text:
    The People v. Falconer and Downing, impleaded with Sackett and another.
    In a suit upon an administrators bond, the sureties will not be permitted to deny that the surrogate taking the bond and issuing the letters of administration, had jurisdiction of the case.
    It is not necessary in the declaration to set forth the service of the various processes, and the minute and formal proceedings, preliminary to the making of each order or decree by the surrogate.
    A count stating the issuing of the letters, the execution of the bond, that the administrators became possessed of assets, that they were required to account by an order of the surrogate, and did account before him, that he decreed a balance in their hands, and ordered it to be paid over to the distributees in specified sums, that the administrators neglected to pay and to comply with the orders whereby the bond was forfeited, and that the surrogate by an order directed it to be prosecuted ; was held sufficient on general demurrer.
    It was also held that the count need not aver an application by the distributee to the surrogate to have an order made for prosecuting the bond.
    July 14th,
    July 27th, 1848.
    Demurrer by the sureties, in an action of debt on an administrators bond.. The declaration set forth, the execution of the bond in the city of New York, by J. Raymond, W. H. Sackett, and the defendants, Downing and Falconer, dated May 27th, 1844, with a condition, that if J. Raymond and Sackett should faithfully execute the trust reposed in them, as administrators of all and singular the goods, chattels and credits of Henry Raymond,- late of Woodbridge, in the state of New Jersey, deceased, and should obey all orders of the surrogate of the county of New York, touching the administration of the estate committed to them, then the obligation was to be void. The declaration next averred, that after the execution of the bond, and on the same date, letters of administration were issued accordingly to Sackett and J. Raymond, by the surrogate of New York. It then assigned breaches, first, that Sackett and J. Raymond, or one of them, converted to their own use, assets of the estate of the intestate, which came to their hands as such administrators, to the amount of $4000, in violation of the trust so reposed in them.
    Second. That after the execution of the bond, and after the expiration of eighteen months, the administrators were required to render an account of their proceedings, by an order of the surrogate of the county of New York; and that thereupon they did account before such surrogate, in September, 1846. That such proceedings were had upon such accounting, that the surrogate adjudged and decreed, on the 16th of September, 1846, that Sackett, one of the administrators, had in his hands of the assets of the estate of H. Raymond, a balance of $1986 40, and by the same decree, the surrogate ordered Sackett to pay one-third of such balance, being $662 13, to Fanny Raymond, the widow of the intestate, as and for her distributive share of the estate. That Sackett has not obeyed the order, and he has not paid that sum to Mrs. Raymond.
    Third. That the surrogate, at the same date, made another decree, by which he ordered Sackett to pay to James Raymond, two-thirds of the balance so decreed against him, being $1324 26, which he has also omitted to do. By reason of which breaches, the bond became forfeited.
    Fourth. That thereupon, on the 30th of January, 1847, the surrogate of the county of New York, did order and direct the bond to be prosecuted; and according to the provisions of the statute, an action has accrued to the plaintiffs, &c.
    The defendants, Downing and Falconer, demurred to the declaration on various grounds, which are mentioned in the opinion of the court.

      F. Tillou and J. L. White, for the defendants.

      Jon. Miller, for the plaintiffs.
   By the Court. Sandford, J.

The first ground of demurrer is, that the declaration fails to show that the surrogate of New York had jurisdiction of the administration of Henry Raymond. It appears that, he was domiciled in New Jersey, and there is no allegation that he left assets in this city.

We think a very plain answer to this objection is to be found in the bond executed by the parties, in which they became bound for their principal’s faithful execution of the trust reposed in them as administrators under the appointment of the surrogate of the county of New York, and for their obedience to all his orders touching such administration, ft would be strange indeed, if the sureties in an administration bond, after enabling their principal to possess himself of the personal estate by its execution, should be permitted to avoid its obligation, upon the plea that the officer granting the letters and receiving the bond, had no jurisdiction of the subject matter. The execution of the bond precludes both principals and sureties from gainsaying the surrogate’s jurisdiction, in any proceedings for the assets which the appointment and bond have enabled the principal to receive. (See Pritchett v. The People, 1 Gilman’s R., Illinois, 525; Morse v. Hodsdon, 5 Mass. 314.)

It is sufficiently averred in the declaration, that letters of administration were issued to Sackett and James Ra3maond, and that by virtue of those letters, they received a large amount of assets of the intestate.

The next objection, which embraces several specifications in the demurrer, is that the declaration does not show the facts necessary to give the surrogate jurisdiction to have made the orders to account, to pay over, and for the prosecution of the bond.

The defendants attorney seems to have supposed, that it was necessary to set forth in the declaration, every minute step in the proceedings before the surrogate; each application to him, the issuing and service of process, the proof of service, the date arid place of each act, that the orders were in writing and were entered of record, and even the filing of the papers.

In this the attorney was clearly wrong. The surrogate, having jurisdiction of these administrators, and of the administration committed to their charge; it was sufficient for the plaintiffs to set forth, as they have done in this court, that the administrators were at the proper time required to account, that they did account before the surrogate, that he found and decreed the balance in their hands, that he further decreed the distribution of such balance, and payment to the respective next of kin, that the administrators failed to comply with such decrees, that thereby the administration bond was forfeited, and that the surrogate thereupon ordered it to be prosecuted.

It was not necessary that the declaration should aver notice to the sureties of any of these proceedings. And it would have been very reprehensible in the plaintiff to have set forth a quarter of the matters, the omission of which is assigned as cause of demurrer.

If any grounds exist for impeaching the proceedings, either in respect of the sums decreed to be paid, or in any other matter open for consideration in this suit; the sureties may avail themselves of it by their plea and notice.

That the declaration is sufficient, we have no doubt. The cases of The People v. Dunlap, 13 Johns. 437; and The People v. Barnes, 12 Wend. 492, show this inferentially, from the pleadings in the former, and the points raised in the latter.

It is said that the declaration should have stated an application to the surrogate to have the bond put in suit, either by a creditor, a legatee, or one entitled to a distributive share—as no others could apply, and the order could not be made except on such an application.

On this point, we think that there being shown a case in which the surrogate might direct the bond to be sued, and in which he would be required so to direct on the application of one entitled to a distributive share; and it being further shown that the surrogate has in fact made an order that the bond be prosecuted; it is to be taken that such order was rightfully made. His jurisdiction of the subject matter, founded on the administration, the account and order thereon, the distribution, the order to pay to the parties entitled, and the omission to pay, entitles the order to sue the bond, to be treated presumptively, as a valid judicial act, without the averment of a formal application or the service of a citation or order to show cause.

Upon the whole, we are satisfied that the count is sufficient, and the demurrer must be overruled, with leave to the defendants to plead on the usual terms.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    J. G. Smedberg, Administrator, &c., of C. G. Smedberg v. Simpson.
    The possession of an usurious note by the indorsee, is presumptive evidence that he received it before it became due, for a valuable consideration, without notice of the usury.
    Where a new security is given to such a bona fide holder of an usurious note, by one of the parties thereto, after it became due ; it was held to be valid, notwithstanding the holder of the usurious note was apprised of the usury therein, after he became its holder, and before the new security was given.
    July 13;
    July 27, 1848.
    Assumpsit against the defendant, as the indorser of a promissory note made by Edwin Wilcox, payable to and indorsed by F. Whittlesey, for $1297 45, dated January 11, 1844.
    At the trial, before the Chief Justice, in November, 1847, the defendant proved that this note, and one of $3000, were given by the maker to C. G. Smedberg, about the 30th January, 1844, in settlement of two notes for $2000 each, then held by Smedberg. Those two notes originated in large loans made in 1842, by one Halliday, to a house in which Wilcox was a partner; and were made by Wilcox in 1843, were indorsed by Whittlesey, and were delivered to Halliday on account of the loans so made in 1842. When the two notes fell due, they were held by Smedberg, and were protested for non-payment. In December, 1843, Smedberg issued an attachment against Whittlesey, on the two notes, as a non-resident debtor, and the sheriff levied on bank stock of W. valued at about $3000. Wilcox arranged to have the attachment settled and discharged, by giving to Smedberg the note in suit, and a note for $3000, the two making the amount of the two $2000 notes, with the interest and costs of the attachment; and thereupon those notes were given up to Wilcox, and the attachment was discharged. The stock was pledged to secure the note of $3000. The defendant indorsed the note in suit at the request of Wilcox.
    The defendant then offered to prove, that the loans made by Halliday to Wilcox’s firm were usurious, and that the two notes of $2000 each were usurious. The plaintiff objected to the evidence, and it was excluded by the judge.
    The defendant then proved by Wilcox, that during the negotiation of the settlement of the attachment proceedings, he informed both Smedberg and his attorney, that those two notes ivere usurious. The defendant then renewed the offer to prove the usury in those notes, and in the original transaction; insisting,

      First. That on making the proof thus offered, the plaintiff could not recover upon the note in suit, as his intestate took it with notice that the two notes of $2000 each, were usurious.

      Second. That on making such proof, the plaintiff could not recover, without proving that his intestate took the two notes of $2000 each, for a valuable consideration, and without notice at the time that they were usurious. The judge decided, that the evidence was inadmissible, and excluded the same. The counsel for the defendant excepted to these decisions of the judge.
    The cause was submitted to the jury upon other questions involved, and they rendered a verdict for the plaintiff for the amount of the note. The defendant moved for a new trial.

      J. S. Bosworth, for the defendant,
    relied on Chapman v. Black, (2 Barn. & Ald. 588;) Powell v. Waters, (8 Cow. 692, 695, per Jones, Chancellor, and Colden, Senator;) and Morgan v. Tipton, (3 McLean, 339.)

