author: By the Court. Duer, J.

text:
    Ford v. G. and G. W. Babcock.
    A plea is not made double, by the averment of facts, which, without such averment, would be implied.
    To render a plea double, its averments must set up more than one defence.
    An unnecessary averment, not amounting to a defence, will not render a plea double. It may be rejected as surplusage.
    The provision in the statute of limitations, that if when any cause of action accrue against any person, he shall be out of this state, such action may be commenced within the terms by the statute before limited, after the return of such person into the state ; applies to both residents and non-residents.
    A return into the state, is sufficient to set the statute in motion, without any residence here.
    Facts showing the defendant to be within the exception in that clause of the statute, need not be negatived in his plea. It is incumbent on the plaintiff to prove such facts.
    In a plea that six years have elapsed since the return of the defendant into this state, it is not necessary to’aver that such return was public and notorious, so that the plaintiff with due diligence might have arrested him. It is sufficient to plead the return in the words of the statute. On the trial, in order to sustain the plea, the defendant must prove such a public and notorious return.
    The new exception created by the revised statutes, viz, that “ if after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action,” is not confined to residents of this state when the cause of action accrued. It extends also to non-residents.
    If there be successive absences, they must be accumulated and deducted from the term of limitation allowed by the statute.
    Therefore, under the present statute, it must appear that the defendant was within the state during six years after the cause of action accrued, in order to create a bar coming within the limitation of six years.
    The superior court, as now constituted, is co-ordinate with the supreme court. The decisions of the latter are not authoritative, although to be treated with great deference and respect.
    The case of Cole v. Jesup, 2 Barb S. C. R. 309, commented upon, and its conclusion denied.
    (Before Duer, Mason and Campbell, Justices.)
    May 17 ;
    June 4, 1849.
    This was an action of assumpsit, by the indorsee, against the drawers of a bill of exchange. The defendant, G. Babcock, appeared and pleaded. The case came before the court on demurrers. The pleadings are sufficiently stated in the opinion of the court.

      H. H. Stuart for the defendant,
    G. Babcock, cited Didier v. Davison, 2 Barb. Ch. R. 477; Randall v. Wilkins, 4 Denio, 577 ; Cole v. Jesup, 2 Barb. S. C. R. 309; Ruggles v. Keeler, 3 Johns. R. 267; Fowler v. Hunt, 10 Johns. 464.

      J. Laroque, for the plaintiff,
    cited 3 Johns. R. 264; 10 lb. 464; Tuttle v. Smith, 10 Wend. 386; Huntington v. Brinckerhoff, 10 lb. 283.
   By the Court. Duer, J.

This is an action upon a bill of exchange, by the plaintiff as an indorsee, against the defendants as drawers. In addition to a count on the bill, the declaration contains the usual money counts. One of the defendants, Giles Babcock, has interposed several pleas ; and to his third plea, the plaintiff has demurred. On the part of the plaintiff, there are several replications to the second plea, and to the second and fourth of those replications, the defendant has demurred. It is upon the issues of law joined upon these demurrers, that the cause has been heard ; and as no exceptions have been taken to the declaration, our attention will be confined to those that have been taken to the pleadings that are alleged to be vitious.

