text:
    REUBEN W. GIFFORD, as Receiver of the Property of CHAUNCEY W. RISING, a Judgment-debtor, Respondent, v. CHAUNCEY W. RISING, JANE RISING, his Wife, ARETUS W. RISING, Appellants, and Others.

      Annuity to husband and wife — liable for the husband’s debts — same rule applies to personal and to real estate.

    A creditor’s action was brought to reach the interest of the judgment-debtor in an annuity created by the will of his father, charged upon real estate devised thereby, payable semi-annually to the judgment-debtor and his wife for their support and that of their family during their lives:

      Held, that, during the joint lives of the two annuitants, the husband was entitled to the entire annuity, and that the whole was liable for his debts.

      Bertles v. Nunan (93 N. Y., 153) followed.
    The same rule applies to personal as to real property, and an annuity charged upon real estate and constituting a lien thereon partakes of the nature of both.
    Appeal by the defendants above named from a judgment in favor of the plaintiff and against the defendant Aretus W. Rising, entered, upon the report of a referee, in the office of the clerk of the county of Niagara on the 13th day of July, 1889.

      G. D. Jtodson, for the appellants.

      H. If. Davis, for the respondents.
   Dwight, J.:

The action was in the nature of a creditor’s bill and was brought by a receiver appointed in proceedings supplementary to execution, against the property of the defendant Chauncey W. Rising. The effort was to reach the interest of the judgment-debtor in a bequest made by the will of his father. The bequest was of an annuity of $200, payable semi-annually to the judgment-debtor and his wife, for their support and that of their family during their lives, and was charged upon the real estate devised to the defendant Aretus W. Rising as part consideration of such devise.

This court held on a former appeal (51 Hun, 1), that no trust was created by this devise and bequest; that the devisee Aretus became personally liable to pay the annuity, upon his implied promise on accepting the devise, and that the interest of Chauncey was liable for his debts, and might be reached in equity for their payment. All this is conceded on the present appeal, and the question raised is as to the extent of the interest of the judgment-debtor in the annuity and the amount due to him thereon at the time of the commencement of this action. The referee held, in effect, that during the joint lives of the two annuitants the husband was entitled to the entire annuity and that the whole was liable for his debts. Thereupon— it appearing that the amount of the annuities remaining unpaid at the time of the commencement of this action, with interest from the time each payment became due, was in excess of the judgment on which the plaintiff was appointed receiver, with interest and the costs of supplementary proceedings — judgment was directed against the defendant Aretus for the full amount of such judgment, interest and costs.

The defendant’s exceptions to the conclusions of the referee fairly present the principal question raised by this appeal, viz., whether an annuity given to the husband and wife belong solely to the husband during the joint lives and is wholly liable for his debts. Under the doctrine of Bertles v. Nunan (92 N. Y., 152) we cannot doubt that the question was correctly answered by the referee in the affirmative. That case held that the common-law rule, as to the effect of a conveyance of real estate to a husband and wile jointly, had not been abrogated by the married woman’s acts in this State, and quotes, with approval, the language of this court in Beach v. Hollister (3 Hun, 519) viz.: “ Those statutes operate only upon property which is exclusively the wife’s and were not intended to destroy the legal unity of husband and wife or to change the rule of the common law governing the effect of conveyances to them jointly.” (See, also, Sanford v. Sanford, 15 N. Y., 723.) It is true that in Bertles v. Hunan, the husband being already deceased, the question was not necessary to be determined and was reserved, whether during the joint lives of husband and wife the lands so conveyed could be sold for the husband’s debts, or the use and profits thereof be entirely appropriated by him; but the doctrine of that case leads to no other result, and the implication is clear that the common-law rule in that respect had not been changed. That the same rule applies to personal as to real property admits of no question, and an annuity charged upon réal estate and constituting a lien thereupon partakes of the nature of both. In Sanford v. Sanford (supra), it was held, in regard to a chose in action taken in the name of husband and wife, that “ during the husband’s life it was subject to his control and the wife had no legal interest therein until his decease.”

We believe that the question in this case was properly decided by the referee and that the judgment entered upon his report must be affirmed.

All concur.

Judgment affirmed without costs to either party.


source: Caselaw Access Project

author: Dwight, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM KEMMLER, Appellant, v. CHARLES F. DURSTON, as Warden of the State Prison at Auburn, New York, Respondent.

      Punishment by death by electricity — not a cruel and unusual punishment under the Constitution of the State of New York — the application of the English Bill of Bights and of the provisions of the United States Constitution to the legislative-depa/rtment of the government, considered— chapter 489 of 1888.
    The petition, issued on the application for a writ of habeas corpus, alleged that the cause or pretense of the imprisonment complained of was that, after the indict, ment and trial of the relator for the crime of murder in the first degree, and his conviction thereof in a Court of Oyer and Terminer of Erie county, he was sentenced by that court to undergo a cruel and unusual punishment for such crime, contrary to the Constitution of the State of New York and of the United States, and that he was deprived of liberty and threatened with deprivation of life by virtue of such illegal sentence and judgment of the court.
    The return to the writ, which was not traversed as to the facts, showed that the sentence was pronounced in pursuance of chapter 489 of the Laws of 1888, which substituted a death by electricity for death by hanging previously prescribed.

      Held, that it was not competent for the courts to inquire whether the legislature was ignorant of the character and effect of the penalty prescribed by the act of 1888, or to decide in this case, in which that fact did not appear upon the face of the act, that the death imposed thereby was a cruel and unusual punishment, and thus to overrule the judgment of the legislature in that regard.

      Semble, that the provisions of the Constitution of the State of New York, against cruel and unusual punishments, were intended as a restriction upon the legislative authority, and that should a case arise, in which the statute prescribing the punishment was, on its face, repugnant to such provisions, it would be the duty of the courts to enforce such constitutional provisions.
    That the provisions of chapter 489 of 1888 were not, upon their face, repugnant to these constitutional provisions.

      Semble, that the whole tenor of the English Bill of Rights, its title, and the history of the times and of the emergencies which gave rise to this enactment, forbade the idea that it was intended in any manner to restrict or control the law-making power; that it was, in fact, enacted to restrain the oppressive exercise, by judges appointed by the crown, of the discretion conferred upon them by the common law in respect to the punishment of criminals.

      tymre, whether the provisions of article 8 of the United States Constitution were intended to limit or control the action of the courts in prescribing penalties for crime.
    Appeal by the relator, 'William Kemmler, from an order of Hon. S. Edwin Day, County Judge of Cayuga County Court, entered in the office of the clerk of the county of Cayuga on the 14th day of October, 1889, remanding the relator to the custody of Charles E. Durston, as agent and warden of the State prison at Auburn, New York.

      W. Bourhe Gochran, for the appellant.

      William A. Poste, deputy attorney-general, for the respondent.
   Dwight, J.:

The relator, being in the custody of the respondent as agent and warden of the State prison at Auburn, sued out a writ of habeas corpus to inquire into the cause of detention, which was made returnable before the county judge of the county where he was imprisoned.

The petition for the writ of habeas corpus alleged that the cause or pretense of the imprisonment complained of was that, after the indictment and trial of the relator for the crime of murder in the first degree, and his conviction thereof, in -the Court of Oyer and Terminer of Erie county, he was sentenced by that court to undergo a cruel and unusual punishment for such crime, contrary to the Constitution of the.State of New York and of the United States; and that he was deprived of liberty and threatened with deprivation of fife by virtue of such illegal sentence and judgment of the court.

The return of the respondent, which was not traversed as to the facts, showed that the sentence or judgment of the court mentioned in the petition was pronounced, and the warrant, under which the relator was üeld, was issued to the respondent thereupon, in pursuance of chapter 489 of the Laws of 1888, which amended tho Code of Criminal Procedure in respect to the time and mode and place of inflicting the death penalty; and, among other things, substituted death by electricity for death by hanging. Section 505 of the Code, as thus amended, reads as follows: The punishment of death must, in every case, be inflicted by causing to pass through the body of the convict, a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until the convict is dead.”

To the return of the respondent a demurrer ore temos seems to> have been interposed in behalf of the relator, and an offer was made to prove tliat the punishment prescribed by the statute quoted was a “ cruel and unusual punishment.” The offer was objected to by counsel for the respondent, but the objection was overruled, and a referee was appointed to take and report such proofs as should be •offered by either party on the question proposed. Very voluminous ‘evidence, offered by counsel on both sides, was taken, accordingly, and returned to the county judge, and is printed in the record before us.

The order below, dismissed the writ and remanded the prisoner to •the custody of the agent and warden of the State prison. An appeal from that order, brings the case into this court, and presents a question very novel in its character and in the manner of its presentation. The attempt is to enforce the provision of the Constitution against cruel and unusual punishments by judicial condemnation of an act of the legislature based upon evidence aMunde the statute assailed, intended to show the character of the penalty prescribed thereby.

The constitutional provision here invoked originated in the well-known “ Bill of Rights ” of England. That celebrated enactment was one of the first fruits of the great revolution of 1688. It was entitled “An act declaring the rights and liberties of the subject, and settling the sucession of the crown.” It has been said to be, “ next to Magna Oharta, the greatest landmark in the constitutional history of England, and the nearest approach to the written Constitutions of other countries.” (Ency. Brit.) It had been first proposed to the prince and princess of Orange by the revolutionary convention, which called them to the throne of England, as a declaration of the principles and' conditions upon which the call was made; and, being accepted by them, with the crown, was enacted as a Bill of Rights by the parliament into which the convention was resolved. This declaration recited, in a preamble, the oppressive and unconstitutional measures and proceedings of thé lately deposed king and his ministers and judges, among others, “ that excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subject; and excessive fines have been imposed, and illegal and cruel punishments inflicted,” * -x- * an 0f which it declared were “ clearly and directly contrary to the known laws and statutes and freedom of this realm: ” and it went on to declare, among other things, “ that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and • unusual punishments inflicted.”

