text:
    VICTOR VINCENT, Plaintiff and Respondent, v. CHARLES BAMFORD, Defendant and Appellant.
    The words “ laborers ” and “ servants ” in section 41 of the “ Act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” passed in 1848, do not restrict the application of the act to those employed by the company in mere menial service, but one who is employed by the company and works for it in any capacity, under general or special directions or orders, and in a position of trust and responsibility without actually being an officer of corporation, is included by these words.
    One who under a general employment (to do everything required of him and that he was told to do), who in the absence of the superintendent of the corporation, acted as superintendent or general manager, and who at times did also the duties of engineer, is a laboren' or servant under the statute. Hovey v. Ten Broeok, 3 Bobi. 316, approved and- confirmed, and Coffin v. Reynolds, 37 N. T. 642, reviewed.
    Before Barbour, Ch. J., and Freedman and Spencer, JJ.

      Decided December 31, 1871.
    This action was brought to charge the defendant as a stockholder of the New York and Galena Lead Mining Company, for a debt due to the plaintiff from the company, under section 18 of the act relating to manufacturing and mining companies, passed in 1848, and subsequently amended.
    The plaintiff having first recovered a judgment against the corporation, upon which an execution had been issued and returned unsatisfied, brought this action against the defendant as .a stockholder, to recover the sum of four thousand four hundred and twenty-seven dollars and eighty cents.

      The defendant, by answer, admitted being a stockholder, but denied all other allegations of the complaint, and then set up payment, and also that the suit against the company had not been brought within one year after the debt became due to plaintiff.
    Upon the trial, plaintiff proved his employment by the company, through one Lestrade, the superintendent of the company, the services rendered by him, the terms on which he was employed, his account as certified by the superintendent of the company, the recovery of judgment upon the merits, after trial, against the company, the j udginent roll and execution and return nulla bona.
    The defendant claimed that plaintiff was employed by Lestrade on his individual account, and not in behalf of the company.
    At the close of the evidence on both sides, defendant’ s counsel requested the court to charge :
    1. That the services claimed to have been performed by plaintiff not being labor in the restricted sense intended by the statute, do not entitle the plaintiff to recover against a stockholder under the statute, making a stockholder of a company individually liable for labor performed for the company.
    2. That the defendant is not liable under the statute for any debt due from the company to the plaintiff for any services rendered by the plaintiff as engineer or superintendent of the company.
    The court refused so to charge, and defendant excepted.
    The court charged the jury among other things :
    “ If you find that Lestrade was the agent of the company, and as such authorized to employ this plaintiff to perform work and services for the company, you will render a verdict for the plaintiff for the sum of one thousand four hundred dollars, with interest from the time of demand.”

      To which, portion, of the charge defendant excepted.
    The jury found a verdict for the plaintiff for eight hundred and forty-seven dollars, upon which judgment was rendered.
    The appeal is from the judgment, and also from the order denying defendant’s motion, made upon the judge’s minutes, to set aside the verdict as against evidence.

      Erastus Cooke, counsel for appellant.

      Frederic R. Coudert, counsel for respondent.
   By the Court.—Freedman, J.

Under section 18 of the act authorizing the formation of mining and other companies (Laws of 1848, p. 54 ; 2 Rev. Stat. 5 ed. p. 662, § 41), the plaintiff claimed to recover from the defendant as a stockholder a balance due him for services rendered between March, 1865, and July, 1867, to the New York and Galena Lead Mining Company as a servant, for which he had previously recovered a judgment against the corporation amounting to four thousand four hundred and twenty seven dollars and eighty cents.

As section 24 of the same act provides that no stockholder shall be personally liable for the payment of any debt contracted by the company, which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against the company within one year -after the debt shall become due, and inasmuch as the proof, on the trial, showed that the suit against the company was commenced on the 30th of November, 1867, the learned judge who tried this case restricted the recovery of the plaintiff against the defendant to the last seven months’ services, which ended on the first day of July, 1867, and directed the jury, in case they should find certain facts, to render a verdict for the plaintiff for one thousand four hundred dollars, with interest. The jury, notwithstanding they found the said facts in plaintiff’s favor, returned a verdict for eight hundred and forty-seven dollars only. But if any one can complain of the restriction imposed by the court and the unwarranted action of the jury, it is certainly not the defendant.

Defendant’s exceptions to the exclusion of evidence offered by him with a view to show that the company was organized for the benefit of a particular individual, do not require to be specially noticed, the said evidence being wholly irrelevant and immaterial.

The exception taken by the defendant to, that portion of the charge contained in the printed case is equally unavailable. One of the principal questions of fact litigated upon the trial was, whether plaintiff had been employed by Lestrade, the superintendent of the company, on his individual account, or for the company. The court, therefore, very properly charged that if the jury should find that Lestrade was the agent of the company, and as such authorized to employ the plaintiff to perform work and services for the company, it was their duty to render a verdict for the plaintiff. Under a general exception to this part, and in the absence of the whole charge, it must be presumed that the other questions in the case were properly submitted by the other portions of the charge which are not set forth. And although plaintiff’s counsel consented, on the argument of the appeal, that such part be taken and considered as the whole and only charge delivered, the defendant is nevertheless in no position to argue, under the exception taken by him, that certain other questions of fact involved in the case, which should have been submitted to the jury, were, by such charge, withdrawn from their consideration, for the reason that no request was made by such submission (Scroff v. Bauer, decided by this court April 1, 1871, and authorities there cited). In the absence of such a request, it seems to me, the learned judge below would have even been justified, as the evidence stood, and under the view which was taken of the law, to dispose of the entire case by directing absolutely a verdict in plaintiff s favor.

This brings up the main question of law involved in the case, which is presented chiefly by the exceptions of the defendant taken to the refusal of the court to charge certain requests, namely, whether plaintiff, in the performance of the services rendered, was or was not a servant within the true intent and meaning of section 18 of the statute referred to, which provides, that the stockholders of any company organized under the provisions of said act shall be jointly and severally individually liable for all debts that may be due and owing to all their laborers, servants and apprentices, for services performed for such corporation. The cases cited by defendant in opposition to plaintiff’s claim upon this point did not arise under the same, but under other and different statutes, for the passage of which entirely different reasons may have existed. They have all been considered and held inapplicable to a case of this kind. In Hovey v. Ten Broeck, (3 Robt. 316), it was decided by this court that the word “servant,” as used in the statute under consideration, cannot be confined to mere menial service: According to the testimony, plaintiff was ehrployed to do and did do everything he was told to do. He was a sort of engineer, a sort of head foreman; he showed the men how to work and yet worked with them; during the absence of the superintendent from the mines he was made to act as such; he sometimes kept the time of the men, and in fact did everything he was ordered to do and everything that was necessary and possible for him to do. He is, therefore, clearly entitled to the application of the rule laid down in Hovey v. Ten Broeck, (sup.) unless, as. it is claimed, that case has been reversed, as an authority upon the point stated, by the decision of the court of appeals in Coffin v. Reynolds, (37 N. Y. 642). Upon examination it will be found, however, that such is not the fact. The latter case simply decides that the secretary of a company organized under the. act of 1848, being an officer thereof, and belonging as such to a class of agents specifically mentioned in other sections of the statute, does not come within the designation of laborer or servant as used in section 18. This distinction is a marked and material one, and not in conflict but in harmony with the views expressed by this court in Hovey v. Ten Broeck, (sup.). Williamson v. Wadsworth (49 Barb. 294), is another express authority, under the statute m question, in plaintiff’s favor.

The judgment and order appealed from must be severally affirmed, with costs.

Babbotjb, Ch. J., and Spenoek, J., concurred.


source: Caselaw Access Project

author: By the Court. — Freedman, J.

license: Public Domain

text:
    VICTOR VINCENT, Plaintiff and Respondent, v. ALFRED B. SANDS, Defendant and Appellant.
    The statute under which this action is brought requires every com pany that is formed under its provisions to make, publish,’and file annually, within twenty days from the first day of January, a report of its condition, which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or the secretary of the company. And it is further provided that if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made (Act for the Formation of Corporations for Mining, &c., § 13). Under the decisions of the courts of this State, upon questions arising upon this section of the statute, the following propositions may be considered and regarded as the law of this state:
    I. Upon the default of the company to report, all the trustees then in office are jointly and severally liable for all the debts of the company, whether contracted by them (trustees) or their predecessors, and for all that may be subsequently contracted during their continuance in office, until such report is made.
    II. Trustees who, during such default, retire from office, are liable for all debts of the company then existing (at the time of their withdrawal), but for no subsequent debts.
    HI. Their successors, by promptly obeying the requirements of the statute, may escape all personal liability for the debts existing at the time they take office, but if they continue the default until the next January ensuing, they are liable for the debts contracted during their administration up to that time, and for no other, unless they then make default in reporting, and in such case they become liable for all the debts of the company.
    IV. Thus the successive members of successive boards of trustees may become liable for the same debts, by reason of successive defaults in reporting.
    A default of a company to report that takes place after the expiration of the term of office of a trustee (his place not being filled by an election), cannot be charged upon such a trustee, from the simple fact of his place not being filled, and that he may hold over. It must appear that he continued to act as trustee and assumed to perform the duties of the office.
    Is a judgment recovered against a company evidence of a debt of said company, in an action brought subsequently against a trustee to enforce this liability under the statute ?
    Before Barbour, Ch. J., and Freedman and Spencer, JJ.