      J. W. Gerard, for the plaintiff.
   By the Court.

It was decided by the assistant vice-chancellor, in respect of the note for three thousand dollars, given at the same time with the note in question, that the law derived a presumption from Smedberg’s possession of the two notes of $2000 each, that he had received them before they became due for a valuable consideration, and without notice of the usury. (Smedberg v. Whittlesey, 3 Sandf. Ch. R. 320.) He also held, that the giving of the new notes, without objecting to the validity of the former, was of itself an admission that Smedberg was a bona fide holder of the old notes, without notice of their usurious character. Smedberg recovered in the chancery suit, on the well settled principle, that where a party to an usurious note or bill, gives a new security for it to one to whom it has been transferred for a valuable consideration, without notice of the usury, the new security is valid, although the holder could not have recovered on the note or bill.

We concur fully in the decision of the assistant vice-chancellor. This case differs from the one decided by him, in the single fact that it is here proved, that Smedberg knew the parties alleged the $2000 notes to be usurious; not when he received them, but after they became due, and before he received the new securities given in their stead. We are unable to perceive how this affects the case. The principle on which such new securities are upheld is, that the holder of the tainted bill or note, is innocent of the illegality connected with it, and if prevented from recovering it, will suffer loss without any fault on his part. It is morally just that he should be paid, and this forms a sufficient consideration to support a new security made by a party to the usurious obligation. Now, the justice of his claim for payment, rests upon his ignorance of the usury when he received the usurious paper. It is no less just because he afterwards hears of the usury. Notice of it then comes too late to affect his situation. It cannot restore to him the consideration which he paid for the security. It does not make him any the less a bona fide holder for a valuable consideration.

As to Chapman v. Black, cited by the defendant, we are not disposed to attach much weight to it, for the reason that in its ruling anterior to the point to which it is cited, it is adverse to our own decisions. Thus, Chapman v. Black holds, that a business bill of exchange, sold at less than its face, and paid for partly in cash, and partly in usurious notes of the seller, is void for usury, in the hands of the buyer. Our courts hold, that no rate of discount on such a transaction can make it usurious, provided it be an actual sale. (Cram v. Hendricks, 7 Wend. 569; Powell v. Waters, 8 Cow. 696, per Colden, Senator.)

We were also referred to the opinions of Jones, Chancellor, and Golden, Senator, in Powell v. Waters, as showing that the holder of the usurious security, must remain ignorant until after he obtains the new security, in order to render the latter valid. But we do not so understand those opinions. They seem to us clearly to refer to his ignorance when he receives the original tainted security. This is very evident from the converse of the proposition, as stated by Senator Golden, at page 696.

We have no doubt that the ruling at the trial was right, and the motion for a new trial must be denied. •


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

text:
    Beirne and Burnside v. Dord.
    On a sale of goods by sample, there is an implied warranty that the bulk of the goods is equal to the sample in quality and soundness.
    This is an exception to the principle of caveat emptor, which is the governing rule as to sales in general.
    In order to warrant a jury in finding that a sale was a sale by sample, it must appear that the parties contracted solely in reference to the sample or article exhibited, and that both seller and buyer mutually understood they were dealing with the sample, and with an understanding that the bulk was like it.
    An opportunity for a personal examination of the bulk, is a strong circumstance against considering the sale to have been made by sample.
    A general and uniform usage in a particular trade, in goods so packed or situated that examination of the bulk is inconvenient and difficult, or calculated to expose the gotids to injury, to the effect that the goods in that trade are sold by the production and examination of samples; is competent in connection with other evidence, to prove in respect of a sale of such goods, that a personal examination of the bulk was not contemplated by either party, and that both intended to contract upon the sample only.
    Such usage is not admissible to prove the contract of itself, or as of itself forming a part of the contract.
    And it is not made out by proof of a custom to exhibit a specimen, but it must go to the extent of a mutual understanding that the bulk should be like the specimen in all respects.
    Proof that a like usage prevails in respect of all goods sold in bales, boxes, and original packages, is not admissible to repel or destroy the force of a usage proved in respect of the particular article in question at the trial.
    Evidence of allowances made in conformity to the usage set up, on sales made by exhibiting samples, is proper to establish such usage.
    July 11, 13 ;
    Sept. 30, 1848 ;
    and again, July 2 ; Sept. 22, 1849.
    Case made up by consent, and submitted for the opinion of the court, upon the testimony taken on a trial of the cause, when a verdict was rendered which was afterwards set aside.
    The action was assumpsit, for damages on an alleged warranty in the sale of twenty-seven bales of French blankets, by the defendant to the plaintiffs, on the 28th day of September, 1844. By the invoice or bill of parcels delivered to the plaintiffs, it appeared the sale was for a note at six months; the 27
      bales contained 1350 pairs of blankets, and the price was $3 10, making $4185.
    The plaintiffs proved by a witness, who had for fourteen years been in the trade, and who was present at the purchase, that on asking for the blankets at the defendant’s store, they were shown samples ; and that the usual way was to buy by samples, and universally so at private sale. (The defendant’s counsel objected throughout, to any evidence of usage or custom in the sale of blankets in opposition to the rule of caveat errvptor.) The witness had always bought by samples, except sometimes at auction, where the bales were laid open. On this occasion, two or three blankets were exhibited to them on a counter.' They examined the sample, and found them sound.
    They were to be delivered to the plaintiffs on board a ship bound for New Orleans. Nothing was said by either of the parties as to warranting the goods, or as to samples. Defendant did not say where the bales were, nor did the plaintiffs ask where they were. Before January, 1845, the witness gave to the defendant a note from the plaintiffs, informing him the blankets were moth eaten, and claiming an allowance. The defendant’s response was, that the blankets were perfectly sound when he sold them.

    Mr. Gaillard testified, that his house had been engaged in the sale of French blankets ten years or more. It is the custom of the trade to sell by sample. One bale, or a single pair, is exhibited and taken as a sample of the whole. The only reason for selling by sample, is to avoid the inconvenience of opening and re-packing the bales; which also exposes them to damage. The liability to damage applies equally to all other woollen goods.
    Mr. Ashton, engaged in the blanket trade, testified, that his house always sold by sample.
    Mr. Gans testified to a like usage in the sale of English blankets.
    The plaintiffs then gave evidence, that on the arrival of the blankets in. New Orleans, two bales were opened which appeared,to have been badly moth eaten. In January following, they were all examined by three merchants, skilled in the trade. Seventeen bales were found to be moth-eaten, and the damage was by them appraised at forty per cent, on the invoice price.
    A clerk of the defendants testified, that he was present at the sale, which was made by exhibiting samples of a number of the bales. All the bales sold, except five, were in the store at the time of the sale. The plaintiffs were informed that the bales sold to them were in the store, and they might have examined them, as well as the other five, if they had desired to do so.
    The defendant recalled Mr. Gans, who testified he would call all sales, when there was a sample bale exhibited, a sale by sample, though all might have been examined by the purchaser. If a purchaser wanted to see the bales, and said he would probably take them, if they corresponded with the samples, the witness would let him open them. He dealt in cloths, worsted and cotton goods, as well as blankets. These goods come, some in bales, and some in boxes or cases. He usually exhibits one bale or case, and the buyer takes the bulk from his confidence that the same will correspond with the samples. Such was the usual custom with all goods which are inconvenient to open or re-pack. Woollens are generally sold bale by bale, and if a man wanted to buy five bales, he xvould open only one. On a sale of blankets by sample, if a bale turned out to be unsound, he should feel bound to, replace it.
    The defendant then introduced witnesses to show a similar practice or usage in the city of New York, in the sale of cotton domestic goods and prints, and various articles of produce.
    Mr. Gaillard, recalled by the plaintiff, testified that French blankets are put up, first in a wrapper of crown paper, over which is a linen wrapper, and then a covering of coarse hemp bagging.
    A formal verdict for the plaintiffs, subject to the opinion of the court, was entered by the parties, and the case was argued at bar, by

      R. J. Dillon and D. Lord, for the plaintiffs ; and

      F. B. Cutting, for the defendant
   By the Court. Oakley, Ch. J.

This is an action brought to recover damages on a sale of twenty-seven bales of French blankets. The blankets were shipped to New Orleans by the purchaser, and on being opened there, seventeen bales were found to have been injured by moths to such an extent that the damages were appraised at forty per cent, of the market value of sound blankets. Nothing was said at the time of the sale, as to its being a sale by sample, nor was there any express warranty. Samples of the blankets, were however exhibited to the purchaser at the time of the sale, and he did not examine the goods in the bales. It is contended on the one side, that this was a sale by sample, and that thus the blankets in the bales, were warranted to correspond with those shown ; on the other side, it is denied that there was any sale by sample, and if there were, it was said the doctrine of warranty implied from such sales, is an innovation upon the common law which ought not to be sustained.

On looking into the law of the case, we find this subject of sale by sample has been very much discussed. In our own state, certain general rules are now well established. Thus, it is clear that the principle of caveat emptor, is the governing rule applicable to sales in general. If the buyer do not choose to rely upon his own judgment and his examination of the article, he must require a warranty from the seller.

Another rule has grown up, (which is an exception to the general rule,) that on a sale of goods by sample, there is an implied warranty that the bulk of the goods is equal to the sample in quality and soundness. This is a peculiar contract, in which the parties deal in reference to the sample merely, and not in reference to the bulk of the article. And this principle is as well established with us, as the general rule to which it is an exception.

Whether a sale be a sale by sample or not, is a question for the jury upon the evidence in each case; and to authorize a jury in finding the affirmative, it must appear that the parties contracted solely in reference to the sample or article exhibited ; and that both the seller and buyer mutually understood they were dealing with the sample, and with an understanding that the bulk was like it. If these facts be made out, the legitimate consequence follows, that the seller warrants the bulk to correspond with the sample exhibited.