Just a century later, the particular provision in question .was .•adopted into the Constitution of the United States as the eighth ■article of the amendments proposed by the first congress, “ begun •and held March 4, 1789,” and which were ratified by the required number of the original thirteen States. The variation in the terms of the constitutional provision of the United States from those ■employed in the declaration of the English parliament, consisted in the substitution of “ shall not,” in the former, for “ ought not ” in the latter.

The provision was first engrafted upon the fundamental law of this State in the Constitution of 1846, where it occurs with the addition of the clause, “ nor shall witnesses be unreasonably detained.”

It seems very clear that no provision of the English Bill of Eights was intended to operate as a restriction upon the power of the legislative branch of the government of England. That enactment was, .as has been said, in the nature of a compact between the crown and the parliament as the representative of the People. Its protest was chiefly against acts of tyranny and oppression on the part of the •crown, in excess or abuse of its prerogative, and in derogation of the authority of parliament. The acts declared illegal were those •of the administrative and judicial departments of the government. The whole tenor of the bill, its title, the history of the times and of the emergencies which gave it occasion, forbid the idea that it was intended, in any manner, to restrict or control the law-making power. Besides (in respect to the particular provision here in question), at the time of its enactment the punishments of crimes were prescribed not by statute, but wholly by the common law, and the common law in this respect was largely subject to the discretion of the judges. It was the oppressive exercise of that discretion by judges appointed hy the crown, and removable at its pleasure, that was among those -things denounced by the preamble and declared to be illegal in the body of the bill; and the compact, in this particular, on the part of -the crown, may be said to have been' not to appoint or retain in •office judges capable, of grossly abusing the judicial authority. Moreover, the context of the provision against cruel and unusu'al punishments, on the principle of nosoitur a sooiis, opposes the assumption tliat it had any reference to legislative action since the fixing of bail and the imposition of fines pertained wholly to-judicial procedure.

In regard to the similar provision of the Constitution of the United States (art. 8, supra) it is, in the first place, to be observed that it has no application to any department of the government of the States, but is a restriction upon the federal government only_ (Barron v. Baltimore, 7 Pet., 243; Pervear v. Commonwealth, 5 Wall., 475; Jackson v. Wood, 2 Cow., 819; Barker v. People 3 id., 686.) In this respect it differs from the inhibition of the-passage of ex post facto laws which when it first occurs (in sub. 3,. § 9, art. 1) restricts the power of congress, and when repeated in subdivision 1 of the next section, is expressly addressed to the-States.

Whether the provision of artitle S was intended to limit or control the action of congress in prescribing penalties for crime might, be questioned upon some of the grounds mentioned under the point last discussed, especially because, at the formation of the Federal government, the common law of England prevailed in the communities which the new government embraced; the penalties for crimes had not been fixed by statute, and no change in this respect was introduced or foreshadow'ed by the Constitution.

The case was quite otherwise with the State of New York at the-time of the insertion of the provision in question into its Constitution. Then, after nearly sixty years of constitutional existence as a State, the punishment of crime was almost wholly in the control of the legislature. Gradually the statutory definitions and statutory penalties of crimes had superseded those of the common law, until by the revision of 1829 a complete codification was attempted of all the penal laws of the State, the intention being to define either specifically or by classes, all crimes cognizable by its courts, and to-prescribe the character of the punishment to be inflicted in every case. Under the Revised Statutes the judicial discretion was limited to fixing the term of the imprisonment tobe inflicted, or the amount, of the fine to be imposed. The death ¡penalty was confined to the-three felonies of treason against the State, murder and arson in'the first degree; the punishment of all other felonies was limited to imprisonment in the State prison for life or a term of years, and «of misdemeanors, to fine or imprisonment in the county jail, or both; and the term of imprisonment, either in the- State prison or in the county jail was, in most cases, limited by a maximum fixed by .•statute.

Such being the case, it would seem that the provision in the State •Constitution against cruel and unusual punishments, if it were to have any practical operation, if it was anything more than a mere glittering generality calculated to please the popular fancy and .gratify the popular taste for a “ declaration of rights,” must have been intended as a restriction upon the legislative authority; and •such — without further discussion of the question — we conclude ■is the import and effect of the provision; and that if occasion -should arise, it would be the duty of the courts to enforce it. ¥e have no doubt that if the legislature of this State should undertake to prescribe for any offense against its laws, the punishment of burning .at the stake, breaking on the wheel, disemboweling or hanging in chains (to perish by exhaustion), it would be the duty of the ■courts to pronounce upon such attempt, the condemnation of the 'Constitution.

In the case supposed no doubt could exist, because the statute would be, on its face, repugnant to the provision of the Constitution against cruel and unusual punishments. It is common knowledge that the punishments mentioned are unusual, and by the common consent of mankind they are cruel punishments, because they involve torture and a lingering death.

The question is now to be answered whether the legislative act here assailed, is subject to the same condemnation. Certainly it is not so on its face, for, though the mode of death prescribed is conceded to be unusual, there is no common knowledge or consent that it is cruel; on the contrary, there is a belief, more or less common, that death by an electric current, under favorable circumstances, is instantaneous and without pain. It was, therefore, a question of ■fact, whether an electric current, of sufficient intensity, and skillfully applied, will produce death without unnecessary suffering. Is this question open to the investigation of the court, when called upon to decide upon the validity of the law in question, or must it be presumed to have been determined by the legislature in favor of the mode of punishment prescribed % It may be safely assumed that now, for the first time in the history of our jurisprudence,, has the court been called upon to enter upon such an investigation. Ordinarily, the question of the constitutionality of the legislative act is a question of interpretation merely, viz., what is the scope, and intent of the constitutional provision invoked; and what — judged by the legal construction of its terms, aided, if necessary, by the history and circumstances of its enactment — is the legal import and effect of the statute assailed; and, when the two are so interpreted, is the latter in clear and undoubted repugnance to the former ? It is conceded that there is nothing in the terms of this act to bring it into hostility to the constitutional provision; and the-history and circumstances of its enactment, as demonstrating its, purpose and intent, are of directly contrary effect. It is a part-of the history of the State that the legislation in question was-based upon the report of a commission, consisting of three well-known citizens, appointed by chapter 352 of the Laws of 1886,. “ to investigate and report to the legislature * * * the most-humane and practical method known to modern science of carrying into effect the sentence of death in capital cases.” The report of the commission, presented to the legislature in January, 1888,. detailed and summarized the results of their investigations and experiments, and was accompanied by the draft of a bill, recommended for passage, and which was, at the same session of the legislature, enacted into the statute amending the Code of Criminal Procedure, the validity of which is here in question. If anything were needed to fortify the presumption of the humane and merciful intent of that statute,, this brief history would supply it. Of course, there is no contention, against this presumption; but the objection of the relator is, in-substance, that notwithstanding its manifest purpose to conform the-statute, by this amendment, more closely than before to the letter and spirit of the constitutional provision, the legislature was, in fact, ignorant of the character and effect of the penalty prescribed by the amendment; and that, through ignorance, it has fallen into a palpable violation of the Constitution; and the proposition is to support this, objection by proofs aliunde the statute.

The inquiry, we believe, it is not competent for the court to make. No rule of law is better settled than that every intendment is in favor of the constitutional validity of legislative acts. (The People v. Home Ins. Co., 92 N. Y., 328; Matter of Elevated R. R. Co., 70 id., 327; The People ex rel. Bolton v. Albertson, 55 id., 50.) The rule includes intendments of fact as well as of legal interpretation, and we are bound to presume that the legislature knew, even though the court may be ignorant of the facts necessarily involved in the legislative action.

In this respect, the presumption which arises upon the statute must be conclusive on the court, and not liable to be rebutted by proof aliunde. There is nothing in the Constitution of our government or in the nature of things, which gives any color to the proposition that, upon a mere question of fact involved in legislation, the judgment of the court is superior to that of the legislature itself nor is there any authority for the proposition that in respect to such question, relating either to the manner or the matter of legislation, the decision of the legislature can be reviewed by the court.

In the case of Matter of Elevated Railroad Company (supra), it was said that the courts cannot take proofs aliunde for the purpose of ascertaining whether a statute, valid and regular on its face, is unconstitutional; that they cannot go behind the statute itself; that they cannot assume to know that facts necessary to. the constitutionality of the legislative act did not exist, but, on the contrary, may assume that the legislature found that those facts did exist. So, too, in respect to the manner of the passage of a bill — .whether the constitutional quorum was present, and the vote of a constitutional majority was given in its favor — the statute must be its own evidence, and cannot be rebutted; the question is not one of fact, but of law, to be determined by the record. (Warner v. Beers, 23 Wend., 125; People v. Devlin, 33 N. Y., 280.)

It is not merely upon principles of comity between co-ordinate branches of the government of the State, but because of the separate province and responsibility of the legislature from that of the courts^ that we hold that the latter are not permitted to inquire whether the former was ignorant of the facts necessary to determine’ the meaning and effect of the laws which it has enacted; and, in respect to the particular statute in question, that the presumption that the legislature had ascertained the facts necessary to determine that death, by the mode prescribed, was not a cruel punishment, is conclusive upon the court. But, even if the inquiry proposed were open to tlie court, our decision upon the question of fact must, undoubtedly, be controlled by the principle that the burden is upon him who assails the law to demonstrate its repugnance to the Constitution in the respect alleged.

