text:
    Goddard and St. John v. The Merchants Bank.

    Money paid under a mistake of facts may be recovered back, in an action for money had and received.
    Where a draft, after having been protested for non-payment, is paid to the agent of the holder, by a third person, for the honor of the drawer, without his having seen the draft, but upon the representation of such agent that he has a genuine draft, and the draft afterwards turns out to be a forgery; the person paying it supra protest, may, after having given immediate notice of the forgery, recover back the amount paid by him, in an action against the agent, brought before such agent has paid over the money to his principal, and before his situation in respect to his principal has been in any manner changed.
    What will be considered due diligence, on the part of a person paying a forged draft, supra protest, in giving notice of the forgery.
    An agent’s merely passing money in account, giving credit, or making a rest, is not equivalent to paying the money over to his principal.
    Where the name of an indorser is forged, the acceptor who pays in ignorance of the forgery, may recover back the money from an innocent holder, on the ground that he is not presumed to know the signature of every indorser. But where the name of the drawer is forged, the acceptor who pays the bill will not, as a general rule, be allowed to dispute the genuineness of the drawer’s signature. Per Vanderpoel, J.
    The acceptor is presumed to know the signature of the drawer, when he accepts, as he is supposed to be in correspondence with him. Per Vanderpoel, J.
    Nov. 16;
    Dec. 23, 1848.
    This was an action of assumpsit, tried in June, 1848. The object of the suit was to recover the amount of a forged draft paid to the defendants, by the plaintiffs, supra protest, for the honor of the alleged drawers. The draft was for $1000, dated Cleveland, Ohio, August 28, 1847, and purported to be drawn by S. H. Mann, cashier of the Canal Bank, upon the American Exchange Bank of New York, payable to the order of E. S. Moore. On the 15th of September, 1847, the draft was brought to the bank of Rutland, Vermont, by a person who was introduced to the cashier as E. S. Moore, and who, it was stated, wished to obtain from the bank the money on a draft he had, for the purpose of buying cattle. The cashier having agreed to cash the draft, Moore indorsed the same, and received the amount thereof in bills of the bank. The next day the draft was sent to the Farmers Bank of Troy, to be collected for the bank of Rutland, who remained the owners thereof until it was taken up by the plaintiffs. The Farmers Bank of Troy transmitted the draft, with their indorsement thereon, to the defendants, the Merchants Bank, in New York, who were the agents of the Farmers Bank in that city, for collection. The defendants presented the draft to the drawees, the American Exchange Bank, and payment being refused, for the want of funds of the drawers, it was in the usual course pf business handed to John U. Campbell, a notary public, for protest. The draft was again presented to the drawees by the notary, on the 18th of September, 1847, and payment being refused, it was duly protested, and notices to the endorsers and drawer were prepared to be sent by mail. The plaintiffs hearing of the protest of the draft, and supposing such draft to be genuine, thereupon .intervened, and for the honor of the drawers, of whom they were then the bankers or agents, in New York, voluntarily paid to the defendants the amount of the draft, with costs of protest. And the defendants passed the amount to the credit of the Farmers Bank of Troy. It afterwards appeared, and was proved on the trial, that the draft was forged. The circumstances under which the draft was paid to the plaintiffs were as follows:
    Elijah H. Riker testified, that on the 20th of Sept, 1847, he was in the office of the notary, John D. Campbell; that he answered calls for him when he was absent; that on that day, Mr. Goddard, one of the plaintiffs, called at Mr. Campbell’s office and inquired for Mr. Campbell. He said he had been informed by a clerk in the American Exchange Bank, that Mr. Campbell had an Ohio draft in his hands, drawn by the Canal Bank of Cleveland, to protest as a notary; and that he, Mr. Goddard, wished to pay it, with the fees of protest; that the witness requested him to wait a few minutes until Mr. Campbell should come in; that Mr. G. said he was in haste, and could not wait; and asked the witness if he would take a certified check and hand it to Mr. Campbell. He asked for the draft, and said he wanted to pay it, and had a certified check to pay it with. The witness told him that Mr. Campbell had the draft. He then asked the witness to take the certified check, for the purpose of paying the draft in the hands of Mr. Campbell, which he did. Mr. Goddard said he was the agent of the bank, and did not wish any notice of protest sent out. When he was leaving, he requested that the draft should be sent down to their office. When Mr. Campbell came into the office, the witness handed him the check, and stated to him that Mr. Goddard had called to pay a draft of the Ohio Bank, and that no notices of protest should be sent; also, that the plaintiffs wished the draft sent down to their office.
    John D. Campbell, the notary, testified, that on the 18th of September, 1847, being Saturday, he presented the draft at the American Exchange Bank, and demanded payment, which was refused; that on Monday morning, September 20th, when he came down to his office, he found a certified check of the plaintiffs for $1000 75, which he was told by Mr. Riker had been left to pay the draft; that he took the check to the Merchants Bank and handed it to the note teller, who ceritfied the amount to the Farmers Bank at Troy. That he brought back to his office the draft, and put it in his trunk, where it remained until the next morning, when Mr. Goddard called and spoke of his having left his check, to pay the draft; that the witness then went to his trunk and took out the draft and handed it to him. On looking at it a few moments, Mr. Goddard said he doubted if it was a genuine draft; and wanted the witness to return him the money. The witness told him that he had presented it to the bank on which it was drawn, and that he thought it strange nothing had been said about its being a forgery ; the witness offered to go to the bank with him, and see the cashier; that he told Mr. G. that if he had informed the witness of the forgery the day before, he, the witness, might have sent the notices in time on that day. Mr. G. said he had not seen the draft until it was shown to him by the witness. The witness went to the Merchants Bank with Mr. G. and saw the cashier with him. Mr. G. told the cashier that the draft was a forgery, and demanded back the money deposited the day before. The cashier declined refunding it, saying that he did not know the draft was a forgery, and that the money having been paid, and gone to the credit of the Farmers Bank of Troy, he did not see how it could be returned. It was then agreed between Mr. Goddard and the cashier, that the witness should again present anew, and protest the draft, and give notice, to the parties, which he did, on the 21st of September. This witness also testified that Mr. Riker was not his clerk; that when he was absent from his office, Riker frequently received papers for him, and answered questions for him in regard to the witness’s business ; that Riker had equal charge of the office, being a co-tenant with the witness of the same.
    The testimony being closed, by consent of parties, the jury found a verdict for the plaintiffs for $1051 53, subject to the opinion of the court.

      H. E. Davis, and W. Kent, for the plaintiffs.
    I. Money paid under a mistake of facts can be recovered back in an action for money had and received. (Boyer v. Pack, 2 Denio R. 107; Mowalt v. Wright, 1 Wend. 355; Wait v. Leggett, 8 Cow. 195; Bank of Orleans v. Smith, 3 Hill, 560.)
    II. The act of the plaintiffs in paying supra protest, is sanctioned and encouraged by the commercial law. (Story on Bills of Exchange, § 121, 122, 123.) And in thus paying, the plaintiffs acted not only under a mistake, but upon an affirmation of the defendants’ agent, untrue in point of fact, and which the plaintiffs had no means of correcting.
    III. Had the plaintiffs even seen the draft and paid the money under a mistake as to the genuineness of the drawer’s signature, he would have been entitled to recover back his money, on the discovery of the mistake and giving notice. (Wilkinson v. Johnson, 3 Barn. & Cres. 428 ; Canal Bank v. Bank of Albany, 1 Hill, 287.)
    IV. Due diligence was used by the plaintiffs in giving notice of the forgery. (See the same cases as mentioned in last point.)

      B. W. Bonney, for the defendants.
    I. The Bank of Rutland were bona fide holders for full value, of the check in question, which was received by that bank, and the consideration therefor paid in the ordinary course of business, without negligence, fault, or blame on their part.
    II. The check was, in the usual course of business, indorsed and transmitted for collection by the Bank of Rutland to the Farmers Bank of Troy, and by that bank to the Merchants Bank in New York. The defendants were the agents of the Farmers Bank in the transaction, having nó interest whatever in the check or its proceeds.
    III. The check was promptly presented for payment by the defendants, and payment being refused, it was, in the usual course of business, handed to a notary for protest, by whom the same was again presented to the drawees and duly protested, and notices to the indorsers and drawer prepared to be sent in due course of mail, as required by law. No laches, improper conduct, or blame whatever is attributable to the Merchants Bank or the notary.
    IV. The plaintiffs, of their own mere motion, without request, application or notice from the defendants or the notary, intervened, and for the honor of the drawers, of whom they were then the bankers or agents in New York, voluntarily paid the check. The defendants received the money in perfect good faith, and passed the same to the credit of their principals, the Farmers Bank, and cannot be required to repay the same to the plaintiffs.
    V. The payment of the check, without request or notice from the defendants, and without seeing, the same, to determine as to its genuineness or character, was gross negligence on the part of the plaintiffs, which precludes them from recovering back the money so paid. If they were misled by information received from the drawees, the defendants cannot be made responsible for it.
    VI. It is a well settled principle of law, that the drawee of a bill or check, who accepts or pays the same, thereby admits the signature of the drawer, and is estopped from subsequently denying it, and cannot afterwards defend an action on the acceptance, brought by a bona fide holder, or recover back the money paid, although the drawer’s signature be a forgery. And a third person not a party to the paper, who for the honor of the drawer, has voluntarily intervened and accepted or paid the bill or check, is, under like circumstances, in no better position than the drawee. (Chitty on Bills, Springfield Ed. of 1842, 307, 426-7, and 430-1; Price v. Neal, 3 Bur. 1354, A. D. 1762; Smith v. Chester, 1 Term R. 654, A. D. 1787; Levy v. Bank of U. S., 1 Binney, 27; Jones v. Ryde, 5 Taunton, 488; Bruce v. Bruce, 5 Taunton, 495 ; Smith v. Mercer, 6 Taunton, 76; Bass v. Clive, 4 M. & S. 15, A. D. 1815 ; Wilkinson v. Johnson, 3 Barn. & Cress. 428; Cock v. Masterman, 9 Barn. & Cress. 902.)
    VII. It was the duty of the Merchants Bank, as correspondent and agent of the Farmers Bank, to have caused the check in question to be duly protested on the day it was presented to the drawees, and notices to be regularly sent to the indorsers and drawer. And not having done so, the Merchants Bank is responsible to the Farmers Bank for the amount of the check. The responsibility of an agent is in these particulars, greater and more rigidly enforced than that of a party in interest as indorser for value. (Allen v. Suydam & Boyd, 20 Wend. 321; Woodruff v. Merchants Bank, 25 Wend. 673 ; Same case in error, 6 Hill, 174.)
    VIII. The plaintiffs, by intervening and voluntarily paying the check in question, and by application to the notary, prevented the giving of due notice to the endorsers and drawers, and procured the protest and notices which had been prepared to be destroyed. By these acts the defendants have been made liable to the Farmers Bank for the amount of the check, and therefore the plaintiffs cannot recover back the money so paid.
    IX. The testimony shows actual damage to the Bank of Rut-land, by the delay in sending forward the protest and notices. Had they been sent one day sooner, the supposed forger would have been arrested at Cleveland, and the money might have been recovered from him.
    X. The money in question having been received by the defendants as mere agents, and immediately passed to the credit of the Farmers Bank, their principal, the Farmers Bank and not the defendants, (if any one,) were liable therefor; and this action against the defendants cannot be sustained.
    XI. The verdict, taken by consent, should be set aside, and a non-suit or verdict for defendants entered.

