text:
    Simeon Baldwin & Horace D. Forbes, ads. John Mildeberger.
    A factor, who has made advances for his principal, although he has a general lien on the goods and the proceeds of the goods of his principal in his hands, as a security for his advances, is nevertheless a competent witness for his principal, unless he has a specific claim upon the subject matter of the controversy.
    Where there is a mutual misunderstanding betwe'en the vendor and purchaser as to the terms of a sale, neither party is bound by the supposed agreement, there being, in such a case, no assent to the contract.
    The plaintiff’s factor sold goods to the defendants, to he paid for, as he understood the arrangement, in the note of a third person payable"at a future day, endorsed by the defendants ; but as the defendants supposed, by the same note, endorsed without recourse to them. The goods being delivered, the defendants offered the note proposed to the factor, endorsed without recourse, which he refused to receive. The defendants kept the goods, and declined to make paymeut in any thing, but the note thus offered, and thereupon this action was brought to recover the value of the goods. The judge charged the jury, that if there was a mistake betwen the parties in the first concoction of the contract, the one expecting to receive a note endorsed by the defendants, absolutely and the other to give it without recourse to them, as the defendants instead of returning the goods had appropriated them to their own use, they were bound to pay for them. A verdict having been found for the plaintiffs, this charge was held to be correct, and the factor was held to be a competent witness for the plaintiff
    Assumpsit for goods sold and delivered. The defendants pleaded, 1. The general issue. 2. Payment. 3. That the goods mentioned in the declaration were sold by the plaintiff on an agreement to accept in payment therefor, to the extent of six hundred and thirty-eight dollars, a promissory note for that sum, drawn by S. Penny & Sons, in favour of the defendant, bearing date the 8th day of April, 1828, payable four months after date, endorsed by the defendant without recourse, and the balance in cash. That the defendants had, according to their agreement, tendered the note and the cash, which the plaintiff refused.
    Upon the second plea the plaintiff joined issue and to the third replied, admitting the tender of the money and note, but waving the facts of the agreement, relative to the terms of the sale as' set out in the plea.
    The cause was tried before the Chief Justice. At the trial, the plaintiff called one Hervey Brown as a witness, who being sworn on his voir dire, stated, that he was a commission merchant, and that as the plaintiff’s factor he sold the merchandise in question to the defendants. That he had made advances to the plaintiff, but not on the goods in controversy. That the plaintiff was then indebted to him to the extent of $150, and was abundantly able to pay that debt. The witness further stated, that if there was a recovery in this case, he supposed he should be paid out of it, but the plaintiff was under no obligation to do so. The witness had no claim whatsoever on the specific proceeds of suit, nor had he any interest in the result.
    Upon this statment, the council for the defendants objected to the witness, as being interested and incompetent; but the Chief Justice overruled the objection. Being sworn in chief the witness testified, that there had been a good deal of negotiation between the defendants and himself in the month of April 1828, relative to the purchase of the merchandise in question, (several hundred boxes of soap) before the sale took place ; during which, the quantity, price and time of credit were adjusted and fixed. The credit was to be for six months and when the witness went to the defendants to complete the sale, something was said to him, by the defendants, relative to a note of S. Penny & Sons, which the defendants wished him to take in part payment. To this proposition the witness replied, that he did not know the standing of the makers, and the defendant Baldwin said, that “ the note was good and he would endorse itThe witness being satisfied with this, delivered the soap accordingly, on or about the 30th of April 1828. Afterwards the witness called upon the defendants for a settlement of the matter and a calculation was made as to the amount due for the soap, an allowance being made for the difference between the credit of six months, and the time when the note 'would fall due. As the note did not amount to as much as the bill of the merchanise, there was a balance due to the plaintiff in cash, and for this balance, Baldwin wrote a receipt in his receipt book and handed it to the witness to for his signature. The witness then demanded the note, which was handed to him unendorsed, and this circumstance being mentioned to the defendant Baldwin, he tood back the note and asked how it should be endorsed. The witness replied, that he merely wanted the names of the defendants upon it; whereupon Baldwin endorsed the note in the name of the defendants in these words, “pay without recourse to us,” and handed it back to the witness, who refused to receive it, remarking, that he had not sold the goods for such paper. Baldwin replied, that he had, and that he would give no other. The witness then again refused to receive the note, and told the defendants, that he would allow the matter to rest until the period of credit elapsed. In the mean time, on the first of July, 1828, Penny & Sons failed, but it did not appear that the defendants had ever returned the soap or that they had offered to return it. The note referred to was the same described in the third plea of the defendants.
    The defendants on their part called two witnesses, from whose testimony> it appeared, that when Brown offered the soap to the • defendants they were willing to purchase it, provided he would receive the paper of Penny & Sons, in payment therefor. That Brown at the time, postponed the giving of a definitive answer for the purpose of ascertaining the credit of the makers of the note; but afterwards called upon the defendants and told them that they could have the soap. It was accordingly delivered, and when Brown called for a settlement, the defendants gave him the note of Penny and sons, endorsed Without recourse. But he refused to receive it endorsed in this form and the defendants declined giving any other. Baldwin stated to Brown, that it could not be, that the defendants were to endorse the note, because that would make the bargain more favourable for the plaintiff than the one proposed by him. The time of credit was to be six months upon the security of the defendants alone ; whereas by the terms now demanded, the plaintiffs would have the security of Penny & Sons together with that of the defendants, and this at a credit of only three months, as the note would be due at the expiration of that time.

      upon this evidence the Chief Justice charged the Jury, that if they found the agreement between the plaintiff and the defendants was, that the defendants should endorse the note of Penny & Sons' absolutely, then their verdict should be for the plaintiffs. 3. If however there was a mistake between the parties, in the first concoction of the contract, the one expecting to receive the endorsement absolutely and the other to give it without recourse, that then as the defendants, instead of returning the article sold, had used it, they were of course bound to pay for it.
    3. If the jury found, that it was expressly agreed, that the plaintiffs was to receive the note of Penny & Sons, endorsed without recourse, and take the risk of it, that then their verdict should be for the defendants.

    The jury returned to the bar with a verdict for the plaintiffs, but upon the suggestion of the counsel for the defendant, and with the assent of the plaintiffs’ counsel, they were directed by the Court to state, upon what ground they founded_their verdict. The jury replied, that they founded their verdict upon the belief, that there had been a mutual misunderstanding between the parties, as to the terms of the bargain at the time of the sale.
    The verdict was for the fulVamount of the goods at the price stated by the plaintiffs’ witness.

      Mr. D. Lord, for the defendants, now moved for a new trial, and contended,
    I. That Brown was interested in the recovery, having legally a lien upon the fund sought to be recovered, and was therefore incompetent as a witness. [Paley on Agency, 108, 9, 10. Payton v. Hallet, 1 Caines’ Rep. 364, 379. Drinkwater v. Goodwin, Cowp. R. 251.]
    II. A party to a contract cannot allege that it is void, because the terms of it were not understood, there being'no misrepresentation or mistake as to any supposed facts; and in this respect, the charge was erroneous. The real question arose from a conflict of testimony, and if the jury believed the witnesses of the defendants, their verdict ought to have been in their favour, There is no case where misapprehension merely will avoid a contract,—there being neither mistake, nor ignorance of facts, nor misrepresentation. [1 Pow. on Con. 140. 2 Ib. 196. Newland on Con. 342, 432.]
    The rule laid down in the charge is loose and dangerous, as it opens a door for pretended misunderstandings, which cannot be detected. At the common law this principle is carried so far, that a man may not set up his own insanity, much less his own misapprehension. [1 Pow. on Con. 14.] If misapprehension is to avoid a contract, then inquiry must be made as to the capacity and intelligence of the contracting parties, and the rule laid down is in practice impracticable.
    But if this is a case of mutual mistake, why should all the consequences of it fall on the defendant? The rule of equity would be to divide the hazard ; but this would violate the contract, and destroy every thing like the practical rules known to the law.
    III. Neither party did, in the present case, by evidence, attempt to show any such misunderstanding, nor was there any evidence thereof; but on the contrary, the agreement was clearly made out, according to the allegations of each party, by their respective witnesses ; and therefore, even if the law were, as was charged by the Court, the present was not a case for its application, and the Judge erred in directing the jury to apply it to this case.
    IV. The verdict, finding that the parties misunderstood the terms of the bargain, was contrary to the evidence of all the witnesses on both sides.

      Mr. Anthon, contra.

