text:
    John Forbes versus Abraham R. Luyster.
    Ip upon the trial of the cause, the plaintiff refuse to submit his case to the jury, after the testimony is closed, and insist upon being nonsuited, in consequence of the ruling of the presiding Judge upon points of evidence, he will not after-wards be permitted to make a case, on which to found a motion for setting the nonsuit aside.
    This was an action upon the case for a malicious prosecution. The defendant interposed special pleas, setting forth in substance, that he had probable cause for suspecting the charge made against the plaintiff to be true, and that he was not actuated by malice. At the trial, the presiding Judge decided, that under the pleadings, the affirmative of the issue was assumed by the defendant;. and having directed him to open the case to the jury, the plaintiff excepted to his opinion. The parties having proceeded in the trial of the cause, the Judge decided several questions of evidence against the plaintiff, to which exceptions were taken; and after the testimony was closed, the defendant’s counsel insisted upon submitting their case to the jury under the evidence which had been admitted. The counsel for theplaintiff objected to this course, refused to go to the jury, and insisted, (as a considerable part of the evidence upon which they relied had been rejected,) that he ought to be nonsuited. The plaintiff being called, refused to answer, and was nonsuited accordingly.

      Judah for the plaintiff,
    having prepared a bill of exceptions, now moved to set the nonsuit aside. But the court decided, that as the plaintiff had himself insisted upon being nonsuited at the trial, and had refused to put his case to the jury upon the evidence, he could not now be permitted to make a case, on which to found his motion to set the nonsuit aside.
   The motion was therefore denied.

[Judah, Atty. for the plff.]

Note.—Vide. 1. Barn. and Ald. 253. 13. J. R. Pratt v. Hull, 334. 5 Burr. R. 2692. 4. Ib. 1984.


source: Caselaw Access Project

author: Oakley, J.

license: Public Domain

text:
    Henry White versus Samuel Demilt.
    In an action for the breach of the defendant’s contract to sell and deliver certain goods to the plaintiff, the promise of the latter to accept the goods and pay for them, is a good consideration for the defendant’s promise to deliver them.
    When the plaintiff, by the terms of his contract, is to pay for the goods in his own promissory notes, at different dates, it is not necessary for him to aver in his declaration, a formal tender of the notes. It is sufficient if he allege his readiness to accept the goods and pay for them in the manner agreed upon.
    The first four counts of the declaration, stated the damages, resulting from the breach assigned, to consist in a loss of the profits of the purchase; but there was a general averment of pecuniary damage at the conclusion of these, as well as the common counts. Upon demurrer to the first four counts, for the want of proper averments of tender and damage, it jvas held that the allegation of special damage at the end of each count might be considered at surplusage^ and that the general averment of damage, at the conclusion of the declaration, was applicable to each separate count.
    This was a special action on the case for the non-delivery of certain goods, bargained and sold by the defendant to the plaintiff. The declaration contained four special counts upon the contract, together with the common counts, for goods sold and delivered, money had and received, lent and advanced, &c.
    The first count, stated on the 20th of June, 1828, at Peters-burg, in the state of Virginia, the plaintiff bargained with the defendant to buy of him, and the defendant there and then sold to the plaintiff a large quantity of jewelry, ibr the price of 800 dollars, to be delivered to the plaintiff, as soon as the defendant could make out a bill thereof; the said goods to be paid for by the plaintiff in three promissory notes, for equal amounts, at six, twelve and eighteen months : and in consideration thereof, and that the plaintiff had undertaken to accept and pay for said jewelry, in the manner herein before set forth, the defendant undertook to deliver the same as aforesaid. It then averred, that a reasonable time had elapsed, that the plaintiff had always been ready and willing to accept, receive and pay for said goods, in manner aforesaid, and that the defendant had refused to deliver the same; by reason whereof, the plaintiff had lost and been deprived of divers great gains and profits, which might and otherwise would have arisen, and accrued to him from the delivery of said goods, &c.

      The second count was - similar to the first, except in the statement of damage which was as follows, viz. “By means “ whereof, the said plaintiff hath been deprived of sundry great “ gains and profits, which he might and otherwise would have “ acquired, by re-selling the said jewelry, at much higher and ad- “ vanced prices.”

      The third count was substantially the same with the second, stating the damage precisely in the same way.
    The fourth count differed from the three preceding ones, in averring a tender of the notes, and a demand of the goods, and stating the damage to be the loss of great gains and profits, which the plaintiff would otherwise have acquired, by re-selling said goods, at higher and more advanced prices j but there was a general conclusion to these counts, (and also to the whole declaration,) stating that the plaintiff had sustained damage by the premises to the amount of 2500 dollars.
    To the first four counts, the defendant interposed separate, general demurrers, and pleaded the general issue to the common counts. The plaintiff have joined in the issue of law and fact,— Mr. B. Clarke and J Anthon, for the defendant, presented the following points in writing, in support of the several demurrers.
    I. No consideration passed between the parties, in making the contract, nor was any earnest given to bind the bargain. This objection is applicable to all the counts.
    II. If the contract can be sustained on the ground of mutual promises, then, as the defendant was not bound to deliver the goods until payment was made, or in other words, as these acts were to be simultaneous, the plaintiff ought to have expressly averred a tender of the notes in payment. This objection effects the first three counts, which contain no such averment. [Clarkson v. Carter, 3 Cowen's R. 84.]
    III. The damages in this case form the very gist of the action, and if no damages, which the law can recognize, are stated in the declaration, it will present a case of damnum absque injuria, and consequently be demurrable.
    The only damage stated in all the counts demurred to, consists of conjectural profits; these can in no case afford a legal rule of damages. Damages to be the subject of a suit, must be proximate, and not remote or depending on a contingency. This objection effects all the counts.

      Mr. E. Curtis for the plaintiff, contra,

    presented the following argument in writing.
    The defendant’s first point consists of two parts -:—1. That no consideration passed between the parties; 2. that no earnest was given to bind the bargain. The answer to the first part is, that the contract is one of mutual promises, and one promise is a valid consideration for the other. The plaintiff’s promise to give the notes, was a good consideration for the defendant’s promise to deliver the goods. The answer to the second part is, that the paying of earnest is no part of the contract, but is in part performance of it; and whether a contract is made valid by being reduced to writing, or by earnest paid, will not appear by the declaration, but by the evidence in support of the declaration: The declaration will cover a contract between the parties reduced to writing. But the question of earnest does not apply to a contract made in Virginia, where they have no statute of frauds, applicable to contracts concerning personal chattels. .
    The defendant’s second point is, that the first three counts of the declaration are bad, because, there is not an averment that the notes were tendered. It was formerly considered doubtful, whether the plaintiff, in declaring upon mutual promises, was, or was not, bound to aver an offer to perform on his part. [1 Saund. 320. n. 4. 7. D. & E. 125.] It is now, however, settled, not only in England, but in our own state, that an averment of a readiness to perform is sufficient. [Arch. Pl. 100. 1. East. 203. 2. Bos. & Pul. 447. 5. J. R. 178. 12. J. R. 209.] In the case cited by the defendant’s counsel, from the third of Cowen’s Reports, the court merely decided, that on a sale of goods for cash, the vendee is not entitled to possession till he pays the price.
    The defendant’s third point, is, that the declaration states a case damnum abique injuria, since no other than conjectural profits are stated as damage. If we cannot recover, by way of damage, our conjectural profits, yet, if the declaration contains a legal cause of action, independent of the averment of conjectural profits, thecourt will t reat that averment as surplusage, when not demurred to specially. Those averments may be rejected in each count, and yet leave a complete cause of action, because, in the fourth count the plaintiff, in conclusion, says, in reference to all the previous counts, “by means of all which premises, the “ said plaintiff says he is injured and hath sustained damage, to the value of twenty five hundred dollars,” and, because also, in the conclusion of his declaration, the plaintiff alleges a general breach, and concludes to the “ damage of the said plaintiff, of “ twenty five hundred dollars, and therefore the said plaintiff “ brings suit,” &c.
    The declaration, therefore, stripped of those parts which the defendant calls averments of conjectural profits, is complete, since it sets forth a valid contract, a breach of that contract, and a general averment of damage. But the defendant is mistaken in supposing, that we cannot recover beyond positive damage, or money out of pocket. The only case to be found, that in any degree supports the position of the defendant, is a case in 2 W. Bl. R. [10 78.] and that case, when examined with discrimination, will he found to fall short of the rule of damages contended for in this cause. The true rule is this: when the person bound to deliver, fails, without fault or fraud, the purchaser’s claim is for such damage, as, at the time of the contract was foreseen, as a necessary consequence of the failure.
    In Bell’s Commentaries on the laws of Scotland, and the principles of mercantile jurisprudence, [1 Bell 448,] the rule of damages is thus laid down.
    “ The claim of the buyer, to whom delivery is refused, is two
      " fold : first, for repayment of the price, if already paid to the sel- “ ler; and second, for indemnification of the loss by non-fulfilment. “ As to the claim for indemnification of loss, the principle is, that “ where the person bound to deliver, is prevented by insolvency, or “ other accident, from fulfilling his engagement, the buyer’s claim “is for such damage only, as at the time of the contract was fore- “ seen, as a necessary consequence of the failure, to deliver the “ article.” “ This principle points out, as the proper object of “ such a claim, the indemnification of that soft of damage which “is directly connected with the subject of the contract—loss “ arising from the want of the article purchased, or'gain, of which, “ by the failure to deliver it, the buyer has been deprived. Thus “ a dealer, who is himself under contract to deliver a quantity of “ corn, buys and pays for one hundred bolls, at 25s. per boll, “ and being, on failure to deliver, obliged to go elsewhere for it, “ he, in consequence of the augmentation of price, pays 50s. for “ the same quantity; he will be entitled to not only claim re-pay- “ ment of the price which he paid, but to claim also, as a creditor “ for 25s. more. And, in the same way, if he buy on speculation, “ and can show that he might have sold the corn at 50s., he is “ entitled to claim re-payment of the price paid, and 25s. more as “ gain, of which he has been deprived.”
    The same principles are laid, down by Pothier. [Poth. on Oblig. (Evans') 90, 91.] When the debtor cannot-be charged with any fraud, and is merely in fault, for not performing his obligation ; either because he has incautiously engaged to perform something, which it was not in his power to accomplish, or because he has afterwards improvidently disabled himself from performing his engagements, the debtor is only liable for the damages and interest which might have been contemplated at the time of the contract, for to such alone, the debtor can be considered as having intended to submit.
    In general, the parties are deemed to have contemplated only the damages and interest, which the creditor might suffer from the non-performance of the obligation, in respect to the particular thing which is the object of it, and not such as may have been inciden^ tally occasioned thereby in respect to his other affairs.