The third plea, omitting the introductory part, avers in substance that the several causes of action accrued to the plaintiff more than six years before the commencement of this suit, and that when they accrued, the defendant was a resident of the state of Louisiana, and was out of this state, and that after they so accrued, and more than six years next before the commencement of this suit, he returned into the state of New York. The plea is founded on the first clause of section 327 in that article of the revised statutes which relates to the time of commencing personal actions, (2 R. S. 297.) That clause provides in substance, that “ if at the time when any cause of action shall accrue against any person, he shall be out of this state, such action may be commenced within the terms before limited, after the return of such person into the state.” This provision is substantially a re-en-enactment of the law as it formerly existed. It was originally borrowed from the English statute of Queen Anne (4 and 5 Anne, c. 15, sec. 19,) and the exception which it creates, however doubtful the interpretation may seem,—it appears to be settled, applies as well to non-residents, as to persons, who, although residents, were out of the state when the cause of action accrued. Such at least has been the law in this state, since the judgment of the supreme court in Ruggles v. Keeler, (3 Johns. R. 263,) although the English cases there cited, seem hardly to support that decision. The same construction has been given to the statute in Massachusetts. (Dwight v. Clark, 7 Mass. 515 ; Little v. Blunt, 16 Pick. 359.) The demurrer to this plea is special, and assigns five several causes of exception. The first cause is, that the plea is double, setting up two distinct and separate defences, viz.: 1st, that the causes of action did not accrue within six years next before the commencement of the suit; and 2d that when they accrued, the defendant resided in Louisiana^ and that the suit was not commenced within six years after his return. We are satisfied that the demurrer cannot be sustained upon this ground. A plea is not rendered double by an express averment of facts that without such an averment, must have been implied ; the unnecessary averment may be rejected "as surplus-age, but cannot vitiate a plea otherwise valid. It was admitted by the counsel for the plaintiff, who argued the case with singular candor, as well as ability, that the objection of duplicity could not have been raised, had the plea been limited to the averments that the defendant was out of the state when the causes of action accrued, that he afterwards returned, and that more than six years had elapsed since his return, before the commencement of the suit: yet it is evident that these averments involve, by a necessary implication, the assertion that more than six years had elapsed since the causes of action accrued. An express averment of the same fact, has not the effect of introducing a new and distinct issue. It alters the form of the plea, but leaves the substance and meaning unchanged. The fact that more than six years had elapsed since the causes of action accrued, and more than the same period since the return of the defendant, were both necessary to be stated to complete the bar that the plea was intended to raise. Had the plea been framed, as it was insisted it should havebeen, the plaintiff might have replied, by takingissue upon either of these facts, and it is therefore certain that no separate defence is set up by the express averment.

In support of the objection we are now considering, we are referred to the case of Tuttle v. Smith, 10 Wend. 288, but, in reality, the decision in that case, so far from sustaining the objection, justifies us in overruling it. The plaintiff replied to an ordinary plea of the statute of limitations, that the defendant had made a new promise, and that the suit was commenced within six years after the promise was made; the defendant rejoined taking issue upon both facts, the new promise and the commencement of the suit within the period allowed by the statute. This rejoinder was the pleading demurred to, and the court held it to be double, upon the ground that the denial of either of the facts upon which issue was taken, would have been a complete answer to the replication:—but the replication was admitted to be valid, because those facts were necessary to be combined in one statement, in order to avoid the operation of the statute. There is a perfect analogy between the replication in that case and the plea in the present.

The second cause of demurrer is, that the plea does not aver that when the causes of action accrued, the defendant resided out of this state, but only that he was out of the state at that time. This is a mistake; the plea does contain the averment in question, and had it been omitted, the omission would not have vitiated the plea. The statute is satisfied by an averment that the defendant was out of the state when the cause of action accrued. An opposite construction would confine its application to non-residents, whereas the only doubt has been whether it applied to them at all.

The next cause of demurrer is, that the .plea does not show that the defendant ever acquired a residence in this state, or ever ceased to be a resident of Louisiana, nor for how long a space of time he was within this state, and the reply is, that these averments were not merely unnecessary, but that their introduction would probably have vitiated the plea. They give a construction to the statute not justified by its language, and inconsistent with all the decisions. They imply that a debtor permanently residing in New Jersey or Connecticut, may in the transaction of his business, visit the city on every day of his life, and yet during his life, the statute never commence to run.

The fourth cause of demurrer is, that the plea does not negative the exception created by the second clause in the 27th section of the statute, the terms of which in the progress of our opinion will be fully stated. This objection must also be overruled. Where the statute of limitations is pleaded, it lies upon the plaintiff to aver, not upon the defendant to deny, the existence of facts that create an exception from the general rule that the statute establishes. It has, however, been decided by this court, that the particular exception to which this cause of demurrer refers, is never necessary to be stated in the pleadings, but that when issue has been taken upon a general plea of the statute, the facts that create the exception may be given in evidence upon the trial in contradiction of the plea. This decision was rested upon the peculiar words of the statute, and is fully justified by prior decisions of the supreme court in analogous cases. (Graham's Executors v. Schmidt & Webb, 1 Sand. Sup. C. R. 74.)

