiff had failed to make out a cause of action. The court held that the defendant was liable because he was indebted to McDonald, the drawer, because he had received and retained, and declined to return the bill, and had promised to pay it, to which ruling and to the refusal of a nonsuit the defendant excepted. We think the nonsuit should have been granted for the reasons stated by the defendant.

The evidence of the declarations of one Slocum to show that the defendant was in fact indebted to McDonald, the drawer of the draft, the admission of which was objected to, was inadmissible. It was mere hearsay of a party not, so far as appears, the agent of the defendant, for the purpose of making any such admission.

The verdict is set aside and a new trial ordered, costs to abide the event.

Present — Mullin, P. J., Talcott and Smith, JJ.

New trial ordered, costs to abide the event.


author: Taloott, J. :

text:
    JULIA L. McCOMB, Respondent, v. SOLOMON D. WEAVER, Appellant.

      Contempt — order for delivery of property — demand tlm'efoi' must be made.

    To bring a party into contempt for disobedience of an order or judgment requiring tbe payment of money or the delivery of property, it is not sufficient that the order or judgment be served upon him, and he be made fully acquainted with its effect; but, in addition thereto, a compliance with the order or judgment must be explicitly demanded by a party who has a right to mate such demand; and when the order is to deliver property over to a receiver, the prop erty must be demanded by the receiver personally.
    Appeal from an order of the county judge of Yates county adjudging the defendant guilty of a contempt, in refusing to obey an order of the said judge made in supplementary proceedings.

      James I. Taylor, for the appellant.

      Morris Lea/ry, for the respondent.
   Taloott, J. :

This is an appeal from an order made by the county judge of Yates county convicting the defendant of a contempt, for disobedience of an order made by the said county judge in supplementary proceedings, after the return of an execution unsatisfied, whereby the defendant was directed to deliver over to the receiver, who had been appointed in said proceedings, a certain watch, owned and assumed to be in the possession of the said defendant. The order imposed a fine of $200 on the defendant for the said disobedience, and ordered him to pay the costs and expenses of the proceedings, amounting to the sum of sixty-six dollars and six cents. The defendant claims that the watch was stolen from him about the time the order to deliver the same to the receiver was served. On the hearing of the order to show cause, it was referred by the county judge to a referee to take the evidence concerning the alleged disobedience, and to report the same with his opinion. The defendant admitted the service of the order, and that he had not obeyed the same, but claimed that the said watch had been stolen from him, and that he had not the possession or control of the same.

Most of the testimony reported by the referee relates to the question whether the watch had been, in fact, stolen. The referee reports, as his opinion, that the defendant had it in Ms power to comply with the order, and, in effect, that the alleged larceny of the watch was a mere pretense. The evidence was such as to show that it was highly probable that the referee was right in his conclusion, but there is a want of any evidence to show that there has been any formal demand of the watch by the receiver. The testimony of the receiver was taken before the referee, from which it would appear that he did not obtain the order for the delivery of the watch to him, or have any knowledge thereof, until it was shown to him by the defendant. He states the conversation that occurred when the order was shown to Mm. “I stated to Mm I was glad he had had such an order served on him, for I was gomg to the Centennial and wanted a good time-piece to take with me. He then said, what would you do about it ? I told him that I could give him no advice, really; he had better take the paper and advise with Mr. Judd. He said he would do so. I told him there was an order for Mm to' deliver the watch to me, and I don’t know that there is any thing for you to do but to hand it over to me. * * * He said, when he went out, he would see Mr. Judd and let me know, or words to that effect.” • The defendant did not then claim to the receiver that the watch had been stolen.

It seems to be settled that, in order to bring a party into contempt for disobedience of an order or judgment requiring the payment of money or the delivery of property, it is not sufficient that the order or judgment has been served on Mm, and he made fully acquainted with its effect; but, in addition thereto, a compliance with the order or judgment must be explicitly demanded by a party who has a right to make such demand, and where the order is to deliver property over to a receiver the property must be demanded by the receiver personally. (Panton v. Zebley, 19 How. P. R., 394; Gray v. Cook, 24 id., 432; Lorton v. Seaman, 9 Paige, 609.)