      This declaration has for a precedent, both Chitty and Wentworth. [2. Chitty. 105. Wentworth 2. vol. 189.]

      Mr. Clarke and Mr. Anthon in reply. The case of Clarkson v. Carter, [3. Cowen’s R. 84,] establishes the principle contended for, on the part of the defendant, so entirely, as to preclude all argument.
    The vendor, according to that case, when the sale is for cash, is not bound to part with his goods until he receives the cash; so, therefore, when he sells for notes, the party purchasing, has, upon the principle of that case, no right to demand the goods until he has delivered, or at least tendered the notes. The payment or tender of the money, and the delivery or tender of the notes, consequently form essential averments, according to the case cited. Whether this is, or is not, conformable to the English cases, is therefore a matter of no moment, and but little trouble has been bestowed upon the inquiry. The first three counts are, therefore, defective in substance, in this particular, and the general demurrer is sustained.
    As to the third point, which affects all the counts, the plaintiff Insists that the averment of damage in the several counts demur- • red to, (which he seems to admit to be bad,) may be rejected, and a complete cause of action still remain; because the fourth count concludes with these words, “ by reason of all which premises he hath “sustained damage, fyc.” To this we reply, 1. That this general clause, whatever may be its value, can and does only, refer to the fourth count, the three preceding counts being perfect in themselves, concluding with a special averment of damage. 2. The “premises” referred to in this averment, are the loss of profits averred In the next preceding sentence, (and in the preceding counts, if it can be made to relate to them,) making this general clause, and the preceding special clause, in effect, the same; and 3d. that as to special damages, which form the very gist of the case, a general averment is no averment; the specific injury must be alleged. The consideration of this last position, therefore, recurs and covers the whole case.
    That damage does not necessarily result from the facts set forth in the declaration, viz. “ the non-delivery of goods on a contracts "when the vendee has not parted with his money ,” is obvious, in as much as the very same state of facts may be attended with positive gain to the vendee.
    If the markets have advanced, he may be a loser by missing his profits, but if they have declined, he is manifestly a gainer by avoiding the loss. That the possible profit is not the rule of damages, seems to be admitted. That there may be a legitimate damage from a non-delivery, is possible, although it is difficult to conceive in what it can consist, profits being shut out. That this damage, therefore, and not the body of facts, forms the gist of the action, is clear, and it necessarily follows that it must be averred, and that specially too, to put the defendant on his defence..
    The case cited by the counsel for the plaintiff, from Sir W. Blackstone’s Reports, [Flurea v. Thornhill,] supports these positions. Damages were there sought for the non-delivery of an article sold. De Grey, Chief Justice, commenting on the rule of damages, with reference to profit, observes, “ I do not think the purchaser can be “ entitled to any damages, for the fancied goodness of the bargain “ which he supposes he has lostand Blackstone, Justice, commenting on the rule of damages, with reference to the fluctuation of price in the market, expressly says, that this is immaterial, inasmuch as “ the plaintiff had a chance of gaining as well as of losing by the fluctuation of the priceand to this it may be added, that if he sustained a loss by the rising of the article in the market, it was his own fault, as he, having his money in his possession, might have bought other articles of the same kind, on the very day the contract was broken.
    From all this it results, that the facts, standing by themselves, necessarily manifest a case of damnum absque injuria, and that to make such a state of facts actionable, a special, substantive and legal damage must be averred, and the defendant, before he goes to trial, must have the opportunity, on the face of the pleadings, of bringing the alleged damage to a legal test. Under the present form of the counts, a jury might give the profits by way of damage, and it might be exceedingly difficult for the court to redress the grievance. The absence of a proper averment, in this respect, being, therefore, clearly matter of substance, is a ground of general demurrer.
    The Scotch law cited by the counsel for the plaintiff, is altogether too vague to be applied to any valuable practical purpose, and so far as the Scotch cases have applied it, is manifestly in collision with the sound rules of the English law.
    What, in the case of a sale of goods, is the damage “foreseen as “ the necessary consequence of a failure to deliver the article ?” If we interpret this phrase by the cases cited, it means the loss of profit from a rise in the market. What would have been the Scotch rule, if in the cases cited by the plaintiff’s counsel, the articles had declined in the market 1 Upon their own principles, the facts, without the averment of a special damage, would have shown a case of damnum absque injuria.

    Had the plaintiff in this case been constrained to purchase the articles,' upon our default, at a higher price, this might have furnished a legitimate ground of damage, which, however, would have required a special averment for the reasons above given.
    The Scotch law, therefore, which has been referred to, affords no aid'to'th’e plaintiff whatever, and merely demonstrates the futility of referring to the laws of a comparatively uncommercial country, for rules to aid the ."practical operations of a commercial one.
    As to the arguments derived from the precedents, ancient and established forms, which have passed the ordeal of legal tribunals, are undoubtedly of the highest authority. Those referred to in this case have no authority attached to them, not even the name of an experienced pleader. And the counsel for the plaintiff manifestly disapproves of them, being constrained to resort to the rule of rejection and surplusage, to make them at all tenable.
    On every ground, therefore, we trust the demurrers are sustained; 1st. for the want of a proper averment of tender; and 2dly. for the want of a proper averment of damage, to give an actionable character to the facts.
   Oakley, J.

This case comes before us on separate demurrers to the first four counts.

The defendant objects, in the first place, that no consideration for the undertaking on his part is alleged. The answer to this is, that the counts demurred to are upon mutual promises, and that the promise of the plaintiff to accept the goods and pay for them, is the consideration of the defendant’s promise to déliver them. This is no doubt a sufficient averment of a consideration.

The defendant objects, in the second place, that the three first counts do not aver a tender of the notes, by which payment for the goods was to be made. The averment is, that the plaintiff had “ always been ready and willing to accept and receive the goods, “ &c., and to pay for the same at the price and in the manner,” &e. I am of opinion that this averment is sufficient. The formal tender of the notes, which the plaintiff was not bound to part with, until the goods were delivered, could not be necessary.

In Porter v. Rose, [12 J. R. 212,] the court say that the result of all the modern cases on the subject is, that “ where two acts are “tobe done at the same time, as when one agrees to sell and deliver, “ and the other agrees to receive and pay,” an averment, by the purchaser of a readiness and willingness to pay, is necessary, and that such an averment must be proved at the trial. In West v. Emmons, [5 J. R. 179,] the principle is laid down, that where either party has the power to perform, without any act being previously necessary to be done by the other, the party bringing the action must aver performance, or a tender and refusal, which are equivalent to a performance. The action in that case, was upon a covenant, by which the defendant agreed to convey certain premises to the plaintiff; and the plaintiff covenanted to mortgage them to the defendant for a part of the purchase money, and the objection was, that the plaintiff ought to have averred a formal tender of the mortgage, and that the averment that he had always been ready and willing to execute the mortgage was insufficient. The court held otherwise. They say it would have been an idle ceremony to tender a mortgage, actually execúted, when the defendant refused to deliver the deed, and that it would invert the order in which the covenant was finally to be executed. So here, the actual making and tendering of the notes, would have been equally idle, when the defendant refused to deliver the goods. The payment, in the natural order of things, was to follow the delivery, and although it was to be simultaneous, it was not to be completed until the goods were actually received.

The doctrine of this case is in accordance with that laid down in Rawson v. Johnson, [1 East. 203,] and in Waterhouse v. Skinner, [2 Bos. and Pul. 447.] In these cases, the action was on an agreement to sell and deliver personal chattels, at a stipulated price, by a given day. The plaintiff averred in his declaration, (as in the case now before us,) that he was ready and willing to pay for the goods, and to receive and accept the same, but that the defendant refused to deliver, &c. The averment was held sufficient, though no actual tender of the money was shown. It was said in those cases, that, under such an averment, the plaintiff must prove that he had the money ready to be paid if the property had been delivered. So in the present case, if the payment for the goods was to have been made in the notes of third persons, it would be incumbent on the plaintiff to prove that he was possessed of such notes ready to be given to the defendant. But the payment being to be made in the plaintiff’s own notes, which he could execute at any moment, it seems to me that a general averment, that he was ready and willing to execute and deliver his own notes, is all that the good sense of the contract requires; and that it was not necessary for him to show that he had actually tendered his notes, formally drawn and executed.

It is objected, in the third place, by the defendant, that in all the four counts, the damage resulting from the breach assigned, is stated to consist of a loss of the profits of the purchase, and that the loss of such profits does not afford any ground of action. In answer to this, it is sufficient to say, that as each count contains a proper breach of the agreement, the general averment of damage, in the conclusion of the declaration, applies to all, and the special averment of damage, in each count, may be rejected as surplusage.

Judgment for the plaintiff, with leave, &c.

[E. Curtis, Att'y for the plff. B. Clark, Att'y for the deft.]