The last clause of demurrer is that which was chiefly relied on, and merits the most consideration. It is that the defendant has not averred in his third plea that his return to this state was public, or that the plaintiff had due notice thereof, or could with due means and ordinary diligence have had process of law served upon him. The construction of the statute that is here assumed to be correct, is established by numerous decisions. It is fully settled, that where the debtor was out of the state when the cause of action accrued, his return, in order to set the statute in motion, must be such in its nature and duration, as to afford the creditor the opportunity of commencing a suit and prosecuting his claims. It must appear, when the return is pleaded, that it was either actually known, or was so public that with ordinary diligence, it might have been known to the plaintiff when it occurred. But although in order to give efficacy to the return, these circumstances must be proved on the trial, it by no means follows that they are necessary to be averred in the plea; on the contrary, the very cases that are justly relied on as showing the true interpretation of the statute, equally show that no such necessity exists. When a statute is pleaded, whether as conferring a right or sanctioning a defence, we have always understood that the safest, if not the necessary course, is to adopt and follow in the pleading, the very words of the law, and if we except the single case to which we shall hereafter refer, we are not aware that the efficacy of a plea which sets up a defence in the very words in which the defence is given by a statute, has ever been doubted. In very many cases, the interpretation that courts of justice have given to a statute, differs widely from the literal import of its language ; but it has never been thought necessary or prudent to depart from the language of the statute in order to conform a pleading to its known judicial interpretation; and the reason is evident. When the words are identical, it is the plain duty of the judges to give to them in the pleading, the same construction as in the statute. The plea in this case is in exact conformity to the statute; it says all that the statute requires to be said, and the word “ return” in the plea, has the same meaning as in the law. It means such a return as the courts have decided to be necessary, in order to set the statute in motion, and it is such a return that in order to sustain the plea, the defendant will be obliged to prove. It is not, however, to be denied that the objection we are now considering, is fully sustained by a recent decision of the supreme court in the, fourth judicial district, in the case of Cole v. Jessup, 2 Barbour, S. C. R. 309. In that case a rebutter, that the suit was not commenced within six years next after the return of the defendant, was held to be bad, from the want of an averment that the return was such as the law in similar cases requires to be proved; and this decision, were the judgments of this court now subject to a reversal in the supreme court, we should be bound to follow. Butin the exercise of its rightful jurisdiction, it is to the court of appeals only that this court is now subordinate, and although the decisions of the present supreme court must always be treated by us with great deference and respect, yet as they no longer preclude the exercise of our discretion, they cannot be admitted to control our action. We cannot surrender to their authority alone, without a plain dereliction of duty, our own deliberate convictions. We are therefore constrained to say that we cannot yield our assent to a decision which as it seems to us violates the established rules of pleading, and is inconsistent with all the prior decisions on this branch of the statute in the courts of the United States, of this state and of other states in the Union. (Faw v. Roberdeau, 3 Cranch, 174; Fowler v. Hunt, 10 Johns. 464; White v. Bailey, 3 Mass. 271; Little v. Blunt, 16 Pick. 369.)

In the cases to which we refer, it is expressly stated, that when a defendant seeks to avail himself of the statutory bar by pleading his return, he is bound to prove all the facts of which the existence is necessary to render the bar effectual, even where none of those facts, except by implication of law, have been averred in his plea. The want of such an averment cannot therefore be a valid cause of demurrer, since it is an elementary rule that an express averment of material facts is only necessary to be made, when it creates an obligation that would not otherwise exist of proving upon the trial the facts that it embraces. The averment is useless, if striking it out, the obligation remains. The introduction of such, an averment may not vitiate a plea» but its absence can never justify a demurrer. It was truly said, by the very able judge who delivered the opinion of the court in Cole v. Jessup, that the burthen of proving the facts that the law requires to be shown, to render the return of a debtor effectual, as the origin of the statutory bar, is justly cast upon the defendant, and this observation was evidently the ground of the decision; but it escaped the attention of the learned judge and of his brethren, that according to all the prior decisions, the omission to aver these material facts neither lessens the obligation, nor shifts the burthen of proving them.

As all the exceptions to the third plea have now been examined and found insufficient, the demurrer is overruled.

We are next to consider the demurrers of the defendant to the second and fourth replications to his second plea.