      Decided December 31, 1871.
    This action was brought by the plaintiff, a judgment creditor of the New York and Galena Lead Mining Company, a corporation organized under the act of 1848, to charge the defendant, as a trustee of said company, with the payment of the debt, upon the ground that no annual report had been filed as required by law.
    The claim of the plaintiff was for services rendered to the company between the 1st of March, 1865, and the 1st of July, 1867, and the judgment recovered by him amounted to four thousand four hundred and 'twenty-seven dollars and eighty cents.
    The defendant, by his answer, substantially denied all the allegations of the complaint, but admitted that he was elected trustee of said company in the early part of July, 1866. He also averred payment, and the recovery of a judgment by plaintiff against Bamford, a stockholder, for one thousand and twenty-six dollars and two cents upon the same demand.
    Upon the trial plaintiff proved, among other things, his employment by the company, through one Lestrade, the superintendent of the company, the services rendered by him, the terms on which he was employed, his account as certified by the superintendent of the company, the recovery on the 18th of May, 1868, of judgment, upon the merits, after trial, against the company, the judgment roll and execution and return nulla bona. Also, the election of the defendant as . trustee on the 25th of July, 1866, and his acceptance of the trust at the time.
    Also, that between the 11th of February, 1865, and the 30th of January, 1869, no annual report had been filed, as required by law, except one on the 19th of January, 1866, which was signed by three trustees other than the defendant, and verified by the secretary, and another on the. 14th of January, 1867, which was signed and verified by the secretary alone.
    After plaintiff had rested, the defendant moved for a dismissal of the complaint, on the grounds :

      First. That the plaintiff had shown no authority on the part of Mr. Lestrade to appoint him on behalf of the company.

      Second. That the defendant was not Hable, a report having been filed with the county clerk and published during the time he was trustee, showing the condition of the company.

      Third. That reports having been filed within twenty days after the' first days of January, 1866 and 1867, though informal, were a sufficient compliance with the law, the statute being directory merely.

      Fourth. A trustee who has neglected to report; is personally liable only for those debts which were contracted while he was in office, and not for those contracted before a default had been made.
    Motion denied. Exception.
    The defendant attempted to prove that the services were not rendered to the company, but to Lestrade individually, and further showed that the plaintiff had already recovered a judgment for the same demand against Bamford, a stockholder, to the' amount of one thousand and twenty-six dollars and two cents.
    At the close of the evidence on both sides the defendant renewed his motion for a dismissal of the complaint, for the reasons assigned on the motion for a nonsuit, and also on the following additional grounds : 1. That the organization of the company was a mere formal matter ; that it never had'any property or business, and, therefore, there was never any necessity for filing and publishing the annual statement required by law.

      2. That the plaintiff having already recovered judgment against Bamford, a stockholder, his claim against the defendant is merged in that judgment.
    Motion denied, and defendant excepted.
    The defendant, thereupon, requested the court to direct the jury that the plaintiff is not entitled to recover for his services, for which he recovered judgment in the suit against Bamford.
    The court declined, and defendant excepted.

      The defendant finally requested the court to charge that if the plaintiff could recover at all from the defendant, he could only recover for that portion of his services which were rendered during the time the defendant was a trustee of the company, which was about seven months.
    The court refused so to charge, and defendant excepted.
    The court held the reports filed to be insufficient, and submitted to the jury the question whether the services were performed by the plaintiff, and if so, whether they were performed for the company or for Mr. Lestrade individually, charging them, if the work was done for the company, to return a verdict for the plaintiff for whatever sum, in their judgment, his services were worth; but'if the work was done for Lestrade, to return a verdict for the defendant.
    At the conclusion of the charge plaintiff’s counsel suggested that if plaintiff is entitled to anything he is entitled to the amount of his certified bill.

      The Court.—-I think he is.

      Mr. Waite, one of the counsel for defendant, excepted to this remark.

      Mr. Cook, associate counsel for defendant, excepted to that part of the charge in which the court had said that if the jury found that the work was done for the company they must find a verdict against the defendant for the value of the labor.
    The jury retired, and afterwards returned a verdict for the plaintiff for four thousand five hundred and eighty-six dollars and seventy-five cents.
    Defendant’s counsel thereupon moved for a new trial on the judge’s minutes, which motion was denied.
    After entry of judgment, defendant appealed from the judgment, and also from the order denying defendant’ s motion for a new trial.

      Robert N. Waite, counsel for appellant.

      Frederic R. Coudert, counsel for respondent.
   By the Court. — Freedman, J.

— The statute under which this action is brought requires every company organized under its provisions to make, publish, and file annually, within twenty days from the first of January, a report of its condition, which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of said company. And it is further provided that if any of said companies shall fail so to do, all the trustees of the company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such report shall be made (Act of 1848, §12 ; 2 Rev. Stat. 5 ed. 661, § 35).

These provisions are enacted on grounds of public policy for the protection of creditors and the prevention of frauds upon the public in respect to the financial condition of such corporations. It is clear that the liability of the trustees is not imposed as an indemnity, because it has no relation to the actual loss or injury sustained by the party in whose favor the action is given (Merchants’ Bank v. Bliss, 35 N. Y. 416, affirming S. C., 21 How. 365, and 13 Abb. Pr. 225).

It is in the nature of a penalty for misconduct in office (Dabney v. Stevens, 40 How. 345).

To escape this liability the trustees must comply with the conditions prescribed. The statute requires á report within the first .twenty days of the month of January in each year after the formation of the company, and without reference to the time the company has come into existence. Being a penal statute, however, it is tobe strictly construed. Whenever the penalty is sought to be enforced, and to prevent the injustice which a strict literal interpretation would have worked in many instances, the courts have invariably so construed it as to hold trustees only liable for their own default or misconduct, and not for the default or misconduct of their predecessors or successors in office. The following four propositions, it seems to me, may now be regarded as the law of this State:

1. Upon the default of the company to report, all the trustees then in office are jointly and severally liable for all the debts of the company then existing, whether contracted by them or their predecessors, and for all that may be subsequently contracted during their continuance in office until such report is made.

2. Trustees who, upon such default, retire from office, are liable for all debts of the company then existing, but for no subsequent ones.

3. Their successors, by promptly obeying the requirements of the statute, may escape all liability; but if they continue the default until the next January they are liable for the debts contracted during their administration up to that time, and for no other, unless they then and there make default, in which latter case they become liable for all debts then existing.

4. Thus, the members of successive boards of trustees may become liable for the same debts by reason of successive defaults (Boughton v. Otis, 21 N. Y. 261 ; Shaler and Hall Quarry Co. v. Bliss,, 27 N. Y. 297, affirming 34 Barb. 309, and 12 Abb. 470 ; Garrison v. Howe, 17 N. Y. 458 ; Miller v. White, 57 Barb. 504 ; Nimmons v. Hennion, Transcript of May 27, 1871).

This court has further held that a default of a company, happening after. the expiration of the term of office of a trustee, cannot, for want of a subsequent election to fill his place, be charged upon such trustee except by proof of his continuance in office by his afterwards assuming to act, and acting as such trustee (Deming v. Puleston, decided April 1, 1871).

Whether a judgment recovered against a company is evidence of the indebtedness of said company in a subsequent action brought against a trustee, is a question which has produced much conflict of authority. In McHarg v. Eastman, 35 How. 205, this court held that it is not. The supreme court, on the other hand, decided, in 1870, in Miller v. White, 57 Barb. 504, that it is; holding, aftér a review of many conflicting decisions upon this point, that the rule, that the judgment is evidence, is supported by such a preponderance of authority that it should be left to the court of last resort to change it, if a change be desirable. Certain it is, that to charge a trustee the statute does not require, as a preliminary step, the recovery of a j udgment against the corporation, which is necessary to fix the liability of stockholders, in certain cases, hi or does it forbid such judgment. The liability imposed upon a trustee is for certain debts, which must either be due and capable of enforcement against the corporation at the time of the alleged misconduct or default of said trustee, or have been contracted while he continued or acted as such, after default. In the case at bar the j udgment. against the corporation was admitted in evidence, against defendant’s objection upon the ground of immateriality, but at the same time the debt was proven by other evidence. In looking over the said evidence I am satisfied that the plaintiff sufficiently proved, to be entitled to go to the jury at least, not only the rendition of the services and their price, but also his employment by the superintendent of the company within the apparent scope of the latter’s authority, and a ratification of such employment and acceptance of the benefits accruing therefrom by the company. The question whether the services were performed by the plaintiff, and if so, whether they were performed for the company or for the superintendent individually was distinctly submitted to the jury, who were instructed to render a verdict for the defendant, in case they should find .that the work was done for the superintendent individually. It was not necessary to prove a special authority on the part of the superintendent to employ plaintiff. The defendant might have requested that the questions of implied authority and subsequent ratification be submitted, as distinct questions of fact, to the j ury under proper instructions. Having failed to do so, and acquiesced in that part of the charge which necessarily involved these questions, he cannot, upon appeal, be permitted to argue for the first time that they should have been so submitted (Schroff v. Bauer, decided by this court April 1, 1871, and authorities there cited). There being sufficient evidence, beyond the judgment, to sustain the finding of the jury, it is unnecessary to express an opinion as to whether the judgment was or was not evidence against the defendant, and the latter having based his objection to its admission solely upon the ground of its immateriality, the exception taken to its reception cannot be sustained.

