text:
    Wm. H. Mills v. Thomas Carnly, Sheriff.
    A debtor having sold and transferred property to his creditor in payment of a debt, such property cannot be seized on an execution against such debtor, merely because the debt so paid was usurious. After a voluntary payment of such a debt by the debtor, only the usurious excess can be recovered back, and that can only be done within a year after such payment, when the action is brought by such debtor or his personal representatives.
    A power of attorney which, by its terms, authorizes the attorney “ to buy and sell real estate and personal property, and to collect rents, money, and debts, and to do every act and thing necessarily pertaining thereto,” and given as the principal was about to leave the State temporarily, and accompanied with a deposit, by the principal, of $1,800 in money with the agent, does not authorize the agent to purchase a Merchant Tailor’s establishment, and give promissory notes, in the name of the principal, for the contract price.
    Accordingly, when such an agent, assuming to act in the name of his principal, made such a purchase, amounting to $4,123.16, and took a transfer of the property to his principal, and paid for it by cancelling a debt for $966, which the vendor owed to such agent, and by giving four notes for $189.29 each, in the name of his principal, at 3, 6, 9, and 12 months, the agent b.eing irresponsible, and not informing his principal of the fact of such purchase, and subsequently the property was seized on an execution against such vendor, and a suit was brought by such agent, in the name of his principal, against the Sheriff, for such taking of tire property, and the Judge at the trial charged the Jury that, the agent had authority, under such a power, to make such a purchase, and to agree to pay the contract price in instalments, and therefore could give notes in the name of his principal, and that such notes would be valid, and that, in so far as the validity of the transfer depended Upon the fact of there being a sufficient consideration to uphold it, the consideration in this case was sufficient, held, that the charge was erroneous, and that, on such a state of facts, there was no sufficient consideration to uphold the sale, as against the creditors of the vendor; and that the notes given by the attorney were not obligatory upon his principal.
    On the facts of this case, as established by the evidence given at the trial, it was also held, that the inference, that the purchase and sale were made, and immediately followed by an assignment, by the vendor, of all his property to such agent, with a view and with the intent, by means thereof, to effect a favorable compromise with the creditors of such vendor, and to speculate, out of such a result; and that the jury would have so found but for the erroneous instruction as to the sufficiency of the consideration, was a just one.
    Any evidence which is material to the issue, though given on the cross-examination of a witness, does not conclude the party cross-examining. The matters thus testified to are not to be treated as collateral matters, in respect to which a witness cannot be contradicted. It is error, to preclude a party from showing the truth of the case, in respect to such matters, notwithstanding the evidence sought to be contradicted was elicited by his cross-examination.
    Judgment reversed, and new trial ordered.
    (Before Dube, Bosworth, and Slossoh, J.J.)
    Argued March 9th,
    and decided April 25th, 1857.
    This action comes before the Court upon an appeal by the defendant, from a judgment, entered on a verdict, rendered at a trial had before Mr. Justice Bosworth and a Jury, on the 10th of March, 1853.
    The action was brought to recover the value of personal property, taken by the defendant from the possession of the plaintiff, as was alleged, on the 16th of June, 1852.
    The defendant justified the taking, on the allegations that, at the time of such taking, he was a Sheriff, and the property then belonged to one Wm. McBryde, and that it was taken on executions against the latter, by the defendant, as such Sheriff.
    The theory of the plaintiff’s right to recover, was, that one G. T. Terhune was the agent of the plaintiff, and, as such, had loaned money to McBryde, to the amount of $966, and, as such agent, bought the property in question on the 17th of May, 1851, from McBryde, and paid for it, to the amount of $966, by cam celling the debt for that amount, and by giving, as such agent, the plaintiff’s promissory notes for the balance of the contract price, at 3, 6, ,9, and 12 months.
    The theory of the defence was, that Terhune had no authority, as agent of Mills, to make the purchase or give the notes, and that the purchase by him, and transfer of the goods to Mills, were made with intent to hinder, delay, and defraud the creditors of McBryde.
    The power of attorney, from Mills to Terhune, was dated the 21st of April, 1851, and in terms authorized Terhune, “ to buy and sell real estate and personal property, and to collect rents, money, and debts, and to do every act and thing necessarily pertaining thereto,” and granted to the “ said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as ” Mills “ could do, if personally present ”—
    In April or May, 1851, Mills went to Europe, and left with Terhune $1,800, and, in the subsequent September, remitted to him £10: he left with him no other funds: this was the only purchase which Terhune made, as agent of Mills, and, down to the time of this trial, he had not advised Mills of this transaction: the latter was a man of property.
    Terhune discounted notes for, and lent money to McBryde, not disclosing that he was not using his own money.
    McBryde, who had a merchant tailor’s establishment, becoming embarrassed, sold to Mills, (Terhune making the purchase as Mills’s agent), his stock in trade, inventoried at $5,497xs/o, at a discount of 25 per cent, from that price. He transferred the property in satisfaction of his debt, for moneys loaned and advanced to him by Terhune being, $966.00
    and for four notes, each being for the sum of $789.29— 3,157.16
    $4,123.16
    Each note was payable to the order of McBryde, and signed,
    “Wm. H. Mills,
    G. T. Terhune, Agent.”
    Terhune took possession of the establishment upon purchasing the same, and commenced and continued the business in the name of Mills, until the property was seized and removed by the Sheriff.
    McBryde, on the day of this sale, assigned all his property to Terhune, in trust for the benefit of his creditors. The assigned property consisted of his book accounts, and choses in action, and of these four notes.
    The defendant offered to show that the loans made by Terhune to McBryde, and constituting, with interest, the debt of $966, were made at a usurious rate. The judge rejected the evidence, and the defendant excepted to the decision.
    McBryde was examined on behalf of the defendant, and gave evidence tending to show that the sale to Mills, and the assignment to Terhune, were, in fact and in intent,- a single transaction, and were made to place his property beyond the reach of his creditors, and with a view, through Terhune, to compromise with them, on favorable terms. He swore that one Thomas Ball was, at that time, his partner in the business, and that the sale and assignment were made without the knowledge or consent of Ball.
    The judge, against the objection and exception of the defendant, permitted Ball to testify that he was not a partner of McBryde, and that the latter and Terhune informed him of the sale, on the day it was made, and exhibited to him the bill of sale, when the three were together.
    Evidence was given by the defendant to impeach, and by the plaintiff to show the good faith of the sale, and on the part of the defendant to establish that the sale and assignment were, in fact, dependent parts of one transaction, and on the part of the plaint tiff that they were in truth and in purpose disconnected and independent transactions.
    The judge charged the jury, among other things, that so far as the result depended on the fact of a sufficient consideration, the debt of $966, if it existed, and the four notes were a good and sufficient consideration, if there was no intent to defraud.
    That the power of attorney from Mills to Terhune, authorized the latter to make the purchase, and contract to pay, in instalments, which would bind Mills, and to give notes in the name of Mills, which would be valid and collectable of the latter.
    To this part of the charge the defendant excepted.

      C. O’ Conor and A. J. Vanderpoel, for appellant.

      James T. Brady and L. B. Reed, Jr., for respondent.
   By the Court. Bosworth, J.

McBryde having conveyed property to Mills, in satisfaction of the debt for $966, it cannot be seized by execution, at the suit of a creditor of McBryde, on the mere ground that such debt was infected with usury.—2 Hill, 522, Dix v. Van Wyck, and cases there cited; Sands v. Church, 2 Seld. 347.

The borrower having paid the debt with usurious interest, only the usurious excess can be recovered back.

That maybe recovered by the borrower, or his personal representatives, within one year after such payment. If no such suit be brought within the year, the sum may be sued for and recovered within three years thereafter, by any overseer of the poor of the town, or any county superintendant of the poor of the county, in which the payment may have been made.—1 R. S. 772, §§ 3 & 4.

McBryde testified, that Francis Ball was his partner, and was not informed of the sale and assignment, and. continued under the impression that the business was going on for his benefit.

This was very material evidence upon the question of the intent of the parties to that transaction. Although the evidence was given on his cross-examination, that fact did not estop the plaintiff from proving, that Ball had no interest in the business, and knew of the sale at the time, and subsequently labored under an employment by Mills.

If that evidence was not responsive to questions put to him on his cross-examination, but was volunteered, I have no doubt it would have been error to exclude testimony showing it to be untrue. The evidence related to matters which were not collateral, but were pertinent to the issue. In respect to such matters, to exclude evidence that a witness has made statements in conflict with his testimony given at the trial, is an error, for which a new trial will be granted. His evidence may be contradicted by showing the facts to be different from what he testifies them to be.—Patchin v. The Astor Mutual Insurance Company, 3 Kern. 268.

The serious difficulties which the case presents, arise out of exceptions to the parts of the charge, relating to the sufficiency of the consideration, and the extent of the authority conferred on Terhune, by the power of attorney from Mills.

It is quite clear that the power did not authorize Terhune, to establish and prosecute the business of a merchant tailor, in the name, and at the risk of Mills, nor to purchase a subsisting establishment with a view to the continuance of the business.

The purchase, in question, was one of that character, and immediately after it was made, Terhune commenced the prosecution of it as it had been previously conducted, and continued to so prosecute it, until it was broken Up by the Sheriff, except that he controlled it himself, and acted throughout in the name of Mills.

The property was purchased at the agreed price of $4123 For $j3157tV%- of this price, he gave negotiable notes in the name of Mills, without any authority for so doing, except such as the terms of the power of attorney confer.

If the notes are not obligatory upon Mills, then McBryde did not receive anything for the property, except a discharge from a debt amounting to $966.