       Before Vanderpoel and Sandford, J. J.

   By the Court. Vanderpoel, J.

It is now too well established to admit of doubt or controversy, that money paid under a mistake of facts, can be recovered back, in an action for money had and received. (Boyer v. Pack, 2 Denio, 107 ; Mowatt v. Wright, 1 Wend. 355 ; Bank of Orleans v. Smith, 3 Hill, 560.) It is conceded that the draft which the plaintiffs paid to the defendants, was a forgery; and the only question is, upon whom the loss should fall. Questions of this description are not always free from difficulty; as the decisions of the courts, especially those in England, have not always been consistent as to payment by mistake of bills or notes, when there has been a forgery. Chitty says, (Chitty on Bills 430, ed. of 1842,) that with respect to payments by mistake, of bills or notes, where there has been a forgery, the decisions and opinions have been contradictory; that there are many conflicting decisions upon the question, whether the party paying should be allowed to recover back the money from the person to whom he has inadvertently paid it. In stating the prominent reasons that have been put forth on both.sides of this question, he remarks, that the holder of a bill who has obtained payment, cannot be considered as having altogether shown sufficient circumspection— “ he might, before he discounted, or received the instrument in payment, have made more inquiries as to the signature and genuineness of the instrument, even of the drawers or indorsers thereof; and if he thought fit to rely on the bare representation of the party from whom he took it, there is no reason that he should profit by this accidental payment, when the loss had already attached upon himself, and when, by an immediate notice of the forgery, he is enabled to proceed against all other parties, precisely the same as if the payment had not been made, and, consequently, the payment to him has not, in the least, altered his situation, or occasioned any delay or prejudice ; that of late, these considerations have influenced courts in determining whether or not the money shall be recoverable back.”

These views of the learned writer strike us as sound, and the considerations which he states as having, of late, influenced courts, we are free to say, have had a potent, if not controlling influence in bringing us to the conclusion we have reached in this cause. The defendants here were the agents of the Bank of Troy, and as such received the amount of the draft from the plaintiffs. They gave their principal credit on their books for the amount, but had not paid over the money. An agent’s merely passing money in account, giving credit, or making a rest, is not equivalent to a payment over. (Buller v. Harrison, Cowper, 568 ; Cox v. Prentice, 3 M. & Sel. 344 ; 5 Taunt. 456 ; Ibid. 815 ; Langley v. Warner, 1 Sand. R. 209.) Enough appears to show that the Bank of Troy was the agent of the Bank of Rutland to collect, and the question, therefore, in reality, is, whether the Bank of Rutland, whose first mistake gave currency to this bill, shall sustain the loss, or the plaintiffs, who paid the bill for the honor of the Canal Bank of Cleveland.

The act of the plaintiffs in paying the bill, supra protest, is sanctioned by the commercial law. (Story on Bills, § 121, 122, 123.) The party who accepts and pays a bill, supra protest, has his own rights and recourse over against the person or persons for whose honor he accepted the same, and against all other parties to the bill, who are liable to the same person or persons. (Story, § 124.) He is not, then, to be regarded as a mere volunteer, who has officiously obtruded himself into the position he occupies, and who is therefore to be regarded with disfavor by the court.

The defendants had handed the bill to Mr. Campbell, their notary, after the drawees had refused payment for want of funds. On the 20th of September, one of the plaintiffs called at Mr. Campbell’s office, and found Mr. Riker there, who, as he testifies, in Mr. Campbell’s absence, answered questions and did business for him. He answered the plaintiff, on inquiry made by the latter, that Mr. Campbell had a draft of $1000 of the Canal Bank of Cleveland on the American Exchange Bank, which the defendants had left with him, to be protested. Whereupon, the plaintiff handed to Mr. Riker his check for the amount of the draft and protest, to be delivered to Mr. Campbell, which he did so deliver to him on the same day, and the latter, on the same day, paid it over to the note-teller of the defendants, who credited it to the Bank of Troy. When the plaintiff paid it, he acted upon the representation of Riker, the agent of their notary, that the notary had such a draft, that is, a real draft, drawn by the Canal Bank of Cleveland on the American Exchange Bank. The payment was made on the faith of this representation when, in point of fact, it was not true. Ought the defendants to profit by such a payment, which, if not induced by the representations of their own agent, was accidental, and made in ignorance of - a most material fact 1 More especially ought the defendants, to be exonerated from the obligation of refunding this payment, when they had notice of the mistake before they paid over the money to their principal, and before their situation, in respect to their principal, was in any respect changed. The case of The Canal Bank v. Bank of Albany, (1 Hill, 287,) was that of money paid on a forged indorsement of a draft. The court hold that the defendants were bound to refund, on the ground that money paid by one party to another, through a mutual mistake of facts, in respect to which both were equally bound to inquire, may be recovered back. We are aware of the distinction between that case and the present, in the fact that there the name of the indorser was forged, and that in such a case the acceptor who pays in ignorance of the forgery, may recover back the money from an innocent holder, on the ground that he is not presumed to know the signature of every indorser. But when the name of the drawer is forged, the acceptor who pays the bill, will not, as a general rule, be allowed to dispute the genuineness of the drawer’s signature. He is presumed to know the signature of the drawer when he accepts, as he is supposed to be in correspondence with him. In Smith v. Chester, (1 T. R. 655,) Buller J. says, when a bill is presented for acceptance, the acceptor looks to the hand-writing of the drawer, and he is precluded from afterwards disputing it; and that it is on that account that he is liable, though the bill be forged.

The plaintiffs here are not the acceptors. They did not look at the signature of the drawers when they made the payment, because they had not then the opportunity to do so. They gave their check to Riker before they saw the bill, and on the faith, induced by Riker’s representations, that Campbell had a genuine bill drawn by the Canal Bank of Cleveland. Though the plaintiffs are not the drawees, yet had the American Exchange Bank, which was the drawee, paid the bill under the circumstances disclosed in this case, in respect to the plaintiffs, we cannot see upon what sound principles they could be precluded from recovering it back. Had the American Exchange Bank paid the bill to Riker without seeing it, on the representation of the latter that Campbell had such a bill; though standing in the relation of drawee, the bank thus paying would not come within the reason of the rule which precludes the drawee and acceptor from recovering back the money when the name of the drawer is forged. The American Exchange Bank would not have done, (because they could not when they made the payment,) what Justice Buller says every acceptor is presumed to have done, looked at the handwriting of the drawer to be satisfied that it is genuine. Suppose one of the officers of that' bank had called upon the notary, and asked him whether he had such a bill, and the latter had answered in the affirmative, but that he could not then exhibit it, as the key of the desk containing it was in the possession of his clerk then out, and the officer of the bank had paid the bill on the faith of such representation, without seeing it, there is surely" no sound principle of law or ethics, which would preclude the bank as drawee, in such a case, from questioning the genuineness of the drawer’s signature, or recovering back the money. The reason which generally seals the mouths of the drawee and acceptor against denying the signature of the drawer, would not then have existed. Though the case of The Canal Bank v. Bank of Albany, is different from 'the present, in the particular above stated, yet the reasoning of the learned judge who delivered the opinion in that case, goes strongly to sustain the present plaintiffs. The learned judge also speaks rather disapprovingly of the case of Cocks v. Masterman, (9 Barn. & Cres. 902,) (a case much relied upon by the defendants,) and seems to intimate a doubt whether it ought to be followed. (1 Hill, 293.)

In Cocks v. Masterman, the court expressly waived an opinion upon the main question, whether the plaintiff there could have recovered back the money, if he had given seasonable notice of the forgery. The case turned entirely upon the ground, that notice of the forgery was not given by the plaintiff to the defendant on the same day the former discovered it. Judge Cowen, in the case of the Canal Bank, speaks of the rule adopted in Cocks v. Masterman, as one of “ rigor.”

The case of Wilkinson v. Johnson, (3 Barn. & Cres. 428,) seems rather to conflict with Cocks v. Masterman. In the former, the plaintiff paid the bill for the honor of one of the indorsers. It turned out, that the names of the drawer, acceptor, and the indorsers, for whose honor the plaintiff had paid the bill, were ail forged; and it was held, that the plaintiff could recover back the money from the holder of the bill, to whom he had paid it under a mistaken opinion that the signature of the supposed drawer was genuine. The conclusion of the court, and the reasoning of Abbot, Ch. J., in that case, favor most of the positions taken by the plaintiffs here.