    I. The contract of sale was complete as to quantity, price, and credit, on the 30th of April, 1828, and had no reference, at that time, to the proposition relative to the note of Penny & Sons. That was a subsequent proposition, and the defendants originally intended, and expected to pay for the merchandise. They have received the goods, and have appropriated them to their own use; and the plaintiff having awaited until the expiration of the originally agreed upon, was entitled to recover, unless the defendants could prove, that the plaintiff agreed to take Penny’s note in payment. This question was put to the jury in the fairest manner by the Chief Justice at the trial, and the jury were of opinion, that no such agreement existed. Their verdict was in strict accordance with the proof, for Brown testified, that he never intended to take the note of Penny & Sons in payment, and he refused to take it. At this point of time, the defendants might have rescinded the contract, and by returning the soap, might have put the parties into their original situation. This they neglected to do, and having received the benefit of the plaintiffs’ property, they are bound to pay for it.
    II. If the parties misunderstood each other, relative to the conditions upon which the note was to be received, then there was no contract upon this head, and the original sale, at a credit of six months, remained according to the.original stipulation of the parties, and the defendants, not having rescinded the contract, by returning the goods, are responsible for the stipulated price, according to such original contract.
    A contract is defined to be “ aggregaiio mentiumbut in relation to this note, the minds of the parties did not meet, and therefore there was no binding agreement upon this point. There was no mutual assent, and neither party was held to that to which he never intended to agree.
    The risk and hardship did not rest upon the defendants alone, but the plaintiff has his risk also. If Penny & Sons had remained solvent, and the defendants had failed, then the latter would have received the amount of the note, and the plaintiff would have lost the value of his goods. The risk, then, was mutual, and perhaps equal, and there can be no complaint upon this score. [In relation to this head, Mr. Anthon cited 2 Black. Com. 442. 1 Chit. on Con. 4. 13 Ves. 427. 1 Wheat. R. 444. 5 East. 16. 8 Mass. R. 178.]

      III. The question as to the misunderstanding of the parties was fairly left to the jury, and their verdict is tantamount to a finding, that there was no contract with regard to the note of Penny & Sons. If the parties misunderstood each other, there could be no agreement, and the charge was strictly correct on all points.
    IV. Brown was an admissible witness, for he was not interested in the fund. He had a mere general lien, and a factor is always competent to testify for his principal.
   Hoffman J.

According to my understanding of the charge, the Judge did not submit to the jury any thing relating to the legal effect of the contract. He merely charged them, that if there was a mutual mistake between the parties, as to the terms, upon which the note of Penny & Sons was to be received, then that the agreement was not binding as to the note, and that the' plaintiff might recover upon the original cause of action. Taking the whole charge together, and it is evident that nothing but facts were put to the jury, and their finding appears to be consistent with the evidence.

A contract resting in parol cannot be binding upon the parties^ if they do not understand the terms of it alike, for in such case there is evidently no agreement. If the terms, however, are once fixed, neither party can recede, upon the ground, that he mistook the effect of the terms. Here it seems, that the plaintiff’s agent supposed, that the goods were to be sold for an endorsed note,—. the defendants, that they were to give the note of a third person, either without endorsement, or endorsed without recourse to them. The facts are not agreed upon between the parties, and as their understanding relative to the notes was different, there was no contract, which could bind either of them.

The defendants were aware of this discrepancy before the goods were disposed of; and if they were not content to take the hazard of this doubtful state of things, they might have rescinded the contract without prejudice to themselves or the plaintiff. They did not take this course, which common prudence pointed out, but chose to rest sternly on their legal rights according to facts, which they expected to prove. If there be default any where, the defendants are most obnoxious to that charge and by appropriating the goods to their own use they are clearly hable in my judgment for their value.

The objection to the evidence of Brown is not well founded and perhaps it originated in a misconception. There was no appropriation of any specific fund to the use of the witness, nor had he any special claim upon the proceeds of the goods sold. Brown was the mere agent or factor of the plaintiff, and although as such he would have a general lien upon goods or the proceeds of goods in his hands belonging to the plaintiff, as a security for his advances, yet an interest of this kind never disqualifies a witness. Upon principles of policy, of convenience and necessity the agent is admitted as a witness for his principal, and there is nothing in this case to make an exception to the general rule. The witness had no specific interest in the subject matter of the controversy and he could not gain or lose by the event.

Upon the whole, I look upon the charge of the Chief Justice as substantially correct in all its parts and he was also correct in permitting Brown to testify.

Oakley J.

I. The objection to the competency of the plaintiff’s witness, Brown, was not well taken. He was the factor of the plaintiff and as such, had a general lein, for a balance due him, on the property of the plaintiff in his hands, but no specific claim for the payment of that balance on the proceeds of the goods sold to the defendants. It has never been held, that a factor, or commission merchant, is an incompetent witness, on tho ground of interest, because he has a general lein on the proceeds of the sale of the goods of his principal. It is not such an interest in the event of the suit, as ought to disqualify him. In the case of Payton v. Mallet, (1 Caines' R. 364.) the witness, objected to, had an order from the plaintiff or his agent to be paid out of the particular fund in controversy, and declared, that he expected to be paid out of that fund. The Court considered that such order amounted to an assignment of the fund pro tanto, to the witness. That case, therefore, differs from the present.

2. It is objected, in the second place, that the Judge erred in charging the jury, that if they found, that the parties laboured, under a mutual mistake, in the formation of the contract, they ought to find a verdict for the plaintiff.

The distinction between a mistake of a party to a contract, as to matter of fact, and a misapprehension as to matter of law, is well settled. The latter can never be alleged, to rescind a contract; the former may be. Taking the charge of the Judge, in connection with the special finding of the jury, which is stated in the case, to have been by the consent of the parties, I consider the direction given to the jury to have been, that they were to demine, whether the parties to this contract, misunderstood each other, as to its terms. In that light the direction was clearly correct.

If there was a mutual misunderstanding, at the time of the sale, as to tbe fact whether the note of Penny Sons, was to be endorsed absolutely, or upon condition that the endorser was not to be liable on the endorsment, there clearly was no agreement between the parties. The defendants were bound to prove affirmatively, that the agent of the plaintiff agreed to accept the note, in payment without the security of the endorsers, and failing to do that they are bound to pay for the goods, as they did not return them to the seller, on the discovery of the misapprehension of the bargain.

Motion for a new trial denied.

[Hallett & Walker Atty’s for plff. D. Lord Atty for defts.]