On the first trial of this cause, the question was submitted to the jury in the form we have stated it, and they found that this was a sale by sample. One of the justices of the court doubted whether there was a warranty proved, or whether it was only a representation, and a new trial was ordered. The case is presented to us in effect upon the same evidence. We have considered it, and if necessary, should not hesitate to say, that in our judgment, it is sufficient to establish a sale by sample as we have defined it, although the blankets exhibited were not called samples; that it was so understood by the seller, and received by the buyer. This, in the view we have taken of the case, will have to be submitted to a jury.

Another question was raised at the argument, upon the admissibility of evidence of the existence of a usage of trade in reference to this particular article of French blankets, as to which it is proper to express our opinion. The evidence was given to show that it was the usage of the trade, always to sell these blankets by sample ; and that this practice has grown up by reason of their being exposed and made liable to injury, by opening the bales in which they are imported. We think such evidence is competent. We do not say that the testimony produced in the case before us, comes up to what it should in order to establish a usage of the kind alleged. But our opinion is, that evidence of a uniform usage, in a particular course of trade in this article, is admissible to show what both the purchaser and seller intended at the sale, and that a personal examination of the bulk of the article was not contemplated by either. The opportunity for such an examination of the bulk, is a strong fact in reference to the question whether a sale was or was not made by sample. If the article were in a situation to be examined, it is a circumstance to prove that there was no warranty intended. A usage like that alleged, established by showing the universal understanding reduced to practice, of those engaged in the trade, that such an examination was not to be made on a sale of French blankets in bales, would obviate the force of the evidence that the bulk of the article might have been examined by opening the bales.

It was insisted that the plaintiff was precluded by the bill of parcels delivered to him, (which is in the ordinary form of a bill of goods sold with a receipt at the foot for the price,) from asserting that there was any warranty; the bill containing nothing on that subject. We do not consider that the bill is to have that effect. Such bills do not include any thing as to the terms or manner of the sale, other than the price fixed. A warranty might be added, but the omission in the bill is not evidence that there was no warranty.

The difficulty, in our minds, is in respect of the damages. There was a long delay at New Orleans, after the injury to the goods was discovered, before the appraisement was made. The condition of the blankets at the time of the sale, was the criterion, and there was no direct evidence on the point. It was sought to infer it from the mode of transportation, and their subsequent state. But we know the injury by moths is progressive, and should not the party have investigated its extent as soon as he found it was going on 1 The evidence before us does not enable us to assess the damages to our satisfaction. We shall, therefore, send the cause back for trial, and the jury on this point must inquire, 1. Whether the blankets were in a damaged condition at the time of the sale ? If they were, 2. What was the extent of the injury when the fact of its existence became known to the purchasers ? If the injury were increased between that time and the appraisement, we at present think, (without intending to decide the point,) that the jury ought to give only the damages which had been sustained, when the was discovered.

New trial ordered.

The cause was again tried in December, 1848, before Sand-ford, J.—Much the same evidence was given as to the particular sale in question, and the general usage of trade in the sale of French blankets. The latter was objected to by the defendant’s counsel, as well as the evidence that allowances were made by the seller after sales by such usage, when the blankets proved to be defective. The plaintiffs proved more fully the condition of the blankets when opened at New Orleans, and the extent of the damage sustained. The proof of usage was more full than in the former case.

The defendant proved that these blankets were a part of sixty bales received by him from France, in the spring of 1844, and in respect of five or six lots of bales sold from the consignment, no claim for damages was made by any of the purchasers.

The defendant offered to prove that in the city of New York, prints, cotton goods, brown and white linen, brown drills, stockings in boxes, kerseys, broad cloths, and other woollen goods, and all articles in bales, boxes, or which are inconvenient to examine, or are sold at wholesale ; are by general usage, sold by exhibiting samples or specimens, in the same manner that the French blankets in question were sold. The questions to this effect, were put in a great variety of forms, as to what was the general usage and custom on such sales ; whether the same general usage spoken of as to French blankets, did not apply to all other goods sold in bales or in bulk, or in what respect it differed. To all this evidence the plaintiffs objected, the judge sustained the objection, and the defendant excepted. The defendant at the proper time moved for a nonsuit, which was overruled.

The Judge charged the jury as follows:

The plaintiffs claim damages on an alleged warranty in the sale of seventeen bales of blankets, which they insist were sold to them by sample. The general rule is, that the buyer of goods has no redress for defects in their quality, unless he has obtained the express warranty of the seller. An exception has arisen from the necessities of commerce, in the sale of goods in large quantities, and it is now established, that on a sale by sample, there is a warranty that the bulk of the goods sold, corresponds with the sample exhibited. This differs' from a mere representation as to quality, for which there is no liability unless it were wilfully false as well as material.

There is no pretence in this case that there was an express warranty. Then, was it a sale by sample ? This is a question of fact for you to determine on the evidence. It does not follow, from the exhibition of a specimen of the blankets, that the sale was by sample ; and you must be satisfied that it was understood by both parties as an agreement or undertaking, that the bulk of the bales corresponded with the blankets exhibited.

You will consider the manner and circumstances of the sale. The opportunity that existed for the examination of the bulk of the article, is a very important element; and you may consider the relative convenience or practicability of making such an examination. In connection with this, is the testimony offered to prove it to be the usage of the trade to sell French blankets by the production and examination of samples. This testimony does not establish any general or uniform usage, such as would prove a contract, or warrant you, from the usage merely, to find that the parties contracted with the understanding, that this was a sale by sample. The evidence, as you will have observed when the subject of its reception was discussed, was not admitted for the purpose of proving a general usage of trade forming a part of the contract, or of itself establishing a sale by sample j but it was received as an item of testimony tending to show, in connection with other evidence, that a personal examination of the bulk of the goods sold, was never contemplated by either party, and that both parties intended to contract upon the sample only; and to make the testimony effective, even to this extent, you must be satisfied that there was a general usage in this trade, not merely to sell by exhibiting a specimen, but to sell thus with a mutual understanding, that the bulk should be like the specimen in all respects.

If upon the whole case, you are not satisfied that these blankets were sold with an understanding and implied agreement by both of the parties, that those in the bales corresponded in quality and condition with the sample exhibited, then no warranty is proved, and the plaintiffs cannot recover.

If you shall find that both parties understood that this was a sale by sample, then the law makes the defendant responsible, if the bales were not equal to the samples. The defendant, however, is not liable for any damage to the blankets occurring after the delivery of them. You must be satisfied that they were moth-eaten, at the time of the sale and delivery. The rule of damages is the difference between the actual value of the goods in New Orleans in their damaged state, and what they would have been worth if they had corresponded with the samples.

F. B. Cutting, for the defendant.

R. J. Dillon, for the plaintiffs.

To this charge, the counsel for the defendants excepted. The jury found a verdict for the plaintiffs, for $1131 38, damages,; and the defendant now moves for a new trial.

By the Court. Oakley, Ch. J.

The law respecting sales by sample, was laid down by the judge at the trial, in exact conformity to our decision in September last, and nothing farther need be said on that subject.

A great number of exceptions was taken by the defendant’s counsel to the ruling of the judge, in excluding certain testimony offered by him, and in the admission of other testimony offered by the plaintiff.

The offers on the part of the defendant were made in all manner of shapes, but with one single bearing, which was this: The court had decided that it was proper to inquire into the usage of trade, as to examining and inspecting the bulk of the particular article in question, viz., French blankets in bales; in order to show that both parties understood an actual inspection was not to be made ; that both buyer and seller perfectly understood this, by the established custom and usage of trade in the article. In accordance with the principle thus established, evidence of such a usage in respect of French blankets was received at the trial. The defendant’s offers were to show that all other bale goods, such as woollens generally, cloths, prints, <fcc., were sold in the same manner.

This was excluded at the trial, and we have no reason to doubt the correctness of the decision. Whether those articles were so sold or not, it could not affect the usage as to French blankets. If the former were sold in the same way, it would not prove the usage as to the latter. Distinct proof of a usage in that line of trade would still be necessary, if any reliance were to be placed on the custom of the trade. If the other articles enumerated were not sold in the mode which the plaintiffs claimed to have proved in respect of French blankets, it would not show that the latter were sold differently from what the plaintiffs alleged.

The defendant objected to the admission of evidence that allowances had been made by sellers for defects, on sales made by exhibiting samples, in conformity to the usage which the plaintiffs were seeking to establish. We think the objection was clearly wrong. The making of such allowances is the most vital part of the usage alleged, and proof of instances of the same, was a component part of the evidence of the usage, than which none could have been more satisfactory.

