text:
    Abigail Allen, App’lt, v. Albert Heine et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Chattel mortgage—Title to chattels.
    In. an action to recover a steam engine, to which plaintiff claimed title by purchase at foreclosure sale, under a chattel mortgage made by defendants A., and defendant H. by purchase from one B., it appeared that defendants A. desiring to procure ah engine, H. offered to put one in and remove it if unsatisfactory, and directed them to procure it of B., using, his name; it was shipped in H. ’s name, and used by the A. ’s, being charged to and a bill sent to them by mistake, but H. made a payment thereon, upon a bill made in his name, and the error in B.’s books was corrected. Held, that a judgment for defendants should be sustained.
    2. Same—Antecedent debt— Ceeditoes and fuechasebs only may baisb OBJECTION.
    The objection that a chattel mortgage was given to secure an antecedent debt cannot be raised by a person claiming title to the mortgaged chattels on the ground that the;? were mortgaged by a third person without title, he being neither a creditor or a purchaser.
    Appeal from a judgment in favor of defendants rendered in.the city court of Yonkers.

      William Riley, for app’lt; Ralph E. Prime, Jr., for resp’ts.
   Dykman, J.

—This is an appeal from a judgment of the city court of Yonkers, in favor of the defendants and against the plaintiff

The action was for the recovery of a steam engine, boiler, shafting, pulleys and hangers.

The plaintiff claimed title to the property under a chattel mortgage executed to her by James Allen and David B. Allen, who were copartners in- business in Yonkers under the name of Allen & Son. The plaintiff is the wife of James and the mother of David.

The defendant Heine claimed title to the property by purchase from Marvin Briggs, in New York city, and' it was bought from Briggs, but the great question upon the trial was whether the purchase was- made by Allen & Son, as the plaintiff claims, or whether it was made by Heine, as the defendants claim.

The chattel mortgage to the plaintiff was foreclosed, and she became the purchaser of the property at the sale, and the defendants removed it all from the former place of business of Allen & Son, where it had been- in use previous to the sale, and where it was left after the sale.

There was some claim that the mortgage of the plaintiff was-invalid because it was given to secure an antecedent debt, but the defendant Heine is not in a position to derive any benefit from its invalidity, because he is neither a creditor nor a purchaser. He must, therefore, stand upon his own title as a purchaser from Marvin Briggs.

The facts relating to the purchase are curious and quite complicated. Allen & Son desired to procure an engine, and Heine directed them to Briggs, who had this engine in question, and James went to New York and examined it, but thought it was too small and did not buy it. He reported his fears to Heine, who insisted it would perform the work and was sufficiently large and powerful, and offered to put it in himself and remove it if it proved upon trial to be insufficient That proposition was accepted, and Heine authorized David to use his name in ordering the engine, and it was ordered by David, as we infer from the testimony.

It was shipped to Yonkers in the name of Heine, and he directed the carrier to deliver it to Allen, and it was so delivered. and set up by them, and used for some time and until their failure in business. It was during the time of such use that the plaintiff took her chattel mortgage.

The charge on the books of Briggs for the engine and boiler' was made against Allen k Son, but the bookkeeper says he made the charge against them because Briggs told him the sale was made to them, and that he afterwards wrote the name of Heine: in pencil over their name upon the book.

A bill was sent to Allen k Son at Yonkers for the engine, and-thereupon Heine informed James Allen that the bill was a mistake, and went to Hew York and got a bill in his own name for’ the engine. Heine either then or afterwards paid twenty-five dab lors to Briggs on account of the purchase.

The city judge before whom the cause was tried found all the facts in favor of the defendants and found that the purchase was made by Heine.

Although there is some obscurity about the facts, yet the evidence preponderates in favor of the theory of the defendants to an extent which forbids us to interfere with the findings of tire trial court.

There is some uncertainty in the testimony respecting the ownership of the shafting, hangers and pulleys, but no point was made respecting those articles either upon the trial or upon this appeal, and we assume that all questions relating to those articles Were waived.

The judgment should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concur.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    George B. Glover, Pl’ff, v. Lucy H. Glover, individually and as Executrix, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Wills—Construction—Legacies—General or specific.
    Testator, in Ms will, prefaced a list of legacies, among wMch was one of §500 to plaintiff, by a statement that he has “at present” certain mentioned securities amounting to a certain sum; the legacies are then bestowed, and all the residue of his personal estate given to his wife. He then mentioned that a further sum was due Mm, which, “when this is collected,” he disposes of in legacies, one of $100 to plaintiff, and the remainder of all his personal estate is then given to his wife. It appeared that the debt m mtioned was paid to testator during Ms life-time. Held, that the legacies to plaintiff were general, and not subject to ademption by the extinguishment of the securities specified.
    Exceptions ordered heard at general term in the first instance after judgment directed for plaintiff.
    Action to recover two legacies.

      Jay & Candler (Flamen B. Candler, of counsel), for pl’ff; Day & Lord (Franklin B. Lord, of counsel), for def’t.
   Barnard, P. J.

—George B. Glover, defendant’s husband, died in China, in October, 1885. On the 9th of July, 1879, he executed a last will and testament in the city of Brooklyn and on the 19th of June, 1885, he executed another, will at Shanghai, China. By his last will made in China he revokes all wills “ heretofore made by me, save and except so much of the will made by me in the United States in or about the year one thousand eight hundred and seventy, shortly after my marriage to my said wife, as is not inconsistent with .the present will, it being my desire and intention that, subject to the provisions of this present will being in the first instance fully observed and carried out, my said previous will shall still remain in full force.” Both wills were proven as one instrument. By the first will the testator gave $500 to George B. Glover, the plaintiff, and as to this sum the only question is whether the legacy is a general legacy or is payable out of certain specific securities. The testator prefaces a list of legacies by a statement that he has “ at present” certain securities which are stated in the will, showing a net sum of $30,214. The will then states as? follows, “ This sum I give bequeath and dispose of as follows, toS; wit:” The legacies are then bestowed and “all the rest, residue and remainder of my personal estate as shown in the foregoing statement to my beloved wife, Lucy.” The testator then mentions that he has a further sum due him from the Chinese government and “when this is collected ” he bequeaths and disposes of the amount as specified in the will. The legatees are then named, and among them the plaintiff is given $100. The remainder of all testator’s personal estate is then given to his wife. By this will the plaintiff took a general legacy as to the $500. The testator intended to dispose of all his property and the enumeration of it in the will did not make'the legacy specific. Plaintiff got no interest in any of the securities named. The case is very similiar to Giddings v. Seward, 16 N. Y., 365. In that case a bequest of $1,100 and interest upon it contained in a bond and mortgage described in the will is held a general legacy and not subject to ademption by the extinction of the bond and mortgage in testator’s life-time.

y So in Tifft v. Porter, 8IST. Y., 516, a gift of bank stock in different proportions to two legatees was held general without a statement that the shares were to be taken from those owned at his death. The proof established that the debt due the testator from the Chinese government was paid to him in his lifetime. It was also proven that the executrix had received and there was in her hands enough to pay both legacies to the plaintiff. There is no good ground to" question the appropriation of the estate by defendant individually. She denies that there are any legacies due to the plaintiff and avers that she has not appropriated the estate except so far as the same has been bequeathed to her. She claims the estate to have been given to her by a gift of the securities named in the first will. Code, § 1819.

Judgment should therefore be affirmed, with costs.

Dykman, J., concurs ; Cullen, J., not sitting.


author: Cullen, J.

text:
    George Sweet, Ex’r, Resp’t, v. Henry K. Burnett, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Will—Construction.
    Testatrix, by her will, bequeathed legacies out of “money of my husband’s estate now belonging to me,” and the residue to her husband’s nieces and. nephews. The husband's estate had been left to the testatrix, and consisted of moneys on deposit, securities and a farm; the personal estate be-in»- still in the hands of the husband’s executor. Held, that as she would' take her liusbaud’s personalty in the form of money, the proceeds thereof were properly described as such and would pass under the bequest in her will; but that the farm would not pass thereunder.
    Appeal from judgment in favor of plaintiff.
    Action for the construction of a will.

      L. B. Sackett, for app’lt; Herrick & Losey, for pl’ff-resp’t; P. E. Ackert, for resp’ts Maria Decker and Mary Burnett; F. L. Akerly, for resp’t Harvey Hicks; S. K. Phillips, for resp’t Caroline Gifford; Fred. E. Ackerman, for resp't Jane Murphy; Hufcut & Travis, for resp’ts Obed Rozell and Josephine McElwin; William Downing, for resp’t Wyman Rozell; Allison Butts, for resp’ts Stephen and Samuel Rozell; Hackett & Williams, for resp’t Elizabeth Rozell; Lewis Baker, for resp’t Mary J. Heermance.
   Cullen, J.

—The question presented in this case is what passes under the term “ money ” in the second paragraph of the testatrix’ will. That paragraph is a^follows:

“ From the money of my husband's estate now belonging to me, I desire that all my funeral and other expenses be paid, and out of the same I give to Bobert Nickerson the sum of one hundred dollars; to Francis Nickerson the sum of one hundred dollars. The residue of said money I wish to have divided equally between, my husband’s nieces and nephews.”