Note.—See Bank of Col. v. Hagner, [1 Pet. R. 466.]


text:
    William E. Ross versus William W. Drinker.
    The plaintiff employed the defendant to procuro consignments for him, and to act as his agent in certain mercantile business, to be carried on in the name of the plaintiff. The defendant, as a compensation for his services, was to receive one half of the profits of the business; but he had no authority to contract debts in the name of the plaintiff, nor was he to be liable to third persons for any responsibilities created for the concern. No profits were ever realized, but on the contrary, losses ensued, and the plaintifi" brought an action of assumpsit against the defendant for money had and received to his use, as appeared by the books, which the defendant had kept. Held, that the foregoing facts did not constitute such a partnership between the parties, as would bar the action at law; and the plaintiff having recovered a verdict against the defendant, for the balance of his account, the court refused to set it aside.
    The question in this case was, whether the defendant was a partner with the plaintiff" or not. It was an action of indebitatus assumpsit, for money had and received, money lent and advanced, &c.; and the defendant, for the purpose of defeating a recovery, in an action at law, set up a partnership with the plaintiff, as his defence.
    At the trial of the cause, it appeared that the defendant had been in the employment of the plaintiff, under the agreement hereinafter mentioned, and that, from entries made in the books of the plaintiff, by the defendant himself, (who had kept them,) a balance of 4000 dollars and upwards, was due from the latter to the former. It appeared also, that after the commencement of this suit, the defendant filed a bill in chancery against the plaintiff ; but no injunction or stay of proceedings, was ever issued against the action at law.
    The defendant, for the purpose of proving the partnership, introduced the plaintiff’s answer to his bill in chancery, from which it appeared, that the plaintiff being about to establish himself in the city of New-York, as a merchant, but being inexperienced in mercantile affairs, at the solicitation of the defendant, received him into his employment, as an agent or assistant, agreeing at the same time, to give him one half of the profits of his business, as a compensation for his services. The defendant on his part, was to procure consignments for the plaintiff, keep his books, and give him advice as to the manner in which the business should be conducted ; but he was to have no. power of signing the plaintiff’s name, for the purpose of creating responsibilities a gainst him, nor was he to be liable to third persons for the debts of the plaintiff;, and the benefits to be received by him from the connexion, were to be restricted to his agency, and the profits aforesaid.
    The defendant, for the purpose of creating a confidence in his capacity, on the part of the plaintiff, had told him, that if any loss should follow as a consequence of his mismanagement that he would bear one half of it; but there was no agreement to bind him to that effect; and the plaintiff, "knowing the defendant to be irresponsible, did not consider the promise of any conseqence one way or the other.
    The complainant, by his answer, expressly denied that 'there was a partnership between himself and the defendant, although he admitted the foregoing facts; and he stated that he employed the defendant, upon "the terms aforesaid, as his .assistant and boolc-keeper. It was, however,'further agreed, that at a future time, the defendant should become the partner of the plaintiff, whenever he could relieve himself from certain mercantile embarrassments, which were hanging over him; but that agreement, the plaintiff, by his answer declared, had never been carried into effect.'
    Under the agreement aforesaid, (which was not reduced to writing,) the plaintiff hired a store in his own name, advanced the capital necessary for the carrying on of the business, the defendant furnishing nothing but his personal services; and the business was transacted in the name of the plaintiff alone. In the course of it, however, whenever goods were purchased, the defendant was in the habit offending to the plaintiff his notes, to be endorsed by the latter, and given in payment for such goods ; but this arrangement was made as a favor to the plaintiff, with an understanding that he should always take up said notes when due; and he did so, without putting the defendant to any inconvenience.
    There were many transactions between the parties, and variOtis interchanges of accommodations and favors; some of which would countenance the idea of a partnership, and others would not; and the defendant produced letters from the plaintiff, coining expressions which supported, in some degree, the defence upon which he relied.
    The plaintiff, on his part, produced the letters of the defendant, to various correspondents, wherein he represented himself aS the mere agent of the plaintiff, denying all connexion with him as a partner; and in various conversations with witnesses, the defendant had also denied the existence of a partnership between himself and the plaintiff.
    It appeared, from the plaintiff’s answer to the defendant’s bill, that there never had been any profits in the business, but on the contrary, that it had resulted in loss, and that the connexion had been dissolved by the plaintiff himself, without consulting the defendant in any way.
    After the whole testimony had been closed, the counsel for the defendant insisted, that the agreement disclosed in the plaintiff’s answer to his bill in chancery, and the facts of the case, showed a partnership between them, and that there could be no recovery against the defendant at law: the plaintiff’s only remedy being in a Court of Equity.
    The Judge charged the jury, that the agreement disclosed by the answer did not, per se, in his judgment, create or constitute a partnership, between the plaintiff and the defendant, so as to defeat the action at law, under the circumstances of this case; especially as it appeared from the answer to the defendant’s bill, that the business had been carried on at a loss, instead of a profit. That the other evidence in the case, was to be passed upon by them; and if they should be of opinion that it made out a partnership, and showed an agreement to that effect, then, that the plaintiff could not recover at law. That the books of the plaintiff, which were kept by the defendant, coupled with the answer in chancery, would enable the jury to fix, with reasonable precision, the balance due from the defendant to the plaintiff; but as there might be some inaccuracy in the items, he recommended the jury, with the consent of the parties, to find a verdict in favor of the plaintiff, if the fact of partnership was not in their opinion established, for an amount sufficient to cover his whole demand, subject to a liquidation of the accounts by referees. The defendant having excepted to the charge, the jury returned a verdict in favor of the plaintiff for 4000 dollars.

      Mr. E. N. Mead and Mr. Geo. Brinkerhoof, in behalf of the defendant,
    now moved for a new trial. They contended, that the agreement, under which the parties were engaged in business, as proved by the plaintiff’s answer in chancery, and the other testimony produced at the trial, constituted them co-partners, or showed such a connexion between them, in the nature of a co-partnership, as to bar the plaintiff from maintaining an action at law against the defendant. A communion of profit and loss, (they said,) constituted a partnership as to all the world; and where the amount of compensation, to be received by one person, for services performed for another, is indefinite or uncertain, and made to depend upon the profits of the business in which the apparent agent is engaged, that constitutes a partnership between the parties. [Dob. v. Halsey, 16 J. R. 34. Muzzy v. Whitney, 10 J. R. 226.]
    As to third persons, there was no doubt that Drinker had made himself liable for the debts of Ross, by agreeing to receive one half of the profits of the business, carried on in the name of the plaintiff. These profits constituted the fund among other things, from which the creditors were to be paid; and by consenting to take a portion of that fund for his services, the defendant made himself liable for the debts of the concern. This is a well settled principle of the law of partnership. [1 Camp. R. 329.]
    The plaintiff, it is true, has denied in his answer, the existence of a partnership; but that is a conclusion of law which he cannot deny; for if he admits an agreement, which in judgment of law constitutes a partnership, his denial cannot affect the agreement, or alter the conclusion which the court must draw from it. The agreement is disclosed by the answer, and the court must say whether that constitutes a partnership or not

      In this case, the business carried on, in the name of Ross, was for the joint benefit of himself and Drinker. One party brought money into the concern; the other, knowledge of business, talents, industry and personal services. Those services formed a fair equivalent for the capital, and the profits to be derived from the plaintiff’s capital, used by the defendant, for the common benefit of both, were to be equally divided between the parties. How can we escape the conclusion, then, that the transactions between the parties, were partnership transactions, and that a Court of Chancery is the only tribunal which can do justice between them?
    The very claims of the plaintiff show a partnership. The action is for money had and received. The plaintiff proves, that the defendant received the money, and the latter asserts, and before a proper tribunal, would have an opportunity of proving, that the amount with which he stands charged, constitutes a part of the losses of the business. The plaintiff in his answer, absolves the defendant from his liability for losses, and yet, by suing him for the capital put into his hands, he effectually charges him with losses, which are the- foundation of the present demand. In the books of the plaintiff, the defendant is charged with losses; and how can an equitable balance be struck in a court of law ? Chancery is the proper tribunal for the liquidation of partnership accounts, and thither the plaintiff should go for relief if he has any just cause of complaint. There the whole transaction can be examined ; the master can take the books into his possession; the parties can appear and make explanations, and equal justice can be done to both.
    But we rely upon the proposition with which we set out; namely, that the agreement disclosed by the answer in chancery, in judgment of law constitutes a partnership, and that the plaintiff has not, therefore, a right to maintain this action. If this position be true, there must not only be a new trial, but the court will, by their opinion, inform the plaintiff that he cannot support an action at law at all, after the disclosures made by his answer. Before assumpsit can be maintained, a balance must be struck. If any thing remains unsettled, a court of law cannot interfere between the parties, but they must be left to the only tribunal which can do equal justice between them. [Atwater v. Fowler, 1 Hall's R. 180. Rogers v. Rogers, Ib. 391. 394.]