The second plea is a plea of the statute of limitations in the ordinary form, namely, that the causes of action had not accrued within six years next before the commencement of the suit; and the object of the second and fourth replications is to repel the defence, by the allegation of facts which it is supposed will entitle the plaintiff to the benefit of the exception, that the second clause in § 27 of the statute was meant to create. There are objections both of form and substance to each of these replications, that in the result must compel us to allow the demurrers, but without adverting for the present to these objections, we shall proceed to explain our views in relation to the questions that the pleadings were intended to raise, and which upon the hearing were ably and learnedly discussed by the counsel. We adopt this course not only in compliance with the wishes of the counsel as then expressed, but that the plaintiff, should he think proper, may amend his replications in conformity to the opinion that we shall express.

The questions that we propose to consider are, 1st. Whether the new exception that § 27 creates, is confined in its proper application to persons who were residents in this state when the cause of action accrued; and 2d. Whether in the cases to which this exception applies, it is the first period of absence only, and not successive periods, that must be deducted and allowed.

That the import of these questions and our observations in relation to them, may be properly understood, it will be necessary to transcribe, not only the clause containing the exception, which we are required to construe, but the entire section. It is in these words:

§ 27. “ If at the time when any cause of action specified in this article shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this state.” “ And” (which is the clause now to be considered) “ if after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action

The first clause, as already stated, is a re-enactment of the existing law, but the second was introduced for the first time in the revision of 1830. It is not contained however, in the original report of the revisers and hence in judging of the meaning, we are deprived of the aid that their notes have frequently supplied.

After an attentive consideration of the clause, we have been unable to discover any valid, or even plausible, reason for confining its application to persons who were residing, or, without being residents, were within the state, when the cause of action accrued. Such assuredly is not the grammatical construction of the words, nor can we believe that the limitation of their obvious meaning, was contemplated by the legislature. Following the strict grammatical rule, the words such person,” can only be referred to the person last mentioned, that is a person who was out of the state when the cause of action accrued, and afterwards returned, thus wholly excluding residents from the exception that follows ; but if we reject this interpretation, as without hesitation we do reject it, as creating an unreasonable distinction between residents and non-residents,—the words such person ” must then be referred to the person first mentioned in the section, that is, any person against whom a cause of action shall accrue; and thus construed, both classes, residents and non-residents, or more properly speaking, persons within and persons out of the state, when the cause of action accrued, are plainly included. It therefore seems to us impossible to deny, that in order to justify the limited construction that would confine the application of this clause to persons against whom the statute commenced to run, at the same time that the cause of action accrued, we must suppose that the legislature has omitted words, which, as necessary to carry into effect their manifest intention, it has become the duty of courts of justice to supply. We must add to the words “ such person,” the words “ being at such time an inhabitant of the state,” or others of equivalent import. That such an interpolation in some cases may be justified, and in many has been made, we do not deny; but we are fully convinced that in the construction of statutes, it ought never to have been allowed, and in fact has rarely been made, except when necessary to complete the sense or escape a flagrant absurdity. It ought never to be allowed, unless the intent which it is designed to effectuate, is manifest and unquestionable, and if we depart from this rule, judges ceasing to be the mere expounders, will become the makers of our laws. There is no pretence for saying, in the present case, that the interpolation which we reject, is manifested as the intention of the legislature, either by the terms of the statute or the certain design of its enactment, and for ourselves we are persuaded that its adoption, instead of effecting, would probably defeat, the intentions of the lawgivers, by creating a distinction that was never meant to exist.

In our judgment, to confine the application of the clause, to residents of the state, would be at least as unreasonable as wholly to exclude them and, looking merely to the words of the clause, far more so. We shall be better understood when we shall have explained our views as to the intention of the legislature, and the true construction of the entire section, as we propose to do, in considering the second question that has been stated.