In the case of Dartmouth College v. Woodward (4 Wheat., 518), in which some of the most important questions of constitutional law were settled for all time, Chief Justice Marshall said : “ On more than one occasion this court has expi’essed the cautious cii’cumspection with which it appi-oaches the consideration of such questions, and has declared that in no doubtful case would it pronounce a legislative act tobe conti’aryto the Constitution;” and in Fletcher v. Peck (6 Cranch, 87) the same gz’eat judge said: “ It is not on slight implication and vague conjecture that the legislatui’e is to be pronounced to have transcended its powei-s.”

In Ogden v. Saunders (12 Wheat., 270) Mr. Justice Washington said : “ It is but a decent inspect, due to the wisdom, the integrity and the patinotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.” And in The People v. Albertson (supra) the Court of Appeals of our own State by Allen, J., said: “ There should he no reasonable doubt of the unconstitutionality of a statute before it should he annulled by judicial action.”

The case of Hartung v. The People (22 N. Y., 95) is urged upon our attention by counsel for the relator as in some manner impugning the application of this principle in the case of statutes prescribing or regulating the punishment of crime; but we are unable to see that it has that effect in any degree. That case ai’ose under the act of 1860, which made the offense of murder, previously committed, and even of which the accused had been already convicted, punishable otherwise than as it was punishable at the time of its commission. This was, as Judge Denlo said, “ of the essence of an ex post facto law; ” but the convict could not complain if the only effect of the new law was to remit a separable portion of the penalty prescribed by the old, and that was held not to be the effect of the new law then in question. It is argued here that the decision was upon the ground that the new penalty might turn out to be in excess of that prescribed by the former statute. But there seems, to have been no question of possibilities in the case. The law was absolutely •and on its face ex jpost facto as to all cases of the class to which that of the plaintiff in error belonged. On its face it did not .lessen, but added a year of imprisonment to the penalty of death formerly imposed. True, the governor, and successive governors might, in the exercise of supposed clemency, refrain from issuing file required warrant for the execution of the death sentence after the convict’s year of imprisonment; and so the sword, that forever hung by a single hair, might never fall. But so under the old law might the governor remit or commute the penalty imposed by the •sentence of the court. The new law afforded no remission of the penalty of death.

There seems to be no reason, either upon principle or authority, why the rule so strenuously held in regard to the burden of establishing the unconstitutionality of a law, should not apply with full force to an objection based upon matters of fact, if that objection were open to investigation by the court. We have read with much interest the evidence returned to the county judge, and we agree with him that the burden of the proof is not successfully borne by the relator. On the contrary, we think that the evidence is ■clearly in favor of the conclusion that it is within easy reach of electrical science at this day to so generate and apply to the person of the convict a current of electricity of such known and sufficient force as certainly to produce instantaneous, and, therefore, painless death. It detracts nothing from the force of the evidence in favor ■of this conclusion that we do not know the nature of electricity, nor how it is transmitted in currents, nor how it operates to destroy the life of animals and men exposed to its force. Neither do we know the nature of the attraction of gravitation, which is the operative force employed in the infliction of death by hanging, nor how that force operates to draw towards each other masses of matter freely moving in space. We know these and all other forces of nature by their effects, and we avail ourselves of them in the daily processes and pursuits of life with a confidence based upon * common experience, without inquiry as to the essence of the force or the mode of its operation.

The experiments with electricity as a death-dealing agency, disclosed by tlie evidence, were necessarily confined to the lower-animals; bnt, unfortunately, the experience of mankind in this-respect has not been confined to experiments purposely made. Death by stroke of lightning has been known to the world in all ages;, and the frequency and publicity of death by accidental contact with electric wires during the last few years, and especially the last few months, has made the deadly power of the electric current shockingly familiar wherever the newspaper is read. In most casualties of this sort, the exposure being wholly accidental, the contact is imperfect, the resistance unregulated, and the force of the current accidentally deflected through the.body of the subject, only a fraction of that being transmitted through the wires. Accordingly, in some= cases, the victim of the accident has escaped with his life, and, in some cases, death has been accompanied with burnings and contortions. But in all such cases the effects mentioned have evidently been due to lack of force in the current received, or to the imperfect-manner of its application to the body of the victim; and the general result of these demontrations, in the light of the scientific evidence in this case, is, as we think, to remove every reasonable doubt that-the passage of a current of electricity, of a certain well-determined intensity, through the vital parts of the human body, under chosen conditions of contact and resistance, must result in instant death.

If the question here were of the wisdom and advisability of the= proposed change in the mode of inflicting the death penalty, the discussion might be prolonged. As we are confined to the question of the constitutionality of the statute which introduces the change, we deem further discussion unnecessary for the presentation of' our views.

The order dismissing the writ of habeas corpus and remandingtlie prisoner must be affirmed.

Babkee, P. J., and MAcombee, J., concurred.

Order appealed from affirmed.


author: Macomber, J.:

text:
    SYLVANUS WALKER, Respondent, v. CARRIE D. DOWNER, Appellant.

      Devise of a farm, subject to a provision for the support of the testator’s widow out of the proceeds and avails thereof, gives the wido’to a lien upon the crops.

    A testator, by bis will, gave to his two sons, Byrón G. Downer and John B. Downer,, jointly, the use of his farm, with all his personal estate, to be held and used by them, jointly, for the period of their natural lives, and to the survivor of them.. The gift was made subject to the following provision:
    “ I hereby direct and provide that out of the proceeds and avails of said farm they, or the survivor of them, in case one shall die before the other, shall support, care, for and maintain on the said farm my wife, Maria Downer, and my daughter, Celestia Downer, in accordance with their circumstances and condition in life; and I hereby make their, and each of their, support a charge upon said farm.” Byron G. Downer, the survivor of the two sons, transferred to one Sylvanus. Walker, by way of mortgage, his title to the farm and the rents, issues, profits, and proceeds thereof, "after paying therefrom the necessary expenses of cultivating, tilling and running the same in a workmanlike manner, and after paying-the necessary living expenses of my mother, Maria Downer, as provided in the will ” of George W. Downer.
    In an action of replevin, brought by Walker to recover the possession of certain crops consisting of oats, cabbage, straw and hay raised upon this farm:

      Held, that the provisions of the will did not merely make the support of Maria. Downer a charge upon the land, but that she was entitled to her support out of' the proceeds or profits thereof, and that the title which Byron G. Downer, and his grantee, Sylvanus Walker, had to all of the crops was subordinate to this lien of the widow.
    That it was incumbent upon Walker, before asking the interposition of the court, in his behalf, to show that Maria Downer, the widow, had received her support according to her needs and circumstances.
    Appeal by the defendant from a judgment of the County Court, of Monroe county, entered in the office of the clerk of the county of Monroe March 2, 1889, upon a verdict directed for the plaintiff by the court; and also from an order denying the defendant’s motion for a new trial made upon the minutes of the court.

      G. M. Allen, for the appellant.

      Turk & Ba/rnvm, for the responded.
   Macomber, J.:

The action is replevin to recover possession of certain crops consisting of oats, cabbage, straw and hay, claimed by the plaintiff.

Upon the trial it was conceded by the plaintiff that the hay did not belong to him, and no recovery was had therefor. The right •of the plaintiff, if any, to maintain an action for the recovery of the possession of this property is derived solely from- an instrument in writing under seal, executed to him by one Byron G. Downer, bearing date the 17th day of May, 1884. By this paper Byron G. Downer transferred to the plaintiff all his right, title and interest in and to a certain farm of 110 acres in the town of Perinton, then ■occupied by Byron Gr. Downer, together with the rents, issues, profits and proceeds thereof, “ after paying therefrom the necessary ■expenses of cultivating, tilling and running the same in a workmanlike manner, and after paying the necessary living expenses of my mother, Maria Downer, as provided in the will” of George W. Downer, the father of Byron G. This assignment is made as ■collateral security for the payment by me to the said Sylvanus Walker of the sum of $2,300 and interest, as follows: In annual installments of $300 each, payable on the first day of April in each year until the whole of said sum is paid,.with annual interest payable April first in each year.”

This instrument was a mortgage to secure to the plaintiff the payment of the sum of $2,300 and interest, as therein provided; it was not a deed of the land. All of these crops for which recovery was had in the court below, excepting the cabbage, were sown or planted by Byron G. Downer in his lifetime, but were cultivated ■and harvested by this defendant, his widow. They were undoubtedly emblements and belonged to Byron G. Downer, absolutely, and ■could have been transferred by him to the plaintiff, provided Byron G. Downer himself had an unincumbered title thereto. The important question, therefore, is whether Byron G. Downer had such •an unconditional and unincumbered title, as life tenant, as would •enable him, by the instrument already mentioned, to convey a legal title of these crops to the plaintiff.

Byron G. Downer was one of two sons of George W. Downer, the former owner of the land, who left a last will and testament bearing date the 14th day of June, 1876. By the second clause of this will he gave to his two sons Byron G. Downer and John B. Downer, jointly, the use of this farm, with all of his personal estate, to be held and used by them jointly for the period of their natural lives and to the survivor of them. This' gift, however, was made-subject to the following provision: “ I hereby direct and provide that out of the proceeds and avails of said farm they (or the survivor of them, in case one shall die before the other) shall support, care-for and maintain on the said farm my wife, Maria Downer, and my daughter Celestia Downer, in accordance with their circumstances, and condition in life, and I hereby make their and each of their support a charge upon my said farm.” The son, John B. Downer,, and the daughter, Celestia Downer, died before the execution of the-assignment of Byron G. Downer’s interest to the plaintiff. The-widow, however, of George W. Downer is still living. After the death of Byron G. Downer, this defendant, his wife carried on the-farm substantially in the same manner, so far as the evidence shows,, as her husband had previously done; harvested the crops and deemed herself charged with the duty of providing for the support, of her late husband’s mother in accordance with the terms of the will. The plaintiff, standing upon what he deems to be a clear-legal right, claims absolute title to these emblements, and has asserted the same by this action. In this we think he has mistaken his remedy.