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James Hall and Jacob G. Montross versus Lewis Constant.
    The payment of a part of a debt dm is no consideration to support a promise to give further time for the payment of the balance.
    An agreement for delay, without consideration, made between the principal debtor and his creditor, will not discharge a surety. An agreement to have that effect must be a binding agreement, or one to the prejudice of the surety.
    A negotiation for delay upon terms not finally accepted, does not discharge the surety, though there is actual delay; there being no binding contract to prevent a suit against the principal at any time.
    A debtor who pays money to his creditor, being liable to him upon more accounts than one, has a right to direct the application of the payment to whichsoever subject he may choose : and where the jury neglected or refused to follow this rule, the Court granted a new trial.
    The declaration in this case was upon a promissory note for $404.90, bearing date the 6th of Nov. 1826, drawn by a certain firm bearing the name of Haight & Carpenter, in favour of the defendant, and endorsed by him to the plaintiffs, payable sixty days after date. The common money counts were also added to that upon the note. The defendants pleaded the general issue, and payment, and gave notice of a set-off.
    The cause was tried before Mr. Justice Hoffman ; and at the trial the plaintiffs proved the making of the note, a demand when due and regular notice to the defendant, the endorser.
    The defendant on his part then called Haight, one of the makers, as a witness,—who, having produced a full discharge from the defendant, testified that the note in question was drawn and endorsed for the accommodation of his firm. That when the note became due, he called upon the plainrifls to obtain time for its payment, but had with him a sum sufficient to take it up. That the said firm were also, at that period, still further indebted to the plaintiffs upon another note for $368.94, payable directly to the plaintiffs on demand. That the plaintiffs were willing, on receiving $200, on account of their claims and notes for the balance, to give time for the payment of both demands, to the extent of three and six months. With reference to the notes to be given, they were to be drawn by the defendant alone, (the plaintiffs having some objection to Carpenter;) and to have good endorsers. The witness proposed the defendant, Jjut the plaintiffs replied, “ they had him already.” It was finally arranged, that the witness should give his own notes, with such endorsers as should be satisfactory to one William Nelson. Upon this arrangement, the witness paid the plaintiffs two hundred dollars, to be applied on the note endorsed by the defendant; and it was so understood by him at the time. The plaintiffs, thereupon, gave the witness a receipt in the following words—“ Received, New-York, 15th January, 1827, from Wm. Haight two hundred dollars, endorsed on Haight & Carpenter’s note. (Signed) James Hall & Co.”
    The witness supposed that the receipt referred to the note endorsed by the defendant; but at the trial it appeared that the money had been endorsed on the other note for $368.94.
    After this arrangement was made, Carpenter told Haight that he would not gratify the plaintiffs by procuring endorsers upon the new notes : and thereupon the individual notes of the witness were drawn and enclosed to the plaintiffs, as he believed. The witness did not, however, enclose nor forward them himself, and he knew not whether they had ever been received by the plaintiffs as they never made any admissions upon the subject. The witness, however, saw his partner writing to the plaintiffs and supposed, that he enclosed the notes.
    When the above arrangement was made and the money paid, there was a general statement made by the witness, and handed to the plaintiffs, embracing both notes then due, with the interest thereon, and carrying the notes into one account.
    Upon this evidence the Judge charged the jury that if an extension of the original credit was actually made by an agreement between the plaintiffs and the drawers of the note, (without the participation, knowledge or assent of the endorser, for a good and valuable consideration,) such an agreement would discharge the endorser from his liability. The jury were to determine whether the agreement as stated by the witness, . , had been complied with by the drawers; and that, if it was in fact made and completed, then there was a sufficient consideration to support it.
    If the two hundred dollars were paid upon the note in question, the Judge further charged the jury, that the defendant was entitled to the benefit of that payment; but if it was carried into the statement, as a general credit on the whole claim embracing both notes, then the defendant was at least entitled to the benefit of a • pro rata portion of it, to be applied to the note endorsed by him.
    To this charge, the counsel for the plaintiffs excepted, upon the ground, that there was no consideration for the agreement, and that the payment could not be apportioned in favour of the defendant. The jury, however, gave a verdict in favour of the plaintiff for $485.87, being the whole amount of his claim. It was then agreed between the parties, that the facts should be stated in the form of case, which each party had the right of turning into a bill of exceptions.
    The defendant now moved for a new trial, and Mr. Seely in his behalf contended,
    I. That the verdict was against law and evidence. The giving of time to the drawers discharged the endorser. [He cited Chit, on Bills, 290. Sel. JV*. P. 272. 1 T. R. 169. 3 Bos. and Pul. 61. 3 lb. 385. 8 East. 576. 13 lb. 177.]
    II. The damages were excessive. The defendant was entitled to the benefit of the two hundred dollars, which were paid, as the witness expressly swore, on the note in question.
    III. The verdict was against the charge of the Court, which instructed the jury at all events, to allow a portion of the payment for the benefit of the defendant.

      Mr. P. A. Cowdry, contra, for the plaintiffs, contended,
    I. That the endorser of a promissory note is discharged by the giving of time to the drawer, in those cases only, where the credit is extended by an express agreement, which is binding in law upon the parties. [12 Wheat. R. 556. Chit. on Bills, 296. 3 Price's R. 532.]
    II. No consideration was proved, that would have supported such an agreement. [12 J. R. 426.]
    III. Whether any agreement was made by the plaintiffs with the drawers of the note declared on, extending the time of payment, was a question of fact for the jury to determine.
    IV. Where a debtor pays money to his creditor, who has demands against him on two accounts, the creditor may place the payment to which account he pleases, unless the debtor directs its application.
    V. What the understanding between the parties was, in relation to the credit of the payment of the two hundred dollars, was also a question of fact for the jury to determine.
   Per Curiam.

It is well settled, that the payment of a part of a debt due is no consideration to support a promise to give further time for the payment of the balance. [Peabody v. Knox, 12 J. R. 426.] And it has also been decided, that an agreement for delay, without consideration made between the principal debtor and his creditor, does not discharge the surety. An agreement to have that effect, must be a binding agreement, or one to the prejudice of the surety. [12 Wheat. R. 556, McLoman v. Penell.] So also a negotiation for delay, upon terms not "finally accepted, does not discharge the surety, though there is actual delay, there being no binding contract to prevent a suit against the principal at any time. [3 Pri. Ex. Rep. 521, Badnall v. Samuel.]

In this case, the court does not perceive any such binding agreement, nor that the endorser was in any way prejudiced. The general foundation of the action is therefore well laid, and the plaintiffs are entitled, at all events, to a verdict.

There is another question, however, as to the amount to be recovered, which is certainly in favour of the defendant. It is a familiar principle, that a debtor, who pays money to his creditor, being liable to him upon more accounts than one, has a right to direct the application of the payment to whichsoever subject he may choose. If he neglect to do this, the creditor may direct the application, and in the absence of any appropriation by either of the parties, the payments will either be applied to the claims first due, or in such way as to do justice between the parties.

In this case it is clear, that the debtor did apply the payment of the two hundred dollars either to the note in question, or that he paid it on the general account of both notes. Upon this point, the Judge’s charge was perfectly correct, and the jury have found against the charge and the law. There must, therefore, be a new trial, to reduce the amount of the verdict. At the new trial, the jury must apply either the whole payment to the defendant’s note, or they must give him credit for such a relative proportion as the payment bears to the endorsed note, according as they shall find, that the payment was in fact made on this specific note, or on the general account of both. It is very evident, that the makers never intended to apply the whole payment to the note, which was not endorsed, nor could it have been so understood by the plaintiffs at the time. The payment was not made generally without any appropriation, and the jury must therefore say to what subject it was applied.

New trial granted.

[P. A. Cowdry, Att’y for plffs. W. A. Seely, Att’y for deft.]

Vide p. Wendell’s Rep.


author: Oakley J.

text:
    Henry W. Delavan and Edward C. Delavan versus Daniel Stanton and John B. Wilbur.

      A plea of an insolvent’s discharge, cannot be joined with a plea of nnltiel record : but the misjoinder can only be taken advantage of by special demurrer, or by motion.
    If a party plead a judgment, he must shew the Certainty of it, setting forth the parties, and the court in which it was obtained. And the plea of an insolvent’s discharge ought to set forth the action, in which the debtor was imprisoned, the court out of which the execution was issued, and the name of the creditor upon whose application the proceeding was instituted.
    A defect in the averments of a plea, as to these particulars, is matter of substance, and may be taken advantage of by a general demurrer.
    This was an action of debt upon a judgment obtained by the plaintiffs and one Thomas Gould, (since deceased,) against the defendant, in the Supreme Court of this State, at the August Term of that Court, in the year 1817. The defendant Stanton appeared, and pleaded, 1. Jful tiel record. 2. “ That after the said supposed recoveiy, in the said plaintiffs’ declaration mentioned, and before the commencement of this suit, the said defendant, then being an inhabitant of the said City and County of New-York, was a prisoner in the jail of the City and County of New-York, upon execution issued against him in a civil action, and actually imprisoned in the said gaol, on the said execution, for sixty days, then last past and upwards; and being so imprisoned, as aforesaid, application was made to Richard Riker, Esq.,. then being recorder of the City of New-York, at the said City of New-York, by one of the creditors of the said defendant, Daniel Stanton, then an insolvent debtor, praying for the relief afforded in and by the act of the Legislature of the State of New-York, entitled “ an act for giving relief in cases of insolvency, passed the 12th day of April, 1817,” under an apprehension that the estate or effects of the said Daniel Stanton would be wasted and embezzled; and that upon such application, the said creditor did make affidavit according to law, that the said insolvent was justly indebted to him, in a certain sum of money, then due and specified in said affidavit, and not less than $25; and that the said insolvent was then in prison on execution issued against him in some civil action, and that he had been so imprisoned for sixty days and upwards. And such proceedings were thereupon had before the said Richard Riker, being such Recorder as aforesaid, that the said Richard Riker, being such Recorder as aforesaid, afterwards, to wit, at the said City of New-York, on the 27th day of April, A. D. 1818, and in pursuance of the aforesaid act, by virtue of the power and authority in him vested, in and by the said act, did make and execute a certain discharge in writing, under his hand and seal, in the words following, to wit.” [Here followed the discharge, which was in the common form, and was set out verbatim.]
    Upon the first plea, the plaintiffs joined issue : to the second, they demurred generally, and the defendants joined in the demurrer.

      Mr. Daniel B. Tallmadge for the plaintiffs, in support of the demurrer, contended,
    I. That the plea of an insolvent’s discharge could not be joined with a plea of nul tiel record. [Lecompte v. Pendleton, J. Cas. 104.] They require different trials, and of course cannot be joined. It may, however, be, that this defect should be taken advantage of by motion, instead of a general demurrer.
    II. The plea does not set forth the facts, which give the Recorder jurisdiction, with sufficient certainty to enable the plaintiffs to form an issue upon them. The plea should set forth the particular execution on which the defendant was imprisoned, and the court out of which it was issued should be described. The creditor, also, who made application, should be specified, for the Recorder has no jurisdiction unless a creditor applies. The plaintiffs then would have the opportunity of showing, that the person applying was not a creditor. [4 Vol. L. N. Y. 43 b. 1 J. R. 91. Ib. 75. 1 Cowen’s R. 316. 3 Ib. 206. 6 Ib. 224. 10 J. R. 161. 11 Ib.224. 2 Salk. 517. Com. Dig. Pleader, 2 W. 12. Lawes on Ass. 669-70. 11 East. 516. 1 Wend. R. 209.]