The testatrix’ husband had died ten months prior to her own decease, leaving all his property, real and personal, to his widow. The husband’s estate consisted of a deposit in the savings bank, notes due him, some articles of household furniture, farm products1 and the like, and a farm. At the death of the wife the husband’s personal estate was still in the hands of his executor. In Smith v. Burch, 92 N. Y., 228, is to be found an extensive review of the authorities on the construction of the term money. The rule enunciated by the court is, that ordinarily, standing alone, the term means only that which passes current as money, including bank deposits; but when read with the context of the will it may be held to include any kind of personal property. We think that the testatrix intended by the word money in this will to include all the proceeds of the personal estate of her husband. The estate has not been settled. It was the duty of the executor to convert the personal property into money, and the widow would receive it only in that form .unless by agreement with the executor to the contrary. The sums in the different investments might vary before the estate was transferred to her from causes entirely independent of her acts. The executor might use the moneys collected on the notes, or those deposited in the savings bank, to pay debts or charges against the estate. The testatrix must be assumed to have known how her own funds were invested, but not necessarily the investment of her husband’s property. But the dominant consideration with us is that in law she would receive the personal estate of her husband as money and, therefore, those proceeds are properly described as such. But we think there is not sufficient in the will to show that the testatrix intended by the use of the Word “ money ” to pass the farm devised to her by her husband, even assuming the word “ money ” could under any circumstances be given such a comprehensive meaning. The only authority justifying such an interpretation is Estate of Miller, 48 Cal., 165. This case is cited in the opinion delivered in Smith v. Burch, supra, but the court of appeals in its own declaration of the rule of construction limits money to personal property.

The judgment appealed from should be modified so as to declare that the farm of the testatrix does not pass to the husband’s nephews and nieces, but descended to the testatrix’ brother and heir-at-law, the defendant Burnett.

In other respects the judgment should be affirmed, without sosts of this appeal to either party.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Bradley, J.

text:
    The People, Resp’ts, v. Emma Fishbough, App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Same law—Offering yellow birds for sale.
    Chapter 534, § 13, Laws 1879, as amended hy Laws 1880, chapter 584, § 3, providing that no person shall at any time in this state kill or expose for sale, or have in possession after the same is TdlleA, any eagle, woodpecker, nighthawk, yellow bird, etc., under a penalty of five dollars for each bird so killed, exposed for sale or had in possession, relates to dead birds only. The exposing of live yellow birds for sale is not a violation of the statute.
    (Vannand Brown, JJ., dissent.)
    Appeal from judgment entered on order of the general term of the supreme court in the second judicial department, affirming judgment entered upon decision of the trial court in favor of the plaintiff

      Josiah T. Marean, for app’lt; Thomas W. Fitzgerald, for resp’ts.

       Reversing 34 St. Rep., 320.

   Bradley, J.

—The action was brought to recover penalties for alleged violation of the statute which provides that “ No person shall at any time in this state kill or expose for sale, or have in possession after the same is killed, any eagle, woodpecker, nighthawk, yellow bird, wren, martin, oriole or any song bird, under a penalty of five dollars for each bird so killed, exposed for sale, or had in possession.” Laws 1879, chapter 534, § 12, as amended by Laws 1880, chapter 584, § 2.

The defendant in May, 1889, kept a bird store in the city of Brooklyn, and then had in her possession and exposed for sale seventeen live yellow birds. This was charged to be in violation of such statute, and the determination to that effect resulted in a tecovery of eighty-five dollars against the defendant.

The question is one of construction of the statute. And for that purpose reference may be had to the object in view, which was to prevent the destruction of the birds there mentioned. The prohibition, therefore, was directed to the killing of them, and to make it effectual in that respect was applied in like manner to the having them, in possession after they were killed. It so far had relation only to the killing of birds and the possession of them after they were killed. And although a person, by having the possession of live birds, does not violate the statute, it is said that if he exposes them for sale he does violate it as effectually as if he should kill them, or have them in his possession after they were killed, because, perchance, the purchaser, who would violate no law in buying, might kill them. Is there any reason why the purchaser’s possession of live birds would be more objectionable than that of the person from whom-he should purchase them? If there is, and the sale is within the intended interdiction, why was not the purchase, as well as the sale within the statutory condemnation, and’the purchaser as well as the seller, in like manner, subjected to the penalty ? Inasmuch as the statute does not prohibit the having possession of the live birds, the reason is not apparent for the legislative intent to discriminate in that respect between the person who should sell and the person who should obtain from him the possession by purchase. It is, however, suggested that by putting live birds in the market they might come to the possession of a purchaser who, for some lucrative purpose, would kill them. This is upon the assumption that they might be purchased for some sort of ornamentation, and for that purpose be killed. While such may or may not be the purpose of the sale and purchase, the act of the purchaser in buying would be no less within the reason for penal statutory imputation than would that of the seller. We have thus far proceeded with a view to the inquiry whether the legislative intent was such as to bring the charge made against the defendant within the statute, and think it was not unless the language employed fairly requires construction to that effect, and that the charge against her cannot for support rest upon doubtful interpretation.

While the statute may perhaps have been made to express more clearly than it did the purpose in its bearing upon a charge of the character of that made in the present case, we think the fair import of it is such that the prohibited exposure for sale relates to dead birds only. This would be the effect of the relation of the words “ after the same is killed ” back to the words “expose for sale,” and thus restrict their application in like manner as are the words relating to the possession. This is the natural and more obvious meaning of the language used as it would ordinarily be understood, and it is the more reasonable interpretation of the statute in that respect. If the purpose had been to limit the application of the words “ after the saíne is killed ” to the possession, it could have been done by placing them between the words “ or ” and have," so as to make it read, “ Or after the same is killed have in possession,” etc. It is suggested by counsel in support of the plaintiffs’ contention that if the legislature had intended to prohibit the exposure for sale of dead birds only, the section would have been constructed as follows : 41 lío person shall at any time in this state kill and expose for sale, or have in his possession,” etc. But it may be seen that within a statute so framed the killing might be inoffensive without the further act of exposure of tile dead bird for sale by him. who had killed it. At all events it would be open to such construction. There is no essential force in the criticism that application of the words of exposure for sale to dead birds only would render the words of possession useless because the former would include both. It might and might not. The use of the language as to both may not have been unreasonably precautions, as the act of exposure for sale might not necessarily be that of the person having the possession of them in the legal sense of the term. The purpose of the statute was to prevent the killing of the specified birds, and to accomplish it, so far as it would, by prohibiting the having or exposing dead birds for sale.

The view here taken of the statute is that the transfer by one to another of live birds was not within its contemplated inhibition any more than was the possession of them.

Song birds known as such, in addition to those specially mentioned, were included within the terms of the statute. They might be treated as pets, and while it would not be supposed that the legislature intended to prohibit their sale, the same reason would exist to prevent their destruction.

The language used in the act of 1879, and carried into that of 1880, was not first used there.. The same was used in some of the provisions of Laws 1871, chap. 721; Laws 1872, chap. 433; Laws 1874, chap. 511; Laws 1875, chap. 183. The only apparent purpose of § 12, chap. 534, Laws 1879, was to take protection from the sparrow and give it to the robin, as in other respects it was substantially the same as § 9, of chap. 721, Laws 1871, and the amendment of 1880 merely left out the robin and bobolink. All those statutes, so far as relates to the phrase in question, were, we think, entitled to the construction here given. A like purpose and policy are carried into the only statute now remaining on the subject, Laws 1892, chap. 488, the 78th section of which provides that “wild birds shall not be killed or caught at any time or possessed after the same have been killed.”

While this statute does not necessaarily aid in the construction of the former, it seems to embrace all that was essential in the other to accomplish the purpose in view there.

These views lead to the conclusion that the facts found upon which the defendant was charged with liability were not within the inhibition of the statute upon which.it was predicated. And, therefore, the judgment should be reversed and a new trial granted, costs to abide .the event.

All concur, except "Vann and Brown, JJ., dissenting.


text:
    Edward F. Gold et al., App’lts, v. James Clyne et al. Resp’ts.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Business corporations—Liability op directors.
    Defendants were directors of a corporation formed under the act of 1875, for which plaintiffs had contracted to erect certain buildings. Plaintiffs received all the payments on the contracts except two instalments, and the work was not completed until alter the corporation was dissolved by the expiration of its charter. No annual report was ever filed. In an action against the directors for the balance due, Held, that the defendants were not liable, the corporation having ceased to exist while the contract was executory and the liability of the corporation was unperfected and contingent.
    Appeal from judgment entered on order of the general term bf the supreme court, in the first judicial department, affirming" judgment entered on report of a referee dismissing the complaint On April 28, 1884," the plaintiffs entered into contract with the Central Park Building Company of the city of New York, whereby they undertook to put into four apartment buildings known as “valencia,” “Tolosa,” “Granada” and “Saragosa,” complete steam heating and ventilating apparatus for the sum of $25,000, which the company agreed to pay as follows:
    “ 1st. Payment when all the steam and return pipes are in................................... $7,666 66
    “2d. Payment when all the radiators are connected................................... 7,666 66
    “3d. Payment when the whole work is finished... 7,666 68
    “ 4th. Payment when the apparatus shall have had one winter’s trial to the satisfaction of the architect................................. 2,000 00
    $25,000 00”
    The plaintiffs proceeded with the work. The first and second instalments, amounting to $15,333.32, became due and were paid. The third instalment became due in December, 1885, and the last one the 1st of March, 1886.
    The company was a corporation created in June, 1883, and the period of its duration stated in the certificate was two years. The defendants became directors of the company. No annual report was filed in 1885. The referee determined that the defendants were not, by reason of such default, liable to the plaintiffs.