That question is whether, when a person against whom the statute has commenced to run, departs from, and resides out of the state, the operation of the statute is only suspended until his return, or whether, if during his residence out of the state, there are successive periods of his absence, each must be deducted from the six years which the statute allows to a creditor for the commencement of ¿his suit. Upon the first interpretation, the first return of the debtor not only sets the statute again in motion, but precludes its further suspense ; upon the second, the debtor who pleads the statute, must prove that, in the aggregate, deducting the period of each absence, he was six years within the state, after the cause of action accrued, and before the commencement of the suit. Each interpretation is consistent with the language of the statute; the first is the most literal, the second expresses, we believe, the true intention of the legislature, and therefore we adopt it. That it was the intention of the legislature to make an important change in the existing law, has never been doubted; and that we may judge of the nature and extent of the change that was intended, we must look at the actual condition of the law at the time it was proposed. Now there is one rule, that courts of justice, in construing those provisions in the statute of limitations that relate to personal actions, had uniformly followed, and which the words of that statute compelled them to follow, namely, that when the statute began to run, it continued to run, without interruption, until the terms of limitation that the statute prescribes had fully expired. The statute once attaching, no subsequent disability of plaintiff or defendant was permitted to suspend its operation. Thus if a debtor, (and it was undoubtedly the relation of debtor and creditor that the legislature had chiefly in view in altering the statute,) were in the state when the cause of action accrued, (whether the fact was known or not known to the creditors,) the satute commenced to run ; and although he departed the next day or hour, and remained out of the state during the whole residue of the six years allowed by the statute, the lapse of that period was held, in effect, to extinguish the debt, by creating an insuperable bar to its recovery. It is true if the debtor were out of the state when the cause of action accrued, his absence prevented the statute from beginning to run ; but his return, by setting the statute in motion, and prohibiting its future suspense, was productive of similar effects; he might remain within the state only a few days, depart and be absent, for the residue of the six years, and the creditor’s remedy was for ever barred.

That this rule was purely arbitrary, and that it was unequal and therefore unjust in its operation, will hardly be denied ; and it is important to observe that its injustice was even apparent, and confessed upon the face of the law, as it then stood.

The only reason that can be assigned for permitting the absence of a defendant, when the cause of action accrued, to prevent the statute from beginning to run, is the inability of the plaintiff to prosecute his claims, during such absence, unless by resorting to a foreign tribunal; and admitting the justice of this exception, it seemed a necessary inference, that the same inability, when proceeding from the same cause, should be allowed to suspend the operation of the statute, in every case, in which it is proved to exist. In fewer words, if the absence of a defendant when the cause of action accrued, justly prevents the statute from beginning to run, it is equally just, that his absence, after the statute has commenced to run, should suspend its operation.

It is just that the same time and opportunity should be afforded to a plaintiff in all cases for commencing a suit in the courts of this state, that he actually possesses when the defendant is and continues to be a resident of the state. We believe that it was exactly this change that the legislature meant to effect and have effected. We believe that it was their intention to abolish the former, by the substitution of a different rule, more just in its principle and more equal in its operation, and just as universal in its application, embracing every case and all classes of defendants. The rule thus established, we understand to be, that every defendant who pleads the statute is bound to prove that, deducting each interval of his absence, he was within the state six years, (or a shorter period when a shorter is the statutory bar,) after the cause of action accrued, and before the commencement of the suit, and that the rule, thus expressed, is subject only to this single and reasonable modification, that where a defendant against whom the statute has begun to run, is a resident of the state and continues to reside therein, his occasional absences are not to be deducted in computing the statutory term. By this construction, the provisions of the statute- are rendered plain and consistent, and equal in their operation upon all classes of plaintiffs and defendants, and the change that is made is seen to be, and is vindicated as, real and important. By the opposite construction, that on which the defendant’s counsel insisted, the change is rendered trivial and almost unmeaning, the provisions-of the statute obscure, and, in a measure, contradictory. The-former inequitable-rule continues in force as to all defendants-who were out of the state when the cause of action accrued, and,, in respect to residents, the rule is not abolished, but only slightly modified; the motives of a change thus partial and unimportant are not to be discovered, and all questions as to- the object and intentions of the legislature remain unanswered.

Hitherto, we have not adverted to the actual decisions upon this branch of the statute, and it is with some reluctance that we advert to them at all. They exhibit a conflict of opinions-which it is difficult to explain and impossible to deny, and which can only be terminated by a decision of the court of ultimate and, controlling authority.