The responsibility of Terhune does not appear to be such, that a sale to him, on credit, for Ms notes, of the same amounts and maturing at the same time would be upheld.

The better opinion would seem to be, that as a general rule, an agent, employed to make purchases for Ms principal, has no authority to bind him, by a negotiable promissory note, or bill of exchange, even though authorized to buy on credit.

On such contracts, the principal would be liable, to the vendors only: In an action by them, or their assignee of such a contract, the consideration would be open to inquiry; all the circumstances attending the sale might be shown; and all payments and offsets adjusted and enforced. Proof of all these matters would be excluded, in an action by a bona fide endorsee of a negotiable note, or acceptance.

The assumption and exercise of such a power is not necessary to enable Terhune to execute fully, the express powers conferred by the instrument which appointed Mm an agent.

Taber v. Cannon et al., 8 Met. 456-458. Webber v. Williams College, 23d Pick. 302. Rossiter v. Rossiter, 8 Wend, 494. Paige v. Stone, 10 Metc. 160 and 167-8-9. Parsons’ Mercantile Law, p. 142 and (n. 2.)

As to the power of an agent to bind Ms principal by a purchase made on credit, see Boston Iron Co. v. Hale, 8 N. H. 363.

We do not intend to intimate, that when the agency by its terms relates to a business, which, in order to conduct it, as it is common to conduct such a business, requires authority to bind the principal by negotiable paper, an agent may not so bind the principal, even though the letter of attorney does not, in express terms, confer such a power.

But it is unnecessary to pass upon that question, because it is not before us. No such ground can be taken in this case.

It cannot be gathered from the power of attorney itself, or be seen from the light shed upon it by any cotemporaneous facts which have been proved, that the principal intended to do more than authorize the attorney to make purchases with the money intrusted to him, and to sell any property he might so purchase.

If Mills, when he left for Europe, was a large owner of real estate, he would probably be surprised, on his return, to learn that Terhune had sold and conveyed it, by virtue of this power of attorney.

Mills has not ratified this transaction. As the evidence stands, the only conclusion admissible is, that he had not even heard of it at the time of the trial.

We think there was no evidence of a consideration, under the peculiar facts and circumstances of this transaction, sufficient to uphold the sale, so far as its validity, and the good faith of the transaction depend on that fact alone.

The case is one, the leading features of which present strong badges of fraud. Terhune had no means with which to pay the notes, nor the power, as agent of Mills, to procure them. At the time of the trial, he had not advised Mills of the transaction. Three of the notes had then matured. Mills was not liable as maker of them, without having ratified and adopted the transaction, and that he had not been asked to do. Terhune had not sufficient pecuniary ability to enable him to pay the notes himself.

The facts tend very strongly to the conclusion, that the object was to obtain payment of the $966, and make a speculation, by vesting the title in Mills, and coercing a compromise with McBryde’s creditors, upon such terms, that profit, as well as the payment of the $966, might be secured.

Selling the goods, on a credit of three, six, nine, and twelve months, even if the notes were valid, was necessarily delaying the creditors of McBryde, until the maturity of the notes, unless the assignee should convert the notes into money by selling them. An assignment, with authority to sell on such terms of credit, would be void.

A sale upon such terms by an embarrassed debtor, with an understanding at the time, that the debtor should immediately assign the notes, rather than the goods sold, for the benefit of creditors, and that the purchaser should be the assignee, and a cotemporaneous execution of that understanding, would present a case falling within the mischief of the rule.

The assignment was not made to the nominal purchaser, it is true, but it was made to all that was visible of him, viz. his assumed agent in the purchase, and subsequent possession and disposition of the property bought.

The jury were charged, that “ if the sale and assignment were, in the intent and purpose of Terhune and McBryde, a single transaction, if the purpose was to keep the control and use of the goods while the four notes were maturing, and to postpone or interfere with the power of creditors, to coerce the conversion and application, to the payment of their debts, of the property for which the notes were given, then the sale was made with intent to hinder, delay, and defraud creditors, and was void, and entitles the defendant to your verdict.”

We cannot avoid thinking that, under this part of the charge, the jury would have found a verdict for the defendant, had they not been erroneously instructed in relation to the consideration paid for the goods, and the validity of the notes given by Terhune in the name of Mills.

The judgment appealed from must be reversed, and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: By the Court. Bosworth, J.

license: Public Domain

text:
    Mirrielees v. Bingham.
    An existing valid cause of action, in favor of the plaintiff, against the defendant, is not discharged or waived by an offer of the plaintiff to permit the defendant “ to use ” the amount due to the plaintiff thereon, if it will enable the defendant “ to carry a trade through,” made between'the defendant and a third person, without other assistance from such third person, though such cause of action accrued and the amount, the use of which is so offered, is due, for services of the plaintiff, as* broker, in negotiating the trade alluded to in such offer.
    The acceptance of such offer by a letter which states in substance that, the defendant on consummating the trade, will keep back a part of the property in which, by the terms of the trade, payment by him to such third person was to be made, “ to supply any deficiency,” in connection with such offer, imports that the offer was an offer of the use of the amount, due from the defendant to the plaintiff, temporarily and not a gift or waiver of it, and that it was not made to induce the defendant to modify his contract with such person, and submit to terms to which he might not otherwise assent, on condition of being exonerated from such claim of the plaintiff.
    Judgment for plaintiff on the verdict.
    (Before Dubb, Boswobth, and Slosson, J.J.)
    Heard, March 11;
    decided, April 25, 1857.
    This action comes before the Court, at General Term, on a verdict for the plaintiff, subject to the opinion of the Court. The question of law arising at the trial was as to the legal effect of the evidence on the part of the defendant to show that, the plaintiff had given up, or waived commissions due him as broker, for effecting a purchase for the defendant of certain real estate from one John Carr, which the latter was to sell and convey, subject only to a mortgage for $5000, and for which property the defendant was to pay in jewelry and goods. The property was, at the time, encumbered with taxes to the amount of some $700, including arrears of interest on the mortgage, which Carr was to extinguish, and his inability to raise money to pay them, seemed likely to prevent a consummation of the contract between him and the defendant, or to cause delay in carrying it into effect. The action was tried before Mr. Justice Duer and a jury, in June, 1856. No question arises on the pleadings. The whole evidence given and proceedings had at the trial are as follows:
    The plaintiff, to maintain the issue on his part, called as a witness:
    J. R. Brain—who being sworn, testified as follows: I know the parties, plaintiff and defendant. The plaintiff is a real estate broker. The defendant is a merchant doing business in New York, and residing in Brooklyn. In the month of November, 1855, the defendant employed the plaintiff to purchase for him; from John Carr, certain houses and real estate situated in Brooklyn. The purchase was made by the plaintiff for the sum of $9,000, and the property was conveyed to the defendant. The usual commission of the broker on the purchase or sale of real estate, is one per cent, on the amount for which the property is sold.
    Being cross-examined, he testified as follows:—The sale was not effected until January 1856. The delay was caused by Carr’s failure to pay off some incumbrances on the property sold by him. It depends upon the sale, or the agreement of the parties, who pays the broker’s commission—sometimes both parties pay him.
    The plaintiff’s counsel having rested his case, the defendant’s counsel put in evidence the following correspondence between the parties:
    Mr. A. Bingham:
    My Dear Sir:—If the amount of my commission ($90) on the transaction between you and Carr will enable you to carry the trade through without other assistance from Carr, I am willing to allow you to use the same in that manner, as I fear that Carr finds it impossible to raise the money, and I will be happy to hear your decision by the bearer.
    G. M. Mirrielees.

      Sat'y, Jan'y 12.
    G. M. Mirrielees, Esq.:
    Dear Sir:—The appropriation of your commission with what aid I may otherwise obtain, I think will enable me to consummate the matter. I will give it my attention .on Monday, and in the meantime if you see Carr, hurry him up. Of course I shall keep back a portion of the jewelry to supply any deficiency.
    A. Bingham.

      Jan'y 12, 1856.
    The counsel for the defendant then rested, and thereupon the plaintiff’s counsel recalled the witness

      J. B. Brain,—who testified as follows: The property sold by Carr to the defendant was subject to a mortgage for $5,000, and there was also due for arrears of interest, and for taxes and assessments, about $700. Carr agreed to pay off this $700, and the property was then to be conveyed to defendant, subject to the mortgage. Carr was to be paid in jewelry and goods.
    Being cross-examined, he testified as follows; It was Carr’s neglect to pay off this $700 which caused the delay from November, 1855, to January, 1856. The defendant finally paid off the interest and taxes himself.
    The plaintiff’s counsel having again rested, the counsel for the defendant requested the Court to charge the jury that the plaintiff had waived and given up his right to commission or compensation as against the defendant in order to effect the sale, and that without such waiver the sale would not have been effected. But the Court refused so to charge the jury, to which the counsel for the defendant excepted.
    The Court directed the jury to find a verdict for the plaintiff, subject to the opinion of the Court at General Term, as to the construction of the correspondence between the parties, and the jury thereupon gave a verdict for the plaintiff for the sum of $93.50, and the Court directed that judgment in this cause be stayed until the decision of the General Term upon a case to be made by the plaintiff, and that the plaintiff should apply to the General Term for judgment herein.

      J. H. Hartt, for plaintiff,
    moved for judgment on the verdict, and insisted that—The ground of waiver taken at the trial, is not set up in the answer; and even if it were, it is submitted that the plaintiff only waived the payment of the $90 for such time as would enable the defendant, by the “use” of that sum, to complete the purchase of the property; he offered the “use” of the $90, and the defendant accepted the offer, declaring, at the same time, the means by which he would secure his own indemnity for the extra advances he was about to make in order to obtain the property he was about to purchase.