The motion for a new trial must be denied.


author: By the Court. Vanderpoel, J.

text:
    Embury and others v. J. and W. C. Conner.
    The legislature has no authority to grant private property for private uses, making compensation to the owner, unless by his consent.
    This is prohibited, as well by the spirit of the provision in the constitution that private property shall not be taken for public use, without just compensation, as by the constitutional provision, that no person shall be deprived of life, liberty, or property, without due process of law.
    The provision in the act relative to the city of New York, allowing the corporation on opening or widening a street, which improvement takes a part of an entire lot of ground ; in the discretion of the commissioners to include in their estimate and assessment the whole of such lot, awarding damages to the owner, and thereupon the title of the owner to be divested in the portion of the lot not required for the street, and the same to become vested in the corporation; is unconstitutional and void, as to such residue not required for the street.
    In an ejectment for a piece of land thus unconstitutionally taken on a street widening, it appeared that the owners, after the corporation had conveyed the land away, received the compensation awarded by the commissioners in an entire sum, as well for such piece as for the land taken for the street; that the owners had contended before the commissioners for a greater allowance and not that their proceeding was illegal; and that the grantee of the corporation had taken possession, and held it undisturbed for seventeen years; held, that the owners were not estopped or barred from recovering the premises in ejectment.
    The provision of the act, that unrecorded deeds shall be void against bona fide purchasers, &e., is intended for the protection of purchasers against previous grants of those under whom they derive title. It has no application to a purchaser who derives his title from one claiming in hostility to all of the parties in the unrecorded deed.
    July 10, 11;
    Sept. 30, 1848.
    Ejectment, for a piece of ground at the North-West corner of Nassau and Ann streets, in the city of New York, being seventy feet and seven inches long on Ann street, nine feet and nine inches wide on Nassau street, seventy feet on its northerly side, and nineteen feet and one inch wide in the rear. The plaintiffs, Peter Embury, Hannah Aymar, and Margaret Jacot, derived their title from Daniel Aymar, who died seised of the premises in question in 1815, leaving five children and heirs, viz.: the above named Hannah and Margaret, Francis and John D. Aymar, and Catharine, the wife of Peter Embury. The premises were a part of a lot owned by Daniel Aymar, which was twenty-five feet in front, thirty-four feet in the rear, and about seventy feet in depth. All of his heirs united in the conveyance of this lot to Philip Embury, May 2d, 1821; who, on the 30th of October, 1821, by separate deeds, conveyed two undivided fifths of the same to the plaintiff, Peter Embury, two other undivided fifths to the plaintiff, Hannah Aymar, and the residue to the plaintiff, Margaret Jacot. The deed to the latter was not recorded at the time of the trial. The plaintiffs then proved, that the defendants were in possession of the premises in question on the 19th March, 1847, when the suit was commenced; and thereupon rested.
    The defendants introduced the proceedings of the common council of the city, for the widening and improving Ann street, by which it appeared that a resolution for widening Ann street, between Broadway and Nassau street, was duly adopted, December 22d, 1828. That thereupon, application was made to the supreme court, and commissioners of estimate and assessment were appointed pursuant to the act of April 9th, 1813. That on the 22d of August, 1829, the supreme court confirmed the report of the commissioners, together with an additional report, the one dated July 8th, and the other July 31st, 1829. By the commissioner’s report, it appeared that they had taken for the widening of Ann street, the southerly portion of the lot so owned by the heirs of Daniel Aymar, as being required for the street itself, such portion being fifteen feet and two inches on Nassau street, and sixteen feet and five inches wide in the rear, and extending the whole length of the lot. The commissioners further reported, that this ground belonged in fee to the devisees of Daniel Aymar; that the same was a part only of a lot of land, of, in, and to the whole of which the devisees of Aymar were seised in fee; that they, the commissioners, deemed it expedient and proper to include and comprise in that, their estimate and assessment, the whole of the residue of such lot, so belonging to Aymar’s devisees, along with that part of the same which was in the report before described, as being required for the purpose of the street, in like manner as if such residue were also required for that purpose. The report then proceeded to describe such residue, it being the same premises for which this suit was brought. It then stated, that the commissioners had estimated and assessed the loss and damage to the devisees from the widening and improving of Ann street, by and in consequence of their relinquishing their interest in the piece of land required for that purpose, and also with the residue so included and comprised therewith, and in the buildings situated on the entire Aymar lot, at the sum of $11,220.
    By the additional report of the commissioners, it appeared that on re-considering their estimate and assessment, they awarded to Aymar’s devisees $11,370, instead of the sum before mentioned. By the papers attached to the proceedings on file in the supreme court, it appeared that Peter Embury, on the 13th July, 1829, objected in writing, and at great length, to the amount of damages estimated by the commissioners, as being unjust; stating that they were taking his property against his consent, and that he should oppose the confirmation of their report. An affidavit of one of the commissioners was attached, sworn August 1st, 1829, stating that Embury appeared before them in behalf of Aymar’s devisees, and urged them to take the whole lot, and not leave the gore remaining ; and insisted upon it, against the persuasions of the commissioners, who finally deemed it expedient to include the whole lot in the assessment.
    The defendants offered a certified copy of Embury’s objections, attached to the additional report of the commissioners, in which he objected to the amount of the award, and insisted on its being increased, but made no objection to the commissioners including the whole lot in their estimate, instead of the part actually required for the widening of the street. This evidence, with some other not deemed necessary to be stated, was excluded by the judge. The rule confirming the report, showed that its confirmation was opposed before the supreme court.
    The defendants then proved the signature of the plaintiffs, P. Embury and H. Aymar, and the then husband of Mrs. Jacot, to a receipt, dated September 1st, 1830, by which they acknowledged to have received from the street commissioner of the city, a warrant for $11,370, expressed to be the amount awarded to the devisees of Daniel Aymar in widening Ann street. The warrant was also produced, drawn upon the treasurer of the city, payable to the “ devisees of Daniel Aymar,” expressed to be for the award on widening Ann street, and which appeared to have been indorsed by the three persons who signed the receipt. The fact of its payment was admitted.
    The defendants then read in evidence a deed from the corporation of the city of New York to James Conner, one of the defendants, dated March 27th, 1830, for the consideration of $4700, quit claiming to him the premises in question, described by metes and bounds, and as being the residue of a lot owned by Daniel Aymar’s devisees, part of which was required for widening Ann street, and such residue was included and comprised by the commissioners of estimate and assessment, with the part so required for the street, and which on confirmation of their report, became and was vested in the corporation pursuant to the statute. :
    The plaintiffs then read in evidence a deed from Philip Em-bury to Margaret Jacot, dated May 25th, 1846, confirming and conveying to her the premises conveyed to her by his former deed.

      Various objections to the evidence, were taken on both sides, which were reserved at the trial; and, with the consent of the parties, a verdict was taken for the plaintiffs, subject to the opinion of the court.

      E. Sandford, for the plaintiffs.
    The evidence on the part of the plaintiffs established their title to the premises in question, in the respective proportions described in their declaration.
    The several papers, records and other evidence given on the part of the defendants, did not show any title to the premises in question:
    1. Because the act (2 R. L. 416, § 179 ; repealed, Laws of 1839, p. 185 :) authorizing the commissioners, in all cases where part only of any lot of ground should be required for widening or opening a street, leaving a residue belonging to the same owner or owners, and the commissioners should deem it expedient and proper so to do, to include in their estimate the whole of such lot in like manner as if such residue was required for the improvement, and vesting upon the confirmation of their report, all such residue in the mayor, &c., of New York, in fee simple ; was unconstitutional and void.
    The constitution of 1777, did not delegate any authority to the legislature to take the property of one person and give it to another, with or without compensation.
    The.vesting of the “ supreme legislative power” in the senate and assembly, conferred no right to take private property for private purposes. (Const, of 1777, Art. II; Taylor v. Porter, 4 Hill, 140, 144, 5; Wilkinson v. Leland, 2 Peters, 657.)
    It provided that no member of the state should be disfranchised or deprived of any rights, &c., unless by the law of the land or the judgment of his peers. The terms “ law of the land,” mean by due course and process of law. (2 Coke’s Inst. 45, 50; 3 Story on Const. 661, § 1783; 2 Kent’s Com. 13; 4 Hill, 145, 146.)
    2. If this part of the act of 1813 was within the constitutional powers of the legislature at the time of its enactment, the constitution of 1821 abrogated it by declaring that private property should not be taken for public use without just compensation. (Const. of 1821, Art. 7, § 7; Matter of Albany Street, 11 Wend. 149; Bloodgood v. M. & H. R. R. Co., 18 Wend. 59; Matter of John & Cherry Streets, 19 ibid, 659, 665 to 667, 675; Varick v. Smith, 5 Paige, 137; Taylor v. Porter, 4 Hill, 140,147-8.)
    3. In assuming to take the property in question, the commissioners assumed to exercise the powers conferred upon them by this unconstitutional act, and the case does not present the question whether the report made by the commissioners, that they had taken the portion of the lot in question, which was not required for the widening of Ann street, with the express assent of the plaintiffs, and the confirmation of that report, could have operated to divest the plaintiffs of their title to the land.
    4. If the question last referred to were presented, any parol assent which might have been given by the plaintiffs, could not have operated upon their title to the land. (1 R. S. 738, § 137, 138; 1 ibid, 756, § 1; and 762, § 38; 2 R. S. 134, § 6; Howard v. Easton, 7 J. R. 205; Cook v. Stearns, 11 Mass. R. 533, 36; Noyes v. Chapin, 6 Wend. 461; Hess v. Fox, 10 Wend. 437; Trustees of Presbyterian Society v. The Auburn & Rocheschester R. R. Co., 3 Hill, 567.)
    The acceptance by the plaintiffs of the moneys awarded by the commissioners, did not divest their title to the land in question, nor constitute an estoppel in pais, by which the plaintiffs can he prevented from asserting their title. A part of the moneys so awarded was justly due to the plaintiffs. They were awarded to them as an entire sum. No right to apportion existed, nor were there any means, either in their possession, or in the possession of the corporation, by which they could have ascertained the amount justly due to them, for that portion of the lands to which their title became divested by the confirmation of the commissioners report. They had to take the whole or none. The corporation of New York did hot act upon their acceptance of this award in disposing of the land in question, for they had sold and conveyed it to Conner, previously to the payment of the money by them. (Dezell v. Odell, 3 Hill, 319; Lyon v. Reed, 13 Mees. & Wels. 285, 309; Nicholls v. Ather

      stone, 11 Lond. Jur. R. 778; Smith’s Lead. Cas. Amer. Notes, 467, 8; 2 Metc. 423, 431.)