      Mr. R. Sedgwick, contra,

    contended that these objections, if correct in any point of view, could only be taken on special demurrer. [7 Cow. R. 442.] The misjoinder of the pleas is clearly the subject of special demurrer only, or of motion, and cannot be objected to now.
    If this plea be bad, then all others of the kind are bad also, for they are all alike, and are taken from one common form, which all pleaders in this city use. Bút there is enough shown to give the Recorder jurisdiction, and the name of the creditor cannot be necessary for any such purpose. The statute is general in its expressions, and the plea conforms to the words of the act. This is all that can be required, and these objections would not avail, even on special demurrer.
   Oakley J.

This is an action of debt on a judgment, obtained in the Supreme Court of August Term, 1817. The defendant, Stanton, pleads, 1st. Nul tiel record; 2d. A discharge under the insolvent act, dated the 27th of April, 1818. On the last plea there is a general demurrer.

It is clear that these pleas are improperly joined ; but that objection cannot be taken on this demurrer. The plaintiffs should have demurred to both pleas for that cause, or they might havé called upon the defendants to strike one of them from the record. The only inquiry here is, as to the sufficiency of the second plea.

The discharge in question is alleged to be by virtue of the act, entitled “ an act to amend an act, entitled an act, for giving relief in cases of insolvency,” passed February 28, 1817, (p. 40, ch. 55,) and the objection to the plea is, that it does not set forth the facts necessary to give the officer, granting the discharge, jurisdiction.

The rule of law, on this subject, is that the plea must show affirmatively, that the officer granting a discharge under the insolvent act, had jurisdiction in the case. Every fact necessary to give such jurisdiction must be averred, and the want of any necessary averment, cannot be supplied by the recitals in the discharge itself. [Wyman v. Mitchell, 1 Cowen’s R. 318. Morgan v. Dyer, 10 J. R. 161.]

The act in question provides, that when any person has been actually imprisoned for sixty days, upon execution in any civil suit,” any creditor of such person may apply for relief, &c.; and “ upon such application, and an affidavit being made by such creditor, that such person is justly indebted to such creditor in a sum of money then due, to be specified in such affidavit, and not less than twenty-five dollars, and that such person has been imprisoned, &c., the officer to whom such application is made, shall order,” &c.

The plea in question avers, 1st. That the defendant was an inhabitant of the City of New-York, and had been actually imprisoned in said city, “ upon execution issued against him in a civil “ action.” 2d. That application was made to the Recorder in said city, “ by one of the creditors of the said Daniel Stanton,” praying relief, &c. 3d. That upon such application, said creditor made affidavit, that said insolvent was indebted to him, “ in a certain sum of money, then due and specified in said affidavit, “ and not less than twenty-five dollars, and that he was then in “ prison, &c., and had been so for sixty days and upwards. The plea then avers, that such proceedings were had m the case, that the said Recorder afterwards granted the discharge, which is set forth in hcec verba.

It is objected, that the plea does not set forth, the name of the creditor applying for relief, &c., nor the particular execution, on which the debtor was imprisoned, nor yet the court out of which it issued. If these averments are necessary, they are, of course, traversable, and should be pleaded with such particularity as to enable the plaintiffs to take issue on them. If a party plead a judgment, he must show the certainty of it, and set forth the parties, and the court in which it was obtained. (Com. Dig. Pleader, 2 W. 12.) And the same rule applies to the case of pleading a writ. (Gray v. Hart, 2 Salk. 517. Patton v. Foote, 1 Wend. R. 209.) The plea in the present case, ought to set forth the action, in which the debtor was imprisoned, and the court out of which the execution issued, and also the name of the creditor, upon whose application the proceeding was instituted. The plea is clearly bad, but the doubt has been, whether the defect could be taken advantage of on a general demurrer. Upon considering the cases, and particularly that of Gray v. Hart, (as reported in 2 Lut. 1458,) I am of opinion, that the defect in the averments in the plea, is matter of substance. In the case of Gray v. Hart, the action was for an assault. The defendant justified on the ground that he had arrested the plaintiff by virtue of a certain writ, without setting forth the court out of which it issued. The plaintiff replied, and there was a special demurrer to the replication. The court, in giving judgment, considered the plea as bad, because it did not show out of what court the writ issued ; and it is well settled, that no defect in any plea, preceding that to which the demurrer is taken, can be noticed, except it be such as would be bad on general demurrer. The averment, therefore, in that case, must have been considered substantially defective, and the principle of it, is certainly applicable to the case now before us.

Judgment for the plaintiffs.

[E. Curtis, Atty. for the plffs. D. D. Field, Atty. for the defts.]


text:
    The’ Farmers and Mechanics’ Bank versus John Rayner.
    A plea of nuZ tiel corporation, is bad upon special demurrer, as amounting to the general issue: for whatever the plaintiff is bound, in the first instance, to prove, in order to support his cause of action, cannot be specially pleaded by the defendant. And this principle applies as well to foreign corporations, as.to our own.
    Assumpsit brought by the plaintiffs, as the endorsees, against the defendant as endorser of three several promissory notes, drawn by one William S. Rayner.
    The defendant pleaded, I. The general issue; and II. That the plaintiffs iyere not “ a body politic or corporate, and had not a right, by the laws of the land, to sue as such.”
    To this last plea the plaintiffs demurred specially, and set forth for cause, that if amounted to the general issue.

      Mr. J. Hoyt for the plaintiffs, and in support of the demurrer, contended,
    I. That any matter of defence which denies what the plaintiff is bound to prove, or be non-suited, in the first instance, on the general issue, ought not to be pleaded specially. [Bank of Auburn v. Weed and others, 19 John. R. 300.]
    II. That a corporation when plaintiff is bound to prove itself such on the trial, or be non-suited. [14 John. Rep. 238. 8 Ib. 378.]

      Mr. A. S. Garr for the defendant, contra,

    contended that the plea was good; but if bad, the defendant was entitled to judgment, because the declaration was defective. That the plaintiffs were a foreign corporation, and the declaration should therefore have set forth where and by what authority they were incorporated. There was nothing in any part of the pleadings to show, that the bank was a foreign corporation, and the declaration commenced in the usual form: “ The Farmers and Mechanic’s Bank, “ plaintiffs in this suit,” complain, &c. He referred to the case of The Auburn Bank v. Aiken, (18 J. R. 137.) and the authorities there cited. Childress v. Emory, (8 Wheat. Rep. 643.) D'Wolf v. Rabaud et al. (1 Peter's S. C. Rep. 498.) 1 Chitty's Plead. 255. Rev. Stat. part 3, chap. 8, tit. 4. art. 1. sec. 3. 13.
   Oakley J.

The case of the Bank of Auburn v. Weed, (19 J. R. 300.) decides the point raised on this demurrer. The plea of ml tiel corporation, was there held to be bad on special demurrer, as amounting to the general issue, on the principle, that, whatever the plaintiff is bound, in the first instance to prove, in order to support his cause of action, cannot be specially pleaded by the defendant. And it has been settled by the Supreme Court, that where a Corporation sues, it must show itself to be such on the trial, or be non-suited. [14 J. R. 238. 8 Ib. 378.]

This principle applies as well to foreign corporations as to our own; and there is no ground in this respect for any distinction between them. If it were otherwise, the iact, that the plaintiffs in this case are a corporate body, created by the laws of another state, is not averred on the record, so as to enable us to notice it.

Judgment for the plaintiffs on the demurrer.