      Mr. J. Greenwood and Mr. Foote, contra, for the plaintiff, contended,
    that there was no partnership between the plaintiff and the defendant, and that there could not, therefore, be any objection to the action. That it was apparent, from the answer in chancery, upon which the defendant relied, that he was a mere agent, or clerk in the employment of the plaintiff, whose compensation was made to depend upon a contingency. He had no power to use the plaintiff’s name; he was not authorized to contract debts ; he had no discretion except as a mere agent. He, himself, had repeatedly denied the existence of the partnership, and could now be permitted to shield himself from a just responsibility, by holding up the forms of the law. They denied that the defendant was a partner at all in any sense of the term.
    The principle, they said, upon which a person is made liable as a partner, to third persons, (except in cases of plain agreements,) is, that he withdraws a part of the fund from the creditors.- In this case, the defendant could not withdraw the fund, for he had no right to touch it, until all the debts of the concern were paid. He was to be compensated by profits, which means, that he was to partake of what might remain, after the creditors were all paid, and the plaintiff’s capital had been returned to him. But in this case there were no profits, and the defendant had not a legal right to touch the fund. Instead of conducting himself like an honest agent, he receives funds to be applied in the business of his employer, appropriates them to his own use, and then leaves the plaintiff to pay the debts, and bear all the losses. He cannot now set up a partnership as his defence, but is liable, in this action, for the money which he received to the plaintiff’s use. [Waugh v. Carver, 2 H. Bla. 235. 2 W. Bla. 998. 4 East. 144. 10 J. R. 226. 1. Camp. 329. 4 Esp. R. 182. 3 Kent's Com. 11.]
    If the parties were not partners, as to third persons, a fortiori, they were not partners inter se. To constitute a partnership between two individuals, there must be an agreement between them as to profit and loss. This agreement, it is true, need not always be expressly proved, for it may be inferred from the acts of the parties. In this case, there is no express agreement proved, and the Judge submitted all the acts of the parties, from which an agreement might be inferred, to the jury; and the jury found against the fact of a partnership. Unless, therefore, the court shall be of opinion, that the plaintiff’s answer in chancery discloses an agreement, which per se constitutes a partnership, there cannot be a new trial. The answer negatives the idea of a partnership ; it denies it, and shows no facts from which it may be inferred, as a conclusion of law. The defendant was a mere agent, who might have been dismissed at any moment. A partnership is usually for some definite period ; but here, nothing was said as to time. This strengthens the position we take. Partnership, as between the parties, is a contract. The plaintiff denies any such agreement, and the defendant denies it. In the absence of proof, is the court to infer a contract which both parties repudiate 1 As to third persons, a man may be made liable even against his will; for if he permit his credit to be held out to the world, for the benefit of another, he may be compelled to suffer the consequences. But, as between the parties themselves, there must be an agreement, and here none is shown by the party who relies upon it. [4 Barn. & Ald. 663. The counsel for the plaintiff also commented upon the case of Dobbs v. Halsey, at length, to show that the principles of that case did not interfere with this. As to the charge of the Judge, in relation to referring the cause, for the purpose of ascertaining the exact balance due to the plaintiff, they cited, Dunlap’s Practice, 543, and the statute as to references.]
   The Court refused to grant a new trial, being of opinion that the agreement, disclosed by the plaintiff’s answer to the defendant’s bill, did not constitute a case of partnership. And, as all the other testimony was left to the jury, and they found against the partnership, the court were of opinion, that their verdict ought not to be disturbed, being supported by the evidence.

New trial denied, and the verdict to stand subject to a liquidation of the accounts by referees.

[J. Greenwood, Att'y for the plff. C. N. Mead, Att’y for the deft.]

Note.—This cause was originally brought before the court, for argument, at its preceding J une Term. It then appeared, that the defendant had filed a bill in chancery, against the plaintiff embracing the same subjects of controversy, which were presented by the action at law; but the defendant had obtained no injunction to restrain the proceedings at law, nor had he any stay of proceedings from a Judge. The court were of opinion, that it was irregular for a party to proceed in this court, when it was apparent that another tribunal, whose jurisdiction could not be questioned in cases of partnership, had the same subject before them. The court, therefore, ordered the argument to be postponed, in order to give the defendant an opportunity to restrain the plaintiff from proceeding at law, by a proper application to Chancery. The defendant having neglected to do this, the cause was brought on at this term, and disposed of as appears by the case.


text:
    Edward W. Dunham and Romeo Wadsworth versus The American Insurance Company of New-York.
    Notwithstanding the clause in a policy of insurance, whereby the insurad warrant “ the property “free from any charge, damage or loss, which may arise In con- “ sequence of a seizure, or detention for, or on account of any illicit, or prohi- '• bited trade,” the underwriters are liable for the consequences of an illicit traffic, barratrously carried on by the master and crew, at a foreign port, without the knowledge or privity of the owners, whereby the property insured is seized, and becomes forfeited by the laws of the country.
    This was an action upon three several policies of insurance, underwritten by the defendants, one upon the vessel, another upon the cargo, and the other upon the freight of the schooner Gertrude, to recover the amount of expenses incurred in consequence of the seizure and detention of the vessel and cargo, at Puerto Cabello, in the Republic of Colombia, through the barratry of the master and mariners. The defendants, by their policies, stipulate to take upon themselves, the perils of the seas, arrests and restraints, and detainments of all kings, princes or people, “ barra- “ in/ of the master and mariners” &c.; and the assured warrant the , , . ... . property free from any charge, damage or loss, which may arise in consequence of a seizure or detention for or on account of any illicit or prohibited trade, or any trade in articles contraband of war.
    A verdict was taken by consent, for the sum of eighteen hundred and seventy three dollars and two cents, being the amount of the plaintiff’s demand, subject to the opinion of the court on the following case.
    The plaintiffs were the owners of the vessel, and that part of the cargo insured; but had taken other goods on board, on freight: the whole cargo, however, consisting of lawful goods, admissible in the ports of Colombia, laden at New-York, and shipped for the purpose of being landed and sold at Puerto Cabello. The vessel sailed from New-York, bound to Puerto Cabello, with her cargo, on or about the ninth of August, 1827, and on the 28th day of the same month, arrived at Puerto Cabello, under the command of James Anthony, the master. Immediately on her arrival, the captain or collector of the port, and the custom house officers, came on board, and demanded of the master the manifest of the cargo, which was given; they then proceeded to search the forecastle of the vessel, where they found, secreted, two bags, containing 75 lbs. of tobacco, and one bag and one box containing 37 lbs. of cigars, which were not contained in the manifest, and had been clandestinely taken on board by the cook, one of the crew of the vessel, on his own account, without the knowledge or consent of the owners or supercargo, and secreted, with a view of being smuggled into Puerto Cabello. The collector and officers then proceeded to search the cabin, where they also found, secreted, four boxes of combs, not inserted in the manifest; and they then opened the captain’s chest, where they found five boxes and three bundles of Havannah cigars, three bundles of snuff', six boxes of mustard, twelve pair of pantaloons, one hat, eleven pounds of leaf tobacco, thirty boxes of paste blacking, eighteen pairs of ear-rings, twelve' four boxes of raisins, twelve bottles of essences, and sundry other articles of merchandise, which belonged to the captain, and had been clandestinely taken on board by him, on his own account, without the knowledge or consent of the owners or supercargo, for the purpose of being smuggled into Puerto Cabello for sale. Of the aforesaid articles, the importation of tobacco' and cigars, was, at the time, absolutely prohibited, by the laws of Colombia; and the other articles were by the same laws, required to be entered on the manifest, and were subject to the payment of duties ; but none of them were so entered on the manifest. Upon making this discovery, the vessel and cargo were both seized by the public authorities of Puerto Cabello, as forfeited to the government of Colombia, for violating the laws, prohibiting, under the penalty of forfeiture and confiscation, the importation of tobacco and cigars; and also for the intended fraud on the revenue, by reason of the other articles not being included in the manifest, and an armed force was put on board the vessel, and the captain and cook were committed to prison. Proceedings against the vessel and cargo were instituted in the proper tribunals of Colombia, but, through the exertions of the consignee there, the vessel and cargo were finally given up at a heavy expense incurred.
    It was admitted that, by the laws of Colombia, the importation of tobacco and cigars, into Colombia, at the time, was prohibited under the penalty of confiscation of the vessel and all the cargo on board, and the vessel and cargo were also liable to seizure and confiscation, for the omission to insert in the manifest, the other articles intended to be smuggled, by the master, into Puerto Cabello ; and the present action was brought to recover the amount of expenses paid by the plaintiffs in effecting the liberation of the vessel and cargo.
    It was also admitted, that the conduct of the master and cook, was barratrous, and the point reserved was, whether the defendants were protected from liability by reason of the clause in their policies, exempting them from responsibility in cases of illicit and prohibited trade. If the court should be of opinion, in favor of the plaintiffs, the verdict was to stand, otherwise a nonsuit was to be entered. Either party had liberty to turn the case into a bill of exceptions or special verdict.
    The case was submitted to the court upon the following point made by the plaintiffs, viz ¡—that the underwriters are responsible for a loss by illicit trade, barratrodsly carried on by the master, and are not protected by the clause in the policy against illicit trade. [Suchley v. Delafield, 2 Caines’ R. 222.]

   The Court gave judgment for the plaintiffs, on the authority of the case of Suckley v. Delafield, as being exactly in point.

Judgment for the plaintiffs.

[W. Slosson, Att’y for the plff. B. Robinson, Att’y for the deft.]


author: Per Curiam.

text:
    William Hankins, an infant, by Sarah M. Hankins, his guardian, versus Elisha Kingsland.
    An officer who has levied an execution upon personal property, is not deprived of his special interest therein, by taking the bond or receipt of a third person, stipu. lating for its production on the day of sale; and, if forcible possession be taken of the goods by a wrong-doer, the officer may maintain trover for them, founded upon his special interest.
    If upon the return to a certiorari, the plaintiff in error rely upon infancy, disclosed by the record, as a defence, it must be specially assigned as error in fact, that the defendant in error may take issue upon it.
    Certiorari to the Assistant Justice of the 12th Ward.
    The plaintiff in error, in this case, had entered into partnership with one Fisher, with whom, he carried on the business of harafterwards having dissolved the he sold out his interest in the joint stock to Fisher, and surrendered the possession to him. The defendant in error, (who was an officer,) having an execution against Fisher, levied upon the property which had formerly belonged to the partners, and oue John Beatty gave him a bond or receipt for it, whereby he stipulated that the goods levied on should be forthcoming at the day of sale. The plaintiff in error not having been paid for his property by Fisher, repossessed himself of a part of it, after it had been levied on by Kingsland.; and the latter, thereupon, brought an action of trover against Hankins, before Mr. Flanagan, the Assistant Justice of the 12th Ward.
    At the trial of the cause before the Justice, upon the general issue, the defendant, for the purpose of defeating the action, offered to prove the right of property in the goods levied on, to be in Beatty. This evidence being objected to, was rejected by the Justice, and the defendant excepted to his opinion. The defendant then proved that he was but 18 years old at the time of the trial, and insisted that no recovery could be had against him, upon the ground, that as he was an infant, the sale by him to Fisher was void, and that he had, therefore, a right to repossess himself of the goods sold. He also insisted that he could not be proceeded against in the action, as no guardian had been appointed for him, by whom he could appear and defend. It appeared, also, by the testimony of one of the witnesses, that Fisher had refused to pay Hankins the whole amount due to him, upon the ground that he was “ under age.”
    The Justice gave judgment in favor of the plaintiff for fifty dollars, and the defendant then took out a certiorari.