Heither of the reports filed in the office of the county clerk conformed to the statutory requirements. The statute demands that the report shall be signed by the president and a majority of the trustees, and verified by the president on secretary, which was never done. The report made in January, 1866, which was signed by three of the trustees and verified by the secretary, may at least be regarded as an attempt at substantial compliance. But even if the statute can be satisfied with anything short of full performance, it seems too clear for argument, at least to me, that the report filed in 1867, which was signed and verified by the secretary exclusively, can have no force whatever to protect any of the trustees, whose duty it was to see it made, published and filed in the manner prescribed by the statute. The argument advanced, that the defendant should not be made liable for a fault that he could not control, can have no weight in the face of the positive language of the statute. At any rate, whatever force there might have been .in the suggestion, if defendant had in point of fact made a report, so far as in his power, is wholly lost by reason of the fact that defendant took no step whatever towards procuring a report. According to the proof, he was elected trustee on the 35th July, 1866, for the year then ensuing, and commenced to act as such next day. Whether or not' he became liable, simply by acting as such after and during the continuance of the default of the company in that year, for any of the services rendered by plaintiff during any part of that year, it is hardly necessary to discuss. The company failing to make and file a report, as required bylaw, in 1867, the defendant be-, came liable, by reason of such default, for plaintiff’s' claim up to December 31,-1866, and, as no report was subsequently made, he continued liable for plaintiff’s subsequent services, so long as he continued a trustee. Plaintiff’s claim extends to the first day of July, 1867, on which day he left the company’s employ. That being within the year for which defendant was' elected, he became liable for the whole debt due to the plaintiff by the company at that time, and the plaintiff, therefore, if entitled to recover anything, was entitled, as the evidence stood, to recover the balance of his bill, certified as correct by the superintendent of the company. The testimony of the plaintiff being uncontradicted on this point, the result will be the same, whether the action be considered as brought to recover the value of the services or the contract price per month as testified by him to have been agreed upon.

The recovery of a judgment of one thousand and twenty-six dollars and two cents by plaintiff against Bamford, cannot in any way affect this casé. The liability of Bamford depends upon an entirely distinct state of facts and upon a different statutory provision, by which an additional right of action is given. He was sued as a stockholder under that section of the statute which makes the stockholders of a company jointly and severally individually liable for debts due and owing to their laborers, servants and apprentices, for services performed for such corporation. As such stockholder Bamford is liable only to a limited extent, but that limit does not apply to trustees. The mere recovery of said judgment, without payment, is, therefore, no more a bar or merger than the recovery of the judgment against the corporation. In the case of joint wrongdoers a plea of a former recovery against one, to be good, must also aver actual satisfaction. And in the case of joint debtors the rule that a judgment obtained against one bars a suit against all others, applies only where the judgment is based upon the same matter, cause and thing, for which the second suit is brought (2 Phil. on Ev. 5 Ed. 114 [*134] ; Wies v. Fanning, 9 How. 546).

The 'statute referred to gives not only a right of action against trustees for certain reasons, and another against stockholders for other reasons, but expressly provides, in addition, that in the first case the said trustees, and in the second case the said stockholders shall be jointly and severally liable.

The judgment and order appealed from should be severally affirmed, with costs.

Barboub, Ch. J., and Spences, J., concurred.


author: By the Court.—Barbour, Ch. J.

text:
    SAMUEL D. HOVEY and ELBRIDGE S. HOVEY, Plaintiffs and Appellants, v. THE RUBBER TIP PENCIL COMPANY, Defendant and Respondent.
    Patents. —Injunctions in State courts.
    1. Notices to the public, restraint of right to issue.'

      а. One being the proprietor of a patent for the manufacture of a certain article, has a right to issue and circulate notices cautioning the public against purchasing any such articles from persons not licensed by him.
    б. The issuing and circulating of said notices cannot be restrained by a State court on allegations that the patent of the issuer is invalid, or that the article cautioned 'against is not an infringement of the patent, or that he who vends the article cautioned against has a prior or an improved patent, if they are contested—

      a. Because a decision in the contested matters would involve the determination of conflicting claims under patents, the exclusive jurisdiction whereof is vested in the United States courts.
    Before Barbour, Ch. J., Freedman and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from judgment.
    This suit was brought to obtain a perpetual injunction by judgment restraining defendant from continuing to publish the following circular:
    Ebbrhard Faber, Pres’t. Levi L. Tower, / ,,g Jos. Reckendoreer, Treas. George Merritt, j ^

    THE RUBBER TIP PENCIL COMPANY. Incorporated July 20, 1869, under the laws of the State of New York.
    Capital $378,000.

      Act of Legislature, February 17, 1848, and Supplementary Acts.
    Office and Warerooms, 133 William-street, N. Y.
    New York, Oct. 1, 1869.
    M
    Having purchased the following letters patent:
    No. 19,783, March 30, 1858; No. 35,355, May 20, 1862; No. 35,467, June 3, 1862; No. 38,892, June 16, 1863; No. 46,358, February 14, 1865; No. 62,555, March 5, 1867; No. 2,595, reissue May 7, 1867; No. 66,938, July 23, 1867; No. 80,485, July 28, 1868; No. 85,861, January 18, 1869 ; and all the rights, titles, or interests connected with, or in any way affecting
    RUBBER TIPS FOR PENCILS AND RUBBER TIP PENCILS,
    including all the appurtenances for making, and stock on hand of same, we would inform the public, that we own the exclusive and sole right to manufacture ánd sell these goods!
    Our letters patent, comprising all the fundamental principles for the manufacture of rubber tips, in connection with our ownership of the exclusive manner or way of making the same, renders our position impregnable ; and it is our intention to punish to the extent of the law all infringements, should any exist or arise.

      We caution all parties against purchasing any rubber tips or rubber tip pencils of any shape, style, hind, or brand, or the application, or connection in any manner or form, of a piece of rubber to the end of a pencil, causing it to assume the appearance or warrant the name of a rubber tip pencil; unless such goods are licensed under one of the abone mentioned Letters Patent, or are labeled with the stamp of the Company.

    Which publication was alleged by the plaintiffs to be injurious to their business of manufacturing and selling rubber tip pencils under a patent which had been granted to them. The defendants claimed in their answer that they had the sole and exclusive right, under and by virtue of several patents of which they were the owners, to make and vend the rubber tip pencils described in their circular, and that the patents of the plaintiffs, if any they had, were invalid.

      Monell and Zeglio, attorneys for appellants, and Ambrose Monell, of counsel,—urged :
    I. Under the facts so found by the learned judge the plaintiffs were entitled to the relief demanded in the complaint. 1. The decision arrived at by the learned judge w’as based upon an entire misapprehension of the case at bar. 2. The second conclusion of law is founded upon a similar misapprehension. No such supposed questions arose in the case. The question of infringement or validity of patents could not possibly arise in this case, {a.) It is true that all actions, suits, controversies and causes whatever, arising under the patent laws, are without exception originally cognizable in the courts of the United States, and their jurisdiction is exclusive (5 U. S. Stat. at L. 124 ; Act of 1836, § 17). (5.) Both plaintiffs and defendant having patents, are by the United States authorized to manufacture these articles, (c.) The statutes of the United States provide adequate remedies for the protection of patents. Such remedy is wholly statutory, and the' defendant, if claiming to.be injured by the infringement of any patent owned by it, must follow the statute if it desires redress (Act of 1870, § 55). (d.) Any investigation . into the validity or effect of the plaintiffs’ patent can only be had in the courts of the United States. Until this investigation be had, and the patent of the plaintiffs declared invalid or to be an infringement on those of the defendants, the law presumes that they manufacture lawfully, and the defendant has no right to claim that it holds the sole and exclusive right to manufacture, (e.) The authorities are numerous that where the question of patents is only collaterally in issue, that fact does not divest the State court of jurisdiction. It is only where the infringement of a patent is in issue that the United States circuit court has jurisdiction (Slemmer’s Appeal, 58 Penn. 156 ; Sherman v. Champlain Transportation Co., 31 Vt. 162 ; Cross v. Huntley, 13 Wend. 385 ; Head v. Stevens, 19 Id: 411 ; Hotchkiss v. Oliver, 5 Denio, 314 ; Burrall v. Jewett, 2 Paige, 134, 146. (f.) The only relief demanded by the plaintiffs is the restraining of the publication of a circular, which the court has held to be in fad damaging to, their business. The question whether the defendant shall be restrained from issuing the circulars complained of in this action, does n'ot involve the validity of the patents of either the plaintiffs or defendant, or the infringement of the one on the other.
    II. The case at bar is one peculiarly entitled to equitable interposition and relief. 1. Ho action at law would enable the plaintiffs to recover damages (even if ascertainable) commensurate with the injury inflicted. 2. Indeed, if driven to such action, their entire business would be destroyed by the repeated issues of circulars, and their only remedy would be in commencing a multiplicity óf suits. For this reason, as well as for the constant recurring nature of the grievance, equity is the only remedy for the proper protection of the plaintiffs in their' rights (Messerole v. Goldsmith, the opinion per Ingraham, J. ; Springhead Spinning Co. v. Riley, 6 Paw Reports, Eq. Series, 551 ; Dixon v. Holden, 7 Ed. 489 ; Brandreth v. Lance, 8 Paige, 24; Burrall v. Jewett, 2 Paige, 145).