[Ward and Hoyt, Attys. for the plffs. A. S. Garr, Atty. for the deft.]


text:
    Ralph Clark and Enos P. Clark versus Jacob Burdett.
    The defendant executed and delivered to the plaintiffs a guaranty in the following words: “New-York, 30 th April, 1828.—X hereby guaranty the payment of any “ bill or bills of merchandize, Mrs. P. has purchased, or may purchase of E. P. “ C. & Co. The said Mrs. P. having the privilege of 90 days credit on the “ purchases made by her, the amount of this guaranty, not exceeding 0200, and “ this guaranty to expire at the end of one year from this date.”
    Held that this instrument was a continuing guaranty, and applicable to any goods delivered under it, not exceeding the specified amount, during the period limited.
    Held also, that a demand of the purchaser, and notice to the defendant, were not necessary as conditions precedent to the plaintiffs’ right of action.
    Where there are several debts, some of which are guarantied, and some are not, and a payment is made by the debtor, the creditor may apply it as he pleases, unless a special application is made'by the debtor.
    Assumpsit upon a guaranty. The declaration contained two special counts upon the instrument, besides the common counts, for goods sold, &c. Pleas, the general issue, and payment.
    It appeared at the trial, that one Mrs. Phillips applied to the plaintiffs in the month of April, 1828, to purchase a quantity of dry goods upon credit. The plaintiffs being unwilling to furnish the goods without security, the applicant offered to procure the defendant’s guaranty for the payment of such purchases as she might wish to make. The piaintiffs, therefore, drew up a guaranty, and sent it by their clerk to the defendant, and it was immediately signed by him. The instrument was in these words, viz: “ New-York, 30th April, 1828. I hereby guaranty the payment “ of any bill or bills of merchandize Mrs. Phillips has purchased, “ or may purchase from E. P. Clark & Co.; the said Mrs. Phil- “ lips having the privilege of ninety days credit on the purchases. “ made by her, the amount of this guaranty, not exceeding two “ hundred dollars, and this guaranty to expire at the end of one “ year from this date. Jacob Burdett.”

      After this paper was received by the plaintiffs, they delivered to Mrs. Phillips, on the 30th of April, 1828, a quantity of goods, amounting to $198.73; on the third day of May following, another parcel, amounting to $35.72, and at several different times after-wards, between that period and the 17th day of the same month, several other parcels, amounting in the whole to $379.60.
    On the 20th of June following, Mrs. P. called upon the plaintiffs to take back such goods as she had on hand, so as to reduce the amount of her debt to them as much as possible. The plaintiffs acceded to -this request, and received back from her goods to the amount of $200, and upwards, and were afterwards compelled to bring this action to recover the balance due from her, amounting to $166.41.
    For this sum the plaintiffs had a verdict, which was taken, however, subject to the opinion of the court upon a case to be made. If the court should be of opinion that the action could not be sustained, then a non-suit was to be entered.

      Mr. J. L. Mason for the defendant, now contended,
    I. that the plaintiffs should have proved a demand of payment upon Mrs. Phillips, and notice of non-payment to the surety, in order to entitle them to this action. [4 M. and Sel. 574. Com. Dig. Surety, H. 2. 3 Wheat. 101-154. (n.) 8 East. 245.]
    II. He also contended that the guaranty was void as to the goods, which had been purchased previous to its date, because no consideration for the defendant’s promise appears upon the paper, and being void in fact, it was void in toto. [7 Term R. 201. 14 J. R. 465.]
    III. The guaranty was a limited, and not a continuing one, and the payment made by Mrs. Phillips in goods, (amounting to $200,) must be deemed applicable to the first purchase, and for which the defendant gave his guaranty. [Kirby v. Marlborough, 2 M. and Sel. 18.]

      Mr. D. B. Tallmadge, contra for the plaintiffs, contended,
    that that the consideration for the promise was sufficiently apparent on the face of the instrument and proof of the delivery of the goods makes the cause of action complete.
    The instrument itself is a continuing guaranty, and covers all goods sold under it, before the time limited therein for its continuance.
    As to notice to the purchaser, no case can be found, where either notice or demand has been found necessary; for notice does not create the liability. The rule upon this subject is, that injury from want of notice must be made to appear, before the defendant can avail himself of this defence, unless such notice is a condition precedent. [He cited 9 East. 348. 1 Holt's N. P. R. 153. 3 Moore's R. 15. 6 Ib. 521. 3 Brod. & Bing. 211. 1 Bing. R. 216. Mason v. Pritchard, 2 Camp. R. 436.]
   Oakley J.

One Mrs. Phillips applied to the plaintiffs to purchase a quantity of goods. They declined delivering them without security. She offered the guaranty of the defendant, who signed and delivered to the plaintiffs the instrument, which is specially declared upon in this action.

The plaintiffs thereupon delivered to Mrs. P. a bill of goods amounting to $198.73, and at several subsequent periods, sold her other goods, in the whole to the amount of $379.60.

On the 20th of June, 1828, Mrs. P., wishing to give up her business, offered to return to the plaintiffs the goods she had on hand, so as to reduce the amount of her debt as much as possible, and the plaintiffs took them back to the amount of $200, and upwards. This action is brought on the guaranty, to recover the balance due on the account of Mrs. P., being $166.41.

I. The first objection made to the plaintiffs recovery, is, that he has not proved a demand on Mrs. P. for payment, and notice of non payment to the defendant.

I do not understand, that such a demand and notice are necessary to be proved, as conditions precedent to the plaintiffs’ right of action. The guaranty of the defendant is not a conditional, but an original undertaking, collateral to the promise of the vendee of the goods, and the defendant cannot set up as a defence, any negligence of the plaintiffs, in calling upon the vendee for payment, unless, at least, he can show that such negligence has been the cause of injury to him. [Duval v. Trask, 12 Mass. R. 156.] In the People v. Jansen, (7 J. R. 339.) The Court say, that in the case of a surety, the creditor is not bound to take any steps against the principal debtor, with a view to relieve the security, unless he should be required to enforce payment. In the present case, the omission to demand payment of the vendee of the goods, or to give notice of non-payment to the defendant, does not appear to have prejudiced him in any manner.

It would also be a sufficient answer to this point of the defence, that no objection was made at the trial, that a demand and notice were not proved.

II. It is objected also, that the guaranty is void, for the want of consideration, as to the goods, which had been purchased, and being void in part, is wholly so.

The guaranty applied to the facts, as they existed at the time it was entered into, must be understood, when it speaks of goods, which Mrs. P. had purchased, to allude to those, which she had contracted for, but which the plaintiffs would not deliver without security. It appears clearly in evidence, that all the goods sought to be covered by the guaranty were delivered after it was made. It is not necessary, therefore, to examine the correctness of the position assumed by the defendant’s counsel, under this branch of the defence.

III. It is contended, that the guaranty is a limited one, and that the payment of $200, made by Mrs. P., must be applied to satisfy it.

It is quite clear, that this guaranty is a continuing one, and by its ’ express terms intended to secure any sale of goods, during the period of one year, not exceeding the specified amount. The return of a portion of the goods to the plaintiffs, can hardly be considered as a payment, by Mrs. P.; but if it could, it appears to be settled, that when there are several debts, some of which are guarantied, and some not, and a payment is made by the debtor, the creditor may apply it as he pleases, unless a special application is made by the debtor. [Sturges v. Robbins, 7 Mass. R. 301. Hutchinson v. Bell, 1 Taunton, 564. Kirby v. Duke Marlborough, 2 Mau. & Sel. 18.] Upon the whole case, I think that the plaintiffs are entitled to judgment.

Judgment for the plaintiffs.

[E. Curtis, Atty. for the plffs. J. L. Mason, Atty. for the deft.]


text:
    Daniel Richards and Jehaziel Sherman, Jr. versus John Maley Cuyler and Frederick Cuyler.

      A plea, which amounts to the general issue, is bad on special demurrer, and it will amount to the general issue, when it shows a state of facts, from which it appears, that the plaintiff at no time had any cause of action. But when a plea is overruled, as equivalent to the general issue, it must be very clear that it is so.
    This cause came before the Court "upon special demurrers to two specialjpleas, interposed by the defendants.
    The declaration was in assumpsit, and contained none but the - common counts, for money paid, money lent and advanced, money had and received, &c., and the plaintiffs claimed $800.
    The defendants, besides the general issue, pleaded two special pleas. In their first, they alleged, that before the making of the promises in the declaration mentioned, the plaintiffs ^undertook and promised the defendants, that if they (the defendants) would undertake to deliver to the plaintiffs, in the City of New-York, on or before the first day of November, in the year_1828, a quantity of goods and merchandise, of the value of $1000, to be sold by the plaintiffs for the defendants, on commission, for a certain profit, that they (the plaintiffs) would advance and pay to the defendants certain sums of money in consideration thereof, and that they (the plaintiffs) would sell the said goods, and out of the proceeds thereof, retain the sums of money to be advanced, and would not require the defendants to repay the same,- but would pay the balance of such proceeds to the defendants, when the sales were completed.
    The plea then averred, that the -defendants did undertake to deliver the said goods to the plaintiffs at the time and place aforesaid, and that the plaintiffs, in consideration thereof, advanced and paid to the defendants, on the first day of November, 1828, “cer- “ tain small sums of money, amounting- in the whole to the sum “ of' two hundred dollars,” which were' the same sums demanded in the declaration. The plea then further averred, that the defendants, in consideration of the sums so advanced by the plaintiffs, and of their said promise and undertaking, did afterwards, on the same first day of November, deliver to the plaintiffs at New-York, the goods and merchandise abovementioued, which the plaintiffs accepted, and still held, the same being unsold.” These allegations were concluded by a verification ; and the plea then proceeded as follows, viz : “ And as to all the said several promises and un- “ dertakings, in the said declaration mentioned, except as to the “ said sum of two hundred dollars, so advanced and paid by the “ said plaintiffs to the said defendants, parcel of the several sums “ of money mentioned in the said declaration, these defendants “ say, they did not undertake and promise in manner and form as “ the said plaintiffs have above thereof declared against them,” wherefore they prayed judgment, &c.
    The second special plea was substantially like the first, but differed from it, by alleging the delivery of the goods to have been on the second day of November, (the day after that, on which they were, by the terms of the agreement, to have been delivered,) but that the plaintiffs accepted the same under the agreement, and sold them on the same day for one thousand, dollars, which they received, and still held, &c. This plea concluded in all respects like the other, and denied the receipt of any sums beyond the two hundred dollars.