      Hopper and Howland, for defendants,
    relied on the following point:—The point upon which defendant relies, is raised by the exception to the refusal of the Court to charge the jury as requested; viz.: that the plaintiff, in order to effect a sale, and in consideration that the defendant would pay off the incumbrances himself, offered to give up his commission from the defendant as purchaser, to enable him. so to do, which offer was accepted, and the sale completed.
   By the Court. Bosworth, J.

The charge which the defendant’s counsel requested the court to give to the jury, and the only point made by him in opposition to the plaintiff’s motion for judgment on the verdict, concede the right of the plaintiff to recover, unless the evidence proves that, the plaintiff waived and gave up his right to commissions against the defendant, and that by reason of, and in consideration of such waiver, the defendant completed his purchase on terms with which he was under no obligation to comply.

Whether such proof was given depends, mainly, upon the true construction of the two notes or letters of January 12, - 1856. In construing them, we start with the fact conceded that, the plaintiff had earned his commissions, and that they amounted to $90. It must be borne in mind also, that the only obstacle to .a completion of the contract was the difficulty which Carr experienced in raising money sufficient to pay the taxes and assessments, which were a lien on the property, and the arrears of interest upon the $5,000 mortgage, subject to which, and to which alone, the property was to be conveyed to the defendant. Hence, if the contract between Carr and the defendant was to be fully executed, it might be necessary for the latter to pay some money, instead of paying, wholly, in jewelry and goods. That he might be indisposed to advance, in addition to' paying to the plaintiff presently the commissions due to him.

Tn that condition of things, the plaintiff offered to allow the defendant “to use” the amount to be paid to him, if that would enable the defendant “ to carry the trade through without other assistance from Carr.” It was not an offer to relinquish the commissions, and waive all claim to be compensated for the services rendered. The defendant’s reply shows, that he must have so understood the offer; for after stating that, “the appropriation of your commission, with what aid I may otherwise obtain,

I think will enable me to consummate the matter,” and saying, “I will give it my attention on Monday, and in the mean time if you see Carr, hurry him up,” he declares, in conclusion; “of course I shall keep back a portion of the jewelry to supply any deficiency.”

The obvious meaning of the correspondence is simply this: The plaintiff to make it easier for the defendant to advance some money, instead of paying wholly in goods, if he preferred that course to delay in carrying the contract into fuR effect, offered to delay the payment of the $90 to himself, and thus put the defendant in funds to that amount, to be used for such purpose, and funds which he would not have had to be so used, if he paid the commissions at once.

The defendant accepted the offer as thus made, and thus understanding it. The concluding paragraph of his letter, expressed a purpose to protect himself, by retaining enough, in value, of the jewelry and goods, to cover and reimburse himself any amount of money he might agree to pay in lieu of paying in goods, to enable Carr to carry his contract into effect.

We think it quite clear that, there is nothing in the correspondence which imports that, the plaintiff relinquished his commissions, or could have been understood by the defendant as doing so. There must be a judgment for the plaintiff on the verdict.


author: By the Court. Woodruff, J.

text:
    J. La Farge, Plaintiff and Respondent, v. Halsey & Halsey, Appellants.
    A wrongful eviction of a tenant only suspends the rent or excuses the tenant from the payment of rent thereafter accruing, but does not prevent the collection of that which had already accrued and become payable.
    In an action against the tenant for the recovery of such rent, the only use which the defendant could make of a subsequent eviction, would be by way of a recoupment of the damages he had sustained therefrom. The sureties of a tenant in an action against them for the recovery of rent accrued, cannot avail themselves of a defence that would be only available to the tenant, by way of a recoupment or counterclaim.
    Where the tenant has a claim against the landlord, which is a distinct cause of action, the sureties, unless the claim has been assigned to them, can have no right to use it or any part of it for their own benefit.
    Whether the sureties under special Circumstances, such as the insolvency of the 'tenant or his collusion with the landlord, may not be entitled to relief in a Court of Equity, is a question which the Court declined to consider, as in the case before it no facts showing a title to any equitable relief were set forth in the answer. Order allowing a demurrer to a separate defence in the answer affirmed with costs.
    (Before Dube, Boswoeth, and Woodbuef, J.J.)
    Heard, April 25;
    decided, May 2, 1857.
    This action comes before the Court, at General Term, on an appeal by the defendants, from an order at Special Term made by Mr. Justice Hoffman, sustaining the plaintiff’s demurrer to the third defence contained in the answer. The pleadings, upon which the questions of law arose, are fully set forth in the opinion of the Court.

      Ira D. Warren, for the appellant.

      H. A. Cram, for the respondent.
   By the Court. Woodruff, J.

This action is brought against the defendants, Benjamin T. Halsey, and Elmore C. Halsey, as sureties for the payment, by Laura Keene, of the rent of the Metropolitan Theatre, which was let by the plaintiff to the said Laura Keene, from the 17th day of December, 1855, to the first day of September, 1856, at the rent of $400 per week, payable in advance, on Monday of each week; and recovery is sought for the rent, for four weeks, which became due on the 30th day of June—the 7th, 14th and 21st days of July, respectively, amounting to $1,600, which the complaint alleges to be in arrear and unpaid.

The agreement, by which the premises were let and taken, provides, among other things, that if the rent be not paid, the lease shall terminate, and the plaintiff may resume the possession of the premises. The agreement further provides, that “ in case the said Laura Keene shall be in possession of the demised premises on the 1st day of September, 1856, and shall have paid the rent in full, and performed the other covenants herein contained, she shall be entitled to retain the theatre for three or five years longer at the same rent, and upon the same conditions, provided she shall have given said La Large, on or prior to the first day of May, 1856, written notice of her intention to take said premises for three or five years, from the first day of September, 1856.”

The defendants admit that they are sureties for the payment of the rent, as set forth in the complaint.

The first defence consists of a denial that the plaintiff performed his covenants, and a denial that there is any rent due or owing from their principal.

The second defence sets up a tender, by the said Laura Keene, of the rent which became payable on the 30th of June, and the 7th and 14th of July, respectively, amounting to $1,200, and that the plaintiff refused to receive the same.

It is unnecessary to notice those defences farther, since they are not demurred to, and in determining the sufficiency of the third defence, we are to consider it as the defendant has chosen to set it up, viz. “as a separate and distinct defence” to the whole cause of action.

This third defence, (which is demurred to,) consists of allegations, that, (at some time not stated) Laura Keene called on the plaintiff, in relation to the notice required by the terms of the lease, for the purpose of continuing or extending the same for a longer term than one year. That the plaintiff then waived such notice, and agreed that she should continue in possession of said theatre, upon the same terms, &c., without serving any written notice. That relying upon said agreement, she entered into numerous engagements, with members of her company, at large weekly salaries, agreeing to open said theatre in September, 1856, and that by reason of the conduct of the plaintiff hereinafter set forth, she was unable to fulfil such engagements, and thereby sustained great damages.

And that relying on the said agreement she expended large sums, in alterations and making permanent and valuable improvements on the premises, of the value of $10,000.

And, finally, that afterwards, and in the month of July, the plaintiff, in violation of his agreement, and in violation of the covenants of said lease, took possession of said theatre against the wishes and without the consent of the said Laura Keene, and for the first time informed her that he had changed his mind, and that she could not have said theatre for any longer time.

By reason of which conduct of the plaintiff, and his violation of Ms agreement aforesaid, she sustained damages, in loss of scenery, decorations, &c., and by reason of being unable to fulfil the engagements so made as aforesaid, to the amount of $10,000, which sum, or so much thereof as may be sufficient to cancel any claim the plaintiff may establish at the trial, the defendants ask to recoup and set off, &c.

The counsel for the defendants, upon the argument of the appeal (taken from the order of the Special Term, sustaining the demurrer to this third defence), concedes, in.express terms, in the written points submitted, that he does -‘not say that we (the defendants) have a right to offset or recoup the damages which Laura Keene has sustained; but we do say that we are entitled to all the facts alleged in the part of the answer demurred to for the purpose of showing that Laura Keene is not indebted to La Farge, and therefore the defendants, as her sureties, are not liable.”

It is quite clear that, upon the facts alleged in this part of the answer, Laura Keene herself has no defence, unless it be by way of recoupment, or counter claim. The only fact here alleged, which is charged in the answer as a violation of the covenant in the lease (to which the defendants became bound as sureties), is, that the plaintiff, in the month of July, 1856, took possession of the theatre against her wishes, and without her consent. Giving this averment the construction most favorable to the defendants, by conceding that this sufficiently alleges an eviction,—still it is not alleged that this took place before the rent for which the action is brought became payable; indeed, the averment is quite consistent with the assumption that the plaintiff took lawful possession (in pursuance of the right to re-enter reserved to him in the lease) for non-payment of the very rent for which the action is brought. An eviction only suspends the rent, or-excuses the tenant from the payment of rent thereafter accruing, Rent, which has. already accrued and become payable before the . eviction, may be collected. In an action to recover such rent, the only use which Laura Keene could, herself make of such subsequent eviction, would be by way of recoupment of her damages sustained thereby.

As to the alleged breach of the other agreement, by which it is stated that the plaintiff agreed to permit her to remain in possession; In the first place, it is not alleged that this was the extension of her term for either three or five years, for which, upon certain conditions, the lease provided; but that on her calling upon him for the purpose of continuing the lease for a longer term than one year, he waived the service of the said notice and agreed that she should continue in possession upon the same terms and conditions mentioned in said lease. To this agreement it is not alleged that the defendants were parties or privies.