We also think, that due diligence was used by the plaintiff in giving notice of the forgery, and that no possible prejudice resulted or could result to the defendants, or to the Bank of Rutland, from the retention of the notice of protest for the period it was stayed at the plaintiff’s request. They could not recover from the Canal Bank of Cleveland. The only person from whom they could recover was “ E. S. Moore,” the forger of the bill. It does not appear, that he had any residence where they could have sent notice to him, and it would hardly lie in his mouth to say, that he was not obliged to pay a forged draft, because he was not duly notified of its protest. (Story on Bills, § 308.) We are of opinion, that the plaintiffs used due diligence. (1 Hill, 291, and cases there cited.)

The plaintiffs are entitled to judgment.


source: Caselaw Access Project

author: By the Court. Sandford, J.

license: Public Domain

text:
    Vandewater v. The City of New York.
    The provisions of the ordinances of the corporation of the city of New York, imposing penalties in respect of the using or obstructing the public wharves, docks, piers and slips, do not extend to wharves, &c., owned by private citizens.
    The distinction has always been kept up in the state and municipal legislation, between the wharves, piers and slips, owned by the city, and those owned by individuals; and the latter are not public within the meaning of that word in laws and ordinances on the subject.
    Nov. 13;
    Dec. 23, 1848.
    Certiorari to one of the assistant justices’ courts. The corporation of the city of New York sued Vandewater for a penalty of $25, incurred hy him as master of a barge, in so placing the same as to obstruct a pier (No. 17) in the Hudson river, which pier had been assigned by the common council to the exclusive use of two steamboats. The ordinance under which the penalty was claimed, is stated in the opinion of the court. The pier in question, which was between Cortland and Dey streets, was private property, in which the corporation of the city had no pecuniary interest, and had been leased by the owners to the proprietors of those steamboats. The same owners also owned the northerly side of the pier No. 16, which inclosed the other side of the slip below No. 17.
    The justice gave judgment for the plaintiffs below against Vandewater for the amount of the penalty.

      C. Van Santvoord, for the plaintiff in error.

      T. E. Tomlinson, for the defendants in error.
   By the Court. Sandford, J.

There are two classes of wharves and piers in the city of New York; the one owned by individuals, the other by the corporation of the city. Some of the slips in the city belong to the corporation, while others lie between private piers, or adjoin a public or a private pier. The city government is by law authorized to make all such ordinances as it may deem proper, for regulating both classes of wharves and piers, as well as the slips. (2 R. L. 436, § 236.) By a statute passed in 1830, the corporation was empowered to pass laws designating and appropriating any of the public wharves, piers and slips, and such private wharves and piers in the city as the owners thereof might apply to have so designated or appropriated; for the exclusive use of steamboats, or of any other class or description of ships or vessels ; and to restrain and prohibit any ship, steamboat, or other water craft, from coming into, or lying, mooring or anchoring, at or within any wharf, pier or slip, except the one so designated for their use; and to impose penalties for the violation of such laws. (Laws of 1830, ch. 222, page 242.) The ninth section of the second title of the ordinance relative to “ Vessels, Wharves and Slips,” passed May 8th, 1839, (Corporation Ordinances, page 335, Ed. of 1845 ;) inflicts a penalty of $25 on the master, &c. of any steamboat or barge, tow boat, &c., connected with any steamboat establishment, which shall come into or lay at or within any of the public docks, wharves, piers or slips- of the city, or shall, occupy the water belonging to the same, unless by special permission of the dock master, mayor, or other officer mentioned in the ordinance.

The offence for which the plaintiffs below recovered the penalty in this suit, was the laying of a barge across the entrance to the southerly side of pier No. 17, on the Hudson river, so as to obstruct the passage to and from the pier. It was proved, that pier No. 17 was private property, and had been leased by the owners to Simeon Fitch, and that the common council and the mayor had appropriated the southerly side of the pier to the exclusive use of the owners of two steamboats, during the period in question, provided the consent of the proprietors of the pier were first obtained. It was assumed that Mr. Fitch was the owner of the steamboats so permitted and designated.

The sole point in the case is, whether the ordinance imposing the penalty applies to private wharves and piers. It is plain that in express terms, it does not, for it speaks only of public wharves, piers, &c. But it is contended, that for the purposes of legislation and of police regulations of trade and commerce, and in view of the objects of the ordinance, all docks, wharves and slips, are public, and are under the control of the city authorities.

As to this argument, it may be remarked, first, that it is not well founded in respect of general legislation. The distinction between the wharves and piers owned by the city, and which are usually designated as public wharves, and those owned by individuals, is uniformly maintained in the laws of the state relating to this city, and in no statute is it more emphatically marked than in the act of 1830, which confers on the corporation the power to set apart wharves, &c., for certain classes and lines of vessels exclusively, and to protect their exclusive enjoyment by imposing penalties on intruders.

So in the municipal legislation, from a very early period, in the provisions regulating the wharves, &c., belonging to the city, they are designated indifferently as “ public slips,” «fee., and as “ wharves, piers, docks or slips, belonging to the corporation ;” whereas, in ordinances evidently applicable to all the wharves and slips, whether owned by the corporation, or by private persons, the language used is general, viz.: any of the docks, wharves, piers or slips of this city.” For example, in the ordinances of 1808, the provisions as to incumbrances and obstructions on the wharves and piers, and the emptying of the contents of privies, adopt the general language; while those regulating the coming into slips which are in process of cleansing, the use of piers by small coasters, and the length of time which vessels may lay at the piers; adopt the expression “ public wharves,” &c., and wharves, &c., belonging to the corporation.” The same distinction and modes of expression, are found in the ordinances of 1812, in which they are more numerous than in those of 1808. The number of illustrations of the same character is vastly increased in the revised ordinances of 1845; and private wharves are in those expressly recognized.

Indeed, after a careful examination of the published volume of ordinances now in force, we can find no sanction for holding, that in respect Of police regulations, or those affecting trade, all wharves and piers are public, within the purview of the ordidinances relative to vessels, wharves, and slips.

We do not anticipate the evil consequences, which the counsel for the plaintiffs below presents as the result of construing the ordinance in question according to its express terms. In general, private rights do not need the protection of municipal ordinances attaching penalties to their invasion. The laws provide adequate remedies for the redress of injuries to the owners or lessees of private piers and wharves; and we can perceive no necessity for straining the language of an ordinance, which may be expedient and important for the protection of public property, to cover what is after all a trespass or a tort against individual rights. It may be conceded, that the authority of the city government, under the act of 1830, extends to the regulating in this mode the private wharves, which under that act are from time to time designated for the exclusive use of steamboats, &c.; but it does not follow that the authority has ever been exercised.

We are clear, that the ordinance in question does not apply to private wharves and piers; and the recovery in the court below was erroneous.

Judgment reversed.


author: By the Court. Oakley, Ch. J.

text:
    Shields and others v. Pettee and Mann.
    Where goods are sold “ to arrive” by a specified ship, the contract is conditional 5 and if they do not arrive, the contract is at an end.
    So where a sale was made of pig iron No. 1, on board the Siddons, which vessel was then at sea on her way to this port; and she arrived with pig iron consigned to the seller, but which was not No. 1; it was held, that it was a sale to arrive, and the article never having arrived, neither party was bound by the contract.
    On a sale of goods, if the buyer on receiving a part of the quantity sold, finds they are not of the kind or quality which his contract entitles him to, he is not at liberty to retain such part, and claim damages for the non-delivery of the entire quantity. Nor can he require the delivery of the residue, retaining a claim for damages. He must either receive the article as it is, or he must return the portion delivered, and then enforce his claim for damages. He can recover no damages, if he refuse to return the part delivered.
    Nov. 25 ;
    Dec. 23, 1848.
    Assumpsit for a quantity of Gartsherie pig iron sold and de livered. The defendants pleaded the general issue, and gave notice that they would claim a recoupment of damages in respect of a part of the iron delivered, because of its not being No. 1, as called for by the contract, but of inferior quality. Also for damages for the plaintiffs non-performance of the same contract.
    At the trial, the plaintiffs proved a bought and sold note signed by a broker in metals, as follows :