      Ira D. Warren, for app’lts; Geo. A. Strong, for resp’ts.

       Affirming 35 St. Rep., 582.

   Bradley, J.

—The Central Park Building Company was incorporated pursuant to the provisions of chapter 611 of Laws of 1875 ; and at the time the contract was made with the plaintiffs the company was engaged in building four apartment houses in the city of New York, known as the Navarro fiats. The contract with the company by which the plaintiffs agreed to put into the buildings heating and ventilating apparatus for $25,000 was made in April, 1884. The company undertook to pay the amount in four instalments, three of them at certain stages of the work, and the fourth after a time specified for its trial and approval. The first two amounting to $15,333.32 were paid; and the plaintiffs having completed the work in December, 1885, were then entitled to the third instalment of $7,666.68, and to the balance March 1, 1886. They remain unpaid. The purpose of this action is to recover of the defendants, who were directors of the company, the amount so remaining unpaid, and it is founded upon default in filing a report in 1885, as required by the statute, which provides that: “ Every such corporation shall annually, within twenty days after the first day of January, make a report, which shall state the amount of capital, and the proportion actually paid in, the amount and, in general terms, the nature of its existing assets and debts, and' the names of its then stockholders, and the' dividends, if any, declared since the last report, which report shall be signed by the president and a majority of the directors, and shall be verified by the oath of the president and secretary of such corporation and filed in the office of the secretary of state, and if any such corporation shall fail so to do, all the directors thereof shall be jointly and severally liable for all the debts of the corporation then existing and for all that shall be contracted before such report shall be made.” Laws 1875, chap. 611, § 18.

The duration of the corporation as set forth in the certificate provided for by the statute (id., § 3) was two years, which expired with the 16th day of June, 1885. And the defense rests upon the ground that it ceased to exist at that time, and that the plaintiffs’ claim was not a debt then existing of the corporation. It is essential to the liability of directors by virtue of the statute, for default in filing a report, that their occupancy of that relation, such default and the debt of .the corporation have existence at the same point of time. Shaler, etc., Co. v. Bliss, 27 N. Y., 297; Duckworth v. Roach, 81 id., 49. There would be no difficulty in bringing all those elements within the same period of time if the pendency of the unexecuted contract-were sufficient to furnish the existence of a debt of the company. The indebtedness of the corporation was dependent upon performance of the contract by the plaintiffs, and did not until then arise. Then and not until that time did it become a debt of the company. Garrison v. Howe, 17 N. Y., 458; Whitney Arms Co. v. Barlow, 68 id., 34. In that view the plaintiffs’ claim never was a debt existing against, the company, because its period of duration as such terminated, and it ceased to have corporate existence while the contract in respect to the moneys sought to be recovered was executory and the liability of the corporation was unperfected and contingent.

In Jones v. Barlow, 62 N. Y., 202, it was held that the liability of directors dependent on default in filing a report is measured by the obligation of .the company; and that the remedy against it and them is concurrent. And such was the view of the court as expressed in The Rector, etc., v. Vanderbilt, 98 N. Y., 170, 173-174.

We do not. intend here to hold that the directors may not be chargeable after dissolution of a corporation for a debt before then existing and becoming due after such dissolution in case it was then in default in filing a report, nor is it necessary to express any opinion on that question in the present case.

Our attention is called to the provision of the statute that: “ The dissolution for any cause • of any corporation created as-aforesaid shall not take away or impair any remedy given against such corporation, its stockholders or officers, for any liability incurred previous to its dissolution.” Laws 1875, chapter 611, § 38. And it is urged that a liability of the corporation was incurred when the contract was made, and existed at the time of its-dissolution, although it did not become an existing debt until-December, 1885, when the work was finished, and that the default in respect to the report then effectually existed. The construction, thus contended for of the provisions of § 38 would seem to give to it the effect of creating a liability of the directors, and not. merely saving or continuing one established, before and existing at the time of the termination of the corporate existence of the company. As has been already observed they were not liable1: when the corporation ceased to exist; although it was then in such default; and as after the death of the company it could make no report, the directors were not chargeable with liability founded upon such omission. It has been held that even after a de fació dissolution no report is necessary for the protection of directors. Huguenot Bank v. Studwell, 74 N. Y., 621; Losee v. Bullard, 79 id., 404; Bonnell v. Griswold, 80 id., 128. The requisites of their liability and the conditions upon which it depends are found in § 18. And unless the provisions of § 38 are so construed a@ to extend the existence of the corporation or deny to it death as to its executory contracts until the contingent liability created by them has ripened into existing debts, it is difficult to see any support in the default for the charge made against the defendants personally.

The provisions of those sections of the act of 1875 are substantially the same as the provisions of §§ 12 and 19 of chap. 40, Laws 1848; and therefore, the cases in which those provisions of either statute have been considered are applicable to those of the other. And while there are many in which the question of the liability of directors or trustees under § 12 of the - act of 1848 has arisen,, our attention is called to none other than the one at bar in which the provisions of § 19 of that act, containing the same as those of § 38 before mentioned, have had special consideration. As ,these-statutes so far as they are intended to charge the trustees are penal-in character, it has been the policy of the courts not -to enlarge-their operation by construction, but rather to limit- the effect of them to the import required by their terms. By the provision that the dissolution of a corporation should not take away or impair any remedy given against it or its officers for any liabilities before^ then incurred, it does not appear to have been the intent to do-more than to save the rights of creditors for all the substantial purposes of remedy as they existed at that time against the company and its trustees, and related to liabilities which had then arisen. The view in support of the contention that the default in filing a report in 1885 continued and was effectual as such in-December of that year, when the plaintiffs finished the work,, would require the conclusion that for the purposes of their remedy the life of the company was extended to that time notwithstanding the term of its duration taken by its charter had expired six months before, because to bring the case within the provisions of § 18 upon which the liability of the directors must depend, the plaintiff’s claim must have been an existing debt of the corporation within the time such default continued. The liability to pay the debt when it should arise was given by the undertaking of the corporation in the contract, and in that sense the liability accrued prior to its dissolution, but when the debt arose from performance of the contract it did not become a debt against the corporation for the reason that the company then had no corporate existence; and an essential element to the liability of the-trustees was want- - ing. But the debt was nevertheless chargeable against the assets of the deceased corporation because the contingent liability incurred during its life became absolute after its death. And for the purposes of relief proceedings were available against its representatives as they may be in like case against the personal representative of a deceased person.

With that in view the statute provides that upon the dissolution of any corporation, unless others shall be appointed by the legislature or some court, the directors or managers of the affairs of the corporation at the time of dissolution shall be the trustees of the creditors and stockholders, with full power to settle its affairs, and for that purpose may sue and are liable to creditors, etc., to the extent of the property of the dissolved corporation that shall come to their hands. 1 R. S., 601, §§ 9, 10. Then there is no corporation to be made a party, nor any to support a judgment against it in an action pending at the time of the dissolution, but for the purposes of the entry of a judgment in such case the action must be revived against the representatives. McCulloch v. Norwood, 58 N. Y., 562.

The defendants ceased to be trustees on the death of the corporation ; and it is not merely because they were such up to that time that they may, for want of others, become its representatives for the purpose of closing up the affairs of the corporation, but because they were constituted such by the statute. It is only necessary for the protection of directors against liability upon a particular debt against their corporation that the requisite report be filed prior to the existence of such debt. The making and' filing of a report is the corporate act of the company. Cornell v. Roach, 101 N. Y., 375. And after the corporation has'ceased to exist, there are no trustees or directors, no report can legitimately be made or filed, nor can any default thereafter arise for want of it. The default in that respect preceding the dissolution, continues effectual in support of the remedy to charge the trustees thereafter upon a liability incurred for that cause hy them during the existence of the corporation. And such, within the meaning of § 38, is a liability incurred by the officers of a corporation previous to its dissolution. The present is not such a case. And therefore, no support for the liability of the defendants for the failure to file a report is brought within the statute.

It is also urged that, although by the terms of the certificate for formation of the corporation its term of duration was made two years, the presumption arose from the fact that a report was made and filed January 21,1886, that its life was extended, which could have been done pursuant to the statute, which provides that: “ Whenever any corporation organized under this act has fixed the duration of its corporate existence for a less period than, fifty years, it may at any time extend the term of its existence beyond the time mentioned in the original certificate of incorporation by the consent of the stockholders owning two-thirds in-amount of the capital stock of the corporation, in and by a certificate to be signed by such stockholders,” duly acknowledged or proved, and filed in the office of the secretary of state. Laws; 1875, chap. 611, § 29.

• While it may be difficult to account for the filing of the report in 1886, otherwise than upon the assumption by the officers making it that the corporation was then in existence, the fact that the report was then made did not, as matter of law, raise the presumption that the requisite or any proceedings for that purpose had been taken to extend its life. Nor does it appear by the; record that such question was specifically raised by any request to find or otherwise by any exception. And the same may be-said of the suggestion of estoppel in support of the defendants’ liability. No question in the record arises upon either of those-propositions to justify on this review interference with the conclusion of the court below.

It follows that the judgment must be affirmed.

Judgment affirmed, with costs.