      Mr. J. R. Whiting, for the plaintiff in error,
    now insisted that the judgment below was erroneous, for the reasons assigned before the Justice. That an infant must appear and defend by his guardian, or next friend, and that the proceedings in this case were irregular. [2 Saund. 212. Mockey v. Grey, 2 John. R. 192. Alderman v. Tirrell, 8 Ib. 326. Dewitt v. Post, 11 Ib. 460. Arnold, Duncan, et. al. v. Sanford, 14 Ib. 417.]
    That the sale by Hankins to Fisher was voidable, if not void, on the ground of the infancy of the former. He had a right, therefore, to rescind the contract of sale, and repossess himself of his property.

      Mr. J. D. Craig, contra,
    insisted that if the plaintiff in error had intended to rely upon infancy as a defence, he ought specially to have assigned, as error in fact, that he was an infant, and that he had appeared in person, and not by guardian, that the defendant in error might have put the fact of infancy in issue; whereas, he has presented a general assignment of errors in law merely. [9 J. R. 159.]
    II. The fad, as to the infancy, was submitted to the Justice upon the general issue before him, and decided against the plaintiff in error. If he was not an infant, no guardian could be assigned; and if, upon the return to the certiorari, the plaintiff in error had specially assigned for error his infancy, such an assignment being against the record, would have been unavailing. [3 J. R. 437.]
    III. The receipt given by Beatty did not divest the officer of his special property in the goods, and the Justice very properly excluded the evidence offered as to that point.

      Mr. Whiting in reply.
    I. The defendant in error, if he intended to rely upon the full age of Hankins, should have pleaded in abatement to the assignment of errors, or moved to set it aside. By permitting the court to assign him a guardian, to prosecute his writ of error as an infant, the defendant thereby admits the fact of the plaintiff’s infancy.
    II. The Justice did not find that the defendant below was of full age. “ After taking three days for deliberation and advice, he gave judgment for the plaintiff against the defendant.” He did not say, under his oath of office, that Hankins was of age.
    III. The objection, that the infancy of Hankins should have been assigned as error in fact, is not well taken. If it did not appear by the return, and thus on the face of the record, it would have been necessary to have assigned it. But it appears to be a well settled principle, that if the error is apparent upon the return, it may be taken advantage of upon a general assignment of errors. [Bacon’s Abridg. Tit. Error, K. 2, page 487, note A.] In Waling v. Toll, [9 John. R. 141,] it appeared upon the return of the Justice, and the court reversed the judgment. In Bliss v. Rice, the infancy of the defendant did not appear, it was therefore necessary specially to assign it as error in fact. In Ingersoll v. Wilson, [3 John. R. 437,] the defendant pleaded infancy, and issue was joined on that fact. In that case, the Justice, first from inspection, decided him to be of full age, and therefore refused to assign him a guardian. The question was then submitted to a jury, who also expressly found that plea against him. The court, therefore, very properly refused to permit the error to be assigned, because it was against the record.
   Per Curiam.

Upon the trial of this cause, the defendant below set up the right of Beatty to the property in question, as a defence to the action. He, it .appears, had given a bond to the officer, who levied the execution, that the goods should be forthcoming at the day of sale; and they were left on the premises, where the levy was made. This did not divest the special property of the officer, nor deprive him of the right of immediate possession, and the action of trover could be maintained by him. There was, therefore, no error, in this respect, in the court below.

But the infancy of the original defendant, is now alleged as a ground for reversing the judgment. This is error in fact, and it is well settled, that it must be specially assigned, that the defendant in error may take issue upon it. Although the fact of infancy was given in evidence in the court below, it could not have been as a defence to the action, as it constituted none in trover. The Justice cannot be considered, therefore, as deciding against the fact of infancy, upon the evidence; or if he is, his decision is clearly against the proof. The special assignment of infancy, therefore, as error, would not be against the record; and upon a joinder in error, upon such an assignment, the fact would be tried in the usual manner.

Upon the general assignment of error in law, the defendant in error would be entitled to judgment. But the plaintiff may withdraw it, on payment of costs, for the purpose of assigning error in fact, specially.

[J. D. Whiting, Att'y for the plff. S. D. Craig, Att’y for the deft.]


text:
    Michael D. Vreeland versus Simeon Hyde.
    The defendant endorsed a promissory note, payable on demand, made to secure the payment of a sum of money loaned to one of the makers, by the plaintiff The note was not made for commercial purposes, nor was it ever negotiated, and the holder resided out of the state of New-York. At the end of 19 months from its date, demand of payment was made, which being refused, notice was given to the endorser, who claimed to be discharged by the laches of the holder.
    Held, that the rule requiring promissory notes, payable on demand, to be presented within a “ reasonable time” was applicable chiefly to those which are made for commercial purposes. That the present was to be likened to a case of guaranty or suretyship, and that the defendant was liable on his endorsement.
    This was an action of assumpsit,brought by the endorsee against the defendant, as endorser of a promissory note of the following tenor.

      New-York, June 18, 1827.
    On demand, we promise to pay to the order of Simeon Hyde, eight hundred dollars, for value received, with interest from date, without default or defalcation. Hyde & Banta.
    Witness, John V. Bantav
    The note was endorsed by the defendant, and the following memorandum was entered upon the back of it. “ Paid, June 18, “ 1828, one year’s interest on this note, which is 48 dollars.”
    At the trial of the cause, the subscribing witness, being called by the plaintiff, testified, that he had been a clerk in the employment of Hyde and Banta; that the defendant was their “confidential endorser,” receiving the same favor from them in return. That the plaintiff was a farmer by occupation, an old man, between 70 and 80 years of age, residing at a place called “ The English Neighborhood,” in the state of New-Jersey, about twelve miles from New-York. That the plaintiff loaned to Banta, (one of the makers,) the sum of 800 dollars, on the 8th of June, 1828, and received the aforesaid note, endorsed by the defendant, as security for the repayment of the loan.
    The interest on the note was paid at the end of one year from its date, but it did not appear that any demand of payment was made of the makers, until the 23d of March, 1829, and notice was given to the endorser the next day. At the date of the note, Eleazer Hyde, one of the makers, was dead, and his house had become insolvent, having made an assignment of their property to John E. Hyde, the defendant, and one W. Cox, for the benefit of their creditors; and it was stipulated in a schedule of said assignment, that if the defendant was liable on his endorsement of said note, that, then, the amount should be refunded to him out of the proceeds of the assignment.
    Upon this state of facts, the defendant contended that he was not liable, being discharged from his endorsement by the laches of the holder, in not making demand and giving due notice. The presiding Judge (Hoffman) remarked, that the points presented were chiefly questions of law, and by his recommendation, a verdict was taken for the plaintiff, subject to the opinion of the court upon a case, either party having liberty to turn the same into a bill of exceptions.
    The cause was now argued by Mr. S. B. Romaine, for the plaintiff, and Mr. J. A. Foot, for the defendant.

      [Mr. Romaine cited Chitty on bills, 197. 2 Caines’ R. 369. 4 J. R. 224. 13 Mass. R. 131. 1 Term R. 167. 1 Cowen’s R. 397. 13 East’s R. 187. Mr. Foote cited the same case from Cowen and Chitty on Bills, 269.]
   Per Curiam.

This was an action against the defendant, as endorser of a promissory note, dated the 18th day of June, 1827, payable on demand, with interest. The defendant resided in New-York, and the plaintiff in the state of New-Jersey, about 12 miles from the city. The demand of payment, of the makers, was made on the 23d of March, 1829, and notice given to the defendant, as endorser, on the next day. The question is, whether the defendant was discharged by the delay in demanding payment.

It is settled in our courts, that a note, payable on demand, must be presented for payment within a reasonable time, and notice given to the endorser, and that when the facts are ascertained, what is a reasonable time, is a question of law. [Sice v. Cunningham, 1 Cowen 408. Furman v. Haskin, 2 Caines’ R. 369.] Every case must, in some measure, depend on its own circumstances. In the present case, it appears that the note was given for a loan of money, and upon interest, and that the interest was paid and endorsed on the note at the end of one year. Although there is no explicit evidence to show that the defendant knew the purpose for which the note was made, or how it was used by one of the makers, for whose accommodation it was endorsed; yet, the circumstances of the case are sufficient to justify the belief that the defendant was apprized of the plaintiff’s possession of the note; and it evidently was not made for the ordinary purposes of mercantile negotiation. This is apparent from the phraseology of the note itself, and the caution with which it is worded. It is payable on demand, it is true, but it bears interest, and is to be paid by the makers without “ default.” This is sufficient to show that the endorsement of the defendant, was obtained under no ordinary circumstances, and that the makers had assured him, that he should come to no harm by his act of endorsing. The note itself bears evidence upon its face, that it was given to secure the re-payment of a loan, and that it was not to be demanded at the usual time, and that the endorser was considered in the light of a surety or guarantee.

The rule, requiring a presentment within a reasonable time, was intended for, and is applicable to negotiable instruments made for commercial purposes only. It was not intended for cases of suretyship, or notes of a like description, and the present one is, evidently excluded from the rule, by the peculiar circumstances attending it. Here the holder was an old man, not connected with business, residing at some distance from the city. The defendant knew these circumstances, and cannot claim any peculiar, indulgence from a consideration of the facts. As each case is governed in some degree, by the circumstances attending it, in this, there must be judgment for the plaintiff.