The earliest case is that of Randall v. Wilkins, 4 Denio, 577. The defendant who pleaded the statute, resided out of the state, when the cause of action- accrued, and continued so to reside until the commencement of the suit, but in this interval he was at various times publicly within the state. The court held that his first return after the cause of action accrued, set the statute in motion, and that it continued to run from that time ;■—his subsequent departure from and residence out of the state not suspending its operation, thus necessarily deciding that the exception in the second clause of section 27, is only applicable to persons who are within the state when the cause of action accrues. Cole v. Jessup, (2 Barbour S. C. R. 309) a case to which we have before referred, in its material facts differs not at all from the preceding; but while the court in this case expressed no-doubt, and in fact decided that the new exception in the statute applies as well to non-residents as to persons within the state when the cause of action accrues, they held that successive absences cannot be accumulated, for the purpose of being deducted from the full period of time which the statute allows, but that the law is satisfied by deducting the first absence after the cause of action has accrued. They reférred, in support of this decision,, to a similar decision made by Mr. Justice Nelson, in the circuit court of the United States. (Dorr v. Swartwout, reported in 5 New York Legal Observer, page 172.) It is however,, to be ob-served, that this decision was originally made with great hesitation, and we are credibly informed has since been overruled in -the same court.

Directly opposed to those which have been cited, are the decisions to which we shall next advert. The first of these is Burroughs v. Bloomer, a case not hitherto -reported, but which was decided by the judges of the supreme court as formerly organized, during the last year of its constitutional existence. We have been «furnished with a copy in MS. of the opinion of the court in this case, from which it appears, that although the questions raised were substantially the same as in the cases first quoted, the conclusions of the judges were widely different.

The learned judge who delivered this opinion, examines critically, and in the result wholly repudiates, the opinion of Mr. Justice Nelson, in Dorr v. Swartwout; and the conclusions which he states, as the grounds of the decision of -the court, are, that where a defendant against whom a cause of action has accrued, departs from and resides out of the state, not only may successive absences be accumulated and deducted, but, in the judgment ■of law, he is deemed to be absent, during the whole period that he so resides, so that the running of the statute, not merely until he returns, but until he fixes again his residence in the state, is wholly suspended. We refer to this decision as plainly contradicting Randall v. Wilkins, and Cole v. Jessup, but are not to be understood as assenting to its novel doctrine of constructive absence.

In Didier v. Davison, (2 Barb. Ch. R. 477,) we find, at last, that we are supported by high authority in the construction we have given to the statute. Chancellor Walworth is clear in the ■opinion, that the exception in section 27, embraces all defendants against whom a cause of action has accrued, and that where such a defendant has departed from and resides out of the state, each period of his absence, when there are several, must be deducted in determining the question whether the statutory term -of limitation has expired; and exactly the same construction must have been given to the statute by this court in the case of Graham’s Executors v. Schmidt, (1 Sand. Sup. C. R. 74,) since it is the only construction by which the decision in that case can be explained and defended. Whether the sad uncertainty in which the true construction of the statute of limitation is now involved, will soon be dispelled, we know not; but if our own views shall finally be declared erroneous, we shall retain the satisfaction of knowing that they coincided entirely with those of Chancellor Walworth, and of the judges with whom we are now associated.

Although the general argument of the plaintiff’s counsel, in endeavoring to bring his case within the exception of the statute, has received our assent, it by no means follows that we can sustain the replications demurred to. They are fatally defective. The second replication is plainly argumentative. It leaves us to collect, by inference, material facts that ought to have been explicitly averred : it avers that the defendants resided in the state of Louisiana, when the causes of action accrued, but does not aver that they were at that time out of this state; and if at that time they were in this state, although residing in Louisiana, it was then that the statute began to run. Nor are the several departures from, and returns into the state of the defendants, stated with the precision and certainty that the law requires. Their existence is supposed, certainly, not averred.

To the fourth replication, we shall state a single but very decisive objection. It attempts to exclude the defence of the statute, by averring that the defendants were not residents within this state for a term of six years, in the aggregate, before the commencement of the suit, thus assuming that a residence of six years within the state, is necessary in all caees to complete the statutory bar,—a construction of the statute which, although not absolutely novel, we unhesitatingly reject, as repugnant alike to its' spirit and its language. Residence is not necessary in any case, either to set the statutory term in motion, or to continue, or revive, its currency.