      To these pleas the plaintiffs demurred, and for cause, alleged, 1. That the pleas amounted to the general issue ; and secondly, that they were double, tendering several issues as to the alleged delivery of the goods, their sale, &c.
    The cause was argued by Mr. David Graham, for the plaintiffs, and Mr. John Wallis, for the defendants.
    As to the first cause of demurrer, Mr. Graham cited Archb. Pl. 194. 10 John. Rep. 289. Stephens on Plead. 412. 9 Cranch. 30. As to the second cause, he cited 6 John. Rep. 63. 18 Ib. 28.

      Mr. Wallis cited Ld. Raym. 787. 217. 1 Chit. 475.
   Oakley J.

This case comes before the Court on separate demurrers to the 2d and 3d pleas, and the special cause of demurrer assigned is, that the pleas amount to the general issue.

The rule on this subject is, that a plea, which amounts to the general issue is bad on special demurrer, [Kennedy v. Strong, 10 J. R. 289 ;] and in the application of this rule, it is held, perhaps with some exceptions, that a special plea amounts to the general issue, when it shows a state of facts, from which it clearly appears, that the plaintiff, at no time, had any cause of action. [Brown v. Cornish, Ld. Raym. 217. Vanhatton v. Morse, Lord Raym. 787.]

The action, in this case, is assumpsit for money had and received, &c. The 2d plea states, that in consideration, that the defendants would deliver to the plaintiffs, on or before the first day of November, a quantify of goods, &c., to be sold by the plaintiffs on commission, they, the plaintiffs, promised to advance to the defendants certain sums of money thereon, to sell the goods, and retain the said advances out of the proceeds, and to pay over the balance; and that the defendants should not be required to repay the advances in any other manner. The plea-, then avers a delivery of the goods to the plaintiffs, and an advance by them to the amount of $2000; and it further avers, that the plaintiffs received the goods, and have not yet sold them.

The 3d plea differs from the second, in stating that the goods were delivered to the .plaintiffs on the day after the advances in money were made to the defendants ; but it is averred, that the goods were accepted under the agreement, and before the commencement of the suit. The plea also avers, that the plaintiffs sold the goods for a larger amount than that advanced, and that they still retain the money.

The facts set forth in these pleas do not necessarily show, that the plaintiffs had not, at any time, a cause of action, arising out of the advances of the money in question; There may have been some breach of the special agreement, or some abandonment of it by the parties, subsequent to the advances, or to the sale of the property by the defendant, from which a right may have accrued to the plaintiffs, to sue for the money advanced, in this action. Such a state of the case may be disclosed in the replication; and it is sufficient to show, that these pleas do not come clearly within the rule above laid down. When a plea is overruled as equivalent to the general issue, it must be very clear that it is so.

Judgment for the defendants on the demurrers.

[Wm. H. Munn, Att’y for the plffs. John Wallis, Att’y for the defts.]


text:
    Malachi Kelly versus James R. Mullany.
    To an action of debt on a judgment obtained against the defendant, “in the term “ of February, 1827,” in the Supremo Court, “ then holden at the Capitol, in “ the City of Albany,” the defendant pleaded in abatement to the jurisdiction of this Court, that “ the cause of action, if any, accrued to the plaintiff in the “ County of Albany,” &c. Upon demurrer to this plea, it was held, that if the plea were correct in point of principle, (upon the ground that the action of debt on judgment, is a local action;) it was, nevertheless, insufficient, because it did not show that the record of the judgment was filed in ¡Albany.

    This was an action of debt on a judgment. The declaration set forth, that the plaintiff, “ in the term of February,” in the year 1827, “in the Supreme Court of Judicature of the People of the “ State of New-York,” “ then holden at the Capitol, in the City of “ Albany, by the consideration and judgment of said Court, re- “ covered against the defendant six hundred and sixty dollars and “ seventy-seven and a half cents;” “ as by the record and pro- “ ceedings thereof, remaining in the said Supreme Court, more “ fully appears,” &c. . •
    The defendant pleaded in abatement, to the jurisdiction of this Court, “ that the said City of Albany, in the declaration of the “ said plaintiff mentioned, is in the County of Albany;—the same “ being one of the counties of the State of New-York, within “ which, the said Supreme Court have cognizance of all pleas “ and actions;” “ and that the cause of action in the said de- “ claration mentioned, if any,-accrued to the said plaintiff in the “ said County of Albany, and not in the City and County of New- “ York, or elsewhere out of the said County of Albany.” Wherefore, the defendant prayed judgment, if “ the said Superior Court “ will, or ought, to take cognizance of the plea aforesaid,” &c.
    To this plea, there was a demurrer, and for special causes, the plaintiff assigned the following: First, that the plea did not truly set forth the style and title of the said Supreme Court. II. That it did not state, that the cause of action accrued to the plaintiff out of the jurisdiction of this Court. III. That it did not state, that the said Supreme Court hath sole or exclusive cognizance of actions arising in the said County of Albany. IV. That the proceedings in this-cause being by plaint, the plea ought to have prayed judgment, if the Court would lake cognizance of the plaint; whereas it hath prayed judgment, if the Court would take cognizance of the plea aforesaid. V. That the plaintiff hath not by affidavit proved the truth of said plea, or shown any probable matter to induce the Court to believe that it is true.
    The defendant having joined in the demurrer, Mr. O'Conner, for the plaintiff, contended,
    I. That the special exceptions to the plea were well taken. It is an established rule, (he said,) that objections to the jurisdiction of a Superior Court of record must be pleaded, and in such form as to be free from all exception. (1 Chit. Plea. 427. Cowp. R. 172, Mostyn v. Fabrigas.) The style of the Court, which has jurisdiction, must be truly set forth; for, in order to repel the jurisdiction of this Court, a' more proper and sufficient jurisdiction must be shown. [1 Chit. Plea. 432.]
    Here the plea neither states, that the cause of action arose out of the jurisdiction of this Court, nor that the jurisdiction of the Supreme Court is exclusive. Non constat, but the two Courts have concurrent jurisdiction over the subject matter. In addition to these objections, the prayer is totally defective. [Attwood v. Davis, 1 Barn. & Al. 172. Note to 2d Saund. 209.]
    II. The truth of the plea should have been proved by affidavit; for a plea in abatement to the jurisdiction of a Superior Court of record, is not favoured in law, and all formal objections may be ¡taken to it. The defendant should therefore have complied strictly with all the requirements of the law, relative to dilatory, pleas. [1 R. L. 524, ss. 23. 1 Chit. Plea. 434. 3 Caines’ R. 100, Robinson v. Fisher.]

    III. 'The plea is bad in. substance. The Supreme Courtis endowed with legal ubiquity. Its judgments may be pleaded with¿out a venue, and are by intendment of law, in no respect confined to any particular county. It does not even appear, that the record is filed in Albany; non constat, but that it is here, in the City of New-York; for the records of the Supreme Court are filed as well here as at Albany. If there were an averment'in the plea, that the record is filed in Albany, then the case might be brought within the scope of some of the English authorities. But if debt on judgment is a local action, in strictness, still the reasons why it is made so in England, do not apply to the State of New-York. Our Supreme Court lias offices for its Clerks in three distinct counties ; its sessions are held in different places ; and in judgment of law, a record of the Supreme Court is no more confined to Albany, than it is to Utica, or the city of New-York.
    As the defendant can only bring himself within the scope of his own authorities by inference, this Court will not draw such inference against its own jurisdiction. On the other hand, it will infer, unless the contrary is clearly pointed out by the plea, that the record of the judgment on which this action is brought, is filed in the City and County of New-York. Why should the Court infer that the record is filed at Albany I It by no means follows, that because the judgment was rendered while the Supreme Court was sitting at Albany, that therefore the record is filed there. It may be, and probably is, filed in the City of New-York. If it is not, the defendant should have averred, that fact in his plea, that the plaintiff might have taken issue thereon, if it be material. It was not necessary to allege where the record was filed, in the declaration ; for (he Court will not oust itself of its jurisdiction by inferring a fact, which the defendant should have distinctly pleaded, if he intended to rely upon it. The plea, therefore, is wholly insufficient.