      New York, July 19, 1847.
    Sold for Messrs. G. W. Shields & Co.
    To Messrs. Pettee & Mann.
    150 tons Gartsherie pig iron, No. 1, at $29 per ton, one-half at 6 months ; one-half cash, less 4 per cent.
    On board Siddons.
    Thos. Ingham, Broker.”
    They also proved that the ship Siddons was at sea when the contract was made, which both parties understood, and she arrived about the 28th July, 1847. On her arrival, this kind of iron had advanced about $2 per ton, by the 4th of August to $3 per ton, and by 7th August, to $3 50 per ton, beyond the contract price. The Siddons had on board a single lot of Gartsherie pig iron, consigned to the plaintiffs, G. W. Shields & Co., containing 150 tons and a fraction over. They immediately commenced delivering it to Pettee &. Mann from the ship, and up to the 7th of August, P. & M. had received between 66 and 67 tons. The latter then declined to receive any more of the shipment as Gartsherie iron No. 1, they alleging that it was not No. 1, but of an inferior quality. They offered to refer it to some suitable person to say whether it was No. 1, and if he found it to be such, they would take it as No. 1. In their note to this effect, P. & M. said they had not refused to take the iron, and they asked the fulfilment of the contrect, annexing a copy of the broker’s sold note. Prior to this note, Shields & Co. had sent one of the same date to P. & M. saying they had received a message from P. & M. to the effect that they did not consider the iron as No. 1, and could not pay for it as such, although they had received more than one-third of the shipment. Shields & Co. then offered P. & M. the balance of the shipment in compliance with their contract, provided they would receive and pay for it as No. 1 pig iron. To this the answer before stated was returned. On receiving the answer, Shields & Co. wrote a note to P. & M., of same date, (August 7th,) stating that they understood-P. & M.’s note to be a refusal to receive the remainder of the iron as No. 1; declining the reference ; and informing them, if they persisted in the refusal of the iron at the price agreed upon, Shields & Co. would feel at liberty to sell it to other parties.
    On the 10th August, Shields & Co. repeated this notice to P. & M. in a note, and informed P. & M. they should sell the iron on that day, if the former did not receive the remainder at once, on the terms in the contract. No answer being made to this, Shields & Co. presented a bill to Pettee & Mann for the iron delivered, made out at the contract price, and requested payment in cash and note, as therein stipulated. P. & M. declined to pay the bill, still demanding a fulfilment of the contract.
    Shields & Co. thereupon, on the 17th of August, wrote a note to P. & M. stating their refusal to pay for the iron delivered, and demanding a return of the iron. Shields & Co. then stored the residue of the shipment, and subsequently sold it as No. 1 iron; and they then brought this suit to recover the value of the iron received by the defendants. On the part of the defendants, evidence was given to the effect that the iron so delivered to them was not No. 1 Gartsherie pig iron, but was a mixed lot, composed of Nos. 1, 2 and 3. There was counter evidence on this point on the part of the plaintiffs.
    The judge, with the assent of the parties, reserved the questions of law arising in the case for the consideration of the court at bar, with leave to adjust the amount of the recovery, and submitted two questions of fact to the jury, which they answered by finding that the iron delivered to Pettee & Mann was not No. 1; and that the difference in value at the time of the delivery, between No. 1, and the iron so delivered, was one dollar per ton. The questions of law were now argued on a case.

      W. M. Evarts, for the plaintiffs.
    I. The contract was for the sale of a certain description and quality of iron on board the “ Siddons,” then at sea. This is equivalent to a sale “ to arrive,” and is contingent upon the arrival of the subject matter of sale. (Chitty on Cont. 4th Am. Ed. 351 and notes; Smith’s Merc. Law, 518-9, and note; Russell v. Nicoll, 3 Wend. 112; Boyd v. Siffkin, 2 Campb. N. P. 326.)
    II. By the contract, delivery and payment were to be simultaneous acts, and the refusal of the defendants to receive and pay under the contract, relieved the plaintiffs from any obligation to deliver under it.
    III. The defendants, if their objection to the fulfilment of the contract was valid, had a right to return the portion of the iron delivered, or to require the plaintiffs to take it away; the plaintiffs offered to receive it back, and demanded its return. The defendants refusing to return, retaining and using it, yet disclaiming it as in pursuance of the contract, must pay for it on a quantum valebat, viz., at $31 50 per ton, the value found by the jury. (Chitty on Cont. 341 and 352, and notes ; Oxendale v. Wetherell, 9 B. & C. 386; Mavor v. Pyne, 3 Bing. 285; Roberts v. Beatty, 2 Penn. 63 ; Corning v. Colt, 5 Wend. 253.)
    IY. If not liable upon the principle and at the rate of a quantum valebat, the defendants are liable for the quantity received at the contract price, without deduction, and without recoupment of damage. (Corlies v. Gardner, 2 Hall, 345.)
    I. The defendants being entitled to the iron only under the express contract, must pay for it either at the express contract price, or upon a new implied contract according to its value.
    2 The further delivery of the iron arrived was prevented solely by the refusal of the defendants to receive and pay for it according to the contract, the plaintiffs always being ready and offering to deliver; there was, therefore, no defect or breach of contract on the part of the plaintiffs.
    3. As the sale was contingent upon the arrival or non-arrival of the subject of sale, if it did not arrive the sale could not take effect, and there was no default. If it did arrive, the defendants were in default in not receiving and paying under the contract.
    Y. The rise in the market is the sole cause of the difficulty. The iron which arrived, though inferior to the contract grade, on arrival was worth $>2 50 per ton above the contract price, The plaintiffs, in good faith, were willing to complete the (to them) losing contract. The defendants, contriving for greater-gain out of a (to them) gainful contract, attempted to avoid either accepting or repudiating the plaintiff’s performance. Their cunning has over-reached itself, and the law raising a new implied contract, effects complete justice between the parties.

      J. L. White, for the defendants.
    I. By the evidence it is clear that the plaintiffs themselves failed to perform the contract declared upon.
    The sale was of iron of a particular kind, and on board of a particular vessel. On the arrival of the vessel, the defendants were notified that the iron purchased by them had arrived and would be landed in a day or two, and they were requested to attend to it. After they had received a part of it, they discovered it was not No. 1, and they so notified the plaintiffs, but offered to take the lot as No. 1, if a competent person, to be selected by the plaintiffs, should so pronounce it. This the-plaintiffs declined, and insisted upon defendants taking it as No. 1. The jury, on the evidence, found that the iron was not No. 1, and it • is clear the plaintiffs failed to deliver the iron named in the contract of sale. And yet they sue for a breach of the agreement by .the defendants. This entitles the defendants to recoup the damage sustained by them because of the non-delivery. (Ives v. Van Epps, 22 Wend. 155; Van Epps v. Harrison, 5 Hill, 63 ; Battuman v. Price, 3 ibid. 171.) The price which defendants agreed to give was 029 per ton. The iron No. 1, was worth 03 50 per ton more, and this the defendants lost, by the failure of the plaintiffs to deliver the iron; which, on 150 tons, is 0525.
    Sixty-six tons were delivered to defendants of the iron which came on board the Siddons, and for this the plaintiffs charged the contract price for No. 1, viz. 029 per ton.
    Allowing to the plaintiffs the contract price for the sixty-six tons delivered, 01914; and deducting by way of recoupment the 0525, and the judgment must be for 01389.
    If, however, the plaintiffs are not to be held to the price of the iron delivered,- as fixed bp themselves, but are allowed to charge for its market value, the amount of their claim would be 02079, from which deduct 0525, and the balance would be 01324.
    II. It is claimed that we cannot recoup, because 1st. The iron was sold to arrive. 2d. The iron sold did not arrive ; and 3d. That for this reason the contract fell through. This position he evidently rests mainly on the authority of Russell v. Nicoll, (3 Wend. 112.) That case differs materially from this. There, cotton was sold to arrive ; but it was not then shipped, was not on its way, the time of arrival was limited, and the sellers were to have possession after the arrival, to have it reweighed, fee. The plaintiffs were non-suited because the contract was entire for the delivery of five hundred bales, and they had not proved the arrival of all; and besides, the contract was
      conditional, depending upon the contingency of arrival by a time certain.
    In this .case, no time was fixed for the arrival. But the plaintiffs sold No. 1 iron on the Siddons, and the Siddons arrived. In the case referred to, the cotton was to be delivered on its arrival. The contingency of non-arrival was there provided for. The sale in question was not of iron on arrival, but of iron on board the Siddons, no matter where she was. The time designated for delivery was not fixed at. a future time or place, as far as there could be a delivery, the iron was delivered when the sale was made. In the case of Russell, the argument of counsel, and the opinion of the court, rest on the fact that the cotton was to be delivered on its arrival ; and as it did not arrive, the defendants were protected by their contract. In this case, the sale was absolute, with a warranty that the iron was on board the Siddons ; and when she arrived, she had not the iron sold. Nothing was to be done by the plaintiffs, before the title to the iron passed to the defendants; and this is the test, whether the contract be executory or executed. (Defreeze v. Trumpet, 1 J. R. 274.) In every sale, there is a warranty of title to the thing sold, and in this case the quality was warranted also. The iron was sold as No. 1, and so specified in the contract of sale. This sale, then, did not “ fall through,’/ but was complete when made, depending on no contingency of arrival, and leaving for the plaintiffs nothing to do in relation to the subject matter of the sale. It was a sale of iron in transitu, where it was then, and not where it was to be thereafter. If this view be the correct one, (and the terms of the contract and the evidence show no other,) then the defendants may recoup their damages, as the plaintiffs sued on the agreement, and this cannot be prevented by an abandonment of the special counts, and a resort to the general counts. (22 Wend. 156 ; 4 ibid. 492.) As the iron delivered was retained, the defendants should undoubtedly pay for it; and the plaintiffs should compensaté them for their damage arising from the non-delivery of the iron sold to them.
   By the Court. Oakley, Ch. J.

On fully considering this case, we are satisfied the plaintiffs ought to recover for the iron delivered, without deduction, on two grounds.

First. The contract between the parties, was equivalent to a contract to sell and deliver iron to arrive; that is, it was an agreement to deliver Gartsherie pig iron No. 1, if any iron of that description arrived in the ship Siddons on the voyage she was then making. It is well settled that such a contract is conditional, and that if the ship be lost, or if the subject matter of the sale do not arrive in the ship, the contract is at an end. In this case the ship arrived, but there was no consignment of this pig iron No. 1 on board. Therefore as the law is settled, neither of these parties were bound to fulfil the broker’s sale, or entitled to demand its fulfilment.

iSecojid. We are also clearly of the opinion, that the plaintiffs can recover on another ground. Assuming the contract to have been obligatory, the defendants on finding the iron they were receiving was not No. 1, were at liberty to continue to receive it as a fulfilment of their purchase, or they could have repudiated the delivery and brought their action for damages. But they could not do both. They had no right to receive a part of the goods, retain such part, and refuse to receive the residue. They were bound to affirm or to rescind the contract, in toto. It was their duty either to have received the balance of the shipment, or on finding.it was not what they had contracted for, to have returned what had been delivered to them and claim damages for a violation of the agreement.

It would seem that they desired to obtain the iron, and to claim damages also. This they could not do. They were bound to take their position, and either to receive the goods, or to abandon the part performance made, and resort to their claim for damages.