      John S. Washburn, attorney and of counsel for respondent,—urged :

      I. The court properly decided that “if defendant, under its letters patent, had the exclusive right to manufacture and vend rubber tips for pencils and rubber tip pencils (including therein pencils made in the manner as manufactured by plaintiffs), then it is its right, and a matter of fair play to the public, to give notice of its claim, and a warning, so that penalties may not be incurred by the public for vending without permission of the patentee an article which is patented (Wren v. Wield, Q. B. vol. iv. p. 70 ; Pitts v. Donovan, 1 Maule & S. 639.) The case of Snow v. Judson, 38 Barb. 210, which was claimed by plaintiffs at the trial to sustain this action, is not only inapplicable for that purpose, and so held by, the court, but confirms the principle stated. It is, in fact, clearly within, and illustrates the exception suggested in Wren v. Wield ; for the circumstances were “ such as to make the bringing of an action altogether wrongful.” It was an action at law for damages, and the questions arose upon demurrer to the comolaiht whereby all its allegations were admitted. The court, Johnson, J., said : “ The facts, as admitted by the demurrer, are that the defendant intentionally made false statements in regard to the articles manufactured by plaintiffs, for the purpose of preventing sales by them of such articles, and thereby did prevent such sales and greatly injured them in their business.” . . . The only cause of action * alleged is the false assertion and resulting injury, and the demurrer admits the speaking of the words, their falsity, and the alleged injury.” . . . The defendant comes admitting the fraud and injury, and says that the action cannot be maintained in this court, because he holds from the general government an exclusive right to the use of a particular article, which he, though falsely, claimed the plaintiff’s article resembled.”

      II. The court properly decided that the case, as presented, is one over which this court has no jurisdiction. By the act of Congress of 1793, section 5, it was provided that an action might be brought “in the circuit court of the United States, or any other court having competent jurisdiction.'" This section was repealed by section 4 of the act of 1800; and by section 3 of that act, it was provided that such action might be brought “ in the circuit court of the United States having jurisdiction thereof." In Burrall v. Jewett, 2 Paige, 134, it was held by Chancellor Walworth that the State courts had jurisdiction, and that neither said last-named act,, nor the subsequent act of Congress of 1819, although the latter extended the jurisdiction of the United States circuit court, necessarily rendered the jurisdiction of that court exclusive. But the same chancellor, in Gibson v. Woodworth, 8 Paige, 131 (1840), after the passage of the act of Congress of 1836 (sections 16, 17), held that by force of the change made fcy that act, the United States court had exclusive jurisdiction. And in Dudley v. Mahew, 3 N. Y. 14 (1849), the court of appeals sustained such exclusive jurisdiction of the United States courts. This has ever since, it is believed, remained settled, not only in this State, but generally, except that where questions as to a patent arise in a State court, which has otherwise jurisdiction, only collaterally, and not so as to render essential a decision as to the validity or invalidity of the patent, or were fraud is proved. There are decisions to the effect that to that, and only to that extent, the State court can assume jurisdiction. Thus, in Tomlinson v. Battel, cited in Law's Am. Dig. 229, pl. 11, 12, as having been decided in the N. Y. superior cohrt in 1857 (not reported), Duer, J., is stated to have held that, when a question as to the construction, and “perhaps as to the validity of a vatent" arises collaterally
      in the progress, and upon the trial, of a cause, the necessity of its determination will not oust a State court of the jurisdiction which it may have derived from the nature of the action and state of the pleadings. But that where the existence and validity of a patent lie at the very foundation, a State court cannot entertain jurisdiction. And the provisions of the act of 1836, in this respect, are incorporated in the recent act of Congress of 1870 (section 55) in still more direct language. In Ball v. Murry, 10 Penn. 113, in an action on bonds given in payment of the assignment of a patent, it was held that the obligors could not raise the question of the validity of the patent until it had been settled elsewhere. And in Elmer v. Pennal, 40 Maine, 434, it was held that the United States courts have exclusive jurisdiction, and that in a suit on a note given for the conveyance of a patent right, proof that the patent was void, for being an infringement of a prior patent, was not admissible without that fact having been determined by a court of competent jurisdiction.

    III. The judgment appealed from is justified, also, upon other grounds, which were presented at the trial, but the decision of which was rendered unnecessary by that of the court upon the questions already discussed. 1. The claim of the plaintiffs is not the subject of an injunction. A publication of such character as to surreptitiously appropriate .the business reputation acquired by, and belonging to, the plaintiff, will be enjoined. But the present case does not come within the rule or its reason. Even did.the circular amount to a libel upon the title, character or validity of the alleged patent of said Hovey, a court of equity would not interfere, and would have no jurisdiction to restrain its publication. Clark v. Freeman, 10 Bevan, 112. And in Brandveth v. Lance, 8 Paige, 24, Chancellor Walworth expressed himself most strongly against, the right of the court to restrain a man from publishing a

      libel. The remedy, if the plaintiffs be entitled to any, which, in the present case, upon the grounds stated, it is claimed they are not, lies at law for damages, which they have not exhausted, no? even attempted to assert, and which is not, for any reason, shown or claimed to be inadequate.
   By the Court.—Barbour, Ch. J.

A grant to a patentee of an exclusive right to manufacture and vend an article described therein is a grant of property, and if the validity of the patent is unquestioned, State Courts will protect the owner of such property in the enjoyment thereof, by means of a decree of injunction, to the same extent as they would do were the subject matter of the litigation of any other description. But where the validity of the plaintiff’s patent is put in question by the pleadings in a State Court, and the defendant presents such proofs upon the trial as render it necessary for the court to examine and pass upon conflicting patents or claims of priority in invention in order to determine whether the plaintiff has such a property in the subject matter of the grant as entitles him to the exclusive and unmolested use of it, and an objection is taken to the jurisdiction of the court for that reason, the bill must be dismissed ; for, in such cases, the jurisdiction is in the courts of the United States, exclusively. Gibson v. Woodworth, 8 Paige, 131 ; Dudley v. Mahew, 3 N. Y. 14. The appellant in the case before us has failed to insert in his case and print the several patents read in evidence, or even his own; and, of course, it is impossible for us to determine to what extent, if at all, they conflict with each other. The learned judge before whom the trial was had, however, found, in effect, that there was enough evidence before him, tending to establish a conflicting claim on the part of the defendants, to oust the court of jurisdiction, and, thereupon, dismissed the complaint; and we cannot say, upon the proofs laid before . us, that he erred in so doing. The judgment should, therefore, be affirmed,'with-costs.


author: By the Court.—Barbour, Ch. J. Spencee, J. (dissenting).

text:
    HENRY BOWERS, Plaintiff, v. WILLIAM H. ARNOUX, Defendant.
    A certificate of the sheriff of the sale of real estate, filed with the county clerk, prior to 1857 (4 Edm. Stat. 634, making it the duty of the clerk or register to record the same), unless it was recorded, is void as against subsequent purchasers whose conveyance was recorded before the deed of the sheriff following his certificate was made and recorded.
    The written receipt of the sheriff given (after the sale of the real estate and the execution of his certificate) to the effect that he had received the full amount of the purchase money and interest at ten per cent, from the defendant in the execution for the purpose of redeeming the property sold, was substantially a certificate of redemption, such as he was required to execute officially by section 5 of the statute of 1847, to the person making a redemption; and on the trial of an action of ejectment, the plaintiff being the grantee of the person to whom the receipt was given, was entitled to read the same in evidence on the signature1 being proved, although it had never been proved, acknowledged or recorded before that time. Held, that it was entirely unnecessary for the parties interested in said receipt and redemption to have the same proved, acknowledged or recorded, although the premises had been sold and a certificate of the sale given by the sheriff to the purchaser, and a duplicate certificate filed in the office of the county clerk pursuant to the statute.
    The sale of the premises and the certificate of sale of the sheriff became and was null and void by the execution of the receipt in question, and the premises sold, reverted or revested in the defendant in the execution as his original estate, or as if it had never been sold under the execution. Spencer, J., dissenting.