The will of the husband of Maria Downer charged all of his real estate with the care and maintenance of his widow. This provision of the will did not merely make the support of Maria Downer a charge upon the land which could be enforced only by the sale thereof, as was done in the case of Schermerhorne v. Schermerhorne (6 Johns. Ch., 70.) The will before us goes further. Maria Downer was entitled to her support out of the avails arising from the proper management of the farm, and had a direct interest and lien upon the proceeds or profits thereof after paying the necessary expenses of cultivation. The title which Byron G. Downer had to all of the growing crops was subordinate to this paramount lien of the widow. He could convey no greater interest than he himself had, and could not give a legal title to the crops in advance of their harvesting, which would enable his transferree to maintain a purely legal action thereon. It was incumbent upon the plaintiff, before asking the interposition of the court in his behalf, to show that Maria Downer, the widow, had received ample support according to her needs and circumstances; then, if there remained anything over, to ask the person who managed the farm to account therefor, after the death of Byron G. Downer and up to the time of harvesting and marketing these crops, over and above the necessary expenses for cultivating, tilling and managing the farm in a workmanlike manner. Such expenses' would necessarily include a fair compensation to the persons cultivating the land. Maria Downer, it is true, is not a party to this action, and her rights could not be enforced herein, but this circumstance does not strengthen the plaintiff’s case, for he must rely wholly upon the legality and sufficiency of his own title in order to maintain the action to recover the possession of this ■property, and not upon the want of title thereto hy the nominal defendant. If these views be correct, it would be idle to grant a new trial, for by no amendment of the proceedings could the County ■Court be clothed with the necessary equitable powers to adjust the rights of all the parties interested in this action.

The judgment should be reversed, with costs, both in this and the ‘•County Court.

Barker, P. J., and Dwight, J\, concurred.

Judgment and order reversed, with costs, both in this and in the ‘County Court.


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    EDWARD A. TORREY and Others, as Trustees of Union Free School District No. 3 of the Town of Allegany, Respondents, v. HARRIET WILLARD, Appellant.

      A personal judgment is recoverable by the trustees of a Union Free School District against a pa/rty assessed for a school tax — implied contract obligation — objection on appeal not raised on trial.

    An action may be brought by the trustees of a Union Free School District to recover a personal judgment for the amount of a tax.
    Although there is no evidence of an express contract on the,part of the party assessed to pay, yet there is an implication, by law, of a contract sufficient to sustain the action. The obligation of the citizen to pay, may be inferred from the authority conferred upon the officers to levy the tax.
    An objection that the school district, as a corporation, should have brought the action, rather than the trustees, is not available for the first time on appeal.

      Appeal by tbe defendant from a judgment of the County Court ■of Cattaraugus county, entered in the office of the clerk of the •county of Cattaraugus on the 10th day of August, 1889.
    The action was originally brought in a Justice’s Court to recover the amount of a school tax from the defendant, who had been assessed therefor. A judgment was rendered in that court in favor of the plaintiffs, as trustees, which was subsequently affirmed by the County Court, from which judgment of affirmance an appeal was brought to this court.

      Cary & Mumsey, for the appellant.

      J. Arthur Corbin, for the respondents.
   Macomber, J.:

Neither the regularity of the assessment, nor the issuing of the warrant for the collection thereof, is called in question on this appeal. A point is made for the appellant that there is not sufficient evidence of diligence on the part of the collector having the warrant in hand to collect the amount thereof; but we think it sufficiently appears that he was justified in returning the process without being able to make the amount thereof from any tangible property of the defendant.

Under these circumstances, the question is, whether an action can be maintained by the trustees of this school district to recover in a common-law action the amount of such tax. There is no statute which gives this right of action, and resort, therefore, must be had to the common-law right of action of assumpsit to recover moneys upon a contract either express or implied, or this action must fail.

There is wanting in the case evidence of an express contract by the defendant to pay; but we think there is sufficient implication by law of a contract on her part which will enable this action to be maintained. It may be generally said that there exists an implied contract or promise to do that which a party is under a legal obligation to do. (1 Chitty on PL, 98, 99.) Whenever' there is a legal obligation resting upon a party to pay, this form of action is available at common law. . In the case at bar the defendant, who was clearly liable for the assessment for the support of this school, had 'acquiesced in the selection of these plaintiffs as the proper persons to impose and adjust the expenses of conducting the school. They may be deemed, in a measure, though with many restrictions, the. agents of the defendant and other residents of the district charged with the duty of raising, by an equitable distribution of a tax, sufficient funds for the support of this school. The obligation of the citizen to pay is inferred from the authority to levy the tax. (Litchfield v. McComber, 42 Barb., 288.)

No objection was raised in the court of the justice of the peace that this action, if. maintainable by any person, should have been brought by the Union Free School District as a corporation rather than by these trustees, and hence, no technical objection to a recovery can be raised for the first time in.this court.

The judgment appealed from should be affirmed, with costs.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed, with costs.


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    REBECCA ROBBINS, Respondent, v. EZEKIEL MOUNT and Others, Appellants.

      The finding of fraud merely as a conclusion of law (in the absence of a finding of fact to that effect) will not sustain a judgment.

    A mere finding, as a conclusion of law, that a transfer of property was made by a, debtor in fraud of liis creditors, in the absence of any finding of fact to that effect, is insufficient to support adjudgment setting aside the instrument by which such transfer was effected.
    The question of fraud is to be determined as a matter of fact.

      Seward v. Jackson (8 Cow., 406) followed.
    Appeal by John G-. Record from part, and by Ezekiel Mount, Ann R. Mount and Thomas F. Mount from the whole of a judgment, entered in the office of the clerk of the county of Chautauqua on the 1st day of April, 1889, which decreed that a deed given by the defendant Ezekiel Mount to Ann R. Mount be canceled and set aside of record, and that a chattel mortgage be set aside in part.

      J. G. Record, for the appellants.

      Walter /Sessions, for the respondent.
   Macomber, J.:

This action, which is in the nature of a creditor’s bill, was brought for a discovery of the property of the judgment-debtor, Ezekiel Mount, and to set aside certain fraudulent transfers of real and personal property, alleged to have been made by him to cheat and defraud his creditors.

The decision of the learned referee was in favor of the plaintiff as against the. defendants Ezekiel Mount, Ann R. Mount and Thomas F. Mount, but favorable to the defendant, John Gr. Record, the transferree, by chattel mortgage, of certain personal property to the extent of $135.

The findings of fact, made by the referee, are quite full in respect to the details of the several transfers of property and the consideration therefor, and among such findings is one to the effect that the transfer of the real estate by the defendant, Ezekiel Mount, to his daughter-in-law, Ann R. Mount, was the assumption on the part of Ann R. Mount of a large mortgage indebtedness resting upon such lands, and an agreement by her to support the grantor during the residue of his life. There is no finding of fact that any one of these several deeds was made with intent to hinder, delay or defraud the plaintiff, or any creditors of Ezekiel Mount. In the report, however, the referee finds as a conclusion of law : First,

that the conveyance of the two houses and lots and the farm and the personal property, to wit, twenty cows and the farming tools, executed by the defendant Ezekiel Mount to the defendant Ann R. Mount, were without sufficient consideration as against creditors, and were fraudulent and void, and that the deeds evidencing such conveyance should be canceled of record.”

The first question is, therefore, whether the conclusion of law, reached by the referee, that such transfers were fraudulent, is sufficient to sustain the judgment, in the absence of any conclusion, of fact contained in the report to that effect. Section 1022 of the Code of Civil Procedure, following to this extent the language of the prior Code, is as follows: “ The decision of the court, or the report of the referee, upon the trial of the whole issue of fact must state separately the facts found and the conclusions of law.” la the absence of a finding of fact, we deem a mere finding, as a conelusion of law, that a transfer of property was made in fraud of creditors, is insufficient to. support a judgment setting aside the deeds by which such transfers were made. Since the case of Seward v. Jackson (8 Cow. 406), the whole subject of fraud has been deemed to b§ a matter of fact, and not of law. Senator Spenoer, in that case, says: “ Fraud or no fraud is, and ever must be, a fact.” In the case before us, there being findings of fact as well as evidence, that the several transfers were supported by good and valid considerations, the conclusion of law that such transfers were fraudulent as to creditors may have come from the erroneous notion of the referee that, as a matter of law, where a party making a sale is indebted to others, such transfers must be deemed fraudulent as to them. But this principle has no existence in our jurisprudence. If the defendant Ezekiel Mount turned over his property, honestly, to the defendant Ann R. Mount, creditors have no right to complain.

This defect in the findings cannot be supplied by this court on appeal. Even if we were satisfied from the evidence that the intent to defraud creditors could be derived therefrom as a matter of fact, yet we cannot amend or correct the decision in this particular. In the case of Jarvis v. Jarvis (66 Barb., 331), the referee reported certain evidence tending to show an indebtedness of the defendant to the plaintiff, but did not find, as a matter of fact, that such indebtedness existed. As a conclusion of law, he found that the plaintiff was entitled to recover the amount of the indebtedness which the evidence tended to show existed, and it was held that the finding was erroneous, and the judgment was reversed. And it was there further held, that it is the province, of the referee to find the fact, and that judgment cannot be given upon the report of the evidence, no matter how strongly it may tend to establish the fact.