Judgment for the plaintiff.

S. B. Romaine, Att’y for the plff. A. Dey, Att’y for the deft.


text:
    Charles Belden and George Belden versus Rowland Davies and John M. Davies.
    The only fraud which can be pleaded, at law, to avoid a deed, is fraud in its emcutio)if such as a fraudulent reading of it, or the substitution of one instrument for another, or the obtaining, by some device, such an instrument os the party did not intend to give.
    To an action of assumpsit, to recover the balance of an account, the defendants pleaded a release, under the seal of the plaintiffs. The plaintiffs replied, that the release was obtained from them, by the fraud and covin of the defendants,—on Which issue was joined. At the trial, the plaintiffs, to support this issue, offered to show fraud, on the part of the defendants, in the consideration on which the release was founded. The defendants contended, that the proof ought to be confined to fraud, in the execution of it only, and that if such fraud was not shown, the release was a flat bar at law. Held, that the position of the defendants’ counsel, was fully supported by the decisions of our own courts.
    The plaintiffs, to rebut the evidence of a witness, introduced by the defendants, offered a bill in chancery, filed by him, which contained allegations contradictory to his testimony at the trial. The witness stated, that the bill had been filed by his counsel, and that he had never read it, although he believed that his counsel told him what he intended to insert in it; but the bill was neither signed nor sworn to by the witness. Held, that the evidence thus offered was not admissible.
    The Judge, at the trial of the cause, without the consent of the defendants, and notwithstanding objections interposed by them, directed the jury, if they found for the plaintiffs, to find a nominal sum, sufficient to cover their demand, subject to a reference, to liquidate the accounts and ascertain the balance. Held, that the Judge had no power, without the consent of parties, to direct such a verdict, and that it must be set aside for irregularity.

      Assumpsit, to recover of the defendants the balance of an account. The declaration contained the common counts for goods sold and delivered, money lent, money had and received, &c., together with the usual count upon an account stated.
    The defendants pleaded, 1. The general issue. 2. Payment. 3. A release under the hands and seals of the plaintiffs, bearing date the 21st day of April, 1827, whereby the defendants were released and discharged from all claims and demands of the plaintiffs, and from all causes of action, in the fullest and most ample manner.
    The plaintiffs answered the second plea, in the usual manner, and took issue upon it. In reply to the third, they set forth, that the release therein mentioned, “was had and obtained by the fraud “ and covin of the defendants,” and this they were ready to verify. The defendants rejoined, that “ the said deed of release was had “ and obtained fairly, and not by fraud and covin;” and of this they put themselves upon the country.
    The cause was tried before Mr. Justice Hoffman; and at the trial, the counsel for the plaintiffs, upon opening their cause to the jury, stated it to be their intention, “ to_show fiaud in the con- “ sideration of the release.” The defendants’ counsel objected to this course, insisting, that, under the issue joined, fraud in the execution of the instrument was the only evidence admissible: That the release, if properly and fairly executed, was a flat bar at law, and that the remedy of the plaintiff, as to the alleged fraud, could only be found in a Court of Equity.
    The presiding Judge ruled, however, that the plaintiffs had a right to go broadly into the whole matter, and show fraud in the consideration of the release; to which opinion, the defendants excepted.
    The plaintiffs then called witnesses to show, that the release, set forth in the plea, was obtained by the defendants, after they had become insolvent, under false representations as to their real situation and means of payment. The defendants, it appeared, had been merchants in New-York, and there had also been a certain house in New-Orleans, transacting business there, under the firm of Cromelien, Davies & Co., in which the only ostensible partners were David Cromelien and David Davies. Both these houses failed at or about the beginning of the year 1826, and the defendants, during that year, employed themselves in making compromises with their creditors. In the course of their negotiations, it appeared that Rowland Davies, (one of the defendants,) made representations to the creditors, as to their property and means of payment, which turned out afterwards, to be essentially incorrect; and which were, as the plaintiffs contended, false and fraudulent. These incorrect or false representations, were all . _ made by Rowland Davies; but on one occasion they were made in the presence of John, the other defendant, who did not correct or contradict them. They principally related to a debt of 20,000 dollars, said to be due to the defendants, from Cromelien, Davies & Go., which Rowland Davies represented as almost a total loss but from which the defendants afterwards realized a considerable sum.
    The basis of the release, (as the witness of the plaintiffs’ testified,) or the chief reason for granting it, was the alleged loss, sustained by the defendants, in the failure of Cromelien, Davies & Co. The plaintiffs claimed, at the time it was executed, a balance of seventy thousand dollars and upwards, and the defendants admitted a considerable sum due, (21,000 dollars,) but represented themselves as unable to pay more than 2,500 dollars to the plaintiffs, as a compromise. The negotiations for the release were protracted for a considerable time, the plaintiffs claiming, on their part, a release from the defendants of the same character, with that, which they were to give. This the defendants, for a considerable period, (nearly a year,) refused to give, alleging that they were fearful that the plaintiffs, by virtue of a power of attorney, which they held from the defendants, had contracted debts in their names ; but, upon receiving an affidavit from the plaintiffs, denying any such cause of danger, the parties finally arranged their difficulties, executed mutual releases in the presence of a witness, and delivered the same in pursuance of the previous arrangements.
    The defendants also obtained, from others of their creditors, releases of a like tenor, with that executed by the plaintiffs, and they delivered into the hands of certain assignees, a considerable amount of property to be distributed among them, of which the plaintiffs were to receive 8,500 dollars. It appeared, however, that the property delivered to the assignees, did , not produce the amount contemplated, and the plaintiffs’ proportion falling short about two thousand dollars, they, as soon as all the facts of the case had come to their knowledge, refused to complete the arrangement, and brought this action to recover the balance of their account. At the trial, the plaintiffs offered in court, to cancel the release received from the defendants, if they would cancel that pleaded in bar of the action; but this the defendants refused todo.
    Most of the facts, relative to the release, were proved by the testimony of one of the creditors, (John Jewett,) who had acted as an agent between the parties, and had himself given the defendants a release, founded upon the same consideration with that furnished by the plaintiffs. His testimony was objected to, at the trial, by the defendants; but the objection was overruled by the presiding Judge. After the testimony on the part of the plaintiffs was closed, the defendants moved for a nonsuit, upon the same grounds which were afterwards urged for a new trial; but the motion was overruled. Having excepted to the decision of the Judge, they opened their defence, and called witnesses to sustain it. They denied that any thing was due, upon a fair statement of the accounts, to the plaintiffs, although they admitted, that they supposed that there was a considerable balance against them, at the time the release was executed; and they introduced evidence to show, that there was, in fact, a balance due to them from the plaintiffs. The Judge remarked, that he would not go into a minute examination of the accounts, but would direct the jury, if they should find a verdict for the plaintiffs, to find a nominal sum, sufficient to cover their entire demand,, subject to such an adjustment of the accounts, as the court might afterwards direct. This course was objected to-ón the part of the defendants, when the charge was given to the jury, but all the accounts between the parties were laid before them.
    The defendants also called witnesses to prove, that the plaintiffs, before the release was executed, had full access to the books and papers of Cromelien, Davies & Co., had examined their accounts, and understood their situation perfectly well. That they executed the release, with due consideration, after all the facts relative to their situation were known, and that they were in no way deceived as to the true circumstances of the case. Among others, they called David Davies, the partner in the house at New-Orleans, who testified, that the plaintiffs were general partners with Cromelien, Dames fy Co., and that they became such in the summer of 1824, although the agreement of partnership was not reduced to writing; and this testimony was fully supported by two other witnesses.
    The plaintiffs, for the purpose of discrediting the testimony of Davies, as to the partnership, offered in evidence a bill in chancery, filed by him against Cromelien, after their failure, wherein nothing was said of the connexion between the plaintiffs and the New-Orleans’ house. This bill was neither sworn to nor signed by the witness, but had been filed by his solicitor. He testified that his counsel stated to him, in general terms, what the bill would contain, but that he did not see it, either before or after it was filed, and that he was ignorant of its particular contents.
    The defendants objected to the reading of this bill; but the presiding Judge overruling the objection, allowed it to be read to the jury, and the defendants excepted to his decision.
    A considerable amount of testimony was offered, by both parties, to sustain their respective allegations, which it is not necessary to detail; the defendants denying that any balance was due to the plaintiffs, and insisting that they were partners with Cromelien & Davies, of New-Orleans.
    The plaintiffs on their part, offered evidence to sustain their whole demand, to prove fraud in the consideration of the release, and to contradict the defendants’ allegation, as to the partnership.
    The Judge charged the jury, that they must be satisfied, in the first place, that there was fraud as to the consideration of the release, on the part of the defendant, John Davies, as well as of Rowland, otherwise the action could not be sustained; and that in weighing the testimony on this subject against John, they must leave out of view the representations alleged to have been made by Rowland. He also charged them, that if they should be of opinion that there was a partnership between the plaintiffs and Cromelien, Davies & Co., that then the action could not be maintained. That the testimony, as to this point on the part of the defendants, was positive, while that on the part of the plaintiffs was chiefly of a negative character; but that they must decide upon the question of partnership as a matter of fact. That as to the release, there appeared to have been no want of deliberation in preparing and executing it. That if they should find that the plaintiffs had access to the books of Cromelien, Davies & Co., containing the accounts of the defendants, and disclosing what was now said to be misrepresented, or if they should find that they had acquired the same knowledge aliunde, that then they should find for the defendants, because in such a case there could have been no false representations: that the mutual releases were not important in the case, although they presented a peculiar feature in it, having been delayed for a longtime, in consequence of the refusal on the part of the defendants to execute that which was held by the plaintiffs. That if the jury found, that in point of fact, the defendants were not indebted to the plaintiffs, then, that the verdict should be for the defendants on the issue, because there could be no fraud. He also charged them, if they found for the plaintiffs, that they might find a nominal sum, and the court would after-wards direct a liquidation of the accounts.
    To the last part of this charge, the defendants objected, contending that it was the business of the plaintiffs to prove their claim precisely. That if the question of fraud was left to the jury, they ought also to find the amount due to the plaintiffs, the two questions being so connected that they ought not to be investigated and decided by different persons, and that the law did not authorize a trial of only a part of a cause by the jury.
    The jury returned a verdict for one hundred thousand dollars in favor of the plaintiffs.
    The defendants now moved for a new trial, and Mr. R. Sedgwick and Mr. Anthon in support of the motion contended,
    that the evidence offered to prove fraud, in the release, was inadmissible, and ought to have been overruled. That the issue joined upon the third plea was purely technical, and presented a question as to the manner in which the discharge was procured, not as to the consideration upon which it was founded. That the release, if properly executed and duly delivered, presented a flat bar at law, unless the plaintiffs could show that the instrument itself was a different one from that which they intended to execute, and that it was fraudulently procured by the defendants. The validity of the deed, (they said,) when legally delivered, and there is no fraud or mistake as to its execution, cannot be tried in a court of law, but the party which sets up a want of consideration, or a fraud, which reaches beyond the execution of the instrument, must go into a Court of Equity, and obtain an issue there, upon which the validity of the instrument may be tried. And a Court • of Chancery does not, on all occasions, as a matter of course, declare the instrument void, but it takes care to administer justice between the parties, according to the very right of the case.
    In the case now before the court, there are mutual releases, and if the efficacy of the defendant’s discharge is destroyed by the verdict of the jury, what is to prevent the plaintiffs from availing themselves of that which they hold from the defendants, whenever it may become necessary for them to use it as a defence 1 Even if there was fraud in the consideration of the discharge given to the defendants, it does not follow that there is any legal objection to that which the plaintiffs received. Now there would be manifest injustice in destroying the release of the defendants, in this collateral way, leaving that held by the plaintiffs to retain all its efficacy. The fraud set up here, is a fraud in the consideration ; but a part of the very consideration for the discharge given to the defendants, is the release obtained from them. It is in evidence, that the plaintiffs deemed the release, given by the defendants, a matter of vital importance in the compromise between them, which was delayed nearly a year in consequence of a reluctance, on the part of the defendants, to grant it. If the release held by the defendants, is destroyed, then, that held by the plaintiffs ought not to remain, and the plaintiffs cannot escape from the obvious force of this remark, by producing their offer to cancel both instruments. The effect of their offer was to anticipate the decision of the proper tribunals, and the defendants were not bound to accede to it. They had a right to rely on the protection afforded by the discharge, without resorting to a dilatory and expensive examination of all the transactions between themselves, and the plaintiffs. If the discharge was deliberately executed, (and that it was is fully proved,) if the plaintiffs put their hands and seals to the very instrument which they intended to deliver; if they understood its contents, and were aware of the effect of their own deliberate act, a court of law cannot take away from the defendants the protection afforded by the deed. The release pleaded, is a flat bar at law, and its effect cannot be evaded in this co-lateral way.