      Mr. James Oswald Grim, contra, for the defendant.
    I. The action of debt on a judgment is a local action, and this Court, therefore, cannot entertain jurisdiction of the present suit. It must be brought in the place where the judgment was recovered. [Hall v. Winkfield, Hobart R. 195.]

      The first question here is, where is the record of the'judgment on which this suit is brought 1 In the absence of any thing m the declaration to the contrary, it will be inferred, that the record is filed, where the judgment was rendered. In this case, the declaration states, that the judgment was rendered at Albany, and the record must be there also, as a matter of course. The Court cannot infer, that it is any where else, because prima facie, that is the proper place for it. “ In stating a matter of record, no venue “ is necessary, as the record must be presumed to be where the “ Court is.” [Chit. Plea. Vol. 1, 281. 1 Vent. 246.] This being the legal intendment, if the record, in point of fact, is filed in the city of New-York, the plaintiff should have replied that, by way of a new assignment. “ Although a replication must not “ depart from any material allegation in the declaration, yet when “ there is an evasive plea, the plaintiff may avoid the effect of it, “ by restating the injury for which he meant to declare, with “ more particularity and certainty, consistently, however, with “ the more general complaint in the declaration.” [1 Chit. Plea. 602.]
    The authority of the case of Hall v. Winkfield has often been recognized by the Courts of this country. In the case of Barracliff’s executors v. Griscom’s administrators, (1 Cox, New-Jersey R. 193.) the Court say, “ in actions of this nature, the venue must “ be laid in the county where the judgment was obtained.” Indeed, the rule is well settled, that “ in an action of debt on the judg- “ ment of a Court of record, the venue must be laid in the coun- “ ty where the record is.” [1 Chit. Plead. 272, Barnes v. Kenyon. 2 John. Cas. 381. 9th J. R. 259. 7 J. R. 318.] By the 5th sec. of the act establishing this Court, power is given them to try and determine all transitory actions, “ and all local actions aris- “ ing within the City and County of New-York.”
    If it be conceded, that the present is a local action, how can the plaintiff escape from the force' of this plea 1 If it be good in substance, it is sufiScient in form; because it expressly avers, that the plaintiff’s cause of action accrued in the County of Albany, and not in the City and County of New-York. It is admitted, therefore, that the record is in existence, and the place where it is to be found, is clearly pointed out by the plea ; for if the cause of action accrued in Albany, in an action of debt on judgment, it must be because the record of that judgment is filed in that County. If the plaintiff' intended to deny the truth of the plea, he should have traversed the false allegations; but by demurring, he has admitted, that the cause of action did not accrue to the plaintiff'in the City and County of New-York. Whence, then, does this Court, in an action strictly local, derive its jurisdiction over a judgment obtained out of the County of New-York ?

    As to the special causes of demurrer, if the defendant is right in the general principle upon which his plea is founded, they cannot be sustained. The title of the Supreme Court is given in the very words of the act, and at all events the description is sufficiently specific. The requirements of the second cause, are complied with by the plea; for it states, that the cause of action accrued at Albany. Now as Albany is beyond the jurisdiction of this Court, it follows that the cause of action accrued out of its jurisdiction.
    As to the third cause, it was not necessary to state, that the Supreme Court had exclusive jurisdiction over actions arising in the County of Albany: for this Court might have no cognizance of a suit brought in it, and yet the Common Pleas might have cognizance over the same suit by express statute.
    In this case, there was no necessity to prove the plea by affidavit ; the statute merely requires probable cause, and there is no necessity for an affidavit, where the plea is for matter apparent on the record. [Tidd’s Prac. 588. 2 Sellon’s Prac. 272.] But if an affidavit were necessary, the objection cannot be taken on demurrer ; it should be by motion. The affidavit forms no part of the record, and it may be made by a third person; the want of it, therefore, is no objection upon the face of the pleadings.
    The proper forum for this matter, is the Supreme Court, or the Common Pleas, for the County of Albany. The plaintiff is under no necessity of appealing to this tribunal, which was not established for the purpose of trying any local actions, except those originating within the very jurisdiction, which is given to this Court by law. A.11 transitory actions may be brought here, of course, but those actions, which ought to be confined to their own proper tribunals, cannot be brought here, for any peculiar reasons of convenience.
   Oakley J.

This was an action of debt on a judgment in the Supreme Court. The declaration set forth, that the plaintiff, by the consideration of the said Court, then holden at the Capitol, in the city of Albany,” recovered judgment against the defendant, &c. To this declaration, the defendant pleaded in abatement to the jurisdiction of this Court: to which plea there was a demurrer.

It is contended, on the part of the defendants, that the Court has not jurisdiction in the present case, because it appears by the declaration, that the action is founded on the record of a judgment in the Supreme Court, obtained at Albany; that the record must be presumed to be filed there, and that the action is therefore local.

Assuming, for the purpose of disposing of the case, that an action of debt on a judgment is local, and must be brought in the county where the record is filed; I am of opinion, that it does not sufficiently appear in the pleadings in this cause, that the record of the judgment in question is filed in Albany. The declaration states that the plaintiff, in the term of February, 1827, in the Supreme Court, then holden at the Capitol, in the City of Al- “ bany,” recovered judgment against the defendant, as by the record thereof “ remaining in the said Supreme Court, before the “ Justices thereof,” more fully appears.

The record of all judgments obtained in the Supreme Court may be filed in New-York, Albany, or Utica; and for any thing averred in this declaration, the record, on which this action is founded, may be filed in the Clerk’s office in this city. It is not to be inferred, that it is filed in Albany, because it is stated, that the judgment was entered there. Such inference would be a necessary one, where by law the records of the judgments of a Court can be filed only where the Court sits; as in the case of the Courts of Common Pleas: but it cannot arise as to judgments in the Supreme Court, which has general jurisdiction, and in which all records may by law be filed, in either of the_ places designated for the holding of its regular terms.

If the fact, then, in the present case, be that the record in question is filed in Albany, the defendant should have averred that fact distinctly in his plea. The averment, that the cause of action occurred to the plaintiff in the County of Albany, and not in the City and County of New-York, nor elsewhere out of the County of Albany, is not sufficiently certain; as it is an averment equally applicable to transitory actions, (which in fact may have arisen in Albany,) and actions, which are local in their nature. There must, therefore, be judgment of respondeas ouster.

[C. O’Connor, Att'y for plff. J. O. Grim, Att'y for deft.]