"We are of the opinion, therefore, that the report of the referee in this particular was not a mere irregularity or inadvertence which may be cured by sending the case back to him,, but that the same worked a mistrial of the action.

The judgment should be reversed and a new trial had before another referee, unless the parties stipulate to try the case again before the same referee, with costs of this appeal to the appellants to abide the final award of costs.

Barker, P. J. and Dwight, J., concurred.

Judgment reversed and a new trial granted before another referee, with costs to abide the final award of costs.

      4 Revised Statutes (8th ed.), 2593, § 4.— [Rep.


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    THE SENECA NATION OF INDIANS, Appellant, v. JACOB LEHLY and HARRIET LEHLY, Respondents.

      Seneca. Nation of Indians —right of a half-breed to occupy lands set off to an Indicun under section 6 of chapter 150 of 1845 —presumption from long occupancy.

    The provisions of section 6 of chapter 150 of the Laws of 1845, in relation to the Seneca Indians, provides that “said chiefs, at any annual or special meeting, may determine on the laying out of their lands for separate cultivation, improvement or occupancy hy any Indian and his family, and the quantity to each; * * * and every parcel so allotted shall remain in the Indian to whom the same was assigned, and his legal representatives, but without the power of alienating, or in any way disposing of the same, except to some other Indian of the said Nation.”

      Held, that said act did not preclude the holding of lands, set apart under the provisions thereof, by the descendant of a member of the Seneca Nation of Indians, to whom they were originally set apart, although such descendant was a white woman, and her mother was also white.
    The statute does not impose any restriction upon a half-breed to successorship and occupancy of such land.
    The prohibition against the alienation of such land, to others than members of the tribe, does not apply to the occupancy of one who claims a right to possession as the husband and agent of his half-breed wife, a direct lineal descendant of one of the tribe.
    A reasonable presumption arises from the fact of long-continued occupancy by an Indian of the tribe and his successors, openly and under the eyes of the whole tribe, that such right of occupancy has been granted by .the peace-makers of the tribe.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of the county of Erie on the 20th day of December, 1888, adjudging that the defendants are entitled to judgment against the plaintiff for the dismissal of the complaint on the merits, with costs.
    The action was brought to recover the possession of the parcels of land forming a part of the Cattaraugus Indian reservation.

      The defendant Jacob Lehly is a white man, and, therefore, not. entitled, in liis own right, to the possession of any part of the Indian, reservation. But by an agreed statement of facts it was shown that the other defendant, Harriet Lehly, was one of the children and heirs-at-law of Chauncey C. Jemison, and as such she claimed, to be entitled, so far as her share or interest would extend, to the= benefit and enjoyment of the property occupied and possessed by her father, and his ancestors before him. And it further appeared that she and her mother, who was the surviving widow of Chauncey C. Jemison, were in the control of the premises in dispute, and that, the defendant Jacob Lehly was in the possession only as the servant, and agent of his wife and her mother.

      Hudson Ansley, for the appellant.

      Leroy And/rus, for the respondents.
   Macomber, J.:

The facts upon which this controversy arises are undisputed and the same were agreed upon by the parties, and were submitted to. the court upon the trial without a jury. The defendants claim th& right to the continued possession of the premises under a title-derived from one Chauncey C. Jemison, a member of the Seneca. Nation of Indians, who died on the reservation in the month of March, 1885. The defendant Harriet Lehly, the wife of the-defendant Jacob Lehly, is a daughter of Chauncey C. Jemison. For a period of more than twenty years before the beginning of this-action, and during the lifetime of Chauncey C. Jemison, these lands-were held in severalty and were occupied and claimed by him and his ancestors and grantors, as members of this tribe of Indians. Chauncey O. Jemison and his predecessors were all Indians, of full blood, belonging to that nation. But the defendant Jacob Lehly is a white man; and the mother of the defendant Harriet Lehly,. whose name was Adelaide E. Jemison, was a white woman. From this fact, namely, that Jacob Lehly is a white man and Harriet Lehly is the daughter of a white woman, it is argued, by the learned counsel for the appellant, that the lands in question cannot be held by them under the laws of this State relating to this tribe of Indians.

By chapter 150 of the Laws of 1845 (incorporated in 2 B. S. ¡[6th. ed.], 1051) it is provided (§ 1) that the Seneca Indians shall' hold the lands contained in this reservation as a distinct community, •and shall have the right to maintain actions which may be necessary to protect the rights and interests of the nation. That portion of section 6 of said act (2 R. S. [6th ed.], 1053,1051), bearing upon the -question before us, is as follows: “And the said chiefs, at any annual or special meeting, may determine on the laying out of their lands for .separate cultivation, improvement or occupancy by any Indian and his family and the quantity to each, , *' * * and when any land shall be set apart for any Indian or family, the peace-makers ■of the reservation shall lay out the same as shall have been ■directed, or in case specific instructions have not been given, as they ¡shall judge reasonable and proper; and the said parcel shall be marked out and described by them and the description thereof in writing shall be entered in a book by the said peace-makers, and ■every parcel so allotted shall remain in the Indian to whom the same was assigned and his legal representatives, but without the power of alienating or in any way disposing of the same except to some other Indian of the said nation; and when any such sale or disposition shall be made the same shall be reported to the peace-makers of the reservation and by them entered in the said book.”

The facts so agreed upon do not distinctly state that these lands were laid out under the authority of the chiefs for separate cultivation, impi-ovement or occupancy by Chauncey O. Jemison or by his .ancestors; and it is argued from this circumstance that the conclusion of the learned judge, finding such actual laying out of the lands, is erroneous. But it seems to us that his fourth finding of fact is a necessary corollary from the facts so agreed upon. The lands had been possessed and controlled' by Chauncey C. Jemison ¡and his ancestors for a long period, much more than twenty years, and such occupancy and control had been undisputed so far as the case discloses the fact to be. It was legitimate, therefore, for the trial judge to derive, as a conclusion of fact, that the lands had actually been laid out for the separate cultivation, improvement and ■occupancy, by and for the ancestors of Chauncey C. Jemison, and that they were marked out and allotted for that object by the peace-makers of the Seneca Nation of Indians pursuant to law. A reasonable presumption arose from the fact of the occupancy by Chauncey C- Jemison and his ancestors, openly and under the eyes; of the whole tribe, that the peace-makers of the tribe had granted such occupancy. It was a proper inference drawn from other facts, and circumstances in the case, and was made upon common principles of induction. (Jackson v. Russell, 4 Wend., 543; Angell on Lim., § 380, and note; Buswell on Lim. and Adv. Possess., § 231; O'Gara v. Eisenlohr, 38 N. Y., 296.)

An examination of the statute, already referred to, does not disclose any restriction upon the right of a half-breed to the successor-ship and occupancy of the land. It matters not whether the family,, thus coming into possession of the lands, was of the whole blood or not. The defendant Harriet Lehly, the daughter of Chauncey CJemison, is a member of the family and is entitled to be protected in her possession. The prohibition against alienation of such lands; to others than members of the tribe cannot apply to the defendant. Jacob Lehly because he does not occupy or claim the lands in his own right, but only as the husband and agent of his half-breed wife, the direct lineal descendant of Chauncey C. Jemison, and also* as the agent of her mother, the widow of Chauncey C. Jemison? both of whom are supported thereon.

The judgment appealed from should be affirmed.

Dwight, J., concurred; Barker, P. J., not voting.

Judgment affirmed.


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    THE GERMAN BANK, Appellant, v. JOSEPH O. MEYER, Respondent.

      Attachment — proper in case of a fraudulent disposition of property mortgaged by, and left in the possession of a debtor with a right to sell it and apply the proceeds in payment of his debt. x

      A warrant of attachment is properly issued in an action where it appears that a. debtor,'being permitted to hold in his possession certain property mortgaged by him, and having the right to sell it provided he applied the proceeds in payment, of the indebtedness for which it was mortgaged, secretly and fraudulently sold and disposed of it in fraud of his creditors.

      German Bank v. Dash (60 How. Pr., 124) distinguished; Farmers and Mechanics Nat. Bank of Buffalo v. Lang (87 N. Y., 209) followed.