      If it were conceded, that the decisions of the English courts the positions assumed by the plaintiffs, those taken by the defendants are fully supported by the repeated decisions of our own courts. From some expressions used in Starkie’s Treatise on Evidence, and in Saunders on Pleading, it would seem that doubts exist in England, whether fraud, in the consideration of a release, may not he set up at law, to avoid its effects. But the subject in this state is not a matter of doubt,—it has been settled, and that too, upon principles perfectly satisfactory. The Judge’s decision upon this point was, therefore, erroneous, and a new trial must be granted to correct the error, and give that effect to the release which is secured to it by law. [Com. Dig. Plead. 27 R. 14 W. Saund. on P. and E. 527. Vrooman v. Phelps, 2 J. R. 177. Dorr v. Munsel, 13 J. R. 431. Franchot v. Leach, 5 Cowen’s R. 508. Jackson v. Hill, 8 Ib. 294. Champion v. White, 5 Cowen’s R. 510. 1 Hopkin’s R. 284. 4 Swanst. R. 444.]
    II. The plaintiffs ought to have been nonsuited at the trial: 1st, because there was no proof of any debt due to them ; 2dly, because there were mutual releases, and because the plaintiffs refused to cancel their own, while repudiating that held by the defendants.
    III. The bill in chancery was illegal evidence, and ought not to have been admitted. If it had been sworn to, it might probably have been read, as containing admissions of the witness under oath, which he could not gainsay. If he had read it even, it might have , been considered as containing statements contradictory to those made on the trial. But a bill filed by counsel has never been held to furnish evidence against the complainant. [Peake’s Ev. 54. 2 Stark. Ev. 287. 2 Sel. N. P. 712.]
    IV. The Judge erred in charging the jury to find a nominal sum for the plaintiffs, in case the verdict was in their favor. The jury were bound, if the case was committed to them, to find as to the amount of the debt, as well as the fraud. If the discharge was void, then the accounts between the parties were open, and should have bgen nassed iroon bv the iurv. The Judge gave to theta the power of deciding, as upon a special issue out of chandlery. He had no authority for this under the statute in relation to referees, and no precedent for it can be found, either here or in England.
    V. The verdict was against law and evidence, there being no sufficient proof of a debt due to the plaintiffs; and the jury should have found for the defendants, on the ground of the partnership between Cromelien, Davies & Co. and the plaintiffs, which was distinctly proved by three witnesses.

      Mr. J. W. Gerard, contra, for the plaintiffs, contended,
    in the first place, that there could be no doubt as to the fact of the fraud practised by the defendants on the plaintiffs, for the purpose of procuring the discharge. That the delay in the compromise was occasioned by the reluctance on the part of the plaintiffs to grant the release, and it was finally obtained by false pretences and fraudulent representations. That this fact had been found by the jury, to whom the evidence on the subject was committed, under a charge, in most respects, eminently favorable to the defendants. That the court would, therefore, consider the point as established, (as it was not attacked by the defendants’ counsel,) that the release would not have been granted to the defendants, but for their own fraudulent representations and false pretences.
    The question then is, (he said,) whether the defendants can avail themselves of a discharge obtained by fraud, to defeat an action at law brought to recover a debt due from them Í Whether in any court, fraud itself can be interposed by the guilty party, as a defence to an honest demand. It is an obvious principle of law, that no man can take advantage of his own wrong; and the question is, whether this principle is to find an exception in the present case.
    The principle upon which the replication rests, is to be found in the first of Chitty’s Pleadings, 553, and the precedents to support it, are to be found in the second of Chitty, pages 464 and 610. The defendants cannot narrow the issue in which they have joined; and having alleged that the release was obtained “ fairly, and without fraud or covin,” they are bound to abide by the question which they have consented to try. A release obtained by fraud is void ; it is no discharge, it cannot furnish a defence; and when the jury declared by their verdict, that the release was not obtained fairly, but was procured by fraud, it ceased to be an impediment in the way of the other questions, to be considered by them.
    In the cases cited for the defendants, there was no issue joined upon the question of fraud; but the opinions of the court were elicited chiefly upon the pleadings; and all their decisions go upon the ground, that a failure of consideration will not at law avoid a deed. The consideration in the case before the court has not failed, and we do not impeach the release for that cause. We say that the release is void because fraudulent, and being void, it cannot be used as a defence at all. An issue was joined upon the question of fraud, by which the fact is found, and that question being settled, the law pronounces the release void. If the issue tendered by the replication was immaterial or improper, why did not the defendants demur ? We set forth a fact, which we supposed was sufficient to avoid the deed. The defendants, instead of saying, by a demurrer, that the facts set up in the replication could not affect the release, denied their existence by a rejoinder, and challenged the proof. They are, therefore, concluded by an issue voluntarily accepted by themselves, but which they could not support. If the release be a bar to this action, then fraud itself, distinctly found upon an issue for that purpose joined, affords as good a defence at law as honesty. We consider the plea as well founded in principle, and supported by numerous decisions. [3 Stark. Ev. 1293, release. 2 Ib. 586. 3 J. R. 317. 2 Wils. R. 347. 1 Bos. and Pul. 447. 7 J. R. 421. 6 Ib. 263. 3 Chit. Comm. Law. 691. 1 Cox’s Rep. 178. 2 Saund. on P. and E. 527. 2 Bridg. In. fraud. 15 J. R. 145. 3 Bac. Ab. fraud, 320 (note.) 1 Burr’s R. 396. 2 J. Ves. Jun. 295. 2 P. Wms. 156. 220. 2 Har. and John. 487. 7 Mass. R. 118.]
    II. If the release was fraudulent and void as to one, it was void as to bothot the defendants. [3 Cowen’s R. 577.] But this is not material, because the jury have found that there was actual fraud on the part of the defendant, John, as well as Rowland. The former was present when the false representations of the latter were made; and as they related to a matter of mutual interest, and were not contradicted nor corrected by Mm, he became a partner in the fraud, and must abide by its consequences.
    III. As to the bill in chancery, it was produced to show that the witness had made representations which were at variance with his testimony, If the bill was not sworn to, or subscribed by Mm, he must nevertheless, have known its contents, and have given them his sanction. He testifies that his counsel told him what the bill would contain: how could his counsel tell him facts to be set forth in the bill, unless they were first communicated to him by his client ? The bill was good evidence of declarations made by the witness himself, as to the partnership which he contradicted afterwards by his testimony; and if there is any unexceptionable mode of contradicting a witness out of his own mouth, this must be one. [1 Stark, Ev. 286-7.]
    IV. The direction of the Judge, as to the nominal sum for which the verdict was to be rendered, was unexceptionable. In the first place, there were long accounts between the parties, embracing a great variety of items, requiring a more strict examination than a jury could give them. The cause, at its outset, could not have been sent to referees, because the issue joined upon the third plea was to be disposed of. The Judge was not bound to go through with long bills of particulars, which would be better settled by referees. The same course has been pursued on other occasions in this court, and the practice is not only unobjectionable, but very convenient and useful.
    V. The verdict is fully supported by the evidence and by the law, and the defendants cannot complain of the charge ; it was highly favorable to them, and had, beyond a doubt, much weight with the jury. As the defendants placed the stakes for which they contended before the jury, they cannot withdraw them now, but must abide the issue.
   Oakley, J.