All concur.


author: Brown, J.

text:
    Matthew Marx, Resp’t, v. The Press Publishing Co., App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Appeal—Motion to dismiss complaint.
    In an action for libel, the complaint alleged the article to have been published in the Brooklyn edition of The World. The answer was a general denial, and plaintiff gave evidence to prove that The World was published by defendant At the close of the cace, the record states that defendant’s counsel made “a formal motion to dismiss,” and after all the evidence was in he “ moved to dismiss the complaint on the whole proof.” Held, that the exception to the denial of this motion presen! s no question for review on appeal.
    2. Libel—Malice—Justification.
    Defendant had pleaded (1) that the publication was a fair and true account of a judicial proceeding, and (2) that the statements were true. Defendant asked the court to charge that there was no evidence that defendant was influenced by actual malice in publishing its report of this judicial proceeding if the same was fair and true. The court so charged, other than the justification of the article and its contents. Held, no error.
    3. Same.
    As no request was made to instruct the jury to consider as a fact that the justification was pleaded in good faith and not wantonly, the court could not hold, as a matter of law, that the answer could not be considered to enhance damages.

      Appeal from a judgment of the general term of the second judicial department, affirming a judgment entered upon a verdict.

      John M. Bowers, for app’lt; A. N. Weller, for resp’t.

       Affirming 34 St. Rep., 316.

   Brown, J.

-—The plaintiff, who is a lawyer, recovered a judgment for damages sustained from an alleged libelous article published by the appellant,' which in substance stated that he had been accused of failing to pay over to a client money received for her.

The appellant asks us to reverse the judgment on two grounds:

First. That there was no proof of publication by the defendant

Second. For error in the charges of the court upon the question, <of actual malice.

The first point is not raised by any appropriate exception in the record. The article was alleged to have been published in the Brooklyn edition of “The World.” There was a general denial in the answer and the plaintiff gave evidence which he claimed tended to prove that “ The World ” was published by the defendant. ■ At the close of the plaintiff’s case the record states that defendant’s counsel made “a formal motion to dismiss,” and after all the evidence was in he “moved to dismiss the complaint on the whole proof.” The exception to the denial of this motion presents no question for review on appeal. If it was intended to claim that the evidence was insufficient to permit the conclusion that defendant was the publisher of “ The World,” that fact should have been stated, and if it had, the objection might have been obviated by further proof.

Upon the other point, it appeared that defendant had pleaded (1) that the publication was. a fair and true account of a judicial proceeding, and (2), that the statements therein contained were true.

The jury have determined that these allegations were not true, and we must examine the exceptions to the refusals to charge in the light of that fact

So far as material to this appeal the requests to charge and the responses of the court were as follows:

“ That there is no evidence in this case that the defendant was influenced by actual malice in publishing -its report "of the judicial proceeding aforesaid, if the same was fair and true.”

The Court: So charged; other than the justification of the article and its contents.

“ That there is. no evidence in this case of actual malice on the part of the defendant."

The Court: So charged; other than the publication of the article.

“ That the. jury would not be justified in awarding the plaintiff exemplary damages.”

The Court: So charged; unless the article is found to -be false and malicious, and published with intent to injure the plaintiff.

. These rulings are sustained by Holmes v. Jones, 121 N. Y., 462; 31 St. Rep., 379; Cruikshank v. Gordon, 118 N. Y., 178; 28 St. Rep., 784; Bergmann v. Jones, 94 N. Y., 52; Samuels v. Evening Mail Assn., 75 id., 604; 9 Him, 294; Distin v. Rose, 69 N. Y., 123.

The appellant cites Cruikshank v. Gordon as authority for the proposition that the jury cannot infer malice from the interposition in good faith of a justification of a libel and an honest endeavor on the trial to establish its truth.

In that case the court charged in relation to justification of the libel that defendant had a right to plead that issue, and if it was inserted in good faith the damages would not be enhanced if they failed to prove it to the satisfaction of the jury. And it was submitted to the jury to find whether it was pleaded wantonly and without cause, with the instruction that if it was, they could consider that an aggravation of damages. That charge was sustained in this court.

But in this case no request was made to instruct the jury to consider as a fact that the justification was pleaded in good faith and not wantonly, and the court could not hold as a matter of law that the answer could not be considered to enhance damages. Distin v. Rose, supra.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Martin, J. Hardin, P. J.

text:
    The People, Resp’ts, v. Samuel P. Hill, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Homicide—Charge.
    On the trial of an indictment for murder, where the defense was justifiable homicide, the court charged: “ If you shall believe that the defendant was justified in this attack, and I mean by that, if you shall be convinced by the evidence, beyond reasonable doubt, that he was justified in it, then your verdict shall be not guilty.” Held, error ; as it cast on defendant the burden of establishing the justification beyond a reasonable doubt.
    2. Evidence—Testimony op deceased witness.
    Testimony of a witness given on a former trial was offered after evidence had been given to show that he had returned to another state, and some evidence tending to show that he was dead. The evidence offered was rejected. Held, error.
    Appeal from judgment entered upon a conviction of manslaughter in the second degree, and from order denying motion for a new trial.
    It appears by the statement of facts contained in the appellant’s brief, that he was indicted by the grand jury'of Delaware county for murder in the second degree, for having killed one Bobert Peasley on the 10th day of September, 1886, at the town of Sidney in that county. To this indictment the defendant pleaded not guilty. His defense was justifiable homicide.
    He was subsequently tried at the Delaware sessions in March, 1887. The jury rendered a verdict of guilty of manslaughter in the second degree. The court thereupon sentenced the defendant to «ten years imprisonment in the State prison at Auburn. From. the judgment of conviction the defendant appealed to the general term of the supreme court. The general term reversed the judgment, and granted a new trial. The judgment of reversal was entered in Delaware county clerk’s office January 8, 1889, The people appealed from that judgment to the court of appeals, which affirmed the judgment of the general term. Subsequently the action was sent to the oyer and terminer.
    The case was again tried in the oyer and terminer in September, 1890. The trial resulted in a verdict against the defendant of manslaughter in the second degree, and he was sentenced to imprisonment in the State prison at Auburn for the term of five years and two months. On the last trial the defendant added to Ms plea of not guilty the further plea of the former acquittal.
    The record discloses that the defendant moved for a new trial upon all the grounds mentioned in § 465 of the Code of “Criminal Procedure, and especially, 1, upon the ground that the court had misdirected the jury in matters of law to which the ■defendant had excepted ; 2, on the ground that the verdict was contrary to the evidence; 3, on the ground that the verdict was clearly against the weight of evidence. This motion was denied. From the judgment and the order denying the motion for a new trial the appellant appealed to this court.

      James R. Baumes, for app’lt; John P. Grant, for resp’ts.
   Martin, J.

—The material issue in this case was, whether the -defendant killed Robert Peasley under such circumstances as to constitute a crime, or whether such killing was justifiable.

That being the principal issue in the case the court charged : “ If you shall believe that the defendant was justified in this .-attack, and I mean by that if you shall be convinced by the evidence beyond reasonable doubt that he was justified in it, then your verdict shall be, not guilty. ” Thus, the court in effect instructed the jury not only that the defendant must justify his attack, thereby casting the burden of proof upon him, but that ie must bear such burden to the extent of establishing such justification beyond a reasonable doubt. Manifestly this was error. Stokes v. People, 58 N. Y., 177; People v. Downs, 123 id., 558; 34 St. Rep., 262; People v. Hill, 3 N. Y. Supp., 564; 19 St. Rep., 670; People v. Riordan, 19 St. Rep., 35; 3 N. Y. Supp., 774; aff’d 117 N. Y., 71; 26 St. Rep., 531.

The charge being erroneous, we cannot say that' the defendant was not possibly injured or prejudiced by the error, although the •court correctly instructed the jury upon this question in other parts of the charge. Greene v. White, 37 N. Y., 405. For this error we think the judgment and order should be reversed.

Moreover, we are disposed to think that the trial court should have received the evidence of the witness Amasa B. Waters taken on the former trial. That such evidence was admissible, if the proof of the death of the witness was sufficient, there can be no doubt. While it may be that the proof was insufficient to establish the fact of death in an action where it was a direct issue, yet, as the question arose in this case incidentally or collaterally, we think the evidence was sufficient to have justified the court in admitting the former testimony of the witness.

Judgment and order reversed, and the clerk directed to enter judgment, and remit a copy thereof with the return and decision of this court to the clerk of Delaware county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Merwin, J., concurs.

Hardin, P. J.

—-Upon the trial the defendant offered to read the evidence of Amasa B. Waters given upon a former trial. The testimony was important and material, tending to support the defense. It was objected to and excluded. At the time the evidence was given bv the witness he resided in Georgia, and was past seventy-seven years of age. To the exclusion of the evidence an exception was taken. Prior to the evidence being offered on this trial evidence was giving tending to show that the witness had returned to the state of Georgia. We think sufficient evidence was offered tending to establish the death of the witness, and that his death was established prima facie, and that it was erroneous to exclude it. While the ruling is in some sense a matter of discretion, we think that it is reviewable. Jackson v. Waldron, 13 Wend., 199. Section 392 of the Code of Criminal Procedure provides that the rules of evidence in civil cases are applicable also to criminal cases. People v. Murphy, 101 N. Y., 126, recognizes the rule laid down in the section just mentioned. It seems to be well settled that where the question of death of the party or wit-. ness is involved collaterally and incidentally “ resort may be had ^ to what is commonly said and understood to be true among the immediate relatives and family connections of the party to whom the inquiry relates.’’ Clark v. Owens, 18 N.Y., 442; 2 Greenleaf’s Ev., 263, § 278; 266 and note.