In either view of the case the contract was virtually at an end, and the plaintiffs are entitled to recover the market price of the iron delivered to the defendants, without any deduction.

Judgment accordingly.


author: By the Court. Vanderpoel, J.

text:
    Kendall v. Stone.

    In an action for slander of title, the truth of the words may be given in evidence under the general issue.
    Three things are necessary to maintain an action for slander of title. The words spoken must be false ; they must work an injury to the plaintiff in respect to his title ; and they must be malicious; not malicious in the worst sense, but with intent to injure the plaintiff.
    A person who utters words in the Iona fide assertion and maintenance of his own title, is regarded as standing in a more favorable position, in an action for slander of title, than he who attacks the title of another without such cause, it seems.

    In an action for slander of title, it is proper for the judge to charge the jury that the question for them to determine is, whether the defendant made the statements respecting the plaintiff’s title Iona fide, and under an honest impression of their being true : or whether he made them maliciously, and for the purpose of slandering the plaintiff’s title ; and that the question whether the words were spoken maliciously or bona fide, depends very much upon their truth or falsity, and the circumstances under which they were spoken ; whether honestly, to caution purchasers, or to alarm them with unfounded charges.
    Where the evidence proves the speaking of words by the defendant, derogatory to the plaintiff’s title, and that the person to whom they were spoken forebore, in consequence thereof, to complete a contemplated purchase of the property from the plaintiff, sufficient words, and a consequence from them sufficiently detrimental to the plaintiff, are shown to sustain an action ; provided malice in the defendant be also established.
    Malice, in such an action, is a question of fact, and should be submitted to the jury.
    Proof of conversations of the defendant, other than those laid in the declaration, respecting the same title and subject, are admissible for the purpose of proving the malice of the defendant.
    Though a witness can only testify to such facts as are within his own knowledge and recollection, yet he may refresh his memory by the use of a written memorandum. But where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, and the memorandum was not made by him, his testimony, so far as it is founded on the memorandum, is but hearsay.
    In actions of tort, the jury are the proper judges of the weight and effect of the evidence ; and the court will not interfere with the damages found by them, unless they appear to be grossly disproportionate to the injury sustained.
    In an action for slander of title, the judge is justifiable in charging the jury that they may give exemplary damages; and in refusing to charge that they can only give compensatory, as distinguished from exemplary, damages.
    Nov. 13, 14;
    Dec. 30, 1848.

      This was an action to recover damages forBan alleged slander of the plaintiff’s title to certain lots of land situated in the sixteenth ward of the city of New York. The cause was tried in December, 1846. The plaintiff produced and read to the court, a deed of the premises in question, executed by the defendant and wife to the plaintiff, bearing date April 10, 1845, subject to a mortgage for $3000, and interest from October, 1844, and subject also to assessments for opening Thirty-Seventh street and Madison Avenue. The deed contained no warranty whatever, but contained a covenant against the grant- or’s own acts.
    Asa H. Wheeler, a witness for the plaintiff, testified that on the 28th of October, 1845, he negotiated with the plaintiff for the purchase of one of the lots for the sum of $900, by a contract in writing, which was produced and read in evidence; that the lot was to be 25 feet in width, and of a depth equal to half of the block; the witness was to pay $250 on the day of the date of the contract, (which he did,) and the balance as wanted; that the understanding with the defendant at the time of the purchase was, that the witness should go up the next morning and select a lot. That accordingly, he went up the next morning, and when on the way, he met the defendant, and had some conversation with him, but did not recollect whether he first mentioned to the defendant that he had purchased the lot, or he first spoke of it to the witness. That in the course of the conversation, the defendant told the witness that he, the defendant, had a mortgage on the property for $3000, and that there was a state loan on it for $3000; that there were liens upon it, or bills filed against it, by Mr. Reed ; and that if it could be made to appear that Mr. Woolley had an interest in the lots, it would have a bearing upon them; and that he thought it risky to purchase of Mr. Kendall, the plaintiff, under these circumstances. The witness testified that it was a year or more since this conversation occurred, and it was difficult for him to recollect what was said; that he made a memorandum afterwards; that the defendant said it was risky to purchase of the plaintiff. That on another occasion, about a fortnight afterwards, the defendant said, Kendall could not give a warranty deed for those lots, as he, Stone, had not given one to Kendall. That during the first conversation, the defendant said he thought it his duty to inform those about purchasing the property, especially his friends and acquaintances, of the situation of the property. That the witness requested Mr. Wetmore to make searches, and he ascertained that there was no bill filed against the property, except on the mortgages. That on the day of the second conversation with the defendant, there had been a previous understanding that the plaintiff should call upon him at 12 o’clock, and the witness was to go with him to the defendant’s store, to tender him the money, in order to get a release. That the defendant called upon the witness early that morning, and previous to the plaintiff’s appointment, and inquired if Mr. Wetmore had found any liens on the property. On being informed that none had been found, the defendant insisted that there were claims or bills, and that Mr. Wetmore must have overlooked them. That on this conversation, the witness concluded to give up the property entirely.
    That Stone also called on me at my rooms, and the import of the conversation was the same as at our previous interviews. He then stated, that Mr. Reed had filed a bill against Mr. Woolley, which he presumed he would be able to collect from a lot. I had then bought the lot, and paid a part of the purchase money.
    The witness proceeded: Mr. Stone told me, that he had made an offer to Kendall for one of the lots. The offer was $700 ; it was for a lot adjoining Stone in the rear. After this, I threw up the purchase, and Kendall gave me his note for $250—the money I paid. I was fearful of getting into difficulty, and therefore gave up the purchase. Mr. Stone said he thought Kendall had better take his offer of $700 for that lot, so that he would have money to pay off these liens. I should have taken the title of it, had it not been for what Mr. Stone said. I did not go to Mr. Stone to tender him the money, because in consequence of his previous conversations, I had made up my mind to give up the lot. I offered to raise the $6000, to pay off both mortgages. I spoke to both Mr. Stone and Mr. Kendall about it. I did not do it, because I was fearful it would not be safe, according to Mr. Stone’s account.
    On being cross-examined, he testified that Isaac M. Woolley was the subscribing witness to the agreement mentioned in his direct examination; that the body of the agreement was in Mr. Woolley’s handwriting; that Kendall was brother-in-law to Woolley. Witness could not say how long he had been negotiating before the agreement was made, perhaps two or three weeks; that he had a conversation with Woolley about it. Woolley was a particular friend of the witness, and wanted him to buy this property and build upon it.
    The defendant’s counsel then asked the witness the following question : “ Who did you bargain with?” To which the counsel for the plaintiff objected; and the defendant’s counsel proposed to go on and show the truth of the words spoken, under the general issue, to which the plaintiff’s counsel objected. The court, after discussion, ruled that the defendant might show the truth of the words alleged to have been spoken, under the general issue, to which the plaintiff’s counsel excepted. The witness proceeded, and in answer to the question, said : Mr. Woolley first called on the witness about the lots; -this was about a week or ten days before ; the witness did not agree to look at the lots, because he knew pretty much how they were situated ; that he afterwards went to look at them, and Woolley and Kendall went with him; that Woolley gave him to understand that he was agent for Kendall; that witness did not call upon Mr. Reed previous to giving up the bargain, nor request Mr. Wet-more to do so; that when Stone called at the witness’s room, he said that the purchase money was to be all paid to him, instead of the $650, as that was the agreement between him and Kendall. »
    That the remarks of Stone, given at the first interview, were made in answer to inquiries made by witness, respecting the title of the lot.
    On his further direct examination, this witness stated that it was difficult for him to give the residue of the conversation at the third interview; that Mr. Stone said he thought Woolley was concerned in the property, and was acting under a cloak ; that he was a very troublesome man to deal with about money matters. He said the witness would find Mr. Woolley a difficult man to get along with ; that he was a very good man as long as money did not interfere; witness presumed he first asked Stone about the title. The witness had no reason to believe or suppose that the title was not all right until Stone told him. That witness was not informed by either Woolley or Kendall, before his first interview with Stone, that there were any mortgages upon the lot.
    William C. Wetmore, another witness for the plaintiff, testified that Mr. Wheeler applied to him to search for mortgages and incumbrances against the lot, from the time of the mortgage to the commissioner of loans ; that he had a search made by the register, for taxes, assessments and liens in the several courts ; he was never asked to look at the back title; Wheeler assumed that to be good; that witness made the searches which showed a conveyance from Woolley and wife to Edward Stone, dated the 25th May, 1842, and recorded on the day of its date; also a conveyance from Stone and wife to Kendall, by deed dated 10th April, 1845, and recorded April 14th, 1845; also a mortgage from Kendall and wife to Stone, dated April 10th, 1845, and recorded April 14th, 1845 ; that the search for assessments showed assessments unpaid for opening Thirty-seventh street, and assessments for opening Madison Avenue, also unpaid taxes due; that the taxes of 1845, amounting to $125, were unpaid ; that the searches in the supreme and the superior courts were made against Woolley from January 1st, 1838, to July, 1840, and against Edward Stone for 5 years previous to the 1st July, 1840, and no judgments found; also searches were made in the common pleas, for five years prior to June 1st, 1842, against Woolley, and for ten years against Kendall and Stone ; that he found two judgments against Woolley before he conveyed to Stone, which were satisfied; that there were two other judgments against Woolley, and some other incumbrances not satisfied, obtained after the lots were conveyed to Stone ; that none of the notices of lis pendens found touched the lots in question, and the witness reported that they formed no objection to the title; and he told Mr. Wheeler that the title was satisfactory to him ; that it was usual to pay assessments and taxes out of the purchase money; that they were in this case very trifling.
    The plaintiff here produced the bill in chancery of Stone v. Kendall & The Loan Commissioners, filed February 2, 1846, to foreclose the above mortgage from Kendall to Stone, by which bill it appeared that the plaintiff and wife and the loan commissioners only, were made parties defendants.
    James Hall, another witness for the plaintiff, being asked if he had a conversation with Stone about the property in question, the counsel for the defendant objected thereto and to the admission of evidence of other slander than that alleged in the plaintiff’s declaration. The judge ruled that he would permit the plaintiff to prove other remarks or declarations of Stone, for the purpose of showing malice, but not as a substantial ground of action or damage; to which defendant’s counsel excepted. The witness then testified to a conversation between him and the defendant, in which the latter stated that the plaintiff would not be able to give a clear title to the premises in question, as there were one or two mortgages upon it, at that time ; that he stated that he had one and that there was a state loan upon it, and the only way to get a clear title would be in case he, (Stone,) should foreclose upon the. property, he could give a clear title, but Mr. Kendall could not, of course, give a clear title, as he, (Stone,) held a mortgage against him ; that Stone said he had offered to buy one of the lots of Kendall for $700. It was a lot on the hill and witness thought one adjoining Stone’s; that Stone said he thought $700, was as much as the lot was worth and as much as Kendall would realise from it for some time to come; that the witness did not recollect when this conversation was, but he thought it was the latter part of November, 1845.
    ■ Alfred W. Waddell, testified to a conversation with the defendant, about the plaintiff’s property on the hill, in November, 1845, at defendant’s store ; that witness asked him the value of lots on Thirty-seventh street belonging to Mr. Kendall; he said he thought they were worth about $600 or $700 ; that he mentioned that Mr. Wheeler had bought one for $900, but that he had backed out, and thrown it up, on account of some difficulty about the title ; that witness either asked him, or he volunteered to tell, what the difficulty was, and he said that a bill had been filed, or would be filed in a day or two, against Mr. Kendall, by some person by the name of Reed, and that it was supposed Kendall was used as a cloak to cover the property of Woolley.
    Some other witnesses were examined in respect to declarations made by the defendant concerning the plaintiff’s title, whose testimony it is not necessary to give.
    The plaintiff then read in evidence a deed from Woolley and wife to Stone, dated 25th May, 1842, for the consideration of $5035, conveying the premises in question, and other lands. It was a warranty deed, with full covenants, subject to a mortgage to the state for $4035, with interest from the first Tuesday of October, 1847, which Stone assumed to pay as a part of the consideration or purchase money.
    The plaintiff’s counsel then put in evidence the mortgage from Woolley to the loan commissioners, dated 12th August, 1837, for $4035, upon which $1035 had been paid on the 10th October, 1843.
    Here the plaintiff’s counsel rested, and the defendant’s counsel thereupon moved the court to grant a non-suit, for these reasons:
    I. This case being in the nature of an action for malicious prosecution, the plaintiff must prove the words, want of probable cause for believing them to be true, and special damages arising from and consequent upon the speaking of the words.
    1. The words have not been proved. Wheeler is the only witness upon this subject, and his testimony should be excluded, because it was not testimony, but merely the reading by him of a memorandum.
    2. But if his testimony be admissible, still the words laid in the declaration are not thereby or otherwise proved.
    II. Because the plaintiffs have shown that most of the words used, or statements made by the defendant are true in point of fact; those words and statements should therefore be considered, so far as respects this question, as not contained in the declaration.
    III. There is no proof of damages. The plaintiff must prove damages as the consequence of the particular words spoken.
    The court refused a non-suit; to which decision the defendant’s counsel excepted.
    The defendant’s counsel having opened the defence to the jury offered to read in evidence a bill in chancery, filed before the vice-chancellor of the first circuit, in a case wherein Thomas Page was complainant, and Isaac M. Woolley and Josiah F. Kendall were defendants, filed 14th June, 1845, upon a judgment alleged to have been obtained against said Woolley on the 30th May, 1842, to which the plaintiff’s counsel objected. The objection having been overruled and the plaintiff’s counsel having excepted, the bill was read.
    Richard Reed, a witness for the defendant, testified that he was a counsellor at law and solicitor in chancery ; that he filed a bill in favor of Page against Woolley and Kendall; the suit in which that bill was filed, was pending in November, 1845, and it was still pending. Being asked, “ Did you ever communicate to Mr. Stone the fact that such a bill was filed ?” the plaintiff’s counsel objected to the question. The court having overruled the objection and the plaintiff’s counsel having excepted, the witness answered that he did; that he told him soon after the filing of the bill; that he stated to him that he had filed a bill on behalf of Mr. Page, to recover the judgment described in the bill, and requested him to recollect the facts connected with it, as he supposed he (Stone,)'would be wanted as a witness ; that he requested him to recollect the facts connected with the transaction between Woolley and Kendall; that he referred to the transfer of the real estate, which he had conveyed to Kendall; that he stated to him why he had filed the bill; that he told Stone that it was Woolley’s property, and that he proceeded on that ground; that neither Kendall nor Woolley have ever answered that bill; no process was served in the suit; there had been several efforts to settle it; that when the bill was filed it was without any understanding with Kendall and Woolley. Being asked by the counsel for the defendant if it was done in good faith 1 he said it was, and with the intention of going on with it.
    The testimony on both sides being closed, the counsel for the defendant renewed his motion for a non-suit, for the reasons above stated, and also upon the ground that the words spoken by the defendant, as alleged in the plaintiff’s declaration, were proved to be true, and also proved to have been spoken in answer to inquiries made of the defendant, without any malice. The court refused to grant the motion for a non-suit, and the defendant’s counsel excepted.
    The counsel for the defendant requested the judge to charge the jury that if they should find in favor of the plaintiff, then they should find only such damages for the plaintiff as were the consequences of the words spoken.
    The judge charged the jury as to damages as follows :
    “ Upon the subject of damages, if the words were spoken in good faith and without malice, there are to be no damages ; if not so spoken, it is otherwise. You can then award such damages as you think established by the evidence. If the defendant has been actuated by malicious motives, and with the desire of crippling the plaintiff and engrossing the property for less than its value, you are not obliged to estimate the amount with any great scrupulousness, nor be restrained by the inquiry how much the plaintiff has lost by losing the sale of his property. The offence of deliberately slandering another’s title to property, from malicious or selfish motives, if proved, merits, and public example requires, such damages as are calculated to prevent the repetition of the offence by others, and you have a right not only to compensate the injured party for his loss, but to keep an eye to good morals and to public example. But you. are not to act under the impulse of passion or prejudice, but as rational and sensible men, looking at the case and the evidence presented to you.”
    The counsel for the defendant thereupon excepted to the charge. The jury found a verdict for the plaintiff for nine hundred dollars damages ; and the defendant moved for a new trial.