      J. S. Van Rensselaer, and W. Kent, for the defendants.
    1. The power given to commissioners of estimate and assessment, on the widening and improvement of streets in the city of New York, under the act of 1813, to include in their estimate of damage and benefit, the residue of a lot, part of which only is required for public use; is advantageous to the owner, and is constitutional and lawful; especially when exercised with the consent of the owner. (Case of Trinity Church, 11 Wen. 149.)
    2. The consent and ratification of the owner may be inferred from circumstances ; and the taking .the consideration money and award, and delivery of possession of the land by the owner, his acquiescence for seventeen years in such possession and in the improvement of it by erecting buildings, &c. by purchasers, without ?my claim of title by the former owners ; or any one of these acts, is conclusive evidence of such consent. (Broom’s Legal Maxims, 309; 26 Wend. 53.)
    3. The commissioners report, and the schedules and papers annexed, confirmed by a rule of the supreme court, form the record of the proceedings, which cannot be separated, and must go together ; and thus form, the conveyance of the land awarded to the common council in this case. (11 Wend. 149; 1 Phill. Evid. 385; Cow. & Hill’s Notes on same, 1059.)
    4. The laws for improving streets in New York, are recognized by the revised statutes, and provide a mode of transferring real estate taken in cases of improving streets, peculiar to themselves, and different from the mode prescribed by the revised statutes for granting land in every other case, but equally legal and efficacious.
    5. The order of the supreme court, confirming the report and proceedings of the commissioners, after due notice to all the parties concerned, published according to law; was a final decision, subject to review in the court of errors, and the owners in this case having omitted their writ of error within five years, are concluded, and cannot now review the proceedings by ejectment, after acquiescing seventeen years. (12 John. Rep. 31; 16 Wend. 371; 11 Wend. 154; 2 Howard, 319; 5 Pike, 424.)
    6. The deed of Philip Embury to Margaret Jacot, of 11th May, 1821, was not recorded, and therefore, by the law of March 30th, 1811, (2 R. S. p. 406,) was void as respected bona fide purchasers. James Conner was such bona fide purchaser, as was also his grantee. No recovery can therefore be had as to the one-fifth of the premises in question, which the plaintiffs claim that Philip Embury conveyed to Margaret Jacot.
    7. The plaintiffs and each and every of them, by receiving from the corporation the amount awarded by the commissioners, and by yielding up possession of the premises in question, and by their acquiescence in the possession of the corporation and their grantees, and by each of those acts, are estopped from impugning or denying the validity of the proceedings under which the premises in question were taken. (Smith’s Leading Cases, 467; 6 Adolp. & E. 474; 3 Hill, 219; 6 ibid, 47.)
    8. The proceedings to widen Ann street, having been commenced and carried on under authority of a statute, and the land in question taken under such statute, and no objection having been made to the validity of the statute, or the legality of the proceedings, or the jurisdiction of the court, the proceedings, and all contracts acquired under them, will not now- be disturbed. (4 Pike, Arkansas R, 582; 24 Wend. 338; 5 Pike, 424.)
   By the Court. Vanderpoel, J.

Some objections were taken to certain testimony offered by the defendants, and sustained by the judge at the trial; but as the ground on which we have concluded to dispose of the case, is broad enough to strike at the whole defence, and the evidence rejected, if admitted, could not, in our view, have varied the result to which we have come; I shall forbear to discuss the question, whether the judge was right in rejecting the testimony offered and overruled.

We see no difficulty in the claim of the plaintiffs, unless the same is barred by the proceedings to open Ann street. The several deeds and other matters given in evidence on the part of the plaintiffs, established their title to the premises in question, in the proportions described in their declaration.

. The principal question is, whether the proceedings of the corporation to widen Ann street, and the appropriation of the premises by them, divested the plaintiffs of their title, and vested the same in the corporation, under whom the defendants claim.

The commissioners proceeded under the 179th section of the act to reduce the laws of the city of New York into one act, (2 R. L. 416,) which provides in substance, that where only part of any lot or parcel of land shall be required for any improvement, leaving a residue, and the commissioners shall deem it expedient to include or comprise in their estimate and assessment the whole or a part of such residue, and shall so include it, then, on the confirmation of the report, the whole or part of such residue, so included in the assessment, shall be vested in the mayor, aldermen, and commonalty of the city. The premises in question were included in the assessment; the report of the commissioners was duly confirmed, by reason of which the defendants, who hold under the corporation, claim that the title became vested in the corporation.

Upon this point, we find an express adjudication in The Matter of Albany Street, (11 Wend. 149.) Chief Justice Savage, in commenting on the section under which the corporation has proceeded, says, that The constitution, by authorizing the appropriation of private property to public use, impliedly declares, that' for any other use, private property shall not be taken from one and applied to the private use of another. It is in violation,” he says, “ of natural right; and if it is not in violation of the letter of the constitution, it is of its spirit, and cannot be supported.”

The constitution of 1777, did not delegate any authority to the legislature to take the property of one person and give it to another, with or without compensation. It ordained and declared, that the supreme legislative power within the state should be vested in the senate and assembly; (Art. 1 of Const, of 1777;) but this surely conferred no right to attack private property for private purposes. It also (Art. 13,) declared, that no member of the state should be disfranchised or deprived of any of the rights or privileges secured to the subjects of the state, unless by the law of the land, or the judgment of his peers. The words “ by the law of the land,” have been held to mean “ by due course and process of law.” (Taylor v. Porter, 4 Hill, 140.) They do not mean, a statute passed for the purpose of working the wrong. (Ibid. 145.) Justice Bronson, in the above case, holds that the section was taken, with some modifications, from a part of the 29th chapter of Magna Carta, which provides, that no freeman shall be taken or imprisoned, or be disseised of his freehold, but by the lawful judgment of his peers, or by the law of the land. (2 Story on Const. 661, § 1783.)

But if this part of the act of 1813, were within the constitutional powers of the legislature, at the time of its enactment, the constitution of 1821 abrogated it, by declaring that private property should not be taken for public use, without just compensation. (Const. of 1826, Art. 7, sec. 7. Matter of Albany Street, 11 Wend. 149. Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 59. 19 Wend. 659, 675. Taylor v. Porter, 4 Hill, 140.)

In Bloodgood v. The Mohawk and Hudson R. R. Co., (18 Wend. 59,) Mr. Senator Tracy says, these words of the constitution should be construed “ as equivalent to a constitutional declaration, that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation.” Justice Bronson, without questioning the soundness of this view, seems to think that the case stood stronger upon the first member of the clause, “ No person shall be deprived of life, liberty, or property, without due process of law holding that these words cannot mean less than a prosecution or suit, instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. We are, therefore, on the most conclusive authority, bound to say, that the provision of the act of 1813, under which the corporation, or the commissioners in their behalf proceeded, in respect to the premises in question, is unconstitutional.

2. It is contended, that the plaintiffs, by receiving from the corporation the amount awarded hy the commissioners, and by yielding up the premises to them, are estopped from denying the validity of the proceedings under which the premises were taken, and have, by those acts, given a binding consent and ratification'to the proceedings.

This strikes us as the only question in the cause worthy oí serious consideration ; the former having been previously ruled in direct terms.

In undertaking to take the property in question, the commissioners assumed to exercise the power conferred upon them by this unconstitutional act. The report of the commissioners does not proceed on the ground, that they had taken the portion of the lot in question, which was not required for the widening of Ann street, with the express assent of the plaintiffs. On the contrary, the corporation proceeded on the ground that the title of the plaintiffs was divested by the confirmation of the report, whether they consented or not. The statute in question does not provide for any parol assent; and sitting in a court of law, we cannot see how any such assent which might have been given by the plaintiffs, could have operated to divest their title to the land. The statute of frauds, (2 R. S. 134, § 6,) provides, that no estate or interest in lands, other than leases for a term not exceeding one year, shall be created, unless by act or operation of law, or hy deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or his agent, authorized by writing. This creates an insuperable difficulty in the way of the defendants. There is no estoppel by deed here, nor is there any thing in the acts of the parties to constitute an estoppel in pais. The acceptance by the plaintiffs of the money awarded by the commissioners, could not divest the legal title of the plaintiffs to the land in question, nor constitute an estoppel in pais, to preclude them from asserting their title. The plaintiffs were clearly entitled to part of the money awarded to them. It was assessed or awarded to them as an entire sum; nor was there any right to apportion it; neither could they say to the corporation, “ We will take part of this money, just enough to cover the land you actually appropriated to public use, and ■ reject the. residue.5’ They had no means of ascertaining the amount due for that portion of the land, as to which their title became divested, by the confirmation of the commissioners report. They were obliged to take the whole or none. The corporation did not take or sell the premises on the ground, that the plaintiffs had accepted the sum awarded; for they sold and conveyed to the defendant, J. Conner, before the money was paid to the plaintiffs. We cannot say that the corporation would not have taken the land, had the plaintiffs refused to accept the amount awarded to them. On the contrary, they claimed the right to take and sell the land, the moment the report was confirmed, and before the award was paid.

The legislature had thrown these owners helpless, at the feet of the commissioners. According to the act, they had no option to part with their property or not. No act of theirs, induced the corporation to part with its money. If there could be such a thing as an estoppel in pais, in a court of law, every element of such estoppel is here wanting. Peter Embury was a resisting party, and did not lead the corporation into the taking of the property. As the statute under which the proceeding was had, had no operation at all, the alleged assent is good for nothing. We have yet to learn, that a parol assent will, at law, convey a title to land. (Dezell v. Odell, 3 Hill, 215; Lyon v. Reed, 13 Mees. & Welsby, 285, 309.) As to estoppels, we refer to the American notes to Smith’s Leading Cases, in 28 Law Library, N. S. 467; and 2 Metcalf, 423, 431.