      Before Barbour, Ch. J., and Freedman and Spencer, JJ.

      Decided December 31, 1871.
    Bill of exceptions heard in the first instance at the general term.
    The exceptions and the facts of the case appear fully in the opinions of the judges.

      R. W. Van Pelt, for plaintiff.

      Wm. H. Arnoux, for defendant.
   By the Court.—Barbour, Ch. J.

This is an action as in ejectment to recover the possession of a parcel of land in this city, of which the plaintiff claims to be the owner.

The answer denies the alleged ownership of the plaintiff, and avers that the defendant is the owner, under and by virtue of a sheriff’s sale of the promises and sundry mesne conveyances.

Upon the trial it was claimed and admitted by both parties that, in March, 1846, Francis Price was seized and possessed of the premises in fee.

The plaintiff then proved a conveyance of the'land from Price to J. F. Barley, in November, 1851, by a deed containing full covenants of warranty, and also deeds from Barley to Livingston, from the latter to Nash, and from Nash to Braisted, and from him to the plaintiff, granting the same premises.

The defendant then read in evidence a certificate of J. J. Y. Westervelt, sheriff of New York, dated April 13, 1848, stating the sale by him upon execution, of all the estate and interest of Price in the land to Charles O. Bichardson, together with the judgment, execution, advertisement, &c.$ under which such sale was had.

Also, an assignment of that certificate made by Bichardson, in Hovember, 1866, to J. B. Findell, a deed executed by John Kelly, sheriff of Hew York, in October, 1867, reciting the above sale, &c., and conveying the premises to Findell; a deed from Findell to T. Thorpe, and a conveyance from the latter to the defendant.

The plaintiff excepted to the decision admitting this deed.

The defendant also read in evidence a deed of assignment executed by Price in September, 1847, to John J. Batting, receiver, &c., as follows:

'Supreme court. In equity, late in chancery, before the vice-chancellor of the first circuit. Thaddeus B. Wakeman and Ebenezer Seeley ». Francis Price. Assignment of receiver. This indenture, made this 10th day of September, in the year one thousand eight hundred and forty-seven, between Francis Price, of Hudson county, in the State of Hew Jersey, of the first part, and John J. Batting, counsellor at law, of the city of Hew York, receiver of the estate and effects hereinafter referred to, appointed by the court of chancery of the city of Hew York, of the second part.

Whereas, in and by an order of the said court of chancery of the State of Hew York, before the late vice-chancellor of the first circuit, a certain cause wherein Thaddeus B. Wakeman and Ebenezer Seeley are complainants and the said Francis Price is defendant, it was ordered that it be referred to David B. Garniss, one of the masters of this court residing in the city and county of Hew York, to appoint a receiver of the money, property, things in action, and effects of the above named defendant, Francis Price, with the usual powers and authority of receivers in like cases, and that the said master take from the said receiver and file with the clerk of this court the requisite security, and it was further ordered that the above named defendant. Francis Price, assign, transfer, and deliver to such receiver on oath, under the direction of the said master, all the property, money, equitable interests, things in action, and effects of the above named defendant, Francis Price, with all the books and papers relating thereto, and the evidences thereof ; and that the above named defendant, Francis Price, appear before the said master, from time to time, and produce such books and papers, and submit to such' examination as the said master shall direct in relation to the said property, equitable interests, things in action and effects, as by reference to the said order granted in said cause will more fully appear; and whereas the said party of the second part has been duly appointed such receiver, and has given and filed the requisite security pursuant to the rules and practice of the said court, and to the provision of the said order.

How, this indenture witnesseth that the said party of the first part, in obedience to the said order and in consideration of the premises aforesaid, and of the sum of one dollar to him in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has conveyed, assigned, transferred and delivered over, and by these presents does convey, assign, transfer and deliver over unto the said party of the second part, under the direction of the said master, testified by his approval indorsed hereon, all estate— real and personal—chattels real, moneys, outstanding debts, things in action, equitable interests, property and effects, whatsoever and wheresoever, • of, or belonging or due to, the said party of the first part, or in which had any estate, right, title or interest at the time of 'filing the bill of complaint in the above recited suit in chancery, and which bill was filed on the 8th day of April last, and also all deeds, writings, leases, muniiments of title, books of account, papers, vouchers, and other evidences whatsoever relating or appertaining thereto. To have and to hold the same unto Mm, the said party of the second part, as snch receiver as aforesaid-, and to Ms successors and assigns, subject to the present and future order, direction or control of the said court of chancery in relation thereto.

In witnéss whereof, the said party of the first

[l. s.] part has hereunto set his hand and seal the day and year first above written.

Francis Price.

Sealed and delivered in presence of

David E. Garniss.

The plaintiff then proved that Isaac Adriance was the attorney of Price in 1849, and that Price, Adriance and Westervelt, were all dead, and he then read a receipt wholly written and signed by Westervelt, with a memorandum thereupon, in the handwriting of Adriance, which it was proved were delivered to H. Lawrence with other mumments of title, upon the purchase of lands by him from Price, in 1852. The receipt and memorandum are as follows :

Supreme Court.

Cornelius Brinokerhoee & Henry Brinckerhoef j j>igelow _Erancis Price. \ Attorney.’

Eeceived, Hew York, April 10, 1849, from Francis Price, the above named defendant, seventy-two yihydollars, said money so paid by Mm to redeem property sold under an execution in the above entitled cause on the 13th day of April, 1848, situate in the Twelfth Ward of the city of Hew York, the above amount being in full for the purchase money and interest at ten per cent., for all the property sold by me on that day under said execution.

$72^

(Signed) John J. Y. Westervelt,

Sheriff, &c.

On the originial is the following memorandum in handwriting of Isaac Adrian ce, Esq. :

“ 1 asked Mr. Westervelt whether that amount was all that was necessary to redeem all the property sold by virtue of the execution ; he answered that it was ; as I told him I wanted to redeem all that was sold 10th April, 1849.”

(Signed) I. Adeiaxce.

“I paid the sheriff the above money and took the above receipt for F. Price.”

A deed from Latting, the assignee, to Price, dated August 30, 1850, was also read by the plaintiff, which deed, after reciting, among other things, the assignment to the former, the fall satisfaction of the creditors in that suit, &c., reconveyed the premises which are the subject to this action to Price.

Upon this evidence the court directed the jury to find a verdict for the defendant, and ordered that the exceptions be heard at the first instance at general term, and that the judgment be suspended in the mean time, to which decision and ruling the plaintiff excepted.

That exception, and one taken to the admission of the deed from Kelly, sheriff, to Findell, are the only exceptions in the case.

As the plaintiff in an action of ejectment must rely wholly upon the strength of his own title, and can take no benefit from the weakness of that of his adversary, it was immaterial whether the defendant was in possession under an assignment of the certificate of Sheriff W estervelt or the deed of Sheriff Kelly (Jackson on Real Actions, 5 ; Adams on Eject. 32, 285 ; 1 Chit. Pl. 173).

The deed, therefore, was irrelevant as evidence, and might properly have been excluded if the objection had been based upon that ground, but it was not, although the objection made was a specific one; even in that case, however, it is difficult to see how the admission of the paper could have worked any harm or advantage to either party.

That exception should therefore be overruled.

The great question in the case, and the only remaining one is, whether the learned judge erred, in directing the jury to find a verdict for the defendant upon the evidence.

The defendant’s counsel claims that, under the statute of champerty (1 R. S. § 739), the deed to the plaintiff was void, for the reason that the property was then in possession of a party claiming ownership under an adverse title. It is sufficient to say, in regard to that, that the case does not show any fact touching the actual possession of the premises, beyond an averment contained in the complaint, which states that the defendant was in possession when the action was commenced.

There is no evidence in the case that the sheriff ’ s certificate of sale was ever recorded, and it affirmatively appears that the deed of Sheriff Kelly was not recorded until after the deed under which the plaintiff claims title was delivered to and recorded by him. The fact may therefore be legally assumed that the plaintiff, as well as each of the intermediate grantees from Price, purchased in good faith, without notice of the certificate of Sheriff Westervelt, or of Sheriff Kelly’s deed, and for that reason, it must be held, as matter of law, that the plaintiff’s title is perfect. For the statute of executions (3 H. 8. 365) requires the sheriff to make and sign duplicate certificates of sale, to file one of them in the office of county clerk, and deliver the other to the purchaser, and it further provides that such certificate may be proven or acknowledged in the manner required by law to entitle deeds to be recorded (§§ 43, 3, 4). The purchaser was therefore in a position which would have enabled him to record his certificate if he had seen fit. (It may be, remarked, in passing, that the act of 1857, 4 Edm. Stat. 634, now makes it the duty of the clerk or register to record the certificate when filed.) The first section of the statute concerning the proving and recording of conveyances (1 R. S. § 755) enacts that every conveyance not recorded as therein provided for, shall be void as against any subsequent purchaser in good faith, &c., and section 38 declares that the term “conveyance,” as there used, shall be construed to embrace every instrument in writing, by which any estate or interest in real estate is created . . . or by which the title to any real estate may be affected in law or equity, &c.