      W. Bliss, for the plaintiff.
    I. The motions for a non-suit were properly denied. The only question upon such motions is whether there was sufficient evidence to carry the cause to the jury ; and the ground of the motion must be properly taken and specifically stated. 1. The principles of actions for slanders of title will be found stated in Hargrave v. Le Breton, 4 Burr. 2422 ; Smith v. Spooner, 3 Taunt. R. 246, and cases there cited; Pitt v. Donovan, 1 Maul. & Selwyn, 639; Watson v. Reynolds, 1 Moody & Malkin, 1 ; Pater v. Baker, 3 Man. Gran. & Scott, 831, 54. The essence of the action is a malicious depreciation of the plaintiff’s title; and the malice may be either express or implied. A person has a right to utter words in the “bona fide”assertion and maintenance of his own title, but not to attack the title of ano- ■ ther, without such cause. 2. In the points taken upon the motions, the defendant does not deny that there is evidence tending to establish, with perhaps one exception, the particulars mentioned, but insists that they are not proved or established, or that other facts have been proved by the defendant. Questions not for the court but for the jury. 3. There was sufficient evidence of the speaking of the words. Upon a motion for a non-suit, an exception to the testimony cannot be taken. It is now held to be sufficient to prove the words in substance as laid. (Buller’s N. P. 5; Miller v. Miller, 8 John. R. 74; Olmstead v. Miller, 1 Wend. 506 ; Fox v. Vanderbeck, 5 Cow. 513.) As examples, see Doneasler v. Hewson, 2 Man. & Ry. 176; Dyer, 75 ; Miller v. Miller, supra. It is not necessary to prove all the words, but so much of them only as will sustain the action. (5 Cow. 513; 1 Wend. R. 506.) See also Code of Procedure, § 145, 146, 147,149, 151, now in force in all suits, as to what variances shall be deemed material, and what errors or defects in the pleadings or proceedings the court shall disregard or may amend. 4. The truth of words was matter of defence, and whether and how far established, was for the consideration of the jury. It was neither admitted nor shown by the plaintiff. 5. There was sufficient proof of malice ; and the question of malice is exclusively for the jury. (Boswell v. Osgood, 3 Pick. R. 384; Demarest v. Haring, 6 Cow. R. 76; Jarvis v. Hathaway, 3 John. R. 183 ; Cooke on Law of Defamation, 38 ; Kelly v. Partington, 4 B. & Ad. 700.) The deliberate attempt to justify the charges as true, is itself evidence, and an admission of the malice. (Root v. King, 6 Cow. 624, Per Chancellor, 4 Wend. R. 139, S. C.) Words defamatory of a title, uttered by a stranger, that is not in assertion and vindication of one’s own title, imply malice. (See supra.) There was abundant proof of actual malice. The question was fairly submitted, and the jury have found it against the defendant. 6. There was sufficient proof of special damage. The loss of the sale to Wheeler would alone support the action. 7. Want of probable cause is not of itself a requisite of this sort of action. In Pater v. Baker, (supra,) Maule, J. says that the existence of probable cause “ does not afford any answer to the action.” In Pitt v. Donovan, Bailey and Dampier, J. J., only said that it was to be made out “ where a person is not to be treated as a mere stranger.” “ Such a want,’.’ says J. Dampier, “ as would induce a jury to infer that his conduct is founded in malice while Lord Ellenborough, in his more able and elaborate opi. nion in that case, said that probable cause “ was not strictly the issue.” No decision can be shown that it is. The true point is malice. The jury have found the one, and negatived the other.
    II. The defendant’s exceptions to the admission and rejection of evidence were not well founded. 1. The witness, Wheeler, had a right to refresh his memory from the memorandum, and did nothing more. (Robertson v. Lynch, 18 J. R 45 ; Feeter v. Heath, 11 Wend. R. 485 ; 1 Phil. Ev. 289.) If the words were correctly stated in the memorandum, the witness, also correctly stating them, must repeat. 2. The proof of other conversations of the defendant respecting the same title and subject was admissible, to prove malice; for which purpose only they were stated to be offered and were received. (Inman v. Foster, 8 Wend. R. 602 ; Kennedy v. Gifford, 19 Wend. R. 296, are express decisions upon this point. So also, is Tate v.
      Humphrey, 2 Camp. R. 73, n.; Lee v. Macguister, 1 Camp. N. P. 48; Lee v. Huson, Peake, 166; Warne v. Chadwell, 2 Stark. R. 457; Stuart v. Lovell, 2 Stark. R. 93 ; MacLeod v. Wakley, 3 Car. & Payne, 311; Child v. Affleck et ux. 9 Barn. &. Cress. 403; Rogers v. Clifton, 3 Bos. & Pul. 587; Buller’s N. P. 72; Phil. Evid. (7th ed.) 246; Bodwell v. Swan, 3 Pick. R. 370 ; Child v. Horner, 13 Pick. 503; Wallis v. Mead, 3 Binney, 546; Shock v. McChesney, 2 Yeates, 473; Kean v. McLaughlin, 2 Serg. & Rawle, 469; McArmont v. McClelland, 14 Serg. &. Rawle, 359 ; Duvall v. Griffith, 2 Har. & Gill, 30 ; Miller v. Kerr, 2 McCord, 285.) That a plea of justification is evidence of malice, being a repetition of the slander, is also a branch of the rule ; (Edgell v. Francis, 1 Mann. & Granger, 222; Caddy v. Barlow, 1 Man. & Ry. 275.) Also cases of fraud; (Alison v. Mathieu, 3 John. R. 235 ; Benham v. Cary, 11 Wend. R. 83 ; Jackson v. Timmerman, 12 Wen. R. 299;) 3. There is nothing in the other exceptions; (1 Phil. Ev. (Cow. & Hill’s ed.) 293 ; Watson v. Court, 2 Car. & Payne, 232.)
    III. The charge of the judge was correct It was founded on the doctrines of Lord Ellenborough, in Pitt v. Donovan. That portion of it relating to exemplary damages is according to the settled law of this state; (Tillotson v. Cheetham, 3 John R. 56; Huston v. Hopkins, 9 J. R. 37; Hoyt v. Gelston, 13 J. R. 141 ; Woat v. Jenkins, 14 J. R. 352; Woodward v. Paine, 15 J. R. 493; Ex parte Bailey, 2 Cow. R. 479 ; Paddock v. Salisbury, 2 Cow. R. 811, 3 J. R. 180 ; Sargeant v.-----, 5 Cow. R. 106; Southard v. Rexford, 5 Cow. 254; Elliot v. Brown, 2 Wend. R. 497 ; Cable v. Dakin, 20 Wend. R. 172 ; Tift v. Culver, 3 Hill R. 180 ; Cook v. Ellis, 6 Hill R. 465 ; Burr v. Burr, 7 Hill, 217, per Strong, Senator; Auchmuty v. Tearn, 1 Denio, 495 ; Allen v. Addington, 7 Wend. R. 9 ; King v. Root, Court of Errors, 4 Wend. R. 113, 133, 139; McAlmont v. McClelland, 14 Serg. & Rawle, 359 ; Williams v. Cruise, 1 Man. Gran. & Scott, 842, per Maule, J.; Marest v. Harvey, 5 Taun. 442.)
    IV. The judge rightfully refused to charge that the jury could only give compensatory as contradistinguished from exemplary damages. (See last point.)