I have omitted to notice the objection to the plaintiffs title derived through the deed from Philip Embury to Margaret Jacot, executed in 1821; on the ground that it was not recorded, until after Conner received his conveyance from the corporation. As to this, it suffices to say, that the provision in the recording act, is intended for the protection of purchasers against previous grants made by their own grantor, of which they were ignorant. It has no application to a purchaser who derives his title from one claiming in hostility to all of the parties in the unrecorded deed.

There must be judgment for the plaintiffs.


author: By the Court. Sandford, J.

text:
    Heath and Armstrong v. Westervelt, Sheriff, &c.
    Voluntary assignees of a defendant in an execution, who become such after a levy, are not strangers within the meaning of the rule which requires an officer justifying against a stranger, to show a judgment as well as an execution.
    It is sufficient in an action by such assignees against a sheriff, for the latter to produce his execution, and the former cannot impair his right to retain the goods levied, by attacking the judgment.
    July 17;
    Sept. 30, 1848.
    Replevin.—Upon the trial, it was admitted that on the 17th of August, 1847, Thomas B. Wheeler was the owner and in possession of the property in question, at his store, number 88 Bowery; and that on the 20th of the same month, he executed and delivered to the plaintiffs an assignment of the same, for the benefit of his creditors. On the 2lst day of September, 1847, the plaintiffs demanded the property from the defendant, and he refused to deliver the same. The demand was in writing, addressed to him as sheriff, and mentioned the property as that levied on by him in the store, 88 Bowery, under pretence of an execution in favor of Luther Williams against Wheeler; and called on the sheriff to deliver up the immediate possession of the same to the plaintiffs, whose title as assignees was stated.
    A witness for the plaintiff then proved the value of the property. On his cross-examination, he testified that a deputy of the sheriff, had made a levy on the stock in question, and had left a man in charge of it before the assignment was executed. The witness was not present when the levy was made.
    The defendant’s counsel introduced a paper from the files of the county clerk’s office, purporting to be the record of a judgment in the supreme court, recovered by confession without suit, in favor of Luther Williams against Wheeler, filed August 17th, 1847.
    The plaintiffs objected to the evidence, on the ground that on the face of the paper, it appeared to have been altered in the date of the signature thereof, from August 21st to August 17th, and that such alteration should be first explained, and proof be made of the time when the paper was actually signed and became a record. The objection was overruled, and the record was read in evidence.
    The signature of the judgment, had first been dated August 21st, and the figures “ 21st” had been stricken out, and “ 17th” inserted, and a note was appended, to the effect that the date “ 21st” was altered to “ 17th,” by an order of the court dated September 16th, 1847. The record appeared to have been filed August 17th, 1847.
    The defendant next read in evidence, under an objection of the plaintiffs, an execution on that judgment, directed to the sheriff of New York, which was indorsed as having been received by the defendant on the 18th day of August, 1847. It was admitted that on the same day, the execution was levied on the property in question.
    The defendant then read in evidence, under objections to its competency, a certified copy of a rule made by the supreme, court, September 16th, 1847, upon a motion made on behalf of Wheeler to set aside Williams’ judgment and execution, by which rule the motion was denied, and the plaintiff was allowed to amend the judgment record, by having it signed by the clerk as of the 17th of August, 1847.
    The plaintiffs then called the deputy clerk as a witness, and offered to prove, that he filed the judgment record, and that when it was filed, it had not been signed by any officer. That immediately after filing it, the witness discovered it had not been signed, that there was no warrant of attorney executed by the defendant, with the same, and witness at once notified the attorney of the defects, who promised to supply them next morning. The record was not signed till August 21st, and was then signed by another deputy in the clerk’s name ; and no warrant of attorney was ever produced to the officer who signed the record. This testimony was objected to by the defendant’s counsel and excluded by the judge.
    The plaintiffs were thereupon non-suited; and they now move to set the nonsuit aside.

      E. Sandford, for the plaintiffs.

      N. B. Blunt, for the defendant.
   By the Court. Sandford, J.

On looking into this case, we find it unnecessary to decide the question, as to the validity of the judgment entered up by Williams against Wheeler, and the admissibility of the testimony offered with a view of impeaching the record. Independent of those questions, we think the ruling at the trial was correct.

On the 20th of August, 1847, the sheriff was in possession of the goods by his levy ; and could have maintained his right to them, as against Wheeler, upon the execution alone, without resorting to proof of the judgment.

The assignment subsequently executed by Wheeler to the plaintiffs, transferred no greater or other right than he himself had. The plaintiffs are voluntary assignees ; not purchasers in good faith for value, without notice. They received the property, just as Wheeler held it, and subject to the rights which the sheriff had acquired ; one of which was to retain it by force of the execution and his levy.

The plaintiffs therefore are not strangers, within the meaning of the rule, which requires an officer justifying against a stranger, to show a judgment as well as an execution. The sheriff is acting strictly on the defensive, against parties who derive their title from the defendant in the process, subsequent to the levy; and who in this sense, are privies of the defendant.

The regularity of the judgment was therefore immaterial, and the points presented on that subject may be laid out of view.

As to the nonsuit, it was discretionary with the judge ; and he adopted the course least prejudicial to the plaintiffs.

Motion to set aside the non-suit denied.


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

text:
    The Bowery Savings Bank v. Clinton.
    A discharge in bankruptcy does not extinguish the bankrupt’s debts. It exonerates from them, his person and his future acquisitions, but it does not impair their obligation in respect of sureties.
    On the bond of J. to the plaintiffs, bearing interest at 6 per cent, C. indorsed a covenant, binding himself to them for “ an additional one per centum per annum interest, making in all seven per centum per annum on the principal sum secured’’ by the bond, until the principal should be paid, the interest to be paid at the time and in the manner mentioned in the bond. Held, that C. was not bound to pay seven per cent interest, nor more than one per cent on the amount of the bond. That he was liable to pay one per cent, until the bond was paid off.
    Sept. 11th;
    Sept. 30th, 1848.
    Case, subject to the opinion of the court.
    The action was covenant on a writing under seal, indorsed upon a bond executed by James Conner to the plaintiffs. This bond of Conner was dated July 23d, 1835, and the condition was for the payment of $1500, in one year, with interest at six per cent per annum, half-yearly. The defendant’s covenant was dated July 1, 1837, and was in these words, viz. :
    “ For and in consideration of one dollar to me in hand paid by The Bowery Savings Bank, obligees in the annexed bond named, the receipt whereof is hereby acknowledged, I, Charles A. Clinton, do for myself, my heirs, executors and administrators, covenant and agree to and with the said The Bowery Savings Bank, their successors or assigns, an additional one per centum per annum interest, making in all seven per centum per annum on the principal sum, secured thereby from the date hereof, until said principal sum shall be fully paid, the interest to be paid at the time and in the manner mentioned in the condition of said bond.”
    The plaintiffs proved that the defendant, for some time prior to the making of this agreement, had paid the interest on Conner’s bond, at the rate of six per cent per annum, and from that time " had paid interest on the bond to the first day of August, 1846, at the rate of seven per cent per annum, on the principal sum mentioned in the bond. It was admitted by the plaintiffs, at the request of the defend - ant, and given in .evidence subject to the plaintiffs objection thereto, that Conner, since the making of the bond and agreement, and prior to the accruing of the plaintiffs demand against the defendant, was discharged from his debts in bankruptcy, in the district court of the United States for the southern district of New York.

      A. Schell, for the plaintiffs.

      W. B. Aitken, for the defendant.
   By the Court. Oakley, Ch. J.

One principal question presented by the case is whether the discharge of the principal debtor, Conner, from his debts, in the proceeding in bankruptcy, was a discharge of this collateral covenant executed by the defendant. It was contended that the bankrupt discharge was an extinguishment of Conner’s debt; and that consequently by the fair construction of the covenant executed by the defendant, his obligation is discharged.

It is clear that the effect of the bankrupt discharge was only to relieve the obligor from his personal liability, and to exonerate his subsequently acquired property from liability for existing debts. For all other purposes, and for many that are important, his debts remain unextinguished. Such is the law, as it is well settled. We refer to Storm v. Waddell, 2 Sandf. Ch. R. 494, 525, and the cases there cited. There is no doubt that this is the effect of a discharge in bankruptcy, and it cannot affect a collateral covenant like the one in suit.

The plaintiffs claim that by the true construction of the defendant’s covenant, he was bound to pay the whole seven per cent interest; as well the six per cent reserved in Conner’s bond, as the one per cent mentioned in his covenant; the effect of which would be to make him liable for a perpetual annuity equal to the interest on the amount of the bond, unless he should discharge the principal debt, or it should be otherwise extinguished.

As to this, we think by the' plain meaning.of the defendant’s covenant, it extended only to one per cent interest on the amount of the bond. The six per cent interest was secured by the bond of Conner, and the only object of the covenant was to provide for an additional one per cent. It did not make the defendant liable for the six per cent already secured. He will continue to be liable for the one per cent, until the debt be discharged.

Judgment for the plaintiffs for the amount of the one per cen interest on the bond.