In conclusion, the plaintiff’s demurrer to the third plea is overruled. The demurrers of the defendants to the second and fourth replications to the second plea are allowed, with liberty to the plaintiff to reply to the third plea, and to amend or withdraw his insufficient replications, within the usual time. We strongly advise the plaintiff’s counsel, instead of amending, to withdraw entirely his replications, and content himself with a general traverse of the second plea, since it is quite certain, that under this traverse, he may give in evidence all the facts upon which he relies as overruling a defence upon the statute.

No costs are given, as we understood the counsel to agree that whatever might be our decision, none were to be claimed.

         Now reported in 5 Denio, 532.

       S. C. 2 Sandf. Ch. R. 61.


source: Caselaw Access Project

author: By the Court. Mason, J.

license: Public Domain

text:
    Boggs, Administrator, &c. v. Forsyth.
    A plea to a bill to set aside a settled account on the ground of fraud, is not rendered double by setting up that the cause of action arose more than ten years, and the fraud, if any, was discovered more than six years, before the bill was exhibited. Both averments are necessary to constitute a bar, under the limitation in the statute relied upon as a defence.
    In such a case, the plea need not deny the fraud charged in the bill.
    An answer, admitting certain facts charged as those from which the plaintiff claims to have first derived notice of the alleged fraud, denying that he did thereby first acquire such notice, and setting up facts showing a notice at a much earlier period, which latter were not inconsistent with the facts admitted ; is a sufficient answer in support of such a plea of the statute.
    (Before Duer, Mason and Campbell, J. J.)
    May 18 ;
    June 4, 1849.
    The bill in this cause was filed to open and set aside a settled account, on the ground of fraud.
    It alleged in substance, that the complainant, on the 31st of May, 1836, was appointed administrator, with the will annexed, of Sarah Jones, deceased, and that the defendant became one of his sureties in the administration bond. That not long after his appointment, the plaintiff assigned to the defendant a portion of the assets of the estate, to be applied by him in the payment of certain legacies of the testatrix.
    That on or about the 20th of December, 1837, the plaintiff and defendant came to a settlement, which resulted in the defendant’s giving to the plaintiff a note for §450, payable in three months, as the balance in his hands due to the estate of Jones, and thereupon the plaintiff gave the defendant a receipt in full of all demands.
    The bill then alleged, that the settlement was effected by false and fraudulent statements of the defendant; that there were overcharges, errors, and mistakes, in the account, which are particularly specified in the bill; and that the plaintiff did not discover the fraud which had been practiced upon him, till the fall of the year 1845, when it became manifest from the letters and accounts furnished to him by the defendant in the course of a correspondence which he had commenced on the subject of the settlement.
    The defendant pleaded, as to all the relief prayed for by the bill, and as to all the discovery, except that part which related to the discovery of the fraud in 1845, that the plaintiff’s cause of action, if any, accrued more than ten years before the exhibiting of the bill, and that the facts in the bill stated as constituting the fraud alleged by the plaintiff as the ground of relief, were not, nor were any of them, discovered by the plaintiff within six years next preceding the exhibition of the bill; and he accompanied his plea with an answer in its support.

      W. H. Taggard, in support of the plea.

      H. S. Mackay, for the plaintiff.
   By the Court. Mason, J.

On the argument of the plea, the counsel for the plaintiff objected, that the plea was double, that it did not deny the fraud charged, and that it was not supported by the answer.

The objection of duplicity does not appear to be well taken. It is true that two different sections of the statute are referred to and relied on, and that these two sections apply to different causes of action ; but the defence is single, to wit, that the claim is barred by the statute of limitations. The original case made by the bill, is one which is not cognizable by the courts of common law, and is one to which therefore the limitation of ten years is applicable. But the plaintiff having, in order to avoid the bar of the statute, which might be set up, alleged that the fraud in the settlement was discovered only a short time before the filing of the bill, it became necessary for the defendant either to deny the fraud, or to deny its discovery by the plaintiff within six years.