The breach of this agreement, if any breach were sufficiently alleged, would be no discharge of the rent accrued upon the lease itself,—at most it would be a cause of action founded on contract, which, under § 150, sub. 2, of the Code of Procedure, Laura Keene, if defendant, might or not, at her election, use as a counter-claim. She might, if she preferred, bring a separate action for the damages sustained by such breach. In this aspect of the agreement, all that is alleged concerning her expenditure, and her damages sustained by inability to fulfil engagements with others, amount only to a counter-claim, even if it be conceded that what are called damages arising from such inability, could in any form be allowed to her.

And, in the next place, if upon a very latitudinarian construction of. the averment, we should assume that the pleader meant that the plaintiff waived written notice, and consented to the extension of the lease for three or five years, as provided in the lease itself; still, as the alleged breach of this agreement is not alleged to have been committed before the rent sued for became payable, it remains as before, a mere matter of recoupment, or counter-claim. When the rent became payable, a complete cause of action became vested in the plaintiff—his right to the rent was perfect and without defence, strictly so called—any sussequent breach of even the same agreement could only be availed of by way of recoupment, in abatement from, or extinguishment of his clear legal demand.

And again, inasmuch as the lease did not provide for any such extension unless the rent was paid in full, and the alleged parol agreement is alleged to waive the written notice, and warrant her continuance in possession only on the same terms and conditions as were expressed in the lease, it follows that as the defendants have not alleged that the rent was paid in full down to the time of this alleged breach, they have failed to show that, even byway of recoupment, Laura Keene could claim anything; they have thus failed entirely to show that this agreement was ever broken by the plaintiff.

If, therefore, there is anything in this defence which could avail their principal, had she herself been the defendant, it would, at most, be the allegation, that during the term, the plaintiff took possession against her will,—and if in this she had sufficiently shown an eviction, she might recover the damages sustained thereby. It has already been suggested, that enough is not alleged to amount to a wrongful eviction,—it is not stated that the rent to that time had been paid, and if not, the plaintiff had a right, by the very terms of the lease, to re-enter, although against her will, and might have enforced his right to resume possession by legal proceedings, if his entry was resisted, or the possession insisted upon by her.

Finally, if by reason of any fact stated as a part of this defence, Laura Keene might have set up a counter-claim or recoupment, these defendants cannot. She has assigned no such claim to them, and, without that, they have no right to use what is in her a distinct cause of action, nor to use any part of it for their own benefit. If they are compelled to pay the rent, they must seek reimbursement from her, and she will have her recourse to the plaintiff for any damages she has sustained. That claim for damages these defendants have no right to diminish nor impair; and if she were to prosecute such claim, nothing done or proved by these defendants in this action could be permitted to diminish her recovery.

Whether sureties, by presenting a claim to use such a defence as a recoupment in right of their principal, where their principal is insolvent, or is colluding with the plaintiff to their prejudice, or where other grounds for equitable relief are shown, may cause their principal to be brought in as a party; or may have proceedings stayed until the plaintiff has litigated the matter with their principal; or may have equitable relief in any form, it is unnecessary to say. No such case is here presented.

In every view of the subject, the order appealed from must be affirmed.


author: By the Court. Duer, J.

text:
    Spencer M. Clark and Edward M. Coleman v. Augustus E. Masters and Ezra Nye.
    A notice, given to the consignee of goods by the master of a vessel of her arrival, is not equivalent to a personal delivery of the goods, so as to entitle the master to demand the immediate payment of freight. The freight cannot be claimed until the goods have been unladen and a delivery has been made or tendered.
    The delivery of merchandize by the master of a vessel, and the payment of freight by the owner and consignee, are simultaneous and concurrent acts; so that the master is not bound to deliver the goods until the freight is paid or tendered, nor the owner to pay the freight until the goods are unladen and delivered, or the delivery is tendered.
    But the owner is not bound to accept a delivery and pay the freight, until he has had an opportunity to examine into the state and condition of the goods, and to ascertain their quantity, since he has a right to deduct any damage they may have received on the transportation not imputable to the perils of navigation, and any deficiency in quantity from the usual or stipulated freight. Hence, if the quantity and quality of the goods cannot be ascertained by an examination on board, it is the duty of the master to unlade them and place them in a situation in which the necessary examination may be had.
    Such is emphatically the duty of the master when the owner of the goods offers, at his own expense, to tranship the goods into a lighter for examination, and to continue the lien upon them during such examination.
    The contract of affreightment, in respect to each consignment, is entire, and the master has no right to divide it into lots or parcels and demand a pro raid or proportionate freight on each. No portion of the freight is demandable until the whole consignment has been delivered, or tendered for delivery.

      Seld, that as the charge of the Judge upon the trial, in effect denied the above propositions, the exceptions to it were well taken, and there must be a new trial, posts to abide event.
    (Before Dube and Hoeeman, J.J.)
    Heard, May 6;
    decided, May 9, 1857.
    Motion for a new trial upon a case containing exceptions, which, at the trial, were ordered to be-heard, in the first instance, at the General Term. The action was tried before Mr. Justice Campbell, and a jury, in April, 1855.
    The action was for the wrongful detention of a large quantity of wheat, valued in the complaint at $4,822. The complaint claimed damages for the detention of the goods to the amount of $5,000.

      The defence, substantially was, that the wheat had been detained in consequence of the wrongful refusal of the plaintiffs to pay the freight and other charges of transportation.
    The following is a statement of the facts of the case as established by the evidence on the trial.
    The firm of Fitzhugh & Littlejohn were common carriers, doing business as such between Oswego and Hew York, under the name of the Old Oswego Line, and in the month of November, 1853, at Oswego, took on board the “ Canada West,” one of their boats, 2412 bushels of wheat in bulk, to be transported to Hew York, and there delivered without delay to the plaintiffs, who were the consignees named in the manifest of the boat.
    Early in the morning of the 22d of November, the “ Canada West” arrived at Hew York, and was taken to Pier Ho. 5, East River, which was the usual landing-place of the . Old Oswego Line. Immediately after its arrival the following notice in writing was sent by the agent of the line to the plaintiffs, by whom it was received about 10 o’clock, A. M.:—
    “Landing from Old Oswego Line; Lake Boat, Canada West, Pier 5, East River, foot of Broad Street, consigned to Clark & Coleman, to whom the owners of the line look for the payment of the following charges:
    Cj <D bO «2 ^ C5 . - O te i~f MPA !§ a'-* ^ of R o am

    “Hew York, Hov. 22d, 1853. Please send digs, before delivery.

    ’Acct. of
    65610 bus. Genesee Wheat, 1755=8 bus. “ “
    charges. ;167 32 465 34 632 cts. 66
    Not accountable for shortages, unless weighed out by suitable scales and hopper.
    If towed from slip, subject to half lighterage.”
    The plaintiffs had been accustomed to receive similar landing notices from the same line before, excepting the claim for pay? ment of charges before delivery, which was unusual, and was insisted‘upon by the line in this instance, because of a previous dispute between the parties in relation to a distinct matter, and as the agent of the line said, “he did not choose to trust the plaintiffs.”
    At one o’clock, in the afternoon of the 22d, the plaintiffs sent to the agent of the line an order in writing, as follows:
    “ New York, 22d Nov., 1858.
    E. S. Littlejohn, Agt.,
    Old Oswego Line.
    Please send the boat- Canada West with 241206 bus. wheat to the foot of Broome st., E. B., and the N. Y. City Mills, cor. Lewis and Broome sts. will discharge it.
    Rep’y yours,
    Clark & Coleman.”
    Very soon after, a clerk of the line called at plaintiffs’ office and demanded the freight, and Mr. Clark, one of the plaintiffs, told him, that the freight was ready for him as soon as the wheat was delivered.
    Nothing more passed between the parties till the morning of the 23d, when the plaintiffs offered to send a lighter alongside the canal boat, and proposed to the agent of the line that he should unlade the wheat into the lighter, keeping it still in his possession, and retaining his lien upon it; that if the wheat was found right in quantity and condition, the freight and charges would be paid upon its delivery to the plaintiffs: such delivery to take place on board the lighter.
    He refused to do anything until the freight and charges were paid, but offered to deliver bushel by bushel, on being paid bushel by bushel, for freight and charges at the same rate.
    He never departed from his requirement that before putting the wheat out of his boat all charges should be paid, except that he would put it out bushel by bushel, or bag by bag, on being paid freight bushel by bushel or bag by bag. He never offered to put the grain out of his boat, where the plaintiffs could see its quantity and condition, he retaining possession until they paid the freight and charges. The agent of the carriers, however, testified that, the condition of the wheat might have been examined on board the boat, “ by instruments and by shovelling down.”
    To the demand of the plaintiffs that the wheat should be delivered at Broome street, the agent of the line made the same answer. He demanded that freight and half lighterage should be paid before he would have the boat start from Pier 5, for Broome street, but finally offered to deliver it wherever the plaintiffs chose, on being paid freight and charges bushel by bushel, as delivered.
    The plaintiffs expressly and repeatedly stated to the agent of the line that they did not want the possession of the wheat till they paid the freight, but wanted to know that it was right in quantity and quality. They demanded that the carriers should, at their own expense, place the wheat out of the canal-boat where the plaintiffs could see its condition and quantity, before delivery and payment of freight.
    In the evening of the 23d the agent of the line sent the boat away from the pier, and placed the wheat in store in one of the storehouses of the defendants, who continued so to hold it subject only to the order of Fitzhugh and Littlejohn until after_ the service upon them of the summons and complaint in this action. On the 1st of December the defendants notified the plaintiffs of its being so held by them. On the 29th of December the plaintiffs tendered to the agent of the line $632,66, being the full amount of freight and charges as stated in the landing notice, and thereupon demanded possession of the wheat in store, and upon refusal to deliver it unless the plaintiffs also paid half lighterage and storage and insurance,-they commenced this action for its recovery.
    The testimony being closed, the Judge charged the jury that in the case of transportation by common carriers by ships or vessels, personal delivery to the consignee was dispensed with, and notice to the consignee of the arrival, came in lieu of personal delivery: that it was not disputed in this case but that such notice was properly given. It was also undisputed that the wheat sued for, was capable of being fully examined and inspected on board the boat, as it was when it arrived in port, so as to determine its quality and condition, and that it was so examined by the plaintiffs and was sold by them while on board the boat, and after such an examination. That the plaintiffs claimed that the carriers were not entitled to payment of their freight, until the wheat had been put out, so that plaintiffs could see and examine its condition, before paying the freight. What might be the rule when the cargo could not be examined on board as to its quality and condition, it was not then necessary to determine; but in this case, the carriers were not bound to afford any further opportunities for an examination as to quality and condition than had been done. That in the opinion of the Court, the carriers were not obliged to put out the cargo, so as to show the whole quantity to be there, before becoming entitled to freight; that such a rule would impose great labor and expense on the carriers, besides endangering their insurances, &c. That in the opinion of the Court, the carriers had done all that was required of them, in this case, to entitle themselves to their freight, and that they had a right to require the payment of the freight before turning out the whole of the wheat. That whether that freight was required to be paid in gross, before the delivery of any part of the wheat, or parcel by parcel, on delivery in the same manner, was immaterial in this case, as the plaintiffs could not recover upon the facts they had shown, and that defendants were therefore entitled to recover the subsequent charges, which were admitted to be the sum of $130 85, with interest from January 28, 1854.
    To this charge of the Judge and each alternative direction thereof the plaintiffs’ counsel then and there excepted.
    But further, you will specifically find and answer whether the defendants’ bailors did or did not make the further offer to deliver, stated by the witness Littlejohn, as follows: “ I stated to Mr. Clark, that if he would furnish a lighter at his own expense and risk, and pay the cost of transferring the grain, he relieving me from claim for shortages if measured out, and he assuming the risk of the wheat in the lighter, and allowing me to retain possession and lien till it was all to his satisfaction, I would do so, or that I would put it in elevators on the same conditions; then he was to pay the freight and charges and receive the property.”
    His Honor also directed the jury to assess the value of the property claimed by the plaintiffs.