The proceeding for contempt is strielo jwris, and all the rights of the defendant must be carefully preserved, and no conviction should be had unless upon clear evidence. The plaintiff seems to have proceeded, upon the ground that the service of the order was sufficient, without any express or peremptory demand for a delivery of the watch.

The authorities before cited show this to be an error. .It is true, the receiver says in one part of his examination, that, as receiver, he demanded some things of the defendant, and, among others, his watch. But we understand the demand there spoken of was before and without reference to the order of the county judge, requiring the specific delivery of the watch. The conversation between the receiver and the defendant, when the former was made acquainted with the order, did not amount to a demand of the delivery of the watch at that time, and was evidently not so understood by either the receiver or the defendant.

We think, therefore, that the order convicting the defendant of a contempt for disobediance of the order to deliver the watch was erroneous, because no demand of such delivery by the receiver was shown, irrespective of the question of fact whether the watch had been stolen from the defendant, so that he had it not in his power to deliver it.

The order appealed from is reversed, with ten dollars costs and disbursements, and if the defendant has paid the fine and costs imposed by the order appealed from, the order of reversal should contain a direction for restitution.

Present — Mullís, P. J., Talcott and Smith, JJ.

Order appealed from reversed, with ten dollars costs and disbursements, and if the defendant has paid the fine and costs imposed by the order appealed from, the order of reversal to contain a direction • for restitution.


text:
    LA MOTT THOMSON v. LAURA S. TAYLOR, Executrix of JAMES B. TAYLOR, Deceased. In the Matter of the Claim of ORSAMUS B. MATTESON, for Expenses Incurred by him as Indorser and Surety upon Notes of said JAMES B. TAYLOR.

      Swrety — recovery by, from, principal, of necessa/ry expenses of action.

    Defendant’s testator having died, leaving promissory notes outstanding to the extent of $80,000, on which one Matteson was liable as an accommodation indorser and surety, the latter gave security to the holders thereof, and brought actions in their names to collect the same. Upon the settlement of the estate, the referee found that in so doing he incurred certain necessary and reasonable costs and expenses, over and above the costs allowed in the judgments, amounting to $14,091.98. Held, that he was entitled to recover that sum from the testator’s estate.
    Appeal from an order of Oneida Special Term, disallowing the claim of O. B. Matteson for expenses incurred by Mm, as indorser and surety, upon notes of one James B. Taylor, deceased. This action was brought to marshall and distribute the assets of the estate of the deceased.
    James B. Taylor, of New York city, died in August, 1870, leaving commercial paper outstanding indorsed by Orsamus B. Matteson, to the amount of $76,000.
    His will was admitted to probate, and pending an appeal taken from the surrogate’s decree of probate, Edward H. Tracy, deceased, and the defendant, Laura S. Taylor, were apjiointed and qualified as executors under the provisions of chapter 603 of the Laws of 1871.
    After Taylor’s death, action was brought by Matteson in the names of the holders of the notes above mentioned, against the executors, and judgments were recovered to the amount of $98,004.56.
    To prevent the creditors from resorting to his own estate for payment of their claims, Matteson agreed to and did secure them against ultimate loss, and meantime assisted them in collecting the notes out of Taylor’s estate, and the above-mentioned proceedings

      were instituted under Ms auspices, though in the names of the various holders of said paper. Subsequently a reference was ordered, to take an account of and report to the court the amount due to the plaintiff herein, and to all other creditors, and to ascertain what expenses of administration had been incurred and remained unpaid, and the items thereof. At the hearing before the referee, Mr. Matteson claimed, and the referee reported, that he was entitled to be reimbursed his reasonable and necessary costs and expenses, incurred in the prosecution and defense of actions for the collection of debts for wMch he was surety, the same amotinting to $14,091.98.

      Jno. D. Kernam, for the appellant.

      Ward Himb, Jr., for the respondent Levy, trustee, etc.