      Y. In actions of tort, the jury are peculiarly the proper judges of the weight and effect of the evidence; and the court will not grant a new trial, because the damages are alleged to be excessive ; unless the amount is so grossly outrageous and extravagant as manifestly to show partiality, prejudice or corruption. (Cable v. Dakin, 20 Wend. R. 172; Marquisee v. Ormston, 15 Wend. R. 368 ; Sargeant v. ----, 5 Cow. R. 106, 118,119 ; Coleman v. Southwick, 9 John. R. 45 ; Sharp v. Brice, 2 W. Black. 942; Williams v. Currie, 1 Mann. Gran. & Scott, 841; Edgell v. Francis, 1 Mann. & Gran. 222; Rost v. King, 7 Cow. R. 637; S. C. 4 Wend. R. 135.)
    There is no reason why this verdict should be disturbed. There was a malicious depreciation by the defendant of a title derived from himself, and for. which he had- received a full consideration.

      F. B. Cutting, for the defendant.
    I. The evidence of Wheeler, read from the memorandum made by him on the 12th February, 1846, more than three months after the conversation which it professes to record, ought not to have been received. (2 Cow. & Hill’s Notes, 550, 750.)
    II. The evidence of James Hall, as to the declarations alleged to have been made by the defendant to him in the fall of 1844, or early in the winter of 1845, ought not to have been received. The evidence of Alfred W. Waddell, and James A. Rich, of declarations alleged to have been made by the defendant to them, was not proper.
    III. The motion for a non-suit ought to have been granted.
    IY. The motion for a non-suit made after the testimony was
    closed, ought to have been granted. 1. Not only was there no evidence of want of probable cause, but the evidence showed that Stone had good reason to believe what he stated to be true; indeed that it was true. 2. The information was given in answer to inquiries, and required the plaintiff to prove express malice, in order to maintain his action.
    Y. The charge of the judge was erroneous and was calculated to mislead. 1. He charged that the question of malice depended upon the truth or falsity of the words spoken. 2. He ought not to have submitted to the jury, the question whether in point of fact “ it was risky,” to buy this property. 3. The jury were misled by the remarks in relation to the desire of the plaintiff to purchase a lot for $700 ; and in relation to the evidence of Hall, Waddell and Rich ; also in relation to the evidence from which the judge informed the jury they might infer bad motives in the defendant. 4. The rule of damages was wrong, and the result shows that it misled thg jury. (Cooke’s Law of Defamation, 223, 103 ; 4 Phill. Ev. 248 ; 2 Stark, on SI. 103-4; 2 Greenl. §254; Yelv. 89, note; 1 Esp. Rep. 48.)

         Oakley, Ch. J, was absent because of indisposition.

   By the Court. Vanderpoel, J.

It would seem from the books of reports of this state, that this is a rare action among us. They abound with actions for personal slander ; but few, if any, actions for slander of title can be found in them. Not so, however, in England; the action there seems a frequent one, and the principles which govern it seem there pretty well established.

The action for slander of title differs in many particulars from the ordinary action of slander. The truth of the words may be given in evidence under the general issue. (Cooke’s Law of Defamation, 27, and cases there cited.) In one particular, the charge of the judge was more favorable to the defendant than the law will warrant. He charged, at the request of the defendant’s counsel, that if the words were not true in point of fact, yet, if the information thereby communicated by the defendant had been given to him, and he had probable cause to believe the same to be true, then a verdict should be rendered for the defendant. This was putting the action upon the same ground on which the action for malicious prosecution rests ; a ground erroneous, but an error committed at the defendant’s request, and one of which he cannot complain. In Pater v. Baker, (3 Man. Gran. & Scott, 831,) Maulé, Justice, lays down what he looks upon to be the true rule. He says, the want of probable cause does not necessarily lead to an inference of malice; neither does the existence of probable cause afford any answer to the action. The action, he remarks, is for slander title, which he pronounces a sort of metaphorical expression. Three things are necessary to maintain the action. The words spoken must be false; they must work an injury to the plaintiff, in respect to his title; and they must be malicious; not malicious in the worst sense, but with intent to injure the plaintiff. (Pitt v. Donovan, 5 Maule & Sel. 639 ; Smith v. Spooner, 5 Taunt. 246.) The case of Pitt v. Donovan, was an action for slander of title, conveyed in a letter to a person about to purchase the estate of the plaintiff, imputing insanity to Y., from whom the plaintiff purchased it, and that the title would, therefore, be disputed, for which cause the person refused to complete the purchase. It was held, that the defendant who had married the sister of Y., who was heir at law to her brother, in the event of his dying without issue, was not to be considered as a mere stranger ; and the question for the jury was, not whether they were satisfied, as men of good sense and good understanding, that Y. was insane, or that the defendant entertained a persuasion that he was insane, upon such grounds as would have persuaded a man of good sense and knowledge of business; but whether he acted bona fide, in the communication which he made, believing it to be true. From this and other cases, it would seem that a person who utters words in the bona fide assertion and maintenance of his own title, is regarded as standing in a more favorable position, in this action, than he who attacks the title of another, without such cause; and Cooke, in his Law of Defamation, p. 23, says, “ As soon as it appears, that the defendant claimed title to the property, to which the slander applies, he is entitled to a non-suitciting Gresham v. Grinsley, (Yelv. 80.) We are not called upon to decidle, in this case, whether the mere claim of title on the part oft a defendant in this kind of action, no matter how false or pre/tended such claim, exempts him from the action; as the defendant here did not claim title himself. We can, however, readily perceive why a person, honestly asserting and maintaining Mis own title, should be protected, though such title should tunfi out to be invalid.

f The judge charged the jury that the question for them to determine was, whether the defendant made the statements to Wheeler bona fide, and under an honest impression of their being true; or whether he made them maliciously, and for the purpose of slandering the title of the plaintiff; that the question whether the words were maliciously or bona fide spoken, depended very much upon their truth or falsity, the circumstances under which they were spoken; whether honestly to caution purchasers, or to alarm them with bug-bears of his own creation.