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    Montross & Underhill v. Clark, impleaded, &c.
    Where a negotiable note is lent by the maker to the payee, or given for the latter’s accommodation, without restriction as to the mode of using it, it is valid in the hands of any person to whom it has been transferred for value before maturity, although such value consists in its application to the discharge of a precedent debt due from the payee to such holder.
    An accommodation bill or note, when negotiated to a third party, imports a consideration as between him and the prior parties.
    Sept. 18th;
    Sept. 30th, 1848.
    Assumpsit against the defendant as the maker of a promissory note for $183 47, dated Albany, January 20,1847, payable three months after date, to the order of Lyman Clark, at the Commercial Bank, and indorsed by the payee. At the trial before Sandford, J. in June, 1848, the plaintiffs proved the defendant’s admission that he made the note, but ought not to pay it, because he lent it to Lyman Clark, to help him out of difficulty.
    The defendant called, as a witness, the payee of the note, who testified that when the note was given, he was a merchant at Albany, in good credit. He borrowed the note of his brother, the defendant, to raise' money on it at the bank. Told him witness wanted to borrow his note, and he lent it. Told him witness wanted to get it discounted at the Albany City Bank. He made' the note, and lent it to witness for that purpose. There was no consideration paid for it. He never received anything for it. The witness transferred the note to the plaintiffs in part payment of a note they held against him. (It appeared that the witness sent the note in suit to the plaintiffs the day after its date.) After this note fell due, witness gave plaintiffs his check for it, dated five or six days ahead, and they said they would give the note up to him. He, at the same time, told them it was- his note to pay, and not his brother’s. Witness kept his account in the Albany City Bank. (There were some discrepancies in the statements of the witness as to the time of the transfer of the note to the plaintiffs.)
    The counsel for the defendant requested the court to charge, 1st. That the note having been made by the defendant, and lent by him to Lyman Clark for his accommodation, and without any consideration received by the defendant; and the plaintiffs having received the note in part payment of" a precedent debt, and not having paid any thing for it, they took it subject to all the equities existing between the original parties, and the want of consideration was a good defence.
    Also, that the note was misappropriated from the purpose for which it was given, and on that ground the defendant is not holden.
    The court charged the last point as requested, (for the purposes of the trial,) and left it to the jury to decide, first, for what was the note in suit given by the defendant Í

    If it were by him lent to Lyman Clark, or given for Lyman’s accommodation, without any restriction as to the mode of using it, the court instructed the jury that the plaintiffs, taking it in payment of their note against Lyman, became entitled to recover it against the defendant. But if the note in suit were given by defendant for the sole purpose of having it discounted at the Albany City Bank, then if it had been negotiated to the plaintiffs without the assent of the defendant, he is not liable to them. The court submitted these inquiries to the jury on the testimony of Lyman Clark and the circumstances proved.
    The plaintiffs excepted to the charge on the point as to the misappropriation of the note, and the defendant, on the point that the want of consideration is no defence.

      The jury found a verdict for the plaintiffs, and the defendant moved for a new trial.

      J. E. Cary, for the defendant,

      G. M. Speir, for the plaintiffs.
   By the Court. Vanderpoel, J.

The note in suit was an accommodation note, given by the defendant, Lewis Clark, to “ help his brother Lyman out of difficulty,” to borrow the language of the witness, Pierson, The defendant resists its payment on three grounds, via., 1st That the plaintiffs paid nothing for the note, and that therefore it is subject to all the equities between the original parties. 2d. That it was diverted from the purpose for which it was given, and that, therefore, the defendant, as accommodation maker, is not bound. 3d. That the taking the check of Lyman Clark, under the circumstances disclosed in the case, payable five days after its date, was such an extension of the credit, as to discharge the defendant.

The first question is, whether the defendant paid such value for the note as to be entitled to protection. The plaintiffs, according to the testimony of Lyman Clark, took the note before it became due, in part pajunent of a note which the plaintiffs held against Lyman, for $409, and gave up to Lyman his note, he paying the plaintiffs the difference between the two notes, in money. Ever since the case of Bay v. Coddington, 20 John. 637, this has been held a sufficient parting with value, to enable a bona fide holder of an accommodation note to recover. (Bank of Sandusky v. Scoville, 24 Wend. 115; Grandin v. Le Roy, 2 Paige, 509; Stalker v. M'Donald, 6 Hill, 93; Small v. Smith, 1 Denio, 503.)

In the case last mentioned, Beardsley, J. said, that as a general proposition, it was true, that if the plaintiffs received the note in payment and satisfaction of a debt due to them from the accommodation holder, that was a sufficient consideration for its transfer, and they thereby became purchasers for value. To protect, however, the holder of a negotiable security which has been passed to him in fraud of the rights of others, he must not only have taken it without notice, but must also have parted with something of actual value upon the credit or faith thereof, Here, the plaintiffs parted with the note they held against Lyman Clark, and gave it up to him. By this, the relations of the parties were changed. The rule has long been uniform and well established, that the holder of negotiable paper must part with something of value to enable him to recover against an accommodation maker or indorser, where the transfer of the note is fraudulent as against him j but what constitutes such value, is a question which still seems doomed to judicial conflict. The rules of the supreme court of the United States, and the late court of last resort in this state, are discordant on this subject. (Swift v. Tyson, 16 Peters, 1; Stalker v. M'Donald, 6 Hill, 93.)

But this inquiry becomes quite immaterial, if there was, in point of fact, no diversion of the note from the purpose for which it was created. If it were an accommodation note, without restriction as to the manner in which it should be used, then it was not passed to the plaintiffs in fraud of the maker, and it is not for him to inquire, whether the plaintiffs took it for a preexisting debt, or for value actually advanced contemporaneously with its transfer. The judge, at the trial, charged upon the question as to the effect of the alleged diversion, full as favorably to the defendant as the law warrants; and the jury, to have found their verdict, must have concluded, that the note •was not given for the sole purpose of having it discounted at the Albany City Bank ; and we feel no disposition to arraign their finding, in this particular. The note was lent to Lyman, •to help him out of difficulty ; and the jury may have properly supposed, that it would answer that end as effectually by applying it to a debt which Lyman owed the plaintiffs, as by any other use of it, Lyman says, he told the defendant, that he wanted to get the note discounted at the Albany City Bank; but there was no positive agreement, that it should be discounted there. To expose negotiable paper to the objection of a diver- • sion from the use to which it was to be applied, an agreement as to the manner in which it was to be used, must be shown. -A mere intimation of the party accommodated, that he “wants or expects to get it discounted at a particular bank,” is slight evidence indeed of such an agreement, especially when the note was given for the general purpose of helping him out of difficulty. Judge Story, (1 Story on Bills, § 191,) says, it is no defence or bar, that the bill was known to the holder to be an accommodation bill between the other parties, if he takes it for value bona fide, before it has become due. The reason is, he remarks, that the very object of every accommodation bill is to enable the parties thereto, by a sale or other negotiation thereof, to obtain a free credit and circulation thereof; and this object, he says, would be wholly frustrated, unless the purchaser or other holder for value could hold such a bill by as firm and valid a title, as if it were founded in a real business transaction. In short, the parties to every accommodation bill hold themselves out to the public by their signatures to be absolutely bound to every person who shall take the same for value, to the same extent, as if that value were personally advanced to them, or on their account, or at their request.

3. The judge properly submitted the point in relation to the taking of Lyman Clark’s check. The jury must, under the charge, have found that there was no agreement on the part of the plaintiffs to wait until the check became due, and that they did not receive the check in payment of the note. There was not such an extension of credit on the note, as to discharge the maker.

The motion for a new trial is denied.


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    Cram v. Dresser.

    In an action for the recovery of rent, upon a lease which provided for the landlord’s entering on the premises to make repairs during the term, the tenant cannot recoup his damages occasioned by negligent and tortious behavior of the landlord and his servants, in making such repairs.
    The injury in such a case, does not arise from the breach of any covenant or stipulation of the landlord; nor does it grow out of the terms or consideration of the contract entered into between the parties. It is as distinct and independent a wrong, as any committed upon the the tenant by a stranger.
    A wrongful act of the landlord, causing great inconvenience and trouble to the tenant’s family, and keeping the demised tenement in confusion and disorder for a long period; cannot be set up as an eviction, where the tenant has continued in possession for a year after the injury ceased.
    On a formal lease for one year, was indorsed an agreement continuing it another year at an advanced rent. During the latter term, a second agreement was indorsed, whereby “ the within lease” was “ extended the further period of one year, without alteration.” Held, that both the previous instruments were intended by the expression, “ within lease.”
    Sept. 36 ;
    Sept. 30, 1848.
    Covenant for one quarter’s rent, $150, reserved in a lease of a dwelling house. Plea, non est factum, and notice of set-off, and other special matter, as hereafter stated.
    At the trial, before Oakley, Ch. J., in April last, the plaintiff proved and read in evidence, a lease of the house from him to the defendant, dated March 13th, 1844, for one year from May 1st, 1844, at the yearly rent of $550. Among other provisions in the indenture of lease, was the following:
    “ And it is further agreed, that the said party of the first part, or any person or persons by his orders, shall be permitted to enter the said premises, at such reasonable time of the day as he shall think proper, to examine the said premises, or to make such necessary repairs and alterations therein, as he shall think requisite.”