      Seymoivr & Wea/o&r, for the respondent Tracy, executor, etc.
   Smith, J.:

The facts upon which the claim of Mr. Matteson rests are briefly these: In 1870, James B. Taylor died, insolvent, owing debts to a large sum, among which were several promissory notes, amounting in all to about $80,000, on which Matteson was liable as his accommodation indorser and surety. The notes having become due, and Matteson having been sued or threatened with suit, he gave security for their payment to the holders, and with their consent, undertook the prosecution of suits in their names, respectively, for the purpose of collecting the notes out of the estate of the deceased. The referee has found that in so doing, he incurred certain necessary and reasonable costs and expenses over and above the costs allowed in the judgments, amounting to $14,091.98, which sum was allowed by the referee and disallowed at Special Term.

The action in which the claim is presented is one of equitable eogmzance. Its object is to marshal and distribute the assets of the estate of the deceased debtor, through the agency of a receiver.

It is well settled, that a surety has the right to come into equity, after the debt has matured, and compel the creditor to sue the principal, and collect the debt from him in discharge of the surety, if the latter will undertake to indemmfy the creditor for the risk, delay and expense of the suit. (King v. Baldwin, 2 Johns. Ch., 561; S. C. on appeal, 17 Johns. R., 384, 390; Hayes v. Ward, 4 Johns. Ch., 132; Story’s Eq. Jur., § 849.) In such case, it is plainly equitable that the costs and expenses which the surety is obliged to assume, as well as the costs of his action to obtain the relief, should be borne by the principal debtor, since they are caused by his default. He, as well as the creditor, is a proper party to the action ( Warner v. Beardsley, 8 "Wend., 194, 199), and the court may make such decree against him respecting costs and expenses, as will be equitable. In the present case, the creditors, by agreement, granted to Matteson the equitable relief which he, as surety, under the rule above adverted to, could have obtained by suit. On his securing the debt, they permitted him to prosecute actions against the estate of Taylor, in their names, at his expense. The claim allowed him by the referee is for his necessary and reasonable expenses in those actions, over and above the costs recovered in the judgments. Has claim to be reimbursed out of the estate, seems to rest upon the same equitable grounds that would have entitled him to be made whole by the principal debtor, if he had sued the latter in his lifetime, jointly with the creditors, to obtain the like relief. The only difference is, that the estate is now saved the costs of an action for such relief, the arrangement between the creditors and the surety having rendered such action unnecessary..

The referee having found that the expenses claimed were reasonably and necessarily incurred in suits instituted to collect the debt out of the estate of the principal debtor, it seems to me they were properly allowed by him, upon the ground above indicated.

These views do not conflict with the rule that at law a surety can recover only the amount paid by him on the obligation, with such reasonable expenses as he may have been obliged to incur. His right to recover, at law, depends upon the fact of his payment of the debt. But, in equity, if the time of payment is past, and the creditor neglects to proceed, the surety may institute a suit against the principal debtor and the creditors, not to delay the latter, but to compel the former to pay the debt, and thus to relieve the surety from his responsibility. ( Warner v. Beardsley, supra, p. 199.)

Nor does the equitable right of the surety above stated depend upon a special covenant of the principal debtor to indemnify him. It rests on the contract which equity implies on the part of the principal debtor to indemnify his surety, “ and the ground of equity is that when the money is due the equity arises.” [Hungerford v. Hungerford, Gilb. Eq. R., 67; Purge on Suretyship, 378.)

If these views are correct, the claim should be allowed, whatever construction be given to the statute relied on by the appellant’s counsel. (Laws 1858, ch. 314, § 3.) I am of the opinion, however, that the statute does not aid the appellant, and that the true construction is that which was given to it by the learned judge at Special Term, to wit, that the only costs and expenses which a surety can recover under its provisions are those which he has incurred, in good faith, in the prosecution or defense of an action by or against himself as such surety.

Rut independently of the statute, the appellant is entitled to have the claim allowed.

Order appealed from reversed, as to the claim in question, and the report of the referee, in that respect, confirmed, with ten dollars costs of the appeal and disbursements, to be paid by the respondents.

Present — Mullin, P. J.; Talcott and Smith, JJ.

Order of Special Term as to the appellant’s claim in question reversed, report of referee in that respect confirmed, with ten dollar's costs of appeal and disbursements, to be paid by the respondents.