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    Samuel L. Gouverneur, Thomas L. Smith, and Charles Gilfert. versus. Henry Elliott and Celeste his Wife.
    A contract in writing and under seal, so executed as not to be binding upon either party, but which has been acted upon by them, may be given in evidence, in an action of assumpsit, to recover the balance of an account, for the purpose of shewing the terms on which one party made advances and the other performed services.
    G. S. and G. the lessees of a theatre by their agent advanced certain sums of money to the defendant Celeste as a performer under an agreement, that she should be under the exclusive direction of one of the lessees, who was the Manager of the theatre. In an action brought to recover back a part of the advances so made, it was held that the action was properly brought in the name of aU the lessees; and that the circumstance of the performers being under the exclusive direction of one of the plaintiffs did not vary the form of bringing the aetion.
    The jury must pass upon all the facts proper for their consideration and if they have not done so the Court will grant a new trial, without considering on which side the weight of evidence lies.
    Assumpsit brought by the plaintiffs to recover from the defendants, the sum of $132, being tbe alleged balance of an account due from the latter to the former. The cause was tried before Mr. Justice Hoffman. At the trial it appeared, that, the plaintiffs were of the Bowery Theatre in the City of New-York, and that the defendant Celeste w.as a dancer at that Theatre. The plaintiffs on their part offered evidence to show, that in the month of April, 1827, they had engaged the services of Celeste in France, and before her marriage with the defendant Henry Elliott, at a salary of $37.50 per week. That she received of them an advance of $473, before her departure from France, and a further advance, on her arrival in this country, of $280, to defray the expenses of her own passage and that of her mother. Celeste performed at the Bowery Theatre, until it was destroyed by fire, on the first of June, 1828, and the plaintiffs, by their accounts, after giving her various credits, brought her in debt to the amount above claimed. During the period of her engagement at the theatre, Celeste married the defendant Henry Elliott, and the plaintiffs caused their accounts (claiming a balance of $132) to be presented to the defendants, who made no objection to them.
    The defendants, on their part, introduced in evidence a certain agreement under seal, bearing date at Paris, the 12th of April, 1827, purporting to be “ between Charles Gilfert, of the City of “ New-York, Manager of the New-York Theatre, of the first part, " and Celeste Keppler of the second part.” It stipulated, that Celeste, for and in consideration of the covenants “ on the part “ of the said Charles Gilfert to be performed,” would perform at the Bowery Theatre for the space of two years, “ under the di- “ rection, management, and appointment of the said Charles Gil- “ fert,” at and after the rate of $37.50 per week, during the period of her engagement, and that Gilfert would pay, or cause to be paid, to Celeste her said salary. This agreement was duly sighed, sealed, and delivered in the presence of a witness, and was executed by “ Samuel Gouverneur, Jr. agent for the proprietors of “ the New-York Theatre,” of the one part, and Celeste Keppler, of the other part.
    By additional articles, it was further stipulated, that Celeste should receive an advance of $473, in Paris, and that the plaintiffs should also, on her arrival in New-York, advance a sum sufficient to defray the expenses of her passage; each of which sums was to be reimbursed at the rate of $5 per week, by a deduction from her salary.
    Madame Keppler, the mother of Celeste, being called as a witness, testified, that she was present at the execution of said agreement, and that the witness thereto, (a person belonging to the Italian Opera,) was not in this country.
    After the agreement was executed, S. Gouverneur, Jr., and Severin, (the witness to the agreement) demanded $173, “for “ their commission,” and of the $473 mentioned in the contract, Celeste received the sum of $300, and no more.
    The counsel for the plaintiffs objected to the production of the agreement in evidence at all; or at all events, until the defendants proved, that Gouverneur had signed it by virtue of an authority derived from the proprietors of the theatre. The objection was overruled by the presiding Judge, and the counsel for the plaintiffs excepted to his decision.
    Madame K. then further testified, that by virtue of this agreement, Celeste came to America, and arrived at New-York on the first of June, 1827. Upon her arrival, she went to the Bowery Theatre, of which Gilfert was manager, and performed there under the agreement, until the theatre was destroyed by fire. Fifteen days after the destruction of the Bowery Theatre, Celeste obtained employment at the Park Theatre, but no salary was paid to her by the plaintiffs, for the time she was out of employment. The witness further testified, that Celeste was born in the year 1810, and was not yet nineteen years of age.
    The defendants claimed a balance in their favour, insisting that the sum of $173, retained by Gouverneur and Severin, was improperly retained, and that she was entitled to her salary for the fifteen days subsequent to the burning of the theatre.
    The Judge charged the Jury, that if they believed, that the advances of money made to Celeste by the plaintiffs were made under the agreement, and if she came to this country, and put herself under the management of Gilfert in pursuance thereof, then that the action should have been brought in the name of Gilfert alone, and could not be sustained by the present plaintiffs. If the Jury came to this conclusion, they were instructed not to trouble themselves about the accounts at all, but to find for the defendants. If, however, they came to a different conclusion, they were instructed to examine the accounts, and find a verdict according to the evidence before them.
    The counsel for the plaintiffs then prayed the Judge to charge the Jury, that if they believed, that the agreement made in France had been adopted by the plaintiffs, and not by Gilfert alone, then that the action was properly brought in its present form : but the Judge refused to give this instruction, and the counsel for the plaintiffs excepted to his opinion. .

    The Jury found a verdict for the defendants, and the plaintiffs now moved for a new trial, on the ground of a misdirection.

      Mr. J. Blunt, for the plaintiffs, contended,
    I. That the agreement was not proved to be executed in such a manner as to bind the plaintiffs. If an agreement under seal be executed by an agent, then the power of the agent must be shown to be under seal also. [5 Mass. R. 40. 2 Kent’s Com. 478.] It should, at all events, have been shown, that the agent was authorized to sign for Gilfert, in order to sustain the Judge’s charge ; but, in point of fact, it was executed by Gouverneur, not as the agent of Gilfert, but for the proprietors of the Bowery Theatre.
    II. If the agreement was adopted by the plaintiffs, then the action was properly brought in their names. But this question was taken from the consideration of the jury, and they were thereby ■misled, and by their verdict, they found that the contract was adopted by Gilfert alone. For these reasons, the Jury have not passed upon the proper questions of fact, and there should be a new trial.

      Mr. E. Curtis and Mr. D. B. Tallmadge, for the defendants, contra, insisted,
    I. That the agreement was properly admitted in evidence, because it was proved, that the performance of Celeste at the theatre, was solely under that agreement. The Judge correctly decided, that the plaintiffs could not maintion this action, and it is therefore immaterial whether the person in whose name it should be brought was properly pointed out or not. It is sufficient, that the plaintiffs are not the proper parties.
    II. The Judge correctly decided, that the Jury were not to pass upon the question as to whether the plaintiffs had or had not adopted the agreement. That could not change the form of the action, or the parties to it; but the plaintiffs, if they had rights under the agreements must assert them in the name of the person, who made the sealed contract. This is an agreement inter partes, and the action must be brought in the name of the person with whom the agreement was made, let the beneficial interest be where it may. This is a fixed rule of pleading.
    III. The defendant Celeste was an infant, and that is a sufficient bar to the action. But even if the action is properly brought, and can be maintained in its present form, still the Court will not disturb the verdict; because, upon examining the accounts, it will be found, that there is a considerable balance due from the plaintiffs to the defendants.
   Oakley J.

The plaintiffs in this case, were proprietors of the Bowery Theatre. On the 12th of April, 1827, an agreement was entered into at Paris, between S. Gouverneur, jr. professing to act as agent of the said proprietors, and Celeste Keppler, now Elliott, by which the latter engaged to serve at the said theatre, as a dancer, for the term of two years, from the 1st of May then next, at a certain weekly allowance. Advances of money were made to her, on entering into the engagement, and also to pay her passage to this country; which, by the terms of the contract, were to be reimbursed, by retaining a certain sum from her weekly stipend. She came to New-York, in pursuance of this agreement, and continued to perform under it, until the destruction of the theatre by fire. Soon after that event, as may be inferred from the facts stated in the case, the contract was abandoned ; and this action is now brought to recover a balance alleged to be due to the plaintiffs on account of the advances made by them.

The objection taken at the trial to the plaintiffs’ recovery was, that the action ought to have been brought by Gilfert, one of the plaintiffs, alone. The agreement in question, appears to have been entered into in the name of Gilfert alone, though it was signed by Gouverneur, as agent of the proprietors of the theatre. No authority was shown on the part of Gouverneur to enter into the contract, either for Gilfert or the proprietors, nor was the contract executed in such a manner, as to bind either of them, or the agent himself. The Judge, however, charged the Jury, that if they believed that the agreement given in evidence, was the one under which Celeste had received the advances in question; that she had performed under it, and put herself under the direction of Gilfert, in pursuance of it, then the action should have been brought by Gilfert alone, and that in that case, they ought to find a verdict for the defendants; and the Jury found accordingly.

It appears to me, that the Jury were misdirected. The money received by Celeste, was no doubt advanced under the agreement, but it was advanced for the plaintiffs; and the fact, that she placed herself under the direction of Gilfert, as the manager of the theatre, cannot, I apprehend, be considered as giving him a right to sue, in his own name, to recover back the money advanced by the proprietors, of whom he was one. The agreement itself cannot be the ground of an action. It is only important to show the terms on which the advances were made, and the services rendered. The whole transaction amounts to nothing more than a contract between the plaintiffs and Celeste, under which she has rendered certain services, and received certain advances; and the accounts between them may, for aught I see, be properly adjusted in the present suit.

It is suggested by the defendants’ counsel, that it appears from the statement of the accounts, that there is actually abalance due to them. This fact, however, was never passed upon by the jury, and the same remark may be made as to the suggestion, that the infancy ’of Celeste shows a complete ground of defence in the suit. The jury, in giving their verdict, no doubt conformed to the direction of the Judge, and if that was erroneous, the plaintiffs ought to have an opportunity of repelling, more particularly, the other grounds of defence.

New trial granted.

[A. N. Grouverneur, Atty. for the plffs. E. Curtis, Atty for the defts.]

Note.—Upon the new trial, the Jury, upon examining the accounts, found a verdict for the defendants.