It is true that the right and title of Price were not absolutely divested by the sheriff s sale and certificate until the expiration of fifteen months from the time of sale. But it can hardly be doubted that the sale and certificate conferred upon the purchaser, at least an equitable lien and charge upon the interest in the land, ab initio, such an interest as would, upon the execution to him of a deed by a sheriff, become a fee, for certain purposes, from the time of the sale (See 2 R. S. 373, § 61 ; Smith v. Colvin, 17 Barb. 157 ; Schermerhorn v. Merrill, 1 Barb. 512.

Again, the evidence given upon the trial was sufficient to establish the fact that the premises were duly redeemed by Price from the sheriff’s sale. For first: Price being the debtor in the judgment upon which the execution was issued, had a right to redeem by the terms of the act (2 R. S. 370, § 46 ; Chautauque Co. Bk. v. Risley, 19 N. Y. 373 ; Borden v. Moore, 18 D. 251), and even if the right of redemption given by the statute is to be considered as a right in rem which cannot be exercised by a judgment debtor who has ceased to have any estate or interest in the land which is the subject of redemption, as one branch of the supreme court seems to have held in Husted v. Dakin (17 Abb. 137), still Price had a right to redeem. For, although his conveyance to Latting as trustee was, in terms, an absolute grant to the latter and his successors in fee, for the purposes of the trust, without any expressed reservation of an estate in reversion, such estate in reversion was, in fact, reserved to the grantor by section 67 of the statute of trusts to the same extent and effect as it would have been had the following language of the statute been incorporated in the deed ; “When the purposes for which an (this) express trust shall have been created shall have ceased, the estate of the trustee shall also cease” (1 R. S., 730 ; see also Id. 723, § 12 ; Co. Lilt. 142, b ; 2 Bl. Com. 172 ; 1 Steph. Com. 290 ; 4 Kent's Com. 354).

In either case the moment the trust should be satisfied by the payment of the debt and charges, either by the judgment debtor, or out of the proceeds of a portion of the trust property, the remainder of it would revert to and revest in, the grantor as his original estate, reservéd to him as an estate in reversion.

Second. The evidence was sufficient to justify the jury in finding as matter of fact, if the question had been submitted to them, that Price did, within twelve months after the sale, pay to Sheriff Westervelt the sum for which the land was sold, together with the accrued interest, and thereby redeem the premises.

The receipt of Sheriff Westervelt was, in substance and effect, such a certificate of redemption as he was required by section 5 of the statute of 1847 to execute officially, to the person making the redemption (see 4 Edm. Stat. 631), and the plaintiff was therefore entitled, under the express provision in that regard, which is contained in section 6 of the statute, to read the same in evidence, as he did. It is true that Price might, if he had seen fit, have caused such certificate to be proven or acknowledged and recorded.« But that was wholly unnecessary, inasmuch as the certificate of sale had not been recorded, and it would have involved a useless expense.

Upon and by the redemption of the premises, the sale of the same by the sheriff, and his certificate of such sale became and were null and void (2 Rev. Stat. 371, § 49); when, therefore, the lands were re-conveyed by Latting to Price, the latter became the absolute owner thereof in fee simple, and the deeds read in evidence by the plaintiff upon the trial, proved that such estate in fee was then in him. For this reason, as well as because the plaintiff was a purchaser in good faith, without notice of any adverse claim or possession, the plaintiff and not the defendant was entitled to a verdict, and it follows that the learned justice erred in directing the jury to find in favor of the defendant.

The verdict should be set aside and a new trial awarded, with costs to the plaintiff, to abide the result.

Spencee, J. (dissenting).

This is an action of ejectment brought by the plaintiff against the defendant to recover possession of certain lots on the westerly side of Fourth avenue, between one Hundred and Fourteenth and „ one Hundred and Fifteenth streets, in the city of New York.

The cause was tried before Judge Jones and a jury, at a circuit of this court, and a verdict for the defendant directed by the court.

It was admitted on the trial that in the year 1846, Francis Price was the owner of the premises, and the common source of the title claimed by both parties.

On the 9th day of March, 1846, Cornelius Brinckerhoff and another recovered a judgment against the said Francis Price, for the sum of four thousand three hundred and ninety-five dollars and twenty-eight cents, in the supreme court of the State of New York, which judgment was duly docketed at the time of its entry, and became a lien upon the real estate which is the subject of this controversy.

On the 10th day of September, 1847, the said Francis Price, under an order or decree of the court of chancery of the State of Yew York, conveyed all his estate, real and personal, to one John J. Latting, in trust to pay certain debts mentioned in said order or decree, by which conveyance, the legal title to said premises vested in said Latting,. subject to the lien of said judgment.

On the 13th day of. April, 1848, under and by virtue of an execution issued upon said judgment in favor of said Brinckerhoff and another, the sheriff of the city and county of Yew York, duly sold all the right, title and interest of said Price, in and to said premises at the date of the recovery and docket of said judgment, to one Charles O. Eichardson, and duly filed the certificate of said sale in the office of the clerk of said county of Yew York.

On the 10th day of April, 1849, the sum of seventy-two dollars and five cents (which sum was conceded by the parties to have been ■ sufficient to pay the amount required to be paid for the redemption of said premises from said sale) was paid to said sheriff, and a receipt was given by said sheriff for the sum to one Isaac Adriance. The receipt recited that the money was received from Francis Price, for and on account of the redemption of said premises from said sale, and upon the same paper and below the receipt, was a memorandum in the handwriting of said Isaac Adriance, then an ■attorney and counsellor at law in practice, which reads as > follows : “I asked Mr. W estervelt whether that amount was all that was necessary to redeem all the property sold by virtue of the execution % He answered that it was. I told him I wanted to redeem all that was sold ; I paid the sheriff the above money, and took the above receipt for F. Price.”

The question of the admissibility of the receipt was discussed before the court on the trial, who decided to admit the same in evidence. As the verdict was for the defendant, this question does not arise on this review of the exceptions in the case.

Edgar Ketchum, a witness, testified that Mr. Adrian ce was sometimes retained as the attorney and counsel for Francis Price; but the witness had no knowledge of their relations in this transaction. This receipt was never filed nor recorded in any public office, but was kept in the private custody of Mr. Newbold Lawrence. There was no evidence that the sheriff’s grantee, or any subsequent grantee under him of the premises, had any knowledge of the existence of the said receipt.

On the 13th day of August, 1850, the said John J. Latting, reconveyed to the said Price, all the property then in his hands, which had been before that time conveyed by said Price to him as stated, including the premises in question.

On the 20th day of November, 1851, the said Price-" conveyed the premises to one John F. Darby, and by divers other conveyances, in direct line from said Darby, the title of said Darby to said premises became vested on or before the 19th day of October, 1867, in one Martin Braisted, who conveyed the same on the 1st day of November, 1867, to the plaintiff. In the mean time, while the said Braisted claimed title to the premises, and on the 19th day of October, 1867, the sheriff of the city and county of New York duly executed and delivered a deed of conveyance of said premises to Isaac B. Findell, the assignee of the purchaser at said sheriff’s sale (the said Charles O. Bichardson), who, subsequently and soon after the conveyance by the sheriff, conveyed the said premises to one Thomas Thorpe, who conveyed the same to the defendant, without notice of. the alleged redemption on the 26th day of March, 1868, in consideration of the sum'of nine thousand five hundred dollars paid by the defendant.

The plaintiff commenced this action on or about October 14th, 1868, and Ms complaint alleges substantially that he, the plaintiff, has lawful title, as the owner in fee simple, to the said premises (describing the same), and that the defendant is in the possession of the same, and unlawfully withholds the possession thereof from the plaintiff, and concludes with the usual form of prayer for possession and damages for withholding the same.

The defendant admits by his answer'that he was and is in possession of the premises, claiming an estate in fee simple to the same under the sale and conveyance by the said sheriff, and denies the plaintiff’s title.

Upon this issue the cause was tried, and the evidence given as heretofore stated. The case was heard at the general term upon a case and bill of exceptions.

The first exception by the plaintiff was taken to the ruling of the court on the trial, upon the question of the admission of the deed of conveyance from the sheriff to the said Findell, pursuant to the sale under the execution. As I concur in the opinion of Ch. J. Barbour, that this exception was not well taken, I shall not discuss the same.