      Appeal by the plaintiff from an order vacating and setting aside an attachment, with costs, made at a Special Term held in the county of Erie, and entered in the Erie county clerk’s office on June 28,1889.
    The action was on contract to recover the amount due upon certain promissory notes made by the defendant and discounted, by the plaintiff. An attachment was granted upon an affidavit made by the plaintiff’s cashier, which contained, among other allegations, the following:
    That, in November, 1888, the defendant then being indebted to plaintiff in the sum of $30,500, and being then owner of 40,000 bushels of barley malt m store in his iron-covered warehouse on "Watson street in Buffalo, N. Y., transferred to said plaintiff, by an instrument in writing, made on November 23, 1888, the title to and the right of possession of 40,000 bushels of said barley malt, and made and delivered to this plaintiff a warehouse receipt, dated November 23, 1888, for said 40,000 bushels of barley malt, reciting that he had received the same in store, and that the same should be held subject to the written order of this plaintiff, and which property he, by the terms of said receipt, agreed to deliver on the written order of said plaintiff, and which transfer of title was made and warehouse receipt given to this plaintiff as security for the payment of said indebtedness, owing by defendant to plaintiff ; that defendant has frequently promised to deponent, within the last three months, that he would pay said note of $21,000 or a considerable part thereof when it matured; that just prior to the maturity thereof he said to deponent that he, defendant, was going away for a few days and would not be in Buffalo when said note matured, but that he would return in a few days and would then take care of said note; that on May 28, 1889, said defendant came to the hanking office of the plaintiff in Buffalo and said to deponent that he, defendant, was unable to pay said note or indebtedness, that the malt was gone, that he had disposed of it, and lost it; that deponent questioned defendant on said 28th day of May, 1889, and also on this 29th day of May, 1889, as to what he had done with said malt; defendant said it was gone, but refused to say to whom he had sold or how he had disposed of it, or what he had done with the proceeds thereof, but said he was here and he was not going to run away, and plaintiff must do as he saw fit; that deponent repeatedly asked for some explanation as to defendant’s conduct and condition, but could obtain no satisfaction, defendant merely saying that tlie malt was gone, and that lie must have an extension, but refusing to say when or how, or to whom he had disposed of it, or where it now was, or what had become of the proceeds, if any; and deponent says that the said defendant has secreted and secretly disposed of Me? said property, to wit, .40,000 bushels of malt pledged as aforesaid to tlie payment of plaintiff’s said demands, with intent and for the purpose of defrauding his creditors and particularly this plaintiff.

      John L. Homer, for the appellant.

      Tracy G. Becker, for the respondent.
   Macomber, J.:

The warrant of attachment in this case was issued at the instance of the plaintiff upon the alleged ground that the defendant had assigned, disposed of or secreted property with the intent to defraud the plaintiff, within the meaning of the last clause of subdivision 2 of section 636 of the Code of Civil Procedure. The motion made at Special Term in behalf of the defendant was upon affirmative affidavits, as well as upon a claim that the affidavits upon which the writ was granted were insufficient to sustain the original order. The' learned judge at Special Term in his opinion says, that he disregards the moving affidavits, and bases his decision solely upon the ground of the insufficiency of the affidavit upon which the order was granted and the affidavit read in support thereof on the motion. The Special Term was of the opinion, further, that the question raised was identical with tlie one decided at Special Term in the case of the German Bank, etc., v. Dash (60 How. Pr., 124). That decision proceeded upon the proof that the property which the defendant was accused of disposing of contrary to the statute, belonged wholly to the plaintiff in that action, in which the defendant had no interest. It was there held that the transfer by the defendant of property other than his own, and which lie had a right to sell and account for the proceeds thereof, under an agreement with the plaintiff in that action, was not fraudulent as against creditors. The case, however, seems not to have taken into the account fully the true relationship existing between a party who had pledged property for the payment of a debt and the person who had an absolute and unincumbered title thereto. The decision already referred to, is not consistent with the case of The Farmers and Mechanics’ Nat. Bank of Buffalo v. Lang (87 N. Y., 209.) In that case, the warehouse receipts, with the exception of names and dates thereon, were in substance, the same as the one in the case at bar. There, as here, the owner who turned out the warehouse receipts, as security for advances already made, or thereafter to be made, agreed in writing that the property had been paid for; that the same was, at the time of entering into the agreement, free from all liens, charges and incumbrances, and that he does “ hereby transfer title to said bank.” In the absence of the intervening rights of creditors, and while the question exists only between the original parties to the transaction, the fact that the property pledged was not actually put into the pos- . session or custody of the person to whom the warehouse receipts were delivered is unimportant. The true inquiry is, what was the real transaction, and not, what were its formal parts. As the court in the last named case say: “ It was not intended that the property pledged should actually and in bulk be transferred to the possession of the pledgee, but that result was to be reached by setting aside .specific property to be represented by what are termed in the case, warehouse receipts.’ * * * They in no manner transferred the possession of the property, or represented any such actual transfer. There was, therefore, never any valid pledge by the borrower, nor any actual warehouse receipt. "What was so called simply operated, in each instance, to transfer the title of the property described, as between Weppner and the bank, and such transfer, being collateral to the payment of a debt, could operate only as a mortgage. The recital in the defendant’s agreement indicated an intention to pledge property to the. bank, while the actual arrangement was valid only as a mortgage.” (See, also, Smith v. Beattie, 31 N. Y., 542; Leitch v. Hollister, 4 id., 211; Ely v. Carnley, 19 id., 496.) We cannot concur, therefore, in the conclusion of the opinion of the learned justice that the defendant had no such title to property as that a fraudulent transfer thereof would enable a creditor to ask for a writ of attachment against his property.

The order, however, which was entered, has no such limitation of 'its scope as is indicated in the opinion. It is general in its terms granting the motion, and it appears to have been made upon the> moving as well as upon the original and opposing affidavits. The-affidavit made by the defendant himself upon this motion, while-denying in a general way, all intent to defraud the plaintiff, does-not contain that relation of facts touching the transfer of this large amount of barley malt, covered by the warehouse receipts, as the-court should be led to expect upon such a motion. He fails to show to whom he sold the barley malt, for what prices, and to what places-it was shipped. There, appears in his affidavit to be a studied concealment of the true facts surrounding that transaction, save the-positive assertion that he had a right to sell the same by the special direction of the officer of the bank. He is corroborated in this last-allegation by the affidavit of the attorney of record, who had an. interview with the same officer in the presence of the defendant,, when it is alleged the admission was made that the defendant had a right to sell the barley malt. This may be conceded to be true-without impairing the sufficiency of the warrant of attachment,, because the question is not whether the defendant sold the property or disposed of it, but whether he so disposed of it with the intent to defraud creditors, and among them the plaintiff.. This is the-foundation of the claim against the defendant; that, being permitted to hold in his possession this property, and tacitly having the right, to sell it, provided he applied the proceeds in payment of the indebtedness for which it was mortgaged, he secretly and fraudulently sold it or disposed of it, and thereby cheated his creditors. This, in our judgment, brings the defendant within the operation of' subdivision 2, section 636 of the Code of Civil Procedure.

For these reasons we think the order appealed from should be reversed, with ten dollars costs and disbursements.

Barker, P. J., and Dwight, J"., concurred.

Order reversed, motion denied, with ten dollars costs and disbursements.


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    WILLIAM F. PECK, a Taxpayer of the City of Rochester, Respondent, v. GEORGE BELKNAP, Appellant, Impleaded with CORNELIUS R. PARSONS, as Mayor of the City of Rochester, and Others.

      Taxpayer’s suit — that an officer has not passed the civil service examination is not a ground, therefor — an appreciable m'ong or substantial injury must be shown — who-is not a suboi'dinate officer, clerk or assistant within chapter 354 of 1883, and' chapter 410 of 1884.
    The common council of the city of Rochester, on December 20, 1887, passed a. resolution “that the mayor be and he hereby is directed to enter into a contract with George Belknap to examine all street lamps, electric or gas, and their location, and otherwise to assist the lamp committee in the designation and location of such lamps. * * * Also to report to said committee as often as. it may require, and at least once a month, to this common council, a general summary for the month preceding, of the foregoing matters, and also the number of lamps or lights that» have been discontinued, and the authority or cause-therefor,” etc.
    In an action brought by a taxpayer to prevent the execution of this resolution, upon the ground that George Belknap, named therein, had not passed an examination under the civil service law of this State and the rules prescribed by the mayor of said city:
    ISM,'that the end sought to be attained by such action could not be reached, under-the provisions of the taxpayers’ acts, in the absence of some allegation or proof' that the employment of this additional aid to the common council was not needful, or that the sums to be paid to Belknap were extravagant, or that the-employment of any person for such duties was unlawful under the city charter.
    In order successfully to maintain an action under such acts, it must be made to appear that it is brought to redress an appreciable wrong or to prevent a substantial injury.

      Ayers v. Law/'ence (59 N. Y., 192), Hull v. Ely (2 Abb. N, U., 440) followed.
    That George Belknap, named in said resolution, was not, in the execution of the duties prescribed thereby, a subordinate officer, clerk or assistant within the-meaning of chapter 354 of the Laws of 1883, as amended by chapter 410 of' the Laws of 1884; that it was the duty of the plaintiff, in an attempt to enforce-a statute, in derogation of the common law, to show clearly that the person, alleged to be amenable to its provisions, was among the inhibited class of persons mentioned therein.

      People ex rel. Byan v. Civil Service Board (41 Hun, 287) distinguished.
    Appeal by tbe defendant George Belknap from a judgment, entered in tbe Monroe county clerk’s office on the 11th day of' September, 1888, enjoining the mayor of the city of Rochester •from entering into a contract with the defendant George Belknap, .as directed by a resolution of the common council of said city of Rochester, passed December 20, 1887, and certain other officers thereof, from drawing any orders upon the city treasurer, and •enjoining the city treasurer from paying the same to the said Belknap for his services in the premises.
    The resolution of the common council of the city of Rochester, for the defeat of which this action was instituted, was qiassed December 20, 1887, and ivas as follows :
    “ Resolved, That the mayor be and he hereby is directed to enter into a contract with George Belknap to examine all street lamps, ■electric or gas, and their location, and otherwise to assist the lamp committee in their designation and location of such lamps, and to ■open and keep a book wherein shall be entered the name of each ■street in the city whereon such gas lamps or electric lights are now •or hereafter may be placed during the terms of said contract, together with the number of said lamps or said lights and the number and location of any such lamps or lights at any time not burning during any hours when the same is provided, by contract or otherwise, to be kept lighted, and the time when the same shall be unlighted, ¡such entries to be made in said book on each and every day (Sundays excepted) during the period of said contract. Also to report to said ■committee as often as it may require, and at least once a month to this common council, a general summary for the month preceding, ■of the foregoing matters, and also the number of lamps or lights that have been discontinued and the authority or cause therefor, if known to or ascertained by him, and the number and location of .any and all lamps or lights that have remained unlighted,, the name ■of the company owning or furnishing the same and the duration or time when the same shall have been unlighted during such month; and he shall perform such other duties as may be connected with the public street-lighting system of the city during the period of •said contract; and, as may be required from time to time by said com. mittee or this common council, to furnish to said committee and this ■common council, as it may at any time direct, written reports upon any of the subjects aforesaid. Said contract to contain such other conditions as may be suggested by said lamp committee; said contract to ■be completed on the 1st day of April, 1888, and the contract-price to be the sum of $313.33, payable in three payments of $104.44-each on the 1st clay of February, March and April, 1888; and the clerk shall draw orders in favor of said Belknap on the treasurer, payable from the lamp fund, at the times and for the amounts-respectively as aforesaid; * * * Said contract shall also provide that said Belknap shall examine into any and all complaints or charges of any of said lamps or lights having been unlighted at any time during the period of said contract, which shall have been received by him or come to his knowledge or information from any member or officer of the police department or said lamp committee or any of the members thereof.”
    This resolution was vetoed by the mayor upon the ground that it was in violation of the civil service law, but the same was subsequently passed over such veto.