      The jury, thereupon, found a verdict for the defendants for $141 52, and specially found, in answer to the specific question proposed to them, in the negative, that no such offer was made. They assessed the value of the property claimed at $4,000, that sum being agreed by the parties.
    This case is made with liberty to either party to turn the same into a bill of exceptions or special verdict.
    The exceptions to be heard in the first instance at General Term.

      W. M. Evarts, for the plaintiffs.

      J. B. Yates Sommers, for the defendants.
   By the Court. Duer, J.

We are clearly of opinion that the Judge erred in the instructions that he gave to the jury, and that upon the facts in evidence not contested, and the special finding of the jury, the plaintiffs were entitled to a verdict; they had proved all the facts necessary to maintain the action.

If, indeed, the special question put to the jury, whether “ the witness, Littlejohn, stated to Mr. Clark, that if he would furnish a lighter at his own expense and risk, and pay the cost of transferring the grain, he relieving me from claims for shortages, and assuming the risk of the wheat in the lighter, and allowing me to retain possession and lien until all was to his satisfaction,” had been answered in the affirmative, the aspect of the case would have been materially changed, and there would have been grounds for arguing that the defendants were entitled to retain their verdict. But the question was answered in the negative, and by this answer the jury, in effect, declared that the statement of Parish, the clerk of the plaintiffs, was entirely correct, namely : he told Littlejohn that “ we (the plaintiffs) would furnish a lighter alongside the boat, or he might furnish a lighter, at our expense, and transfer the wheat into it, and when it was transferred we would pay the freight and take possession of it:" and on his cross-examination, that “his offer of a lighter was intended to cover the whole matter of expenses except weighing.” Such, we are bound to say, are the facts of the case, and the question that arises upon them is, whether Littlejohn was not bound to comply with the proposal thus made, and deliver the wheat in conformity to its terms ? If he was, he had no right to store the wheat, and the defendants, with whom it was stored, in refusing to deliver it to the plaintiffs upon request, were guilty of a wrongful detention. If he was not so bound, the defendants were justified in their refusal, and the verdict must stand. There is plainly only one ground upon which the refusal of Littlejohn to deliver the wheat, upon the terms proposed, can be vindicated, namely: that in giving notice to the plaintiffs of the arrival of the'wheat, he had done all he was bound to do, and was entitled to demand the payment of the whole freight and charges, before any part of the cargo was moved; that the notice, in other words, was equivalent to actual delivery. The law was thus laid down by the learned Judge upon the trial, and he founded on it a positive direction to the jury to find a verdict for the defendants. His language was explicit, that in the case of transportation by common carriers—by ships or vessels—personal delivery to the consignee was dispensed with, and notice to the consignee of the arrival came in lieu of a personal delivery; and that, in the opinion of the Court, the carriers had done all that was required of them to entitle themselves to their freight, and that they had a right to require the payment of the freight before turning out the whole of the wheat;—propositions that amount to saying, that where notice of arrival has been given, the master may instantly and rightfully demand the whole freight, although no portion of the cargo has been discharged, and no opportunity has been given to the consignee of examining its condition and ascertaining its quantity.

We must think that, in these propositions, our learned brother was entirely mistaken; and it seems to us manifest, that the source of the error was his own application of the rule that exempts the carrier of goods by a ship or vessel from the duty, which, as a general rule, the law imposes upon a common carrier, viz., that of delivering the goods, which he transports, to the owner or consignee personally, at the place where the transportation ends. He is bound to seek the person to whom the delivery is to be made, and make its tender, and, consequently, must have the goods with him when the tender is made.—Gibson v. Culver, 17 Wend. 305; Mayell v. Potter, 2 John, Cases 371; Fisk v. Newton, 1 Denio, 45; Price v. Powell, 3 Coms. 322; Schroeder v. Hudson R. R. R. Co., 5 Duer 62. The law, by a very reasonable exception, releases the master of a vessel, in which the goods to be delivered are transported, from the duty of seeking out the owner or consignee, and making to him, personally, an actual delivery or tender of a delivery; but, in his case, holds it to be sufficient that he gives a written notice to such owner or consignee of the arrival of the vessel, and of the place where the goods will be landed, and their delivery be made; thus casting upon the consignee, the duty of attending at the place so designated, of receiving there the delivery of the goods, and paying the freight for their transportation. We think, however, that we are entirely safe in saying that there is no authority, nor semblance of an authority, for the position that the notice, by the master of a vessel, of the place where he intends to deliver the goods, has the same effect as an actual personal delivery or tender by an ordinary carrier, so as to give to the party in the one case as well as in the other, an immediate right to demand the payment of the freight. We believe the doctrine to be absolutely novel. We are certain it would be most unreasonable. The ordinary carrier in tendering the goods themselves, does all that the law can require him to perform, all indeed that he can do, to entitle him to his freight. The master, in giving notice to the consignee, performs only a part of the duty that he is bound to perform, to render his demand of freight consistent with law or reason.

It is a serious mistake to suppose that the payment of freight is a condition precedent to the delivery of the cargo in the sense that has been contended for, that is, precedent even to the discharge of the cargo. The discharge or unlading of the cargo, is a duty that the law casts upon the master, the whole labor and expense must be borne by him or his owner. To enable him to deliver the cargo, this duty of unlading it must first be performed, and its performance is as truly a condition precedent to the constructive delivery of the goods by a tender, as to their actual, by a change of possession.

The payment of freight and the delivery of the goods are simultaneous and concurrent acts; neither, strictly speaking, is a condition precedent to the other. As in the case of the delivery of a deed, and the payment of the purchase money agreed to be made on the same day, they are conditions mutually dependent. The consignee is not bound to pay the freight until the goods are delivered, nor the master to deliver the goods until the freight is paid. If the goods are withheld the freight must be tendered, if the freight, the goods, to enable either party to maintain an action against the other, for a breach of contract. Hence, in the present case, if the master was not in a condition to make an immediate delivery of the wheat, he could have no right to demand the payment of freight; and he certainly could make no delivery that the plaintiffs were bound to accept, so long as the wheat remained on board his vessel, and the duty of discharging it rested upon him. Thus the allegation that the notice which the master had given, was alone sufficient to justify his demand of freight, it seems to us, is proved to be groundless. It evidently escaped the attention of the learned judge who tried this cause, and, perhaps, of the counsel, that to discharge the cargo is a duty that belongs to the master, and his performance of it, unless otherwise agreed, a condition precedent to his dlalm for freight.

But there are other, and very conclusive reasons, for holding that the claim of the master, in the present case, for the whole freight, before the wheat, or any portion of it, was delivered or offered to be delivered, cannot be sustained. We apprehend that it is now settled law, that the owner of goods is not bound to accept their delivery, and pay the freight, until he has had an opportunity of ascertaining how far they correspond in quantity and description with the bill of lading, and of examining into their actual state and condition. He has a right to deduct from the usual or stipulated freight any damage which the goods may have received on the voyage, not imputable to the perils of navigation; and also, any deficiency from the quantity mentioned in the bill of lading; and it is evident, that to enable him to exercise this important right, an examination, prior to the payment of freight, is indispensable. If all the facts, necessary to be known by the owner, can be ascertained by him before an unlading of the cargo, the examination may then be had; but if not, the goods must be unladen at the expense of the master, and - placed in a situation to enable the owner effectually to exercise his rights; this right was very distinctly claimed by the plaintiffs in the present case, and as plainly denied by the master; denied by his refusal to place the wheat in a situation in which it could be examined, unless the whole freight were previously paid. It is true he offered to deliver the wheat, bushel by bushel, receiving a pro rata freight for each bushel as delivered; but it is very clear that this was not an offer to which the plaintiffs were bound to accede. The contract of affreightment, in respect to each consignment, is entire, and no portion of the freight is due until the whole consignment is delivered. The master has no right to divide and split up the consignment into as many lots or parcels as he may deem convenient, making as many contracts as there are parcels, and as many freights as there are contracts. The freight, when payable, is payable as a whole, and it is not payable until all the goods to which it relates have been delivered or tendered.