The evidence of Wheeler abundantly proved the speaking of words derogatory to the plaintiff’s title, and the fact that he forbore to complete his contemplated purchase of the plaintiff, in consequence of the speaking of the words. There is, therefore, no doubt that sufficient words, and a consequence from them sufficiently detrimental to the plaintiff, to sustain the action, are shown, provided malice, the other indispensable ingredient, be established.

This was a question of fact, and was fairly submitted by the judge to the jury. The whole charge proceeds on the ground that if the defendant honestly believed what he communicated to Wheeler, and cautioned him in a fair spirit, he was not liable; but if he made the communication with a different spirit, to prevent the sale to Wheeler, so as to enable the defendant to get the plaintiff’s property himself for less than its value, or from any other impure or corrupt motive, then he must be deemed to have' spoken the words maliciously. We see nothing exceptionable in this view of the charge. It contemplates or holds out sufficient protection to them who speak honestly, with the sole and laudable view of cautioning a friend or acquaintance against purchasing property, the title to which, the informant really believes to be imperfect. The policy ©f common law courts has always been to secure most perfect Ximpunity for words spoken in such a spirit; and we would b\e unwilling in the least degree, to circumscribe this privilege, 'jl'his may, therefore, properly be denominated, what the action for malicious prosecution has justly been called, a hard or difficult action. The plaintiff assumes the burthen of proving, root only special loss, but actual malice, not that malice which tnse law implies in ordinary, actions for defamation.of the person ; but actual, express malice. Still, hard and difficult to be maintained as the action is, where cases occur that give legitimate occasion for it, justice, and the security of property, require that it should be sustained. The infrequency with which it is resorted to, and the difficulty of sustaining it, afford an ample guaranty that it is not apt to lead to abuse.

The defendant contends, that the evidence of James Hall, Alfred W. Waddell, and James Rich, of declarations made to them, was not admissible. The proof of other conversations of the defendant, respecting the same title and subject, was admissible to prove the malice of the defendant; and for this purpose only were they offered and received. (Kennedy v. Gifford, 19 Wend. 296 ; 3 Pick. 370; 13 ibid. 503; Rogers v. Clifton, 3 Bos. & Pull. 587.) The quo animo the words charged were spoken, may be shown by evidence of conversation of the defendant, subsequent to the commencement of the suit.

It is further contended, that the use made by the witness, Wheeler, of his memorandum, was improper and rendered his testimony inadmissible. The court told the witness he could only use the memorandum to refresh his recollection. The witness, to be sure, on his cross-examination, said that in testifying from the memorandum, he read the memorandum, and then gave the words of the paper from recollection as derived from the paper, but the witness did not state that he had no recollection of the conversation, independently of what he derived from his memorandum. Indeed the witness had given evidence enough to show the speaking of the words, before the memorandum was introduced. Before we hear of any memorandum, the witness testified that the defendant told him he had a mortgage on the property for $3000, and that there was a state loan on it for about $3000 ; that there were liens upon it, or bills filed against it by Mr. Reed ; and that, if it could be made to appear that Mr. Wooley had an interest in the lots it would have a bearing upon them, and that he thought it risky to purchase, under the circumstances, of Mr. Kendell. In Robertson v. Lynch, (18 John. 451,) the plaintiff’s clerk testified that he had made the entry of the wool which was the subject of the suit, in the plaintiff’s day book ; but that he could not state the precise quantity, nor the different qualities, without refreshing his memory, by referring to a copy of the entries he had made ; and he was permitted to refer to the entries, and the court sanctioned it. In Foster v. Heath, (11 Wend. 478,) the chancellor said he could see no valid reason why witnesses should not be permitted to inspect written memoranda in court, provided they can, after such inspection, distinctly recollect the facts, independently of the written memorandum or document. The latter branch of this remark was not, perhaps, called for by the case. Greenleaf, in his Evidence, (vol. 1, p. 483,) says, “ though a witness can only testify to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory by the use of a written instrument, memorandum, or entry in a book ; but where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, and the writing was not made by him, his testimony, so far as it is founded upon the written paper, is but hearsay ; and a witness can no more be permitted to give evidence of his inference, from what a third person has written, than from what a third person has said.” This we regard as the true rule. If the witness did not write the memorandum, and never recognized it as true, it is but hearsay ; but where a witness made a memorandum of a conversation or transaction, so recently after its occurrence that he knows he then recollected it perfectly and committed it to paper faithfully, we cannot perceive any good principle to prevent him from reading his memorandum. In Rex v. St. Martin’s, Leicester, (2 Adol. & Ellis, 210,) an agent made a parol lease, and entered a memorandum of the terms in a book, which was produced; but the agent stated that he had no memory of the transaction, except from the book, without which he should not, of his own knowledge, be able to speak to the fact, but on reading the entry, he had no doubt that the fact really happened ; it was held sufficient. So, where a witness called to prove the execution of a deed, which he has witnessed, states that he has no knowledge of the fact, except from seeing his signature to the attestation, and says he is, therefore, sure that he saw the party execute the deed, that is sufficient proof of its execution. (1 Greenleaf) 485, and cases there cited.) In Vaughan v. Hubbard, (8 Barn. & Cress. 16,) it was held, that the witness might be permitted to refer to an entry of a transaction, made by him, although he stated that he had no memory of those things, except from the book, but that on reading the entry he had no doubt of its truth. (See also Russell v. Coffin, 8 Pick. 143, 150; Jackson v. Christman, 4 Wend. 277, 282.) We repeat, nothing transpired to violate the rule as laid down by the chancellor in Foster v. Heath, as the main part of the witness’s testimony was given before the memorandum was introduced. Whatever our opinion may be, as to what is the most sound and reasonable rule, this case does not create a necessity, if we had the power or disposition to do so, to depart from the rule as held by the chancellor.

The next inquiry is, whether the judge properly charged the jury that they might give exemplary damages, and rightfully refused to charge that they could only give compensatory as distinguished from exemplary damages. In actions of tort, the jury are the proper judges of the weight and effect of the evidence, and the court will not interfere with the damages found by the jury, unless they appear to be grossly disproportioned to the injury sustained. (Williams v. Cruise, 1 Manning, Granger & Scott, 841.) That was an action for trespass, quare clausum fregit, against a landlord, by injuring the crop of his tenant, by felling and removing timber, without asking leave to enter. The jury assessed the damages at £300, when the value of the tenant’s crop was only £200. The judge charged the jury that the plaintiff was not to be permitted to make a market of his grievance, but that they were not, necessarily, to limit the damages by the amount of pecuniary injury sustained. Beglar, Sergeant, arguendo, cited and commented upon a number of cases going to establish the principle that the jury are, by no means, always, in tort, to measure the damages by the amount of injury sustained. (Perkins v. Proctor, 2 Wel. 386.) In Merest v. Harvey, (5 Taunt. 442,) the jury gave £500 for breaking the plaintiff’s close, treading down his grass and hunting for game, and the court held that the damages were not excessive, though it was probably ten times more than the injury actually sustained. Gibbs, Ch. J. says, “ suppose a gentleman has a paved walk in his paddock, before his window, and that a man intrudes and walks up and down before the window of his house, and looks in while the owner is at dinner—is the trespasser permitted to say, here is a half penny for you, which is the full extent of all the mischief I have done.” ’ And Heath, Justice, mentioned a case, where a jury gave £500 for merely knocking a man’s hat oif, and the court refused a new trial. In Sharp v. Brice, (2 W. B. 942,) De Gray, Ch. J., said that in torts, a greater latitude is allowed to jurors, and the damages must be excessive and outrageous, to require or warrant a new trial. (Edgell v. Francis, 1 Man. & Gran. 222.) On the whole, although we would have been - better satisfied, had the damages been less, we do not feel disposed to interfere with the verdict, on the ground of their excessiveness.

New trial denied.


text:
    Murphy and Kavanagh v. Mooney.
    An assistant justice has jurisdiction under the act of 1813, where the plaintiff resides in his district.
    Where one defendant resides in the city and the other is a non-resident, they may be sued by a long summons ; and it is no objection to the suit that the summons is served on the non-resident only.
    Dec. 30, 1848.
    Certiorari to the assistant justice for the district, including the eighth, ninth and fourteenth wards of the city of New York. The suit was commenced before him by Mooney against Murphy and Kavanagh, (by a summons having seven days to run,) for services rendered. The summons was served by copy on K. and personally on M. The defendants below made default, and on proof of Mooney’s demand, the justice rendered a judgment in his favor. The defendants brought a certiorari, and assigned for error, that at the time of the commencement of the suit, Mooney was not a resident of either of the wards composing the district of the justice; and that Murphy then resided in the county of Queens, and ICavanagh in the twelfth ward of the city of New York, out of the jurisdiction of the justice. Also, that both onght to have been personally served with process.
    To this assignment, Mooney pleaded that at the time of the commencement of the suit below, he resided in the eighth ward of the city. The plaintiffs in error demurred to the plea. They claimed that Mooney’s residence was immaterial; and that the proceedings were void because commenced by a long summons served on a non-resident.

      E. C. Gray, for the plaintiffs in error.

      Stevens & Hoxie, for the defendant in error.
   By the Court. Vanderpoel, J.

From the plea demurred to, it appears, that the plaintiff below was a resident of the eighth ward, being one of the wards for which the justice was appointed, and it appears too, that one of the defendants resided in Queen’s County, and the other in the twelfth ward of the city.

The plaintiff below residing in the district of the justice, the latter had jurisdiction. (2 R. L. 379, § 103.) One of the defendants residing in the city, it was competent for the plaintiff to proceed by long summons. (Harriott v. Van Cott, 5 Hill, 285 ; Burghart v. Rice, 2 Denio, 95.)

The judgment must be affirmed.