The only other exception of the plaintiff was to the ruling and direction of the court, directing the jury to find a verdict for the defendant, and this exception raises all the questions of law applicable to the case at bar, and which require consideration.

With due respect to the opinion and conclusions of the learned Chief Justice and Judge Freedman, who were my associates on the hearing of this case at general term, I feel compelled to dissent from the same, and to hold the ruling and direction of the judge on the trial'to be correct in the premises, and that the exception thereto should be overruled and judgment rendered for the defendant on the verdict.

The defendant’s counsel claimed on the trial that the plaintiff was bound to allege and prove that he was or had been in possession of the premises in question ; and as he had neither alleged nor given proof of his possession, nor of the possession of the person from whom he derived his title at the time of the conveyance, that he was not entitled to recover.

There is much to be considered and said in favor of this position of the counsel in a case like the one at bar.

The authorities cited by the counsel unquestionably establish the legal position that a grantee who receives a grant of land, occupied and possessed by a person claiming title adversely to the grantor, takes nothing by the grant as against the party holding the adverse possession, for the grant is void, as against him. Such grantee cannot sue and recover the possession in Ms own name. The recovery must be in the name of the' grantor who had actual possession, or who held the legal title at a time when no adverse possession was maintained against the same.

But I fail to recognize from this position that in cases of ejectment the plaintiff is bound to allege and prove possession.

Proof of the legal title in the plaintiff is prima facie sufficient. Under the practice prior to the code, he must have averred in his declaration that on some day specified, after his title accrued, he was in possession, and that afterwards, on a day stated, the defendant entered into the premises, and unlawfully withholds from the plaintiff the possession thereof, &c., &c. ; in other words, he must allege—1st. Possession in himself ; 2nd. Ouster therefrom by defendant; 3rd. The unlawful withholding of possession by defendant (2 R. S. 304, § 7). I think this, however, only directs as to the form of the pleading only, and it does not follow that the plaintiff was bound to establish all these allegations by proof, for a subsequent section (2 R. S. 306, § 25) provides : “It shall not be necessary for the plaintiff to prove an actual entry under title,” &c.., &c., but if the defendant contests the title of the plaintiff, because the grant of the premises was made to him, when adverse possession was held against the title of the grantor, he must prove the fact after plaintiff has established his claim of title. I think the onus probandi lies with the defendant to establish that fact; it shall be sufficient for him to show a right to the possession of such premises at the time of the commencement of the action, as heir, devisee or purchaser, or otherwise. This is, undoubtedly, the rule of evidence in ejectment at the present time, although the form of the pleadings and the practice under the code has been changed by the adoption of the code.

If my decision rested solely upon this point of the defense I should hold against the defendant; but there are other points in favor of the defendant to be considered, that I hold to be sufficient to support and sustain the rulings of the court below, independent of this question.

First. The defendant contends that there was no legal or valid redemption of the premises from the sheriff’s sale. That even assuming it as a fact, that Price, the judgment debtor, did pay the money to the sheriff and take the receipt in question, and did do all that laid within his power to effect the redemption of the land in his (Price’s) favor ; that there was not, in fact and law, a redemption of the premises from the sale, for the reason that at the time of the proposed, or attempted, or apparent redemption, Price had no right' to redeem the same ; that he was not the owner of the premises at that time; that he had before that time conveyed all his estate and title to the same to one Latting, who was the true and lawful owner of the same, at the time of, and continued to be such owner for some time after, the said alleged redemption, and that he (Latting) was the only person who had the legal right and power to redeem the premises from said sale, and therefore the redemption claimed to have been made by Price, when he had not the legal title to the premises, was void and of no effect.

The plaintiff, in reply to this position, held that the conveyance to Latting was a trust conveyance, and also an involuntary conveyance, by order of the court of chancery, and that the title to the property, on the payment of the debt that was the subject of the trust, would revert to him by operation of law, without a re-conveyance, and therefore that Price’s interest in the premises was of that character that entitled him to redeem the same.

There can be no doubt that in a certain sense the conveyance by Price was an involuntary act, but it has been decided in the court of appeals that the legal effect of an act done in obedience to the decree of a court of competent jurisdiction, is the same as a voluntary act (Chatauque Co. Bank v. Risley, 19 N. Y. 366), so that the law applicable to this case is that applicable to any trust deed executed by any debtor, and in such case there can be no doubt that there is a resulting trust to the debtor, after the payment of all the debts to secure which the trust instrument was executed.

By the recitals in the deed of reconveyance from Latting to Price, it affirmatively appears that the purposes for which this trust was created had not been satisfied on the day when the payment was made to the sheriff. The legal title was, therefore, on that day solely vested in the trustee. When there is a valid trust for the sale of land the party creating the trust, and those holding derivative titles under him, have no rights, legal or equitable, until the purposes of the trust are satisfied (Briggs v. Davis, 21 N. Y. 574).

The statute in regard to redemptions is in the following language:

Such redemption may be made—

“1. By the person against whom the execution was issued and whose right and title were sold in pursuance thereof; or,

“2. If such person be déad, by his devisee of the premises sold, if the same shall have been devised ; and if the same shall not have been devised, by the heirs of such person; or,

“ 3. By any grantee of such person who shall have acquired an absolute title by deed, sale under mortgage or under an execution, or by any other means, to the" premises sold, or to any lot, tract, parcel or portion which have been separately sold ” (2 Edm. St. R. S. 384, § 46).

Under the decision of Briggs v. Davis, John J. Lathing, on the 10th day of April, 1849, the date of the said payment, was the grantee of Price, the debtor, and had acquired an absolute title by deed, and then held such absolute title.

Is the position of the plaintiff’s counsel correct, that Price, the judgment debtor, had the right to redeem, notwithstanding his trust conveyance to Latting ? Ho authorities are cited in support of the affirmative, but the counsel rests solely upon the express letter of the statute. The defendant’s counsel, on the other hand, cites the case of Husted ■». Dakin, 17 Abb. 137, in opposition to this view. In that case, one Dakin owned certain premises which were subject to a mortgage and to certain judgments; on the 16th March, 1857, the sheriff sold Dakin’s right, title and interest in the premises under execution issued on one of said judgments, to one Husted. On the 18th day of April, 1857, part of the property was sold under foreclosure of the above mortgage, and a large surplus resulted, and on the 39th day of June, 1857, after the deed in the foreclosure sale had been delivered, Dakin, the judgment debtor, duly tendered to the sheriff, who made the sale, the requisite amount to redeem. A reference in regard to the surplus moneys was subsequently ordered, and on the proof the referee awarded the whole surplus to Husted, the purchaser of Dakin’s right, title and interest. The cause came before the court on a motion to confirm the referee’s report. The justice, after advisement, confirmed the report, and the same was on this point affirmed. The opinion delivered at special term passed directly upon this question. “It was conténded on the argument,” says the justice, “that this sheriff’s sale was null and void, by reason of the offer of Dakin to redeem the premises from the sale, and the tender by him to the sheriff of, the amount bid by the plaintiffs thereat. In June last, after the plaintiffs had become the absolute owners of the property, by reason of the purchase on. the mortgage sale, and the delivery to them of the sheriff’s deed on such sale, the defendant Dakin tendered to the sheriff the amount bid by plaintiffs on the sale on the 16th of March, 1857.

“The difficulty in regard to this redemption is, that at the time it was mad'e the defendant Dakin had no right, title or interest in the premises sought to be redeemed. The plaintiffs had succeeded to all his rights ; they had in fact become the-assignees by virtue of the purchase and sale on the 18th of April, 1857. This offer to redeem was therefore of no more import or effect than that of any stranger; and it would not, 1 am sure, be contended that an offer by such stranger to pay the bid on the sheriff’s sale and claim from the sheriff the transfer of the purchaser’s rights, would entitle him thereto, or would divest that purchaser of rights thus acquired, and render the sale nuE and void. It seems to me that the offer of Dakin to divest those rights is equally ineffectual; and that such an offer did not render this sale void, and thus revive the lien of the judgments by virtue of which it was made.”,

I can find no case in this court that conflicts with the views here expressed, which fully agree with my own on this subject, and therefore I feel bound to follow that decision until a higher tribunal shall lay down a different rule of law. Independent of authority, I hold, on principle, that this rule is sound. The right acquired by a purchaser at a sheriff’s sale under execution, is absolute at the moment the sale is made, against all the world, except those within the purview of the statute. The persons entitled to redeem, and the mode of redemption, are clearly laid down. “The statute is plain and peremptory in this respect, and cannot be disobeyed or disregarded. It is an express and positive requirement, and must be strictly followed, or nothing is accomplished” (Gilchrist v. Comfort, 34 N. Y. 241). The statute uses a phrase in the alternative that has been shortened in form, but it is of the same essential meaning in deeds, “the party of the second part, his heirs or assigns.” How, it can never be contended that where the heirs have legal rights the party has also, for nemo est haeres viventis (Campbell v. Rawdon, 18 N. Y. 416) ; nor can it be more successfully argued that where the estate has passed to the assigns the party can exercise a legal right over the estate. The jus disponendi is gone for ever. To shorten, in like manner, the statute in question, it would read “the judgment debtor, his devisees, hems or assigns.”