If before it has been ascertained that the goods to be delivered are all undamaged, and that there is no deficiency in quantity, the master is allowed to divide the consignment into parcels, and demand pay for each parcel as delivered, it was justly observed by the counsel for the plaintiff, that the right of the consignee to recover for damages, or a deficient quantity, may be effectually defeated. One half of the cargo may have been delivered in this form in a sound state, and the pro rata, freight paid, and yet the damage to the residue may exceed the whole freight, which the consignee, had there been no damage, would have been liable to pay; one half of this amount, however, he has already paid, and unless this is immediately refunded, his only remedy is by an action for its recovery. The right of retaining it, which the law gave Tn'm, is gone. It is stated in the Judge’s charge, that the wheat might have been examined on board the boat as it was when it arrived, so as to ascertain its quality and condition; but, upon considering the whole evidence, this question appears so far doubtful, that had it been material, we think it ought to have been submitted to the jury. Let it be admitted, however, that the quality and condition of the wheat might thus have been ascertained, it is not pretended that the fact, that it corresponded in quantity with the call in the bill of lading, could have been ascertained otherwise than by its removal from the boat. This fact, however, was just as important to be known to the plaintiffs, as the state and condition of the wheat, and they had exactly the same right to require that it should be ascertained, before they could be required to pay any portion of the freight—indeed, until it was ascertained, the amount of the freight that would be payable could not be known; it could not, therefore, be demanded; a conjectural payment, on account, the defendants had no right to exact, nor were the plaintiffs bound to make. It is said that the unlading of the wheat, for the purpose of ascertaining its quantity, would have been attended with great labor and expense ; but if this unlading- was a duty which the carriers undertook to perform, if its performance was necessarily implied in their contract to transport and deliver the wheat, the question of its labor and expense was plainly immaterial. We are bound to presume that they were taken into consideration in fixing the amount of the freight. The allegation that the carriers, by unlading the wheat as requested, would have lost their insurance, we do not exactly understand. If this was a usual and proper-mode of discharging cargo from canal boats, an insurance, in the usual terms, would not have been lost. But were this otherwise, if the risk was one which the carriers knew that, in the performance of their duty, they would incur, they should have framed their insurance to cover it, and by not doing so, agreed to assume it. The result is, that the master violated his duty in refusing to unlade the wheat, as requested, and in making the payment of freight a condition precedent. The wheat, it seems, and was admitted, could not with propriety have been discharged upon the wharf to which the canal boat was moored, and it thereby appears that the usage is to discharge such cargoes into lighters brought alongside the boats for that purpose. We do not see why it was not the duty of the carriers in this case to have provided such a lighter, at their own expense, and according to the usage have discharged the cargo. The allegation that by so doing they would have lost their lien for the freight, we consider to be groundless. So long as the examination into the condition and quantity of the wheat was going on, and until the amount to be paid for freight was ascertained, the carriers would have retained their possession and their lien—just as certainly as if the wheat had remained on board the canal boat, and the necessary examination had there been made. The mere' transfer of the wheat from the boat into the lighter could never have been construed as a final delivery to the plaintiffs, changing the possession, and thereby extinguishing the lien of the carriers.

But whether the carriers were bound to provide a fighter, and whether by so doing they would have lost their lien, are questions which it is not here necessary to determine. The plaintiffs offered, at their own expense, to provide a fighter, and that the carriers should. retain their possession, and consequently their lien, until the freight was ascertained and paid. It was the manifest duty of the master and Ms owner, Littlejohn, to have complied with this offer, by unlading and delivering the wheat in conformity to its terms; their refusal to comply with it was in effect a refusal to deliver the wheat at all. It was a breach of their contract, amounting in law to a wrongful conversion to their own use of the property they had undertaken to deliver, and the defendants, by refusing to surrender to the plaintiff, upon request, the property thus wrongfully converted, were guilty of its wrongful detention. Upon the evidence on the trial, the plaintiffs were entitled- to a verdict for its full value.

The verdict for the defendants must therefore be set aside, and there must be a new trial, with costs to abide the event.


author: Hoffman, Justice:

text:
    Auguste Belmont v. Robert B. Coleman and Charles A. Stetson.
    When improper or irrelevant evidence has been admitted by a referee, the error in its admission will be disregarded if it manifestly appears that the evidence could not have influenced his decision, and that his conclusions must have been the same, had it not been received.
    A bill of exchange, drawn upon an incorporated Company, and accepted by its president, is presumptive evidence that it was founded on a sufficient consideration and was drawn for legitimate purposes within the purview of the charter of the Company.
    In an action in which the plaintiff relies upon the validity of the bill as binding the Company, the burthen of proof, when its validity is denied, as drawn for purposes not within the lawful powers of the Company, rests upon the defendant.

      In an action against an individual stockholder of an incorporated Company, by whose charter the stockholders are made liable for its unsatisfied debts—the record of a judgment against the Company, and an execution thereon returned unsatisfied, areprimd facie evidence that the debt so recovered was a valid debt of the Company, and the burthen of proving collusion or mistake is cast upon the defendant.
    Judgment for plaintiff, upon the report of a referee, affirmed with costs.
    (Before Bosworth and Hoffmah, J.J.)
    Heard, February 12;
    decided, May 9, 1857.
    This action comes before the Court at General Term, on an appeal by the defendants from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The plaintiff, before commencing this action, had recovered a judgment against a corporation, of which the defendants are stockholders; and this action is brought, to recover of the defendants, as such stockholders, the amount of such judgment, on the ground that they were such stockholders when the corporation contracted the debt, on which such judgment was recovered.
    The judgment was recovered upon two bills of exchange for $4,000 each, purporting to be drawn by the Vice-president and Agent of the Mexican Ocean Mail and Inland Company, upon the President of such Company, in favor of N. Davidson. Each bill was dated November 25th, 1853. Such judgment was entered against the Company on the 8th of June, 1854.
    The complaint avers, that before the maturity of the bills, the said corporation accepted the same in writing, and the payee endorsed the same to the plaintiff.
    That the said corporation did not pay the bills, and that on the 8th of July, 1854, the plaintiff recovered a judgment against the corporation on such bills for $8,889 55. That an execution was issued upon such judgment to the Sheriff of the County of New York, -and by him returned wholly unsatisfied.
    That the capital stock was one million five hundred thousand dollars, divided into fifteen thousand shares of one hundred dollars each. That such capital stock has never been paid in, nor has a certificate thereof been made and recorded,'according to the provisions of the act under which the Company was organized.
    That was the act of April 12th, 1852, entitled “An. act for the incorporation of companies formed to navigate the ocean by steamships.” That the defendants are the holders and owners of three hundred and seventy-five shares of the stock of such corporation. That the plaintiff had demanded payment of such judgment from them, which they had refused; and that by force of such statute they were liable to pay the amount, and interest with costs.
    The defendants, in their answer, after various general denials, admit that they are the holders and owners of three hundred and seventy-five shares of the capital stock of the Company; but they say that they did not become, and were not the holders and owners of such stock, or of any stock of the said Company, until after, and subsequent to the date of such bills of exchange, and until after the same had been accepted.
    The bills were each drawn at four months after sight, and were accepted on the 19th of December, 1853. The referee, to whom the action was referred, made a report containing a statement of his conclusions of fact and of law, which, exclusive of the articles of association therein set forth, reads as follows, viz.:—
    To the Justices of the Superior Court:
    “ I, the subscriber, to whom, by an order entered in the above entitled action, bearing date the 17th day of May, 1855, it was ordered that this action and the issues therein be referred, to hear and decide the same—
    “ Do respectfully report, that I have.been attended on the said reference by the counsel for the respective parties above named, and have heard and duly considered their respective allegations and proofs.
    “ And I further certify that I find as facts from the evidence before me on the trial of said action—
    “ 1. That on the 8th day of January, 1853, Elihu Townsend, Robert G. Rankin, Otis P. Jewett, James Speyers, Simeon Draper, Albert C. Ramsay, and Gustavos A. Sacchi, made, signed, and acknowledged, before Alexander P. Sharp, a commissioner of deeds in and for the city and county of Hew York, a certificate in writing under an act of the legislature of the State of Hew York, entitled, ‘ An. act for incorporation of companies formed to navigate the ocean by steamships,’ passed April 12th, 1852, and that said certificate is in the words following, viz.:

      “1 Articles of association made and entered into in duplicate this first day of January, one thousand eight hundred and fifty-three, by and between the persons whose names are hereunto subscribed, certify, &c., &c.’
    “ 2. That said certificate in writing was filed in .the office of the Clerk of the County of New York, on the 8th day of January, 1858, and that a duplicate of said certificate was filed in the office of the Secretary of State, of the State of New York, on the 25th day of'January, 1853.
    “ 3. That Robert G. Rankin was the President of said Company from January 10th, 1853, to January 1, 1855, that Albert C. Ramsay was the Vice-President of said Company during the same period, and that the principal office or place of business of said Company was, during the same time, in the city of New York.
    “ 4. That on the 25th. day of November, 1853, the said Albert C. Ramsey drew a bill of exchange in writing, in the words and figures following, viz.:—
    “ Mexico, November 25, 1853. For $4000.
    “At four months after sight, pay this second exchange (first and third not paid) to the order of N. Davidson, Esq., four thousand dollars value in account, which please to account this office as advised.
    Albert C. Ramsey,
    Vice-President
    and Agent.
    To Robert G. Rankin, Esq.,
    President of the Mexican Ocean Mail and Inland Co.,
    New York City.
    “ The said bill was endorsed on the 2d day of December, 1853, by N. Davidson, the payee named therein, and was accepted in writing by said Company, on the 19th day of December, 1853.
    “ 5. That on the 25th day of November, 1853, the said Albert C. Ramsey drew another bill of exchange in writing, in the words and figures following, viz.:—
    “ Mexico, November 25th, 1853. For $4000.
    " At four months after sight, pay this second of Exchange (first and third not paid) to the order of N. Davidson, Esq., four thousand dollars value in account, which please to account this office as advised.
    Albert C. Ramsey,
    Vice-President
    and Agent.
    “ To Robert C. Rankin, Esq.,
    President of the Mexican Ocean Mail and Inland Co.,
    New York City.
    “ The said bill was endorsed on the 2nd day of December, 1853, by N. Davidson, the payee named therein, and was accepted in writing by said Company on the 19th day of December, 1853.
    “ 6. That neither of said bills have been paid by said Company.
    “ 7. That on the 8th day of June, 1854, the plaintiff in this action recovered a judgment in the Superior Court of the city of New York against the said The Mexican Ocean Mail and Inland Company, as the acceptors of said bills of exchange, for the sum of $8,889,55 damages and costs; that on the same day an execution was issued on said judgment by said plaintiff, against said Company, addressed to the Sheriff of the City and County of New York, and that said execution was returned by said Sheriff wholly unsatisfied on the 9th day of June, 1854.

      “ 8. That the capital stock of said Company has never been paid in, nor has a certificate thereof been made and recorded as prescribed in said acts, passed April 12th, 1852.

      “ 9. That the defendants in this action, at the time of the acceptance of said bills of exchange, on the 19th day of December, 1853, were the equitable owners of three hundred and seventy-five shares of the capital stock of said Company, of the nominal value of one hundred dollars for each share; that on the 2d day of February, 1854, the said defendants became the holders of said three hundred and seventy-five shares of capital stock, and were thereafter, and until the commencement of this action, holders and owners of said shares.
    “ And I further certify and report as conclusions of law, from the above facts, and decide;

      “1. That the plaintiff is entitled to judgment against the said defendants for the sum of ($9,311 26) nine thousand three hundred and eleven dollars and twenty-six cents.
    “ 2. That the plaintiff is entitled to recover the costs of this action.
    “All which is respectfully submitted.
    “New York, April 22d, 1856.
    “Geo. N. Titus, Referee.”
    The articles of association are omitted, as all the provisions deemed material are recited in the opinion of the Court. Exceptions to the decisions of the referee were duly filed. The case was submitted, by the counsel of the parties, upon printed points, and the points relied on are sufficiently stated in the opinion of the Court.

      J. Miller, for the defendants, appellants.

      T. H. Rodman, for the plaintiff, respondent,
   Hoffman, Justice:

I. The first question is upon the evidence. Is it sufficient to sustain the finding that the defendants were owners of the stock when the debt was contracted?

Upon the review of the evidence the Judge held that the referee was warranted by this evidence to find as he did. The Judge proceeded—

But it is insisted that certain evidence, tending to this point, was improperly admitted. Albert C. Ramsey was the Vice-President of the Company, and ten certificates of stock were originally issued to him on account of the defendants. They were issued on account of advances of funds—Rankin signed all the certificates. He says, “ the 375 shares in question was a part of the stock belonging to the ten of the original parties who advanced the funds to procure the grants. Col. Ramsey asked me for a certificate for Coleman and Stetson’s shares, and directed it to be made out in the name of Albert C. Ramsey & Co., together with other certificates for 375 shares each, to the other original parties: he gives evidence tending to show that it was, in fact, issued for a specific purpose, other than to or for subscribers, who had paid cash for stock for which they had subscribed.

Although, of itself, it may not be evidence that the defendants were at the time the equitable owners of it, yet it was competent to prove that it was issued for them, as a compensation for advances they had made, and that they had accepted it accordingly. The further expression, “he directed me to send them to Mr. Draper, who,” he said, “ acted as the representative, or agent, of the original parties,” is proper so far as it shows a direction to send them to Mr. Draper, for their benefit.

It being otherwise proved that Mr. Draper, in fact, acted as their agent in that respect, it' would be unjust to an intelligent referee to conclude, that he might have been influenced in finding the fact of such agency, by this- statement.

I think we are therefore justified in saying, that this testimony could not have influenced the referee to the prejudice of the defendants.

The objection of defendants’ counsel to all the testimony in relation to the confirmation, by Coleman and Stetson, of the acts of Mr. Draper on their behalf, “ was too broad,” and the objection was properly overruled. If the answer of the witness, which immediately preceded the objection, and only that had been objected to, for aught we can see, the objection would have been sustained.

The fact that Draper, in the accounts which he rendered to the Company for advances made, included those made by the defendants, and that when the witness spoke to Mr. Coleman about his interest, the latter - referred him to Draper, had been proved without objection. It had also been proved that the certificate for this stock, had been previously sent to Mr. Draper, and that the defendants had procured a transfer of it to themselves, saying it was for their original interest.

An objection to such a confirmation, by Coleman and Stetson, of the acts of Draper, in relation to and as representing their original interest, as was evidenced by an actual transfer to themselves of the legal title to stock, originally issued for them, and on account of their advances, would not be well taken.

We hold in this case, that the matters of evidence which were admitted against the objection of the defendants, could not have prejudiced their case with the referee, and that if it had not been received, his conclusions must necessarily have been the same.

II. Another point, on behalf of the defendants, is, that the plaintiff was bound affirmatively to prove that the drafts were made and accepted for the use of the Company, and that the purposes for which they were drawn were within the lawful powers of the Company; that the Company was indebted, and legally indebted.

The referee has found, that the bills were drawn by Ramsey, (and that he was the Vice-President,) on Ban kin, and that he was the President, “ and were accepted in writing by said Company on the 19th of December, 1853.”

We are of opinion, that this raises a presumption that the acceptance was made, not only for a sufficient consideration, but for legitimate purposes, within the objects and powers conferred by the charter.

The case of the Attorney- General v. The Life and Fire Insurance Company (9 Paige, 470) is ample authority for this proposition. That late excellent lawyer, Mr. George W. Strong, was one of the referees in the case, and held, upon a preliminary objection in the nature of a demurrer to a claim upon an instrument of the Company, in the form of a post note, that as the Company could issue such obligations, for some lawftd purposes, they were prima facie binding. Testimony was then given, which showed satisfactorily, that those produced could not have been issued for any such purpose. This reversed the duty, and the holders were then to prove the origin and consideration to have been legal, in which they failed.

The Chancellor confirmed this decision.

In Safford v. Wyckoff (4 Bill, 442) this decision is cited, and its principle acted upon.

McCullough v. Moss (5 Denio, 507) has been cited, as containing a contrary doctrine, and the head note seems to favor the counsel’s view. But a very careful examination satisfies me that there is nothing, even of language, in the opinions, to warrant this proposition. On the contrary, Senator Scott, who delivered the leading opinion, says:

“ The right of a corporation to make a promissory note for a debt incurred in the course of its legitimate business, although it is not expressly authorized ” to contract in that form, appears to be conceded in our Courts—citing the case of the Life and Eire Company.

“ But it is unnecessary to examine whether the Rossie Lead Company had that power. I am satisfied that the note in question was given for purposes and object? unauthorized by its charter, and, therefore, not obligatory.” The learned Senator proceeds to examine the testimony which proved, this position.

In the present instance, the defendants have been so far from succeeding in showing, that the purpose for which the acceptance was given, was illegal, that the evidence rather tends to the conclusion that it was, in fact, made for rolling stock, purchased for the route.

The case of Moss v. Livingston (4 Comstock, 208) is distinguishable, as the draft was not drawn upon nor accepted by the corporation.

See further, The Royal British Bank v. Farquand (36 En. L. and Eq. Rep. 142).

III. The next question is, what is the effect of the judgment obtained against the Company?

The complaint alleges, that on the 8th day of June, 1854, a judgment was recovered in this Court against the said corporation on the said drafts, for the sum of $8,889 55, being the amount due thereon, with interest and costs. That an execution was in due form issued, and returned unsatisfied.

The answer states the want of information or knowledge as to these facts.

The plaintiff read in evidence the judgment roll, the execution, and sheriff’s return, stated in the complaint.

The referee finds the judgment to have been recovered, and the execution to have been issued, as stated in the complaint,

We are warranted in concluding this to have been an adverse judgment.

What is the relation which stockholders bear to a Company organized like the present ?

The provision which creates their liability is the 6th section of the Act of 1852. “ The stockholders shall be severally individually liable to the creditors of such corporation, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such corporation, until the amount of the capital stock is paid in, and a certificate thereof shall have been made and recorded as prescribed in the following section."

The referee has found that the capital stock had not been paid, and the certificate had not been made and recorded as prescribed.

By the 8th section, no stockholder shall be personally liable for any debt of the corporation, unless a suit shall have been brought against the corporation within six years after the debt became due; nor shall such a suit be brought unless an execution has been issued, and returned unsatisfied, in whole or in part (Sess. Laws, 1852, ch. 288).