In Bradley v. Mirick, 25 Hun, 272, the testimony of a witness was offered on a second trial, he having died subsequent to the first trial; an objection was taken that inasmuch as he was not. cross-examined on the first trial that his testimony ought to be excluded; it was so excluded by the trial court. We held this was error, and our decision was affirmed in the court of appeals, 91 N. Y., 293, as appears by the opinion, although a note accompanying the syllabus erroneously states that the case was reversed. In Jackson v. Etz, 5 Cowen, 319, it was said: “ The fact that a soldier, or any other individual, was missing at a particular time, accompanied with a report and general belief of his death, must be, in many cases, not only the best, but the only evidence which can be supposed to exist of his death. It is, perhaps, reasonable that it should be held prima facie, sufficient. Doe v. Griffin, 15 East., 293.”

The evidence of Waters was erroneously excluded. The foregoing views, as well as those expressed in the opinion of Martin, J., lead me to vote for a reversal of the conviction.


author: Hardin, P. J.

text:
    Hebron Harris, App’lt, v. Alfred F. Clark, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    •Justices’ court—Action upon judgment—Code Civ. Pro., § 1913.
    An action upon a judgment rendered by a justices’ court is within the jurisdiction of a justices’ court although a transcript of such judgment Ras been filed in the office of the county clerk, and the restriction in § 1913 of the Code has no application thereto.
    Appeal from a judgment of the county court of Onondaga ■county, reversing the judgment of the justice’s court rendered on the 5th day of August, 1891, for damages $27.20, costs 0, total $27.20. Upon the return of the summons “ Plaintiff complained on a judgment rendered by and before S. F. Belknap, J. P., * * * on the 23d day of June, 1891, for $27.02 damages and costs in favor of plaintiff herein and against defendant herein, and asked judgment for $27.02 and interest from June 23,1891.” To that complaint the defendant filed an answer in the following language:
    “ Defendant for his answer herein alleges, general denial, counterclaim and payment of $4 on the judgment set out as the cause of action in the complaint. Further, that a transcript of said judgment was filed in the county clerk’s office of Onondaga county, on or about the 13th day of July, 1891; that said judgment then became a judgment of the county court, and for that reason plaintiff cannot maintain an action upon the judgment set out in the complaint.” Plaintiff offered in evidence the docket showing the recovery of the judgment on the 23d day of June, 1891. It is stated in the appeal book as follows: “ Conceded
    that a transcript of said judgment was filed in Onondaga county' clerk’s office July 13, 1891, at 10-10 A. M.” No other evidence was given upon the trial. The justice, immediately, on 'the 5th ■day of August, 1891, rendered a judgment for $27.20 damages, giving no costs to the plaintiff.

      Thomas Hogan, for app’lt; Gill & Stillwell, for resp’
   Hardin, P. J.

—Section 2862 of the Code of Civil Procedure confers upon justices of the peace jurisdiction of civil actions enumerated, and subdivision six thereof is as follows: “6. An action upon a judgment rendered in a court of a justice of the peace, or in a district court of' the city of New York, or in a justices’ court of a city, being a court not of record.” Presumptively the plaintiff’s action “ upon a judgment rendered in a court of a justice of the peace, * * * being a court not of record,” was within the jurisdiction of the justice. Plaintiff was entitled to bring an action upon such a judgment within six years from the time it was rendered. Code of Civil Procedure, § 382, sub. 7. The language of subdivision 7 is as follows: “An action upon a judgment or decree rendered in a court not of record.”

In § 3017 it is provided that a justice of the peace who renders a judgment “ must, upon the application of the party in whose favor the judgment was rendered, and payment of the fee therefor, deliver to him. a transcript of the judgment. The county clerk of the county in which the judgment was rendered must, upon the presentation of the transcript, and payment of the fees therefor, endorse thereupon the date of its receipt, file it in his office, and docket the judgment as of the time of the receipt of the transcript, in the book kept by him for that purpose. * * * Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly.”

In Dieffenbach v. Roch, 112 N. Y., 621; 21 St. Rep., 570, construction was given to §§ 3017, 382 and 1913 of the Code; and it was held “ Although under the Code of Civil Procedure (§ 3017), upon the docketing of a justice’s judgment in the county clerk's office, it becomes a statutory judgment of the county court, it is not a judgment 1 rendered ’ in that court, but remains ‘a judgment rendered in a court not of record,’ within the meaning of the provision of said Code (§ 382), declaring that an action upon such a judgment must be commenced within six years after a ‘final judgment was rendered.’ ”

In the course of the opinion,' it was said, “After a justice’s judgment has been docketed in the county clerk’s office, it becomes a mere statutory judgment of the county court. It is not, in fact, a judgment of that court. There has been no judicial action there, and no judgment has been, in fact, entered or rendered. It is simply to be deemed a judgment of that court. Such a judgment has not been twice rendered, once in a justice’s court and once in the county court; and as it may be docketed in all the counties of the state, it certainly cannot be deemed to have been rendered in every county where it has been docketed.”

The prohibition in § 1913 of the Code of Civil Procedure against “ an action upon a judgment for a sum of money rendered in a court of record of the state,” does not, in terms, relate to a judgment rendered in a justice’s court. It is insisted in behalf of the respondent that because a transcript was filed in the clerk’s office that the action was upon a judgment “ rendered in a court of record of the state,” to wit: the county court of Onondaga county. We think the reasoning and logic used in Dieffenbach v. Roch, supra, are adverse to the contention of the respondent.

The cases to which he refers us, of Lyon v. Manly, 10 Abb., 337, and Baldwin v. Roberts, 30 Hun, 163, were decided prior to the Dieffenbach case.

Section 3017 differs from § 71 of the Code of 1849 referred to in Lyon v. Manly, 32 Barb., 53; S. C., 10 Abb., 337.

In the act of 1849 it is provided in the section that upon filing and docketing, it “ shall be a judgment of the county court.”

In § 3017, the provision is, after providing for the docketing of the judgment, as follows: “Thenceforth the judgment is deemed a judgment of the county court of that county and must be enforced accordingly.” Baldwin v. Roberts, 30 Hun, 163, seems to have followed Lyon v. Manly, supra.

In Church v. Van Buren, 55 How., 489, it was said that the object of the restriction in § 71, and the same may be said of the restriction in § 1913, “ was to prevent multiplicity of suits and accumulation of costs. The statute was aimed at the evil practice and designed to cut it off and prevent it.”

It seems the same object is attained by the restriction in § 3154 of the Code of Civil Procedure in respect to actions upon a justice’s judgment, as that section provides that if such an action shall be brought “ within five years after the rendition thereof against-a defendant, upon whom the summons was personally-served, no costs can be recovered, except, etc.”

Our conclusion is that as the plaintiff’s judgment upon which he recovered was not “ rendered in a court of record of the state,” the restriction in § 1913 of the Code does not apply. Following the views expressed, the judgment of the county court reversing the justice’s judgment rflust be reversed and the judgment of the justice’s court affirmed, with costs.

Judgment of the county court reversing a justice’s judgment reversed, and the judgment of the justice affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    The People ex rel. William J. Cramond, Resp’t, v. The Common Council and Chamberlain of the City of Rome, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Yeterans—Relief fund—Laws 1887, chap. 706; Laws 1888, chap. 861.
    The relief committee of a grand army post is the judge of the necessity for aid for indigent veterans under the provisions of chap. 706, Laws 1887, as amended hy chap. 261, Laws 1888, and not the municipal authorities, and where the latter fail to provide the necessary fund for the1 relief of such necessity they may he compelled to do so by mandamus.

    ° Appeal by the defendants from an order of the Oneida special term allowing a peremptory writ of mandamus requiring the appellants to provide the sum of $280 to be drawn by the relator and other officers of Skillen Post of the Grand Army of the Republic, pursuant to chap. 706 of the Laws of 1887, amended by chap. 261 of the Laws of 1888. The proceeding was instituted cby the relator, who was commander of Post Skillen, supported by the affidavit of Martin, who was a member of the relief committee of the Post and also a member of the common council of the city of Rome.

      Charles Carmichael and A. D. Kneeland, for app’lts; D. F. Searl, for resp’t.
   Hardin, P. J.

—Chapter 706 of the Laws of 1887 authorized special provision to be made “ for the relief of indigent soldiers, sailors and marines and the families of those deceased.” All but the fifth section of the act was amended by chap. 261 of the Laws of 1888. In § 5 of the act of 1887 it is provided that “ indigent veterans with families, and the families- of deceased veterans, shall, whenever practicable, he provided for and relieved at their homes in such city or town in which they shall have a residence, in the manner provided in §§ 1 and 2 of this act.” There is nothing in the affidavits to show any attempt on the part of the relator or the post he represents to disregard the provision quoted. In § 1 of the act of 1888, it is provided that for relief of the class of persons named “ who need assistance in any city * * the proper auditing board of such city * * * shall provide such sum or sums of money as may be necessary, to be drawn upon by the commander and quartermaster of any Post of the Grand Army of the Republic in said city * * upon the recommendation of the relief committee of said Post in the same manner as is now provided by law for the relief of the poor.”