If there were, within the time of redemption, a valid devise of the property, the heir (not being such devisee) could not redeem. If there were a legal transfer of the property by the debtor, and he should die before the expiration of the time to redeem, the heir could not redeem, for such heir would be a stranger. I hold that, under the statute, only one person or class named can redeem, and that class last named has the better right. If the heir cannot redeem as against the assigns, what better right has the debtor under the statute % The right of redemption is a right in rem, and can only be exercised by one who has the legal title to the premises at the time of the alleged redemption. Therefore, I hold that as Latting had the absolute title by deed, on the 10th day of April, 1849, the payment to the sheriff was not, and could not be, a redemption within the meaning and intent of the statute.

The only thing that has seemed to be against this view is one single sentence in an opinion writteno by Judge Comstock, in the case of the Chatauque Co. Bk. v. Risley, 19 N. Y. 373 ; but the point was not presented in the case, seems not to have been discussed by the counsel, and apparently this was inadvertently written. If it had been the result of reflection, I should have given this expression the consideration due to that eminent jurist, but, under the circumstances, I am bound to follow the express adjudication of the general term of the supreme court on the question.

There is another question to be considered in this case that relates to and bears upon the right of the defendant, as a bona fide purchaser, to the possession of the premises, as against the right and title of the plaintiff, even if a valid redemption had been made.

Before the act of 1847, hereinafter referred to, the legal result of a redemption from a sheriff’s sale was to make the title under the certificate of sale entirely null and void, without any evidence in writing or of record to show such redemption.

This was in effect similar to the common law in respect to the conveyance of real estate, which, in the early period of English history, was usually without writing (4 Kent Com. 491). With the increase of knowledge, conveyance by writing became more prevalent, and by the act of 29 Chas. II., no conveyance could be operative without an instrument in writing, duly sealed. The next great advance in legislation for the protection of strangers was our recording act, by which all persons interested might ascertain the names of the rightful owners and their respecctive interests in real property; but there were involuntary sales of real estate which were mot affected by such legislation. This mode of obtaining payment of debt by the forced sale of the debtor’s property through the officers of the law is of modern origin, and was entirely unknown to the common law. It is worthy of note that the act that originated our modern process of sales by execution was passed in 1732, in the 5 Greo. II., with especial reference to the American colonies, and made land, hereditaments and real estate therein chargeable with debts and subject to sale under execution the same as personal property (4 Kent, 429). At first no provision was made for redemption from such sales, but this was afterwards incorporated in the law. And to enable persons to know of such sales when they were made redeemable, it was enacted that the sheriff or officer who made the sale should file in the proper office within ten days after, the sale, a certificate stating the facts of such sale, so that all persons might know of the rights acquired by the purchasers under the sales so made. Bat the provision for recording such certificate was not enacted until 1857, and applied only to future certificates. I notice that the learned Chief Justice considers that the defendant’s title was defective, by reason of not complying with the law in this regard. The subsequent payment to the sheriff by the person entitled to redeem was a complete revocation of the sale, and rendered the title of the purchaser null and void; but no provision whatever was made in the original statute by which the public could be advised of the fact.

This defect in the law was the subject of legislation in the year 1847, when an act was passed entitled “ An act to amend title five of chapter six of the third part of the Revised Statutes of ‘execution against property.’ ” The first four sections of this law apply specifically to the acts of creditors, but sections 5 and 6 are as follows :

“ Sec. 5. Whenever any redemption shall have been made, of any real estate so sold, it shall be the duty of the officer making such sale, or of any other person who may lawfully act in his behalf, to execute to the person making such redemption, his certificate, truly stating all such facts transpiring before him at the making of such redemption, as shall be sufficient to show the fact of such redemption.”

“Sec. 6. Such certificate may be proved or acknowledged as deeds are required to be, to entitled them to be recorded, and being duly recorded in the clerk’s office of the county where the real estate so sold is situate, shall have the same effect as against subsequent purchasers and incumbrances as deeds and conveyances duly proved and recorded ; and such certificate or the record thereof, or a duly authenticated copy of such record, shall be received in all courts and places as prima facie evidence of the facts therein stated” (3 Laws 1847, ch. 410, p. 508 ; 4 Edm. Stat, at Large, 630).

These sections apply to redemption by the judgment debtor as well as the acquii’ement of title by the other judgment creditors. It provides the remedy for the defect in the former law, and is to be construed liberally. It enables the redeeming debtor to put the evidence of his act on record for all time, and gives him and his grantees the means of proving it after all the parties to the transaction have passed away, but it puts him in the same position that the recording act puts the grantee in. It does not compel the party to file his certificate, but it malms his title dependent upon it. As jbetween grantor and grantee, the delivery of the deed instantly transfers the title, and as between the holder of the certificate and the judgment debtor, the title ceased on due payment. This rule in respect to a deed does not prevent the transfer of the title from such grantor to a bona fide purchaser without notice of the prior deed, and so tire bona fide transferee of a certificate of sale takes a like good title when he purchases without notice of redemption. Otherwise the mere act of payment would have more solemn legal weight than the delivery of a sealed instrument. In the case at bar, the party receiving the certificate, instead of recording the same, chose to keep the paper in his possession without giving an opportunity to innocent parties to be put upon their guard. It is in such case the sound rule that where one of two parties must suffer, he should be exonerated who is guiltless, and he should be held liable who causes the wrong to be done.

It may be suggested, however, that the recording of the deeds from Latting to Price, and from Price to his successive grantees, gave notice to the world of this claim, but there is no force in this suggestion, for the reason that the holder of the certificate after the time to redeem has elapsed, has no legal title to the premises. Until the delivery to him of the sheriff’s deed, he has only an absolute equitable or inchoate title to the premises, and the owner of the fee continues to have the legal title (Farmers’ Bank v. Merchant, 13 How. 10, 12 ; Smith v. Colvin, 17 Barb. 157, 161). Therefore, Mr. Latting, notwithstanding his failure to redeem the premises, had a title that he could convey, and that he did convey, and that Mr. Price subsequently conveyed ; a legal title subject to be defeated by the de • livery of the sheriff’s deed, a title that might have been made absolute on obtaining a simple release from the holder of the certificate, a title that authorized the party to retain possession of the premises granted. But when the sheriff’s deed was delivered, then that title was extinguished and the debtor or owner divested of his estate, providing there had been no redemption, and in this case, by reason of the failure of the holder of the receipt, treating it as a sufficient one, to give the world notice of the redemption, this case is to be treated as if there had been no attempt made to redeem.

There was in this case a certificate of sale which was filed in the office of the clerk of the city and county of Hew York. The bill of exceptions does not state the date of the filing, but as no question was made thereon, and as the law imposed upon the sheriff the duty of filing such certificate within ten days after the sale, the presumption of law is that such filing was done within the prescribed time (Hartwell v. Root, 19 Johns. 345). The defendant paid the sum of nine thousand five hundred dollars for the premises in question, which seems to have been its value at the time of this purchase. He was a bona fide purchaser without notice and without having it in his power by any means to obtain notice or information. If this cause is decided in favor of the plaintiff, and the law is decided to be that the holder of a certificate of redemption may conceal the same to the injury of others without any liability to himself, there can be no safety in passing titles that are derived through deeds from the sheriff under sales on execution. This construction will in the end work a great wrong to judgment debtors themselves, for no party would be willing to bid the fair value of premises so sold and take such risk, so that where no redemption in fact should be made the judgment debtor would be deprived of his property for a mere fraction of its value. I cannot believe that such a construction of the.law was ever intended.

I think the learned Chief Justice errs in his views upon the effect of the provisions of the recording act. Until the law of 1857, I believe that it was the invariable practice of the members of the legal profession to search for sheriff’s certificates filed in the county clerk’s office. This is a public matter of which the courts take judicial cognizance (Swinnerton v. Columbian Ins. Co., 37 N. Y. 174). If this decision is correct, the universal action of the bar and the officials throughout this State has been wrong, and every title taken under a sheriff’s certificate is in jeopardy. An examination of the law in relation to executions (2 Rev. Stat. § 3, 44, 45), however, shows that it was never contemplated that such certificates of sale should be recorded, which construction is strengthened by the enactment of the law of 1857, providing for such record. Now, as heretofore suggested, the sheriff’s certificate does not create a lien, mortgage or assign any interest in real estate, nor does it affect the title to real estate in law or equity, any more than the entry and docket of a judgment, or the filing of a notice of Us pendens. It creates nothing ; it only declares that which already exists, and in the meaning of the recording act it does not affect the legal title. The sheriff's - deed on the sale affects the legal title, and this must be, and in this case it was, recorded.

For these reasons I hold that the exceptions should be overruled and judgment ordered for the defendant on the verdict.