      John U. Beokleij and II. J. Sullivan, for the appellant.

      John IT. Ropldns, for the respondent.
   Macomber, J.:

The plaintiff who brings this action is a taxpayer on an assessment of property of the value of $1,000 and upwards, and claims-the right to the relief granted to him by the Special Term, under the act of the legislature (Laws of 1881, chap. 531) entitled “An act. for the protection of taxpayers,” and the amendment thereto contained in chapter 673 of the Laws of 1887.

The complaint makes suitable averments, bringing the plaintiff within the class of persons entitled to begin an action under these statutes, provided the object of the action is one which was contemplated by such laws. It is complained by him that the city of Rochester, by its officers, was about to execute, illegally, a contract, with the appellant in pursuance of the resolution above quoted. The ground of the illegality is not stated to be that Mr. Belknap was-disqualified to discharge the duties of such employment, or that the-compensation to him was excessive, or that the common council had not the power to employ a proper person for the discharge of the duties described in the resolution. The complaint is put solely upon the ground that the city of Rochester and its officers should be restrained from carrying into effect the above resolution, for the reason that George Belknap, the appellant, had not passed the •examination under the civil service law of this State and the rules prescribed by the mayor. The only allegation which would connect the failure to observe the civil service law with the right of the plaintiff, as a taxpayer, to interfere, is that portion of the complaint which alleges that, in consequence of the failure of the authorities to select for those duties a person who had passed the civil service ■examination, the funds of the municipal corporation would be wrongfully _ diverted and wasted and the plaintiffs property subjected to additional taxation.

The end sought to be attained by this action cannot be reached under the taxpayer’s acts above mentioned. By the charter of the •city of Bochester (Laws 1880, chap. 14, § 40) it was provided as follows: “ The common council shall have the management and ■control of the fiscal and prudential affairs of said city, and of all property, real and personal, belonging to the city, and may make such •orders and by-laws relating to the same as it shall deem proper and necessary.” The twenty-third subdivision of such section, defining the powers of the common council, is as follows: “ To provide for and regulate the lighting of streets and alleys, and the protection and safety of public lamps.” The complaint contains no allegation that the object .sought by the employment of some person to look after the lamps in the city, as described in the above resolution, was not legitimate and within this provision of the charter. Indeed, the history of the acts of the common council which finally led up to the adoption of "this resolution of December 20, 1887, as contained in the case, •shows that in consequence of the change which had been made, particularly in the outlying streets of the city, by way of substituting electric lights for gas lights and oil lamps, something more than a suspicion had been aroused in the minds of the members of the common council that bills had been presented by both electric-light and gas-light companies which, if not fraudulent, were, at least, carelessly made. It was believed, in many instances, that after the erection of the electric lamp, the gas-lamp bills continued to be presented. The lamp committee of the common council, which had this matter in charge, was not able to give it that personal and minute attention which the exigency required, and hence the adoption of the resolution above mentioned. The circumstance that •during the ensuing four months the sum of $8,000 and upwards was saved to the city, as the result of Belknap’s services, as testified to by him, is unimportant and irrelevant to the question arising on this appeal, for the case must be judged as it was on the 20th day •of December, 1887.

In the absence of some allegation and proof that the employment •of this additional aid to the common council was not needful, or that the sums to be paid to him was extravagant, or that theemployinent of any person for such duties was unlawful under the city charter, it is difficult to see how a taxpayer can interfere by a suit in •equity, with the action of the common council, upon the ground that the person so selected by that body was not eligible under the laws pertaining to the civil service of the State of New York. This plaintiff, if the employment of any person was proper, and the compensation fair, would not be obliged thereby to pay any more taxes by reason of the fact that the person so employed did not happen to have passed the examination required by the civil service rules. Had Mr. Belknap submitted to and passed the required examination the plaintiff’s assessment would be the same.

The title of the act is significant. It is “ An act for the protection of taxpayers.” The main object of it is to prevent waste or injury to, or restore and make good any property, funds or estate of any municipality. The contract which was directed to be entered into by virtue of this resolution was not an illegal contract; nor is it deemed to be illegal by the plaintiff’s counsel, except in so far as one party to it was an incompetent person to contract because he held no examination certificate. I am unable to find in the lhws relating to the remedies of a taxpayer, any provision by which he can institute an action of this description where the sole question is a choice of competent employees. In order successfully to maintain the suit, it must be made to appear that it is brought to redress an appreciable wrong, or to prevent the infliction of a substantial injury. Otherwise, the case would lack that element of practicality without which the court ought not to be put in motion. A fanciful or an imaginary injury which touches the sentiments and emotions only, will not suffice.

In the case of Ayers v. Lawrence (59 N. Y., 192), where the individual taxpayer’s right to bring suit under a similar act (Laws of 1872, chap. 161) was most liberally upheld by a majority of the court, the decision was put wholly on the ground that the act to be restrained must be one prejudicial to the plaintiff in a pecuniary sense. Judge Allen there, with rare and forcible iteration, declares that it is a threatened waste or injury to property or public funds only which would enable the individual taxpayer to call upon a. court of equity to interfere against the threatened unlawful acts of a municipal body. So, also, in Warrin v. Baldwin (105 N. Y., 534), protection of public funds from waste was the foundation of the action as is pointed out in the opinion at page 539.

It was held in the case of Hull v. Ely (2 Abb. N. C., 440) that an action could not be maintained by a party in pursuance of the same statute when it was apparent that it was brought, not for his own protection, but for some other purpose.

I am of the opinion, therefore, inasmuch as the plaintiff fails to-show a pecuniary loss by reason of the resolution of the common council, or that the proposed inspection of the lamps was not a. proper subject for their consideration, that he cannot maintain this-case under the act of 1881, as amended by chapter 673 of the Laws, of 1887.

But there is another reason for holding that the plaintiff’s complaint must be dismissed, and it is, that the appellant Belknap is not a subordinate officer, clerk or assistant within the meaning of the Laws of 1883. (Chap. 354, § 8, as amended by the Laws of 1884, chap. 410, § 2.) By the regulations which the mayor of the city was authorized to make in pursuance of such laws, it was provided that all places in the public service of the city (with certain exceptions required by the statutes, namely, all elective officers and the subordinates in the city treasury and persons employed by or who seek to enter the public service under the board of education) must submit to the civil service examination. By the fourth regulation so made by the mayor, employees are classified as follows: (Schedule B. Part 1): “ All officers and members of the police and fire departments.” (Schedule B. Part 2): “ All other subordinate officers, clerks and assistants.” Schedule D includes all persons classed as laborers or workmen and are not claimed to be subject to examination before employment.

It is argued by counsel, and so decided by the Special Term, that it is not shown that the appellant comes within the exception above mentioned which requires no examination. In my judgment, however, the burden was not thrown upon the appellant to show that he did not come within the exception, but, on the contrary, that it was the duty of the plaintiff, in an attempt to enforce a statute in derogation of the common law, to show clearly .that the appellant was among the inhibited class of persons, and that he could not discharge the duties imposed upon him by virtue of the resolution of the common council. The case differs materially from that of The People ex rel. Ryan v. Civil Service Boards (41 Hun, 287) because in that case the main question was whether the applicant should be examined by the State Board or by the Civil Service Board of the city of New York. He applied for employment as bookkeeper in the construction of the new aqueduct, and under the laws pertaining to the city of New York, was clearly entitled to an examination by the civil service commissioners of that city. His proposed employment was purely clerical, and to all intents and purposes, permanent. In the case at bar, however, the appellant occupies the place of an independent contractor. The duties which were imposed upon him were limited to four months and were for a specific and well-defined purpose. The office of lamp inspector is not known to the city charter. There is no evidence before us to show that the common council intended to create and establish permanently any new office. On the contrary, it was ascertained by the council that immediate action ought to be taken in behalf of the city to save a multiplication of charges for lighting the streets, and the appellant was called in to aid the efforts of the lamp committee in that direction. Acting upon the powers bestowed by virtue of the charter already referred to, it was the right and within the well-defined powers of that body to employ the appellant for this special purpose. It could not be reasonably expected that the members of the lamp' committee would be able to devote sufficient time to ascertain the requisite facts to enable the council to act in the premises. Their judgment in employing a special agent, who was not in any sense a clerk, but was rather a workman for a special purpose, cannot be questioned, otherwise all employees of the city, whose services are occasionally engaged by resolution of the common council, such as lawyers and doctors and experts in special cases, would be subject to an examination by tbe civil service commissioners before they could enter upon tbe discharge of their duties.