The affidavits show that notices were given the defendant, purant to § 3 of the act of 1888, “ that said Post intends to undertake such relief as is provided by this act,” and the bond provided for by § 4 of the act of 1888 was given and approved. According to the affidavits, the defendant provided certain sums and paid them over to the Post, under the provisions of the statute. Upon further application by the Post, the defendant refused to provide any further sum, “ by a resolution duly and regularly passed, September 7, 1891.”

It is now insisted in behalf of the defendant such action is judicial and final. The act seems to provide that the relief committee of the Post shall judge “of the necessity for aid,” and authorizes the commander and quartermaster to draw upon the fund to be provided to supply the necessary assistance, certified by the commander to be necessary. The power conferred upon the Post and its officers seems to be exceptional for a favored class of indigent persons embraced within its provisions. The proofs before the special term justified its conclusion that the defendant had failed to comply with the provisions of law relating to the needs of such indigent class, and hence the order requiring the defendant to obey and comply with its provisions was proper

The order should be affirmed, with ten dollars costs and disbursements.

Martin and Merwin, JJ., concur.


text:
    The People, Resp’ts, v. Sarah E. Drake, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Assault—Evidence.
    On the trial of an indictment for assault in the third degree, the defendant having been called as a witness and denied the charge, and testified that she never had a pistol in her pocket or had possession of one in eighteen months, was asked on cross-examination whether she had not in various instances named drawn a pistol and threatened to shoot persons named, and denied having done so. On re-direct the prosecution called such persons, and others, who testified that defendant had drawn the pistol and made such threats, the court stating that the evidence was received only on the question as to whether she had a pistol in her possession. Held, error; that evidence of threats or assaults at other times than the one in question was inadmissible. 1
    Verdict in the Broome county sessions of guilty of the crime of assault in the third degree. After the verdict a motion was made for a new trial upon the merits and the exceptions taken during the trial, and upon the ground that the verdict of the jury was contrary to the weight of the evidence. The motion was denied. Defendant was sentenced to be confined in the Albany County Penitentiary for the term of nine months. The county judge certified that there was “a reasonable doubt whether the judgment of conviction should stand.” Judgment was entered, and the defendant appeals from the judgment and the order entered on the 19tli day of October, 1891, denying the defendant’s motion for a new trial. The People gave evidence tending to establish the crime alleged in .the indictment. Thereupon the defendant was sworn as a witness and denied the essential parts of the testimony given by the complainant, and denied the threats testified to by the complainant; and testified: “I never uttered such a word in my life, ‘ That if you don’t give me the farm I intend to have your heart’s blood,’ and I never used anything like it; there was nothing of the kind occurred between us. He has told a falsehood when he tells any such thing as that. At that interview I didn’t use any such language as that. I never used it in my life to any one, to him or any one else. * * * I never had a pistol when I was up in the woods, in my pocket. I never had a pistol in my pocket; I don’t carry any at all for nothing; I have not had in my possession within the last year or eighteen months a revolver. Mr. Dickenson is mistaken when he says I had a pistol in my pocket in the woods; I did not have such a revolver, pistol or firearm ; I never went armed in my life ; * * * I did not have in my possession a firearm, revolver or pistol; I had my fan. * * * That day that I met Mr. Dickenson on the walk, I bad that fan with me; I did not have my shawl on my arm that day; I did not take out a revolver and point at him ; I did not point a loaded revolver; I didn’t have any shawl and no revolver that day ; I did not take a revolver from under my shawl and point it at him; what I had in my hand was that rubber cloak and that fan; I did not say to him ‘ Now I am going to kill you ; ’ I did not use that language to Mr. Dickenson or anything like it; I made no threats on his life that day or at any other time.”
    She was asked on her cross-examination if she ever carried a pistol and her answer was “ No.” She was asked if about the month of June, she “threatened to shoot Johnny Fee with a pistol or revolver ? ” and upon that question being objected to, the court allowed, over an objection and exception, the witness to answer the following question: “ Q. Did you not in about the month of June or July, this past summer, 1891, have in your possession a revolver or pistol ? ” She answered “I did not.” She was also asked: “ Q. Did you not draw a pistol and threaten to shoot James Murphy sometime during the past year ? ” The question was objected to; an exception was taken and the witness answered, “ I did not.” She was also asked: “Q. Did you draw a pistol and threaten to shoot this man' Hanyon sometime during this present year ? ” The question was objected to; an exception was taken, and the witness answered, “I did not.” She was asked “Didn’t you draw a pistol and threaten to shoot Stephen Pettis ? ” Objection and exception taken, and she answered, “I didn’t.” She was. asked, “ Did you go to Caleb Gage’s blacksmith shop in Hawleyton with a loaded revolver in your hand and threaten to shoot his dog?’’ Upon objections being taken to the question the court observed : “ I will admit this question as bearing simply upon the facias to whether she had a pistol in her hand and possession.” Defendant took an exception to the ruling and the witness answered, “I did not.” Then a question was put:“Q. Did you draw a revolver or pistol to shoot A. B. Hayden on your premises- or in your barn within three years? ” Upon the objections being stated to the question, the court observed, “ I will admit that only as I have before, as merely upon the question as to whether she had a revolver in her possession; simply bearing upon that question." An exception was taken and the witness answered, “ I did not.” She was also asked “ Q. Did you not about three years ago meet John Giblin and his hired man Murphy in Hawleyton, and draw a pistol and threaten to shoot him, John Giblin? ” Upon objections being stated to the question the court observed “Admitted upon the question as to whether she had a pistol in her possession at that time only.”
    An exception was taken by the defendant and she answered “I did not.”
    By way of reply to the defendant’s evidence the People called Caleb Gage and put to him the following question:
    “Q. Do you remember an occasion of her going past your shop and having a revolver in her hand ?” The witness answered “I do.”
    “Q. Threatening to shoot your dog?” “A. Yes, sir.” i

    “ Q. State if you can what it was, and when it was ?” This was objected to and the court observed:
    “You may ask the witness the question that you put to Mrs. Drake." Defendant took an exception. “A. That was some five or six years ago; I could give the exact time.” It was again objected to and overruled and an exception taken by the defendant, and the court observed, “ It is distinctly understood that this evidence is admitted only upon the question as to whether this defendant ever had a pistol in her possession.”
    “ Q- At that time did she have a pistol in her hand and threaten to shoot your dog ?” Objections were again stated and the court observed : “ The objection is overruled within the ruling already-laid down by the court.” An exception was taken and the witness answered “ She did.” 1
    Peter Yosburg was called as a witness for the People, and he was asked:
    “ Q. State whether on that occasion Mrs. Drake' had a pistol and threatened to shoot his dog ?” Objections were taken and an exception, and the witness answered, “ Yes, sir, she did.”
    John Giblin was called for the People and testified:
    “ Q. Did Mrs. Drake about three years ago meet you and your hired man Murphv in Hawleyton and draw a pistol and threaten to shoot you?” Objections were stated and exception taken, and the witness allowed to answer: “ It is a mistake; there is no such talk.”
    “ Q. I refer to a conversation at her house, not in the streets of Hawleyton, but in her house at Hawleyton ? A. That was in the summer of 1885 or 1886.” This was objected to by the defendant on the further ground “ that her attention was not called to the time and place.”
    Julia Stewart was called as a witness for the People, and asked:
    “ Q. I will repeat the question; did you in May last see Mrs. Drake and John Fee on Pennsylvania avenue in this city, and at that time did you see Mrs. Drake draw a revolver, and threaten to shoot John Fee?" Objections were stated and overruled, and the defendant took an exception, and the witness answered, “ I saw her draw a revolver.

      “ Q. Threaten to shoot him ? A. Whether she said she would shoot him or not, I couldn’t say, but she said she would fix him.
    “Q. You saw her draw a revolver, and make that remark? A. Yes, sir.”
    Laura Thiele was called by the People, and the following question was put to her:
    “Q. At this time in May did you see Mrs. Drake on Pennsylvania avenue, in this city, draw a revolver or pistol and threaten to shoot John Fee?” Objected to; objection overruled, and the defendant answered, “I saw her draw a revolver and say she would fix him; I wouldn’t say positively she said she would shoot him; it is so long ago, I have forgotten, but she said she would fix him.”
    William Hayden testified in behalf of the People. He was asked:
    “ Q. Did Mrs. Drake at that time draw a revolver and threaten to shoot you ?” Objections were stated ; overruled; an exception was taken, and the witness answered, “Yes, sir.
    “ Q. How did she have the revolver ? A. She had it right in her hand; pointed it towards me.”
    A. B. Hayden, was sworn for the People, and testified to having a conversation with the defendant in 1887, and the following question was asked:
    “ Q. In that conversation did Mrs. Drake draw a revolver or pistol, and threaten to put a hole through you if you did certain things?” This- question was objected to on the grounds before stated, and on “ the ground that her attention was not called to any such time." The objections were overruled; the defendant took an exception, and the witness answered “Yes, sir.
    “Q. Was the pistol fired on that occasion? A. Shot off as I went out of the barn."
    James H. Dunn was called as a witness for the People, and proved by him that he called on Mrs. Drake about six years ago to settle an account; and then put to him the question:
    “ Q. Did Mrs. Drake in that conversation take a pistol or revolver from a drawer?” Objections were stated; an exception taken, and the court observed: “It is only received on the question as to whether she had a pistol in her possession.” The witness answered “That is what she called it.