      Indorsed on the lease were two instruments, each signed and sealed by the parties, the first of which was in these words :
    “ New York, September 15, 1845.—It is hereby agreed, that the within agreement shall extend from May 1, 1845, at the rent of six hundred dollars per year. This is the only alteration. All other matters to remain as named within.”
    The second instrument was as follows:
    “ New York, February 18, 1846.—The within lease hereby -extended for the further period of one year, first day of May, 1846, without any alteration.”
    The plaintiff having rested, the defendant introduced in evidence, receipts for the rent, showing it paid to February 1st, 1847 ,• all the payments, subsequent to May 1st, 1846, being at the rate of $150 per quarter, and were so receipted.
    The defendant then offered to prove, that in the spring of 1846, the plaintiff sent painters into and upon the premises to paint the house ; and offered to prove in his defence, the facts contained in his notice attached to his plea, and which are therein stated as follows:
    “And also take notice, that the said defendant at the trial of this cause, will, under the said plea above pleaded, also give in evidence, that the said plaintiff, during the occupancy of the said defendant under the lease, and continuance thereof in said declaration mentioned, in disregard of the said defendant’s convenience, peaceable use, and proper enjoyment of the premises in said declaration mentioned, and in violation of the covenants made on the part of the said plaintiff with said defendant, in the indenture in said declaration mentioned, entered said premises with his workmen, laborers and servants, to paint the walls of sundry rooms and parlors in said premises, and by and under his directions, said workmen, laborers and servants, did paint the walls of sundry rooms and of the parlors in said premises, and in such an unworkmanlike manner as to injure, deface and destroy the appearance and decent looks' of said rooms and parlors, using the most improper and worthless materials for the same, and merely rendering said rooms and parlors of but little advantage and value to said defendant. That said painting was delayed and protracted to an unreasonable and unne- . cessary length of time after it was commenced, whereby defendant’s family were put to great inconvenience and trouble, and his house kept in disorder and confusion during all said period, so taken up in the said painting of the rooms and parlors thereof. And by reason of the premises, and the said unreasonable and unwarrantable delays in completing said painting, great damage has been sustained by said defendant, which he will seek to recover by way of recoupment of damages, at the trial of this cause.”
    The counsel for the -plaintiff objected to this evidence as irrelevant, and constituting no defence, either in bar or in mitigation of damages. The judge excluded the testimony, and the defendant excepted.
    The defendant then claimed, that during the last year, his rent was only $550, and applying his payments accordingly, there was but $100 in arrear.
    The judge instructed the jury, that on the evidence the plaintiff was entitled to a verdict for one quarter’s rent at the rate of $600 per year; and the jury gave their verdict for $160. The defendant excepted to the charge, and now moves for a new trial.

      H. Dresser, for the defendant.
    I. The matters offered to be proved by the defendant, were proper by way of recoupment of damages, or to show an eviction of part of the premises by the landlord; and therefore should have been received.
    The work was not necessary, as the plea shows. The plaintiff was bound to show it was necessary.
    It is to be taken here, that we have shown an injury. As to recoupment, this claim grew out of the same transaction. The authorities fully sustain its application here. (Reab v. McAlister, 4 Wend. 483 ; S. C. in error, 8 ibid. 109 ; Westlake v. DeGraw, 25 ibid. 672; Batterman v. Pierce, 3 Hill, 171; Van Epps v. Harrison, 5 Hill, 63; Barber v. Rose, 5 ibid. 76; Whitbeck v. Skinner, 7 ibid. 53; Cleves v. Willoughby, 7 ibid. 83. And see the definition of recoupment, Tomlin’s Law Dict. 814.)
    .It suffices to say, that the doctrine is founded on a failure of the consideration for the liability which the plaintiff seeks to enforce, for which failure the defendant is entitled to redress.
    If not entitled to recoup the damages, the testimony offered was sufficient to prove an eviction, within the authorities on that subject in our state. (Dyett v. Pendleton, 8 Cow. 727, 731.)
    2. The renewal of the lease, on the 18th of February, 1846, for one year from the first of May after, was at the rent of $550; and, as $450 had been paid, the plaintiff was entitled to no more than $100, with interest.

      H. A. Cram, for the plaintiff.

      1st Point. 1. The facts set up in the notice,, do not make out an eviction.
    2. They are not a breach of any contract in the lease, and therefore, are not the subject of recoupment.
    The doctrine of recoupment is as yet without definite limits, apparently; but there is no case that goes the length of this.
    The entry here was lawful. We were by the lease, the judges of the necessity of repairing. We deemed it necessary, and we entered to paint the house, which was a proper repair. So far, there was no injury or wrong. Then the putting on of bad paint, and the delaying the work too long, were not justifiable ; and those acts constitute the wrong.
    There was no eviction, no pretence for it. But there was an injury, for which the defendant might maintain an action, but not assumpsit. And there is no case where a recoupment has been allowed, except where assumpsit could be maintained against the party recouping, either on an express of implied agreement.
    In Etheridge v. Osborn, (12 Wend. 529,) it was refused in an action of covenant for rent, where the defendant sought to recoup damages arising from breach of covenant to repair.
    It is defined in Ives v. Van Epps, (22 Wend. 155,) as a claim to withhold damages, for some equitable reason, and it arises^ on some stipulation growing out of the same contract.
    In Batterman v. Pierce, (3 Hill, 171,) there is a rather broader definition by Judge Bronson, viz.: where there is a demand growing out of the same contract or transaction. But no adjudged case goes the length of the latter idea—transactions.
    Sedgwick on Damages, uses a broader one still; but all his-cases are those of fraudulent warranties, or of negligence, growing out of contract; in all of which assumpsit would lio against the party setting it up.

      2d Point. After the first year expired, the lease and first endorsement made but one instrument, and the words “the within lease,” in the second endorsement, had reference to the lease and the first endorsement; therefore, the rent for the third year was $600. The acts of the defendant, in taking the receipts in which the rent was stated to be $600, show that this is the proper construction.

       Oakley, Ch. J., was detained, and did not sit in this case.

   By the Court. Sandford, J.

There is no difficulty as to the amount of the rent reserved by the agreement of February 18th, 1846. Although it speaks of the within lease, and that made in the preceding year was not within the paper, but was indorsed upon it; the whole instrument shows that both were referred to. The lease was to be extended ; which language was appropriate only to an existing lease. If the first lease alone had been in view, the expression would have been “ revived,” or something equivalent. The existing lease which was to be extended, consisted of the two instruments of March, 1844, andjSeptember, 1845, the one within and the other upon the paper, on which the agreement in question was written. And a reference in the latter, either to the one or the other, describing it as an existing lease, would necessarily embrace both.

Next, in reference to the principal ground of defence. It is not denied on the part of the plaintiff, that he was liable to the defendant for damageis, if the painting of the house were done with as bad materials, and with such needless and harassing delay, as are stated in the notice. And it is very certain, that the injury as set forth, was one of a serious character. The question is, whether the defendant has any remedy in this action, by way of reducing the amount of the rent due on his lease.

The doctrine of recoupment ■ of damages, on which the defendant relies, was firmly established, by the name of mitigation of damages, or diminution of the plaintiff’s recovery, in Reab v. McAlister, (8 Wend. 109;) and in cases falling within its principle, is entitled to the favorable consideration of the courts. Without citing the subsequent cases, we may say, that it has been applied to the reduction of the price of goods sold, where there was either a warranty broken, or fraud in the sale, or a distinct agreement relative to the subject matter, which was broken; to diminish the recovery on a contract for labor and materials, which was not executed faithfully; and finally, a tenant’s damages by reason of the breach of an agreement to repair, have been admitted in his defence to an action brought by the landlord to recover the rent of demised premises. In Ives v. Van Epps, (22 Wend. 155,) Cowen, J., with whom this was a favorite doctrine, cited Tomlins’s definition of recoupment, and said, “ It is now uniformly applied where a man brings an action for breach of a contract between him and the defendant; and the latter can show that some stipulation in the same contract was made by the plaintiff, which he has violated. There,” he says, “ the defendant may, if he choose, instead of suing in his turn, recoupe his damages arising from the breach committed by the plaintiff, whether they be liquidated or not. The law will cut off so much of the plaintiff’s claim, as the cross damages may come to.”

The defendant supposes that the doctrine has been carried still further, in the case of Batterman v. Pierce, (3 Hill, 171.) It is true, Judge Bronson there says, that “ Where the demands of both parties spring out of the same contract or transaction, the defendant may recoupe, although the damages on both sides are unliquidated,” &c. But the case itself, was an action on a note given for wood sold, and the defence was on an agreement of the seller, forming a part of the contract of sale. Indeed, the whole of the learned judge’s opinion, shows that he uséd the word “transaction,” as denoting the whole of a contract and its accessories, whether resting in one or more writings, or having mutual or independent stipulations. We do not find any decision going the length of the defence proposed in the case at bar; and we aré unable to bring it within the principle of recoupment. The damages claimed to be recouped, do not arise out of the contract between.the parties. They were occasioned by a tortious act of the plaintiff’s agents; of the same quality as a trespass, although unaccompanied with any force. The acts complained of, are entirely independent of the respective covenants of the parties ; as much so, as a trespass or other act of force committed by a landlord, or even by a stranger, upon the tenant. The circumstance that the plaintiff was authorized to enter the premises and make repairs, is to be left out of view, inasmuch as it does not justify the wrong alleged. Those wrongful acts, therefore, stand as unjustifiable injuries to the defendant’s possession of the demised premises, committed during the term and long after the contract of letting. We do not perceive how they can be regarded as growing out of that contract, or even out of the same transaction, in the sense in which Judge Bronson made use of that word.

Let us suppose that an action is brought for the price of a horse, and the defendant should plead, that the next week after the sale, the plaintiff without permission, took the horse out of the defendant’s stable, drove him out of town, and foundered him. Would such a plea be maintained, either as an entire defence, or by way of recoupment ? Yet it appears to us, that the foundering of the horse in the case put, is no more remote from the contract or transaction of the sale, than is the tortious behavior of the plaintiff’s servants from that of the lease, in the case before us.

As to the argument, that the testimony offered would prove an éviction, it is evidently an afterthought. The notice does not allege any thing of the kind. It proceeds expressly for a recoupment of damages ; and the facts stated, taken in connection with the defendant’s continuance in possession for more than a year after they occurred, would not support a plea oí eviction, if it had been pleaded in form.