For these reasons tbe judgment should be reversed, tbe injunction dissolved and tbe complaint dismissed, but without costs, insomuch as costs were not imposed by the Special Term.

Barker, P. J., and Dwight, J., concurred.

Judgment reversed and complaint dismissed, without costs to either party.


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    EDWIN H. WOLCOTT, Respondent, v. UNITED LIFE AND ACCIDENT INSURANCE ASSOCIATION, Appellant.

      Insurance against accidents — total disability — what is, within the meaning of the policy.

    In an action to recover upon a policy of insurance against total disability resulting from external, violent and accidental injury, it appeared that the plaintiff sustained an injury to his hip which totally disabled him from engaging in the practice of his profession as a medical practitioner for a period of two weeks, for which period, upon his application for payment, he received the sum specified in the policy. He was subsequently again prostrated and confined to his room and bed for a further period of four weeks by reason of the injury so received; but during such last-mentioned time he occasionally permitted a patient to come to his bed-side when he would make some examination, and at times reached' for or received certain medicines in his room which he advised should be administered, but did not, during this time, leave his bed, where his attending physician very strenuously insisted that he should remain.

      Held, that the foregoing facts did not preclude him from claiming, during the continuance of such subsequent four-weeks disability, the sum specified in the policy.
    That total disability must, of necessity, be a relative matter depending largely upon the occupation and employment in which the party insured is engaged.
    Appeal by the defendant from a judgment, entered in the office of the clerk of the county of Monroe on the 31st day of May, 1889, upon the report of a referee, by which it was adjudged that the plaintiff recover from the defendant the sum of $103.76, together with costs.
    The action was brought to recover the sum of $100, an alleged ^balance unpaid, on a certificate of insurance issued by the defendant ■on the life and person of the plaintiff.
    The policy of insurance provided for the payment of “ a sum not ■exceeding twenty-five dollars per week for loss arising from total ■disability, not to exceed twenty-six weeks, caused by any one injury, which said disability must result from bodily injuries caused by ■external, violent and accidental means.”

      John JF. Béchley, for the appellant.

      George O. Woleott, for the respondent.
   Macomber, J.:

The action is upon a policy of insurance issued by the defendant to the plaintiff in November, 1887, whereby the defendant agreed to pay the plaintiff, in case of total disability resulting from external, violent and accidental injury, the sum of twenty-five dollars per week, but not to exceed twenty-six weeks in any one yeai;.

In the month of July, 1888, the plaintiff, it is conceded, met with an accident by which his hip was injured without fault on his part, and was totally disabled for a period of at least two we'eks; •at the end of the two weeks, supposing himself to be substantially ■recovered and able to resume his duties, which were those of a medical practitioner, having in charge a general practice, he applied for payment to the defendant and stated his claim to be for two weeks at twenty-five dollars per week. This sum was paid him and a receipt was signed by him for the amount, but it was stated in the handwriting of the plaintiff, added to the printed form, to be up to date only.

It turned out afterwards, upon evidence which is uncontradicted, that the injuries received in July again prostrated him, and he was confined to his room and bed for a further period of four weeks, and was unable to go upon his rounds or to visit any patient. He ■did, however, during this time, as well as during the first two weeks •of his confinement, occasionally permit a patient to come to his bed-side, when he would make some examination, and at times reached for or received certain medicines in his room which he ■advised to be administered, but never, so far as the evidence shows, did he leave his bed during this time. His attending physician was very strenuous in enforcing his advice that he should remain in bed.

The question, therefore, is, from these facts, whether the plaintiff was totally disabled during the four weeks from the 13th day of September to the 11th day of October, 1888, for the receipt which, he gave did not preclude him from claiming for such subsequent, total disability, which he did not apprehend when the first payment was made to him. Total disability must, from the necessity of the case,, be a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged. One can readily understand how a person who labors with his hands would be totally disabled only when he cannot labor at all. But the same rule would not apply to the case of a professional man whose duties require the activity of the brain, and which is not necessarily impaired by serious physical injury. If a person engaged in the general practice of medicine and surgery is unable to go about his-business, enter his office and make calls upon any of his patients, but is confined to the bed, as in this instance, and enabled only to exercise his mind on occasional applications to him for advice, he. may be said to be totally disabled within the meaning of the provisions of this policy. (Bliss on Life Insurance, 723 et seq.)

It is argued that an exception was well taken in respect to the. testimony of the plaintiff. He was asked this question: “ Did you consult Dr. Lee at that time as to your then condition ? Yes, sir; he made an examination and gave me an opinion. What was that opinion, what did he say % ” This was “ objected to as incompetent, and irrelevant, not being embraced within the period of time referred to in the complaint.” Objection was overruled and exception taken. This evidence could not have materially injured the defendant’s case for the fact therein contained was reaffirmed by Dr. Lee, who was subsequently called; but the objection did not go to the extent of claiming that the question was incompetent because it was mere-hearsay evidence, but it was put solely upon the ground that it was not embraced within the period of time referred to in the complaint. This was untenable. When Dr. Lee was called upon the subject of the extent of the injuries of the plaintiff from September thirteenth to October eleventh, he said, unqualifiedly, that he insisted upon the plaintiff retaining his bed for four weeks. He did so. There is no reason (in the absence of evidence that the confinement was caused by something else than the injuries received in July) why the plaintiff should not recover for those, four weeks as well as for the two immediately succeeding the time of the injury. The judgment should be affirmed. ,

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed.


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    JOHN STEARNS and CHARLES C. BOYD, Respondents, v. JAMES McGINTY, Appellant.

      Measure of damages resulting to the owner of ewe lambs, by reason of their pregnancy caused by the trespass of buck lambs into their pasture.

    In an action, brought to recover damages arising from the escape of three buck lambs from the premises of the defendant onto the land of the plaintiffs, by which the ewe lambs of the plaintiffs were gotten with lambs out of season, so .that the lambs were dropped during such cold weather that twenty-nine of them were frozen to death, the measure of damages is not the value of the lambs perishing by reason of being born in inclement weather, but is the difference between the plaintiffs’ ewes for breeding and other purposes, as they were at the time of the trespass by the buck lambs and as they were thereafter.
    Appeal by tbe defendant from a judgment of tbe County Court -of the county of Allegany, entered in the office of tbe clerk of Allegany county on tbe 3d day of April, 1888, which affirmed a judgment of a justice of the peace, in favor of the plaintiffs, for the sum of twenty-three dollars and thirty-seven cents damages and five dollars costs.

      Dolson <& Oroutt, for the appellant.

      L. G. Ycm Fleet, for the respondents.
   Macomber, J.:

This action was brought to recover damages alleged to have been .sustained by the plaintiffs by reason of the escape of three buck lambs from the premises of the defendant to those of the plaintiffs, by reason whereof such buck lambs got thirty-two ewes, belonging to the plaintiffs, with lamb out of season, so that their lambs were dropped ■during such cold winter weather as that twenty-nine thereof were frozen to death.

The plaintiffs did not own the ewes in common, but held them in. common for the purposes of raising lambs. One of the plaintiffs, owned the land upon which the ewes were pastured, while the other-had no interest therein. Their common interest was in maintaining-the sheep upon the lands of Stearns and procuring an increase thereof in which they should share in certain proportions. No-question was raised below, that the action could not be maintained jointly by these parties.

The only matter in controversy seems to be the measure of damages which is applicable to the facts of the case. It was assumed by counsel in the County Court, as well as in this court, that the measure of damages adopted by the justice of the peace, was the value of the lambs so perishing by reason of being born in very-inclement weather; and the learned county judge has written an elaborate opinion sustaining the contention that such rule was the-true one. An inspection of the record, however, shows that this-question, of the measure of damages has no proper place in this appeal. The evidence leads to the conclusion that the escape of the defendant’s rams would quite naturally lead to the result that actually happened, namely, the pregnancy of the ewes and the dropping of this increase out of season, in the latter part of February and the fore part or the middle of March. The cost of raising lambs until they become marketable was also shown. The proportion of lambs-that would be lost when born in proper season was likewise shown. All facts relating to the measure of damages in such cases, seem to-have been gone into on the trial, save only the likelihood of injury to the mother when lambing out of season. Much of this evidence-is now objected to and is - claimed to be directed to an erroneous-measure of damages as before stated. No exception was taken to-any of it before the justice; and we are unable to find the origin in this printed record of the idea that the trial court found, as a matter of fact, that the damages were to be measured by the value of the lambs at the time they were unseasonably dropped. The true measure of damages, if we must state it, would be, in this case, the difference between the plaintiffs’ ewes for breeding and other purposes as they were at and as they were after the time of the trespass. There is nothing in the judgment to show that the justice of the peace adopted any other criterion. He presumably took into con¿deration all of tbe testimony of tbe witnesses, and probably, to some extent, his own observation of tbe matter, aided, doubtless, by consultation with bis neighbors. His judgment is as follows: On tbe 21st day of November, 1885, after waiting four days and after due deliberation, I render judgment in favor of said plaintiffs and against said defendant for tbe sum of $23.31.” There is nothing in tbe appeal papers, to show that be arrived at this result by any erroneous methods. Tbe niceties of tbe complex question of tbe measure of damages did not deflect bis judgment.

The judgment should be affirmed, with costs.

Barker, P. J., and Dwight, J. concurred.

Judgment affirmed, with costs. '