      “ Q. Did she take this pistol in her hands, and say to you that is the way she pays her debts ? A. She said that is the way she would pay me: I don’t know whether she paid others that way or not.”

      A. A. White, for app’lt; W. D. Painter, dist-atty., for resp’ts.
   Hardin, P. J.

—In The People v. Gibbs, 93 N. Y., 470, it was held, viz: “Upon trial of an indictment for assault with intent to kill, evidence showing the commission by the prisoner of another similar assault, at a different time and place, and upon a different person is not competent.” In the course of the opinion delivered in that case it was said “ The effect of the evidence was to present to the jury testimony relating to another assaült and to an entirely different transaction, which might well tend to prejudice their minds against the defendant in reference to the charge for which he. was on trial.”

In People v. Sharp, 107 N.Y., 467; 12 St. Rep., 217, Peckham, J., said: “ The general rule is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his life time is wholly excluded.”

In Commonwealth v. Jackson, 132 Mass., 16, in the course of the opinion it was said, “Evidence of the commission of other crimes by the defendant may deeply prejudice him with the jury, while it does not legally bear upon his case. It certainly would not be competent in order to show the intent with which one entered a house or took an article of personal property to prove that he had committed a burglary or larceny at another time. * * * Such evidence compels the defendant to meet charges of which the -indictment gives him no information, confuses him in his defense, raises a variety of issues and thus diverts the attention of the jury from the one immediately before it, and, by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him.”

In People v. Wood, 3 Park. Crim., 684, it was said: “It is quite true that the prosecution cannot prove the commission of another and distinct felony by the prisoner for the purpose of establishing the fact directly that he committed the one for which he is then on trial, or for the purpose of raising any direct inference in the affirmative of the principal issue. * * * The common law, with more humanity and better logic, forbids such evidence in support of the principal issue, and limits its admission to minor issues, such as motive and scienter, and even then confines it to cases where there is some apparent connection or relation between the imputed motive or guilty knowledge and the felony proposed to be proved.”

In People v. Greenwall, 108 N. Y., 296; 13 St. Rep., 638, the defendant was called as a witness in his own behalf; and upon being cross-examined as to his connection with another burglary at the house of one Mohring, and in the cross-examination, as well as in the re-examination, he denied that he had ever entered any man's house in the night-time with intent to steal; subsequently Mohring was called to the stand by the prosecution and permitted to testify under objection to evidence showing that the defendant did burglariously enter his house in the night-time. The ruling admitting such evidence was held to be erroneous; and it was also held in that case that the incompetent evidence was damaging in its nature and could not be said to have been harmless, andj therefore, its reception required a reversal. In the course of the' opinion in that case it was said: “ It is never competent upon a criminal trial to show that the defendant was guilty of an independent crime not connected with or leading up to the crime for which he is on trial, except for the purpose of showing motive, interest or guilty knowledgfe, and this evidence was not proper or competent for that purpose. * * * It is never proper for the purpose of impeaching the character of a party or a witness to call witnesses to prove specific acts of dishonesty, immorality or crime.” Under the rulings made by the court, threats made by the defendant upon other occasions to other parties had no such connection with the crime alleged in the indictment as to render them admissible upon the issue before the court; nor can their reception be justified upon the assumption that they tended to impeach the character or standing of the defendant as a witness. Independent and specific acts and deeds of a party are not admissible for the purpose of impeaching a witness. The testimony thus improperly received may have, had a potential influence upon the jury. While the testimony offered for the prosecution tended quite strongly to support the allegations in the indictment, the testimony in behalf of the defendant contradicted the evidence of the prosecution and left a close question of fact to be considered by the jury. Under such circumstances we may not say that improper evidence was not prejudicial to the rights of the defendant. People v. Loftus, decided by this court in November, 1890, as appears in 58 Hun, 606; 34 St. Rep., 525. The foregoing views lead to a reversal:

Conviction, order and judgment of the court of sessions of Broome county reversed, and the- clerk directed to enter judgment •and remit certified copy thereof with the return and decision of this court to the court of sessions of Broome county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

Martin and Merwin, JJ., concur.


author: Merwin, J. Hardin, P. J.

text:
    Marcus Brounstein, App’lt, v. Julius M. Wile et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    "Malicious prosecution—Malice question for jury.
    In an action for malicious prosecution it appeared that plaintiff purchased goods of defendants, and that shortly after the latter replcvined the same but were defeated upon the trial; that defendants’ grounds for cause were a subsequent larger order than usual, orders with other parties, financial inquiries, stock in store not sufficient to pay all his debts, and a refusal to give a statement of financial condition. _ The giving of the subsequent order was denied and no goods were delivered under it. Held,
      that the orders of other parties and the inquiries made furnished no ground for believing that plaintiff intended to commit a fraud; that whether plaintiff's refusal to make a statement was reasonable or not was a question of fact; that the questions of probable cause and malice should have been submitted to the jury, and that a non-suit was erroneous.
    (Hardin, P. J., dissents.)
    Appeal from a judgment entered the 13th of May, 1891, in Onondaga county clerk’s office upon and after a non-suit granted at the circuit in that county dismissing the complaint upon the merits. Action for malicious prosecution. On the 30th day of November, 1882, the defendants commenced an action in replevin to recover “ quantities of clothing to the amount of $882.50,” which they had theretofore sold to the plaintiff, a retail dealer residing in the village of Skaneateles, from their store in the city of Rochester. Before the action was commenced the defendant Wile had an' interview with the plaintiff, and in that interview sought to obtain a statement of the financial standing and affairs of the plaintiff. The plaintiff refused to make such a statement or to make a disclosure of his affairs. Upon the trial of the replevin action at the March circuit in 1886, a verdict was rendered for the defendant in that case, the plaintiff here. This action was commenced May 19, 1887, and in the complaint it is alleged that all the “ acts performed by the defendants and by ■ their direction were without any probable cause whatsoever, and were done maliciously for the purpose of injuring the plaintiff among merchants and in the community in which he resided and for the purpose of extorting from him before the maturity of his obligations the contract price of the goods purchased by the plaintiff from them.”
    It appears the plaintiff commenced business at Skaneateles in March, 1879, and became a customer of the defendants, then doing a business in the city of Rochester, and made purchases prior to the replevin action amounting to some $6,500 on credit. In the fall of 1882, the plaintiff purchased of the defendants goods to the amount of about $1,015.50; subsequently $133 in value thereof were returned, so that there remained a balance of $882.50 at the time of the commencement of the replevin action on the 30th of November, 1882. One of the defendants went to the city of Syracuse and consulted their attorney, Mr. Stern, and in com■pany with him, on the 30th of November, went to the village of Skaneateles and sought the plaintiff, and after having an interview with the plaintiff, and reviewing his stock of goods, and holding a conversation with the plaintiff, in which conversation the refusals were made to disclose a statement of his financial affairs and business standing, Mr. Wile communicated such additional facts as he had learned in the course of the interview to Mr. Stern, who thereupon advised the defendants “ to commence an action to replevin the goods ” which the defendants had sold to the plaintiff.. According to the testimony of Mr. Stern, he heard a portion of the interview between the plaintiff and Wile, and thereafter advised the defendant Wile that an action of replevin could be maintained, and thereupon the action was commenced by placing the papers in the hands of the deputy sheriff, who immediately, with the aid of Mr. Stern and Mr. Wile, selected from the plaintiff’s stock of goods those which had been obtained from the defendants’ firm. At the close'of the evidence, the defendants’ counsel moved for a non-suit upon several grounds stated, and the court granted an order “ directing a non-suit in the action, upon the merits.” To that ruling the plaintiff took an exception. The plaintiff then asked to go to the jury upon the whole case. The court refused, and an exception was-taken, and thereupon judgment was entered in favor of the defendants, from which this appeal is taken.

      Louis Marshall, for app’lt; W. F. Cogswell, for resp’ts.
   Merwin, J.

—The grounds, in substance, upon which the defendants claimed to have probable cause, were that plaintiff had given them a larger order that fall than ever before; that his clerk had ordered of them a quantity of goods at an extravagant price, and on the same day had ordered of three other parties in Rochester goods to the amount in the aggregate of about $1,000 ; that a good many inquiries had been made of them as to the financial condition of plaintiff, a thing that had never occurred before; that at the store of the plaintiff, just before the replevin suit was commenced, the plaintiff refused to give to Mr. Wile, one of the defendants, a statement of his financial condition, and that the amount of goods at the store was about $3,000, which Mr. Wile considered a small amount, and not enough to pay the plaintiff’s debts.

The purchase from the defendants by the clerk of the plaintiff is denied by the clerk, and no goods were delivered. This circumstance must therefore be thrown out of view in determining the propriety of the nonsuit. It appeared from the defendants’books that the plaintiff in the fall of 1881 ordered nearly the same amount of goods, and in the fall of 1880 had ordered more. So that little or no force could be fairly given to í¡he size of the order. Aside then from what occurred or was observed at the store, there were the other purchases at Rochester, and the inquiries made of the defendants. The defendants knew that plaintiff had purchased from other people in Rochester before, and that it was customary in the trade to make inquiries of other merchants in regard to dealers. Mr. Wile, who acted for the defendants, testifies that he never inquired what the stock of plaintiff usually was, and had no information that he had secreted any goods, and made no inquiry on the subject. It is not suggested that he was informed by any one that plaintiff was insolvent. He testifies there was nothing that would indicate to his mind that plaintiff intended to fail in August when he bought the goods. It appears from defendants’ account that after the purchase in August, plaintiff returned of the goods purchased to the amount of $133, and he made payments to defendants to the amount of $833.27, including a payment of $37.27 on ¡November 29, the day before the replevin suit was commenced. These payments left nothing due to the defendants on account prior to the Augusj. purchase.