On the trial of this cause, one David Davies was introduced as a witness, by the defendants. The plaintiils, with a view to rebut his evidence, offered a bill in chancery, filed by him, which contained allegations contradictory to his testimony on the present occasion. The witness stated, that the bill had been filed by his counsel, and that he believed his counsel had stated to him what he intended to insert in it, but that he, (the witness,) had never read it. The bill was'not signed or sworn to by the witness, but was admitted in evidence, although objected to by the defendants.

The general rule seems now to be, that a bill in chancery will not be evidence of the facts stated in it, against the party filing it, although it is evidence to show the fact, that such a bill has been filed, in order to introduce the answer, or the depositions of witnesses. [1 Phil. Evi. 263. 7 Term R. 2. Case of the Bunbury Peerage, 2 Stark. Evi. 286, in notis.] In the present case, it could have no effect, except to discredit the witness, by showing that he had made declarations and statements in conflict with his testimony on this trial. If the bill had been sworn to, or signed by him, it might have been set up as his written statement of facts; but in its present shape, it can only be considered as the suggestions of his counsel. Though his counsel may have told him what he intended to insert in the bill, there is nothing to show that it was, in fact, drawn according to the information thus given, and it might have contained many averments, of which the witness was entirely ignorant. In any view of the matter, it does not appear to me that the filing of 'the bill is shown to be so far the personal act of the witness, as to charge him with the knowledge of the statements it contained. It was, therefore, in my judgment, improperly admitted in evidence.

2. The Judge, without the consent of the defendants, and notwithstanding objections interposed by them, directed the jury, if they found for the plaintiffs, to find a nominal sum, sufficient to cover their demand, subject to a reference to liquidate the aocounts, and ascertain the balance. The defendants now object to this as irregular.

I am not aware, that either with us, or in England, the courts have claimed a right, without the consent of the parties, to direct such a verdict. It is a practice very convenient, and it is much to be desired, that the courts should possess authority to adopt it. But the right to refer a cause at all, depends upon the statute, and that clearly contemplates only references to be made before the trial. If the parties put themselves upon the jury and go to trial, each has a right to submit his whole case to them, and all that the court can do, if it becomes apparent that the trial will require the examination of long and intricate accounts, is to discontinue it, and direct an application for a reference in the usual mode. There would seem, therefore, in this respect, to have been an irregularity at the trial of this cause, and this nominal verdict cannot be .permitted to stand.

Though, for the reasons above stated, a new trial must be granted, still it will, no doubt, be useful to the parties, to dispose of the main question on which the cause must finally depend.

The declaration contains the common counts in assumpsit, to which the defendants pleaded a release under the seal of the plaintiffs. The plaintiffs replied, that the release was “had and obtained from them, by the fraud and covin of the defendants,” on which issue was joined. At the trial, the plaintiffs, to support this issue, offered to show fraud, on the part of the defendants, in the consideration on which the release was founded. The defendants contended, that the proof ought to be confined to fraud, in the execution of it only, and that if such fraud was not shown, the release was a flat bar at law. The Judge permitted the plaintiffs to go into the evidence offered, and they proceeded to prove, that the plaintiffs were creditors, to a large amount, of the defendants, that a negotiation between them was set on foot, and continued for a considerable time, for a compromise of the debt. That mutual releases were finally executed, and that in the course of the negotiation, the defendants made certain false and fraudulent representations of their situation and property, whereby the plaintiffs were deceived into a compromise of their debt, at a much lower rate, than they otherwise would have accepted, and much lower than the defendants were in fact able to pay, and that the release in question, was executed in consequence of such false and fraudulent representations.

The question now is, whether this evidence was admissible, under the issue joined in the cause.

It is contended on the part of the defendants, that the only fraud which can be pleaded at law, to avoid a deed, is fraud in its execution ; such as a fraudulent reading of it, or the substitution of one instrument for another, or the obtaining, by some device or fraudulent representation, such an instrument as the party did not intend to give. On looking at the cases decided by the Supreme Court, it seems to me, that the position of the defendants’ counsel is fully supported.

In Vrooman v. Phelps, [2 J. R. 177,] the action was covenant on an obligation for the payment of money: The defendant pleaded, specially, that the consideration of the covenant was the purchase of a slave, and that the plaintiff fraudulently and falsely represented the slave as honest, &c. To this plea there was a demurrer. The court held the demurrer well taken, and they lay down the principle broadly, that “parol representations as to the “quality of a thing, made antecedent to the contract, though false “ and fraudulent, and though they may have induced the defendant to “make the purchase" cannot be pleaded to avoid a specialty. In Dorr v. Munsell, [13 J. R. 430,] the defendant pleaded to an action of debt on bond, that the plaintiff fraudulently obtained it, by representing himself to be the patentee of a certain improvement in the manufacture of cloth, and that he was the original inventor, when in fact, it had been previously patented to another, and the plaintiff was not the inventor, and that the defendant was induced by such fraudulent representations to execute the bond, which was given for a right to use the said improvement, &c. To this plea there was a demurrer, which was sustained. The court recognized the authority of Vrooman v. Johnson, and again said, that, at law, the defendant cannot avoid a solemn deed, on the ground of a want of consideration, and that the inquiry is precluded by the nature of the instrument.

In Franchot v. Leach, [5 Cowen's R. 506,] the action was covenant, on an agreement by the plaintiff, to sell and convey a lot of land, for a certain sum of money, agreed to be paid by the defendant The defendant offered to prove, that he purchased the lot for the purpose of a distillery, which the plaintiff knew, and falsely represented to the defendant, that a stream of water, running through the lot, was sufficient for that purpose, knowing the contrary to be the truth. The evidence was rejected, and the court held, that it was properly rejected. They said, that the case of Dorr v. Mmsell was in point, and they state the principle to be> that the fraud, which “avoids a deed, is not a fraudulent represen» “ tation as to the consideration, but a fraud relating to the execu- “ tion of it, as a fraudulent misreading, or obtaining such an instrument as the obligee did not intend to give.”

In Jackson ex dem. Church v. Hills, [8 Cowen’s R. 290,] the plaintiff sought to recover, by virtue of a lease under seal, from the defendant. The defence was, that the lease was obtained by certain fraudulent representations, as to a part of the consideration or inducement to the making of the lease. The court held, that this defence could not prevail, and they adopt the principle, in terms, that “ if the consideration of a specialty, be unlawful or corrupt, it is “ void ab initio, and may be pleaded, but that the mere failure or “ want of consideration, is not sufficient, at law, to avoid a spe- “ ciality.” The court, in that case, revised all the preceding cases, and recognized the principles upon which they were decided, and in reference to the case then before them, Sutherland, J. who delivered the opinion, said, that the lease in question, was executed upon an adequate consideration, “ with full knowledge, on the “ part of the lessee, of what she was doing, and of its legal effect “ and operation, but under a misapprehension as to a collateral circumstance, occasioned by the false and fraudulent representations of the lessee. I know of no principle,” says the Judge, “ on which such a lease can be avoided at law.”

The result of all these cases seems clearly to be, that when the consideration of a deed is not illegal or corrupt, so as to render it void, ab initio, and when it is executed, understanding^, and with a knowledge of its legal import and effect, no plea at law can impeach it. The party is concluded by the nature of the instrument, and cannot be permitted to aver any thing against it.

In the case now before us, the release in question was executed upon an adequate consideration,” to wit, the money paid by the defendants, and the release given by them to the plaintiffs. It was executed deliberately, and with a full knowledge of its legal effect, but under a misapprehension as to the ability of the defendants to pay their debts, induced by the false and fraudulent representations of the defendants. The case seems in all respects, to fall within the principles laid down in Jackson ex dem. Church v. Hills, and must, in my judgment, be governed by them. I have not deemed it necessary, to enter into an examination of the numerous English cases,- cited by the plaintiffs on the argument. I consider the principles, which, must govern us, as fully established in our own courts.

The remedy of the plaintiffs, is in the Court of Chancery. That court, in the case of Irving v. Humphrey, [1 Hop. R. 284,] recognized it as a settled rule, that if a debtor, upon a compromise with his creditors, make any material false representation, as to his property, it will avoid any deed, by which the creditors may have discharged him. But in such cases, that court does not always set aside the compromise entirely, but will order the debtor to account for any property which he may appear to have concealed. Relief will be granted in that court, according to the circumstances of the case, and the rights of all the creditors will be protected. In the case we are now considering, there is one feature which shows, in a peculiar manner, the reason why it should be turned over to a Court of Equity. The release executed by the defendants to the plaintiffs, must, for any thing I can see, be valid at law, though the plaintiffs were on this occasion to succeed in avoiding the one executed by them. There was clearly no fraud of any kind^on the part of the plaintiffs in obtaining it, and the only plea, which at law the defendants could interpose against that release, if set up by the plaintiffs on some future occasion, would be a mere failure of the consideration, on which it was executed. This most clearly could not be done, without overturning all the cases on the subject. In the Court of Chancery, the rights and interests of all the parties can be duly guarded, and if the plaintiffs should succeed in avoiding the compromise with the defendants, they would, at the same time, be compelled to cancel the release to themselves. That they offered to do so, in the present case, cannot affect or extend their rights at law, as the offer from the nature of the proceedings at law, must be considered merely as voluntary.

New trial granted.

[J. W. Gerard, Att’y for the plffs. Wells and Bushnell, Atty's for the defts.]