This personal liability clause was first inserted in any public act of our state, in the statute relative to incorporations for manufacturing purposes, passed April 8th, 1811 (1 R. S. 1813, 247). By the 7th section of that act, for all debts which shall be due and owing by the Company, at the time of the dissolution, the persons then composing such Company shall be individually responsible, to the extent of their respective shares of stock. There was no clause in the act requiring a preliminary action against the corporation to recover the demand.

I have long considered that Slee v. Bloom, (14 John Rep. 456, 20 ibid. 669), had settled the law to be, that a judgment against the Company, as "well as an account stated between the creditor and its officers, was evidence of the debt, and was only to be invalidated upon a case properly made, by the pleading of a party questioning it, and that pleading sustained by proof. The Company had liquidated Slee’s account, and given a bond and warrant, on which judgment was confessed and perfected. Among the points taken by the present Chief Justice Oakley, for the stockholders sued individually, was one, that they ought not to be concluded by the settlement made by the trustees with the appellant, or by the judgment; and more especially as it was grossly erroneous, &c. (19 Johnson, 472.) Chancellor Kent, it will be remembered, had dismissed the bill on the ground that the Company had not been legally dissolved.

The decree of the Court of Errors reversed that of the Chancellor, and declared, that the respondents should pay the appellant, towards the discharge of his debt against the Company, the amount of their shares of stock of $100 on each share, or so much thereof as might be necessary to pay the appellant’s debt when ascertained.

The cause was remitted to the Court of Chancery to carry out this decree. An order of reference was made, and I acted as Master under it. A separate report was made, in which the judgment was stated and the previous liquidation of the account of Slee; that the decree had left the question open, how far the liquidation and judgment operated upon the case; that various allegations of error and fraud had been made as to the amount. And that the defendants were entitled, on the reference, to falsify and surcharge the account at large; specifying and going into proof of any error of such a nature and description as, upon a bill filed to open the account, if properly charged and duly proven, would be declared a sufficient error by the Court, to be amended under its direction.”

On exceptions, Chancellor Kent held, that the judgment, though binding on the Company in its corporate character, was not so upon the defendants, when charged in their individual capacity. The acts of agents or trustees of the company were not the acts of agents or trustees of the individual stockholders.

In the Court of Errors, the decision of the Chancellor upon the exceptions was reversed.

The principle was declared, that the trustees-were the agents to contract the debt. That the respondents could not impeach the consideration of the debt in any other manner,- nor on any other ground, than any principal can be allowed to do so. The decree was, that the condition of the bond, on which the judgment was founded, be deemed conclusive evidence of the amount due from the Dutchess Cotton Factory.

In the case of Freeland v. Lefferts, March 7th, 1842, before me as Assistant Vice Chancellor, the point was taken; and I held that a judgment against the Rossie Galena Company was prima facie evidence of the debt, in an action against a stockholder. The views expressed were as follows:

“ The bill is filed by a creditor of the Rossie Galena Company, after judgment recovered against the Company, and execution returned to compel the three defendants to pay the debt, as stockholders of the Company.”

The first question is, as to the effect of the judgment recovered by the complainants against the Company.

The case "of She v. Bloom (20 Johnson Eep. 669) must control this question. The facts and decision in that case are familiar to me, having, as Master, made the report upon which the questions arose. Chancellor Kent held that the judgment was of no force at all, the corporation not representing the members in their individual liability. Chief Justice Spencer held, that the judgment was evidence, but did not, in itself, exclude the parties from showing fraud or illegality in obtaining it. I may be permitted to observe that this was, in principle, in accordance with the Master’s views in the case; but the Chief Justice also held that, upon the pleadings as they stood, and the proofs made, “ there was no foundation laid for impeaching the account, which had not been fully and satisfactorily met and repelled.”

The impeachment of the debt was made in the pleadings, entered upon in proof, and there was no reason or practice, justifying a further inquiry to the same matters, in the Master’s office.

It is difficult to use language more precise or more applicable to the present case than that of the Chief Justice. He says, (p. 685) “We must regard the judgment as a solemn admission merely, on the part of the Company, of indebtedness; but it is not, of itself, binding on the stockholders, if it was obtained by fraud, or founded on error. The appellant has stated, in his bill, the origin and consideration of his debt, and the manner of its liquidation, and it was competent for the respondents, in their answers, to have impeached it. But they were bound to have specified, in their answers, the particular facts on which they relied.”

But, it has been urged, that the decision in Slee v. Bloom, is not binding in this case, because the stockholders under this statute, are bound for the whole debt; but, under the general Manufacturing Act, only to the amount of their stock. This is only an extension of liability. I cannot see how it changes the force of the representative character. The present statute does not, in terms, make the judgment even prima facie evidence, although it requires a judgment first to be obtained against the Company. The Manufacturing Act was in no wise stronger, being merely, “that for debts which shall be due and owing by the Company at its dissolution, the members shall be individually responsible, to the extent of their respective shares of stock.”

• Thus, then, the law seems to be, that á judgment against a company is primarily binding upon the members. But they may question it in any way, and upon every ground, showing-illegality or érror, when sued individually.

This privilege is sufficient to ensure justice to the stockholders* In the present case, neither of the defendants has stated, in his answer, any ground for impeaching the judgment or its consideration.

In Bonaffe v. Fowler (7 Paige 576), the judgment had been recovered two months after the time when the corporation was dissolved, as alleged in the bill, and was held not to be evidence óf a debt.

.In Moss v. Oakley, .2 Hill, 265, the Court held, that a judgment, under a statute similar in all respects, was conclusive as against the company, but only primd fade evidence of indebtedness against a- stockholder.. He was not a stranger to it altogether. Whether, he was at liberty to impeach it. on any other ground than that of fraud, it was not necessary to: decide. This was under the act concerning the Rossie Lead Mining Company. (Laws, 1837, p. 441, ch. 396.)

In Bailey v. Bancker, 3 Hill, 188, the Supreme Court treated stockholders under such statutes, as standing in. the character of partners as between themselves. But in Harger v. McCullough, (2 Denio, 119), the Court say, they have been spoken of (as in Moss v. McCullough, 5. Hill 131),ns guarantees or sureties. The Court then proceed to define their character to be; as to creditors, that of principal debtors. .The individuals were to be liable in the same, manner as if they had not been incorporated, and this is the doctrine of Corning v. McCullough, 1 Comstock, 47.

• The case of Moss y: McCullough, (5 Hill, 131,) decided this only, that when a note had been proven, given by the Company, and a judgment recovered upon it, evidence was admissible to prove anything which would impeach the note as wholly or partially invalid. The Judge, at the Circuit, had rejected such evidence because the judgment was conclusive..

, It is of importance to understand," that this was-decided, and nothing more. The reasoning of the learned Judges, and some expressions do not seem to me reconcilable with previous cases; clearly they were not necessary for the decision.

A new trial in that case was ordered.

Upon that new trial the plaintiff proved the note, and the general agency of the "president, and also the judgment. Numerous questions arose, and were decided.

Upon a bill of exceptions, the Supreme Court refused a new trial. The case went to the Court of Errors, which reversed the decision, and awarded a venire de novo, (5 Denio 567). Senator Lott states, that he was satisfied that the note in question was given for purposes unauthorized by the charter, and therefore not obligatory.

The passage in his opinion, the only passage which bears upon this question, is the following. “A judgment by default in a suit which must have been commenced by service of process on the presiding officer, cashier, &c. cannot, without it is shown to have come” to the knowledge of the Board of Directors, have that effect, (the effect of charging the stockholder,) “especially as against a defendant who was not a stockholder, when it was obtained.”

Senator Putnam’s opinion does not touch this question. Senator Van Schoonhoven concurred in the views of Senator Lott.

Barlow & Talcott were for the affirmance of the judgment, which was for the plaintiff. It was reversed and a new trial ordered.

If Senator Lott’s opinion is taken as the judgment of the Court, it amounts to this, and this only. The consideration of the debt on- which a judgment against the Company was had, may be inquired into in an action against the stockholder. If it is by default, it amounts to nothing. The consideration being inquired into, it was illegal. Therefore the judgment for the plaintiff could not be sustained.

The case was again tried, and is reported upon a bill of Exceptions in 7th Barbour’s Reports, 279. Justice Willard examines all the opinions in the Court of Errors. The Court appears to have had several opinions which are not given in Denio’s Be-ports. The result was, that the judgment against the Company was held to be prima facie evidence of a debt against the defendant, open to be impeached for collusion or mistake.

I have been favored with a communication from Mr. Justice Willard, in which he states, that this last decision did not go to the Court of Appeals, in consequence, as it was understood, of the defendant’s failure. But another suit was brought against Aurill, by Moss, for the same debt; and the evidence taken was substantially the same. The same point as to the judgment, was ruled below, and approved by the General Term in April, 1849. This was carried to the Court of Appeals, and the opinion in 7 Barbour, was printed as the opinion of the General Term. It was twice argued, and in June, 1853, the judgment was affirmed upon an equal division of the Court. Upon the previous argument in 1852, there had also been an equal division.

Tn this state of the question, in the highest tribunal, and with my own conviction that the doctrine of Slee v. Bloom, remains to this day unshaken, I am prepared to hold, that an adverse judgment against a company is presumptive evidence of the debt, in an action against a stockholder after execution returned. But we entirely concur, that when an acceptance by the Company of a draft is made out, and a judgment is had upon such acceptance, and no testimony is given to show illegality in the object, there is enough to charge the individual stockholder— being a stockholder at the date of the contract, and at the date of the judgment.

The judgment should be affirmed with costs.

Bosworth, J., concurred, in holding that the judgment should be affirmed. Affirmed accordingly.