It seems to be very clear that the fact that - plaintiff’s clerk bought of other parties goods to the amount of $1,000, and that other parties made inquiries of defendants as to plaintiff’s responsibility furnished in themselves and in view of the other conceded facts no ground for defendants believing or suspecting that plaintiff intended to commit a fraud in his purchase in August. The main question, however, relates to what occurred or was observed at the store. Upon this there is a conflict in the evidence. The defendants give evidence tending to show that the goods at the store were of the value of only about $3,000, while evidence on the part of plaintiff is given tending to show that they were worth $9,000. None of the debt to defendants was then due. Wile, however, asked the plaintiff for a payment, saying that his firm needed the money. Plaintiff declined to make any payment, saying in substance that he wanted to use what money he then had to pay debts that were due and that he would pay the defendants when their debt was due. Wile then asked for a statement and, as he testifies, stated as reasons therefor that plaintiff had bought more goods than usual, that many inquiries had been made about him, that his clerk had ordered goods at improper prices and that he, Wile, wanted to be satisfied that plaintiff was good and responsible. The plaintiff, however, testifies that Wile gave no such reason for wanting a statement, and he is corroborated by one or more other witnesses. It is conceded that plaintiff refused to give a statement. Wile concedes that the reason he gave for wanting a payment was not true. Plaintiff testifies that Wile “ sneered at me and said I wouldn’t be in existence two days in business in Skaneateles; that he was going to bust me in some kind, of shape.” A son of the plaintiff testifies to Wile saying, “ we will bust him.” These declarations Wile, in his testimony, denied.

Whether or not the -refusal by plaintiff to give a statement was reasonable under the circumstances, was upon the evidence a question of fact. If it was reasonable, and the goods then in the store were of the value testified on the part of plaintiff, and the purchase of the defendants by the clerk of plaintiff as claimed by defendants was never in fact made, all of which the jury might have found, it would not have been proper to hold as matter of law that the plaintiff failed to establish want of probable cause. I think it was in this case a jury question. Heyne v. Blair, 62 N. Y., 19.

In Burhans v. Sanford, 19 Wend., 417, it is said that malice may be and usually is inferred in these actions from the want of probable cause. A like doctrine is asserted in many other cases. In the present case the question of malice was I think for the jury to pass upon. The defendants claimed the benefit of the advice of counsel, but it was a question of fact whether the advice was given in good faith and upon a full and fair statement of all of defendants’ knowledge and information on the subject, and acted upon by them in good faith.

In my opinion the nonsuit was improperly granted and the judgment should, therefore, be reversed.

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

Martin, J., concurs.

Hardin, P. J.

(dissenting.) — According to well recognized authorities the burden was upon the plaintiff to establish by his evidence “ a want of probable cause for the prosecution instituted against him and malice on the part of the defendant.” Heyne v. Blair, 62 N. Y., 19.

In Miller v. Milligan, 48 Barb., 47, the court in dealing with the rule used this expression: “ The plaintiff must establish that there is no color for the charge.” It is equally well established by authority that probable cause does not depend upon the actual state of a case in point of fact, but in the honest and reasonable belief of the party commencing the prosecution upon the facts, circumstances and appearances within his own knowledge and belief at the time of instituting the prosecution.

In Stewart v. Sonneborn, 98 U. S., 195, it was said : “ The conduct of the defendants is to be weighed in view of what appeared to them when they filed their petition in the bankrupt court, not in the light of subsequent appearing facts. Had they reasonable cause for their action when they took it? Not what the actual fact was, but what they had reason to believe it was.” That case is also an authority to the effect “ that malice alone, if there was such, is insufficient to entitle the plaintiff to recover,” and also that “although the jury may infer malice from the want of probable cause, proof even .of express malice will not justify the inference that probable cause did not exist,” and in Hazzard v. Flury, 120 N. Y., 223; 30 St. Rep., 906, it was said in the course of the opinion (227) “ Probable cause may be founded upon misinformation as to the facts, not as to the law ; ” in the course of the opinion the judge refers to Carl v. Ayers, 53 N. Y., 14, approvingly, and takes from the opinion in that case the following: “If the apparent facts are such that a discreet and prudent person would be. led to the belief that a crime has been committed by the person chargéd he will be justified, though it turns out that he was deceived, and that the party accused was innocent." When the motion for a non-suit was made and decided there was in the evidence before the court several facts and circumstances relative- to the action of the defendants in commencing proceedings in replevin on the 30th of November, 1882, to recover from the plaintiff here the property which had passed to his possession under negotiation for the purchase thereof from the plaintiffs in the replevin action, who were the defendants here. In considering the motion made at the circuit the trial judge was called upon to determine whether all the facts and circumstances shown by the evidence (aliunde conflicting evidence) were such as to induce a belief in the plaintiffs in the replevin action that the procéedings could be maintained upon reasonable grounds, and that they were such as “to warrant a cautious man in his belief that the plaintiffs .had a right to maintain replevin.” Anderson v. How, 116 N. Y., 336; 26 St. Rep., 787; Thaule v. Krekeler, 81 N. Y., 428. His conclusion at the circuit was that the plaintiff failed to show a want of probable cause. The plaintiff was in possession of the defendant’s goods which he had received upon a credit.

The defendants were informed of facts and circumstances tending to give rise to doubt and suspicion of the plaintiff’s ability or intent to pay for the goods. When they sought the plaintiff and communicated to him their doubts and suspicions, he promptly refused to make a statement of his affairs or to indicate his financial standing and ability and to 'furnish such an explanation as would dissipate the conviction formed that the purposes and intents of the plaintiff were fraudulent rather than innocent and not in accordance with the ordinary course of an honest debtor. It does not seem unusual or unreasonable that the defendants should seek to recover their goods with such information as they possessed in respect to the plaintiff, coupled with his absolute refusal to disclose his financial affairs and ability to pay the defendants some $900 for the property which he retained of the purchase from them.

(2) After the replevin papers were placed in the hands of the sheriff and while he was about executing them the plaintiff sought the service of Mr. Gfeorge Barrow, an attorney, who resided at Skaneateles, who visited the store while the sheriff was selecting the goods required to be taken in virtue of the replevin proceedings. When Mr. Barrow reached the store he entered into a conversation with Mr. Stern, who was then acting as attorney for the defendants, and Mr. Barrow states that that conversation was when they were in the act of taking the goods.” The details of that conversation were objected to and apparently excluded on the ground that they were not in the presence of the defendant Wile and that the conversation was after the action was commenced. The plaintiff took an exception to the ruling excluding the details of that conversation and calls our attention to Fagnan v. Knox, 66 N.Y., 525. In that case it was said that if a party “ had knowledge of facts which would explain the suspicious appearances, and exonorate plaintiff, he cannot justify the prosecution by putting forth the prima fade circumstances, and excluding those thus within his knowledge tending to prove innocence.” Inasmuch as the action had been commenced before the conversation ensued between the attorneys, it is not apparent how the conversation between the attorneys could shed any light upon the determination theretofore made by the defendant under the advice of his attorney that there were reasonable grounds upon which to predicate the proceedings for the recovery of the property. In making that •determination it is evident the defendant Wile acted upon such information, knowledge and the conduct of the plaintiff in refusing to make a statement or to disclose the conduct of his ■affairs prior to the time when the plaintiff sent for and employed Mr. Barrow in his behalf. In the course of the opinion delivered by the trial judge at the time of granting the motion he said: ■“ The question is whether there is an absolute want of facts and -circumstances devloped by the evidence in this case that strips it entirely of every element of probable cause, so as to charge the defendant in the action with damages.

“ It does hot seem to me that the evidence tends to that result - that the most that can be said about the evidence is that the parties, the defendants in this action, predicated their right to a restoration of the goods which were sold in August and delivered in October, upon the ground that be got them with intent-not to pay for them; and having obtained the goods, they then discovered certain facts and circumstances from which they concluded that such an intent existed, to wit.: that the plaintiff in this action (the defendant in the replevin suit) was buying largely of goods, stocking his store up with the intention of not-paying debts which he had contracted. It is a matter of no consequence whether there was a good legal ground for entertaining that opinion. The question is, had he a right upon the undisputed evidence, so far as shown by this case, to entertain an honest idea on his part that he could restore those goods to himself upon that ground. He may have been'mistaken; his counsel' may have given him improper advice, advice which could not be sustained in court, but it does not seem to me that it can be asserted with • any degree of confidence that there is that absolute-want of a right on the part of the plaintiffs in the replevin suit (the defendants here) to bring that action that should charge them in damages because it failed upon the trial; nor do I see any evidence in this case that justifies or would justify the jury in finding malice in this matter.”

These comments seem to be justified by the evidence found -in the appeal book.

The foregoing views lead me to advise an affirmance'of the-non-suit.

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