The plea of the ten years limitation would have been unavailing, unless the equitable circumstances stated in the bill in avoidance of the statute, were also denied; and on the other hand, the denial of the discovery within six years would have been of no consequence, unless it also appeared that the original cause of action was barred by the statute applicable to it. So that it was necessary to plead both the ten years and the six years limitation, in order to give a complete answer to the bill.

A similar question arose in the case of Forbes v. Shelton, (8 Simons, 335,) where the defendant pleaded two different statutes of limitation, the statute of 21 James, and that the cause of action did not accrue within six years, and also the statute of Geo. 4, and that he had not made any acknowledgment of the debt within six years. It was objected, that the plea was double, but the vice-chancellor held, that it could not be considered as a double plea, for although the two acts were passed at different times, they ought, he observed, to be considered as jointly making one bar. He held, however, that it was unnecessary for the defendant to have pleaded the statute of Geo. 4, inasmuch as there was no allegation in the bill that any acknowledgment had been made ; thereby intimating that the second branch of the plea would have been necessary had the bill contained any such allegation.

It was next urged, that the plea should have denied the fraud charged in the bill, and various authorities were cited in support of this position.

• It is undoubtedly the general rule, that when in anticipation of a bar that might be set up by the defendant to the plaintiff’s claim, such as a release, the bill alleges that the release was obtained by fraud, the plea setting up the release should also deny the fraud ;■ yet in a case like the present, the defendant is at liberty either to deny the fraud altogether, or to deny the discovery of the fraud within six years. (Story’s Eq. PI. 754.) Indeed, the absolute denial of the fraud is inconsistent with the plea that it was not discovered within six years, since in the very terms of the plea, there is an implied, admission of the fraud for the purposes of the plea.

' The only remaining question is, whether the answer sufficiently denies the equitable circumstances which are alleged in the. bill, in avoidance of the bar of the statute.

Those circumstances are, in substance, that the plaintiff, in or about the fall of 1845, commenced a written correspondence with the defendant, in the course of which the defendant inclosed in a letter to the plaintiff the account mentioned in the bill, and that the developments contained in that letter, and the advice which the plaintiff received thereon, enabled him for the first time to discover the fraud stated in the bill, which he did not fully understand or discover until the receipt of such account and letter, and that he was not apprised until then of the design of the defendant to appropriate to himself, and keep in his own possession and use, the sum of $1600, on pretence of paying the same over to Sarah Bassett, one of the legatees in the bill named.

These are all the equitable circumstances set up in the bill as to the discovery of the fraud, and in avoidance of the statute; and the answer, while it admits the correspondence and the transmission of the letter and account before referred to, yet explicitly and fully denies that the plaintiff was enabled to or did thereby discover the fraud charged in the bill; on the contrary, it alleges an express agreement between the plaintiff and defendant, in December, 1837, that the defendant should retain the $1600 in his hands until it could be paid according to the terms of the will, and denies the discovery by the plaintiff within six years next preceding the filing of the bill, of any material fact alleged in his bill, of which he was previously ignorant.

We think the answer is sufficient to support the plea.

Plea allowed.


author: By the Court. Campbell, J.

text:
    Carpenter, Executrix, &c. v. Provoost and others.
    The representatives of a surety in a joint bond, not liable at law for the debt by reason of the survivorship of the principal obligor, cannot be compelled in equity to pay the obligation.
    The remedy in equity against a deceased joint debtor, is limited to those cases in which he had a benefit from the consideration upon which the obligation arose.
    (Before Doer, Mason and Campbell, J. J.)
    May 23 ;
    June 4, 1849.
    The bill in this cause was filed on the following state of facts: On the 14th of January, 1839, John S. Provoost, and his mother, Mary T. Provoost, since deceased, executed their joint (but not several) bond to Charles Carpenter, for the sum of fifteen hundred dollars, and to secure its payment, they executed a mortgage which conveyed the interest of John S. Provoost in certain real estate in the county of Westchester, of which his father had died seised. Mrs. Provoost, it was contended, mortgaged her interest in the property, but as she had only a life estate, it became immaterial to consider the effect of her execution of the mortgage. The bill was filed to foreclose this mortgage, and it sought to charge the estate of Mary T. Provoost, (of which the defendants, William and James Provoost, were executors,) for any deficiency which might remain after the sale of the real estate.
    The bill was taken as confessed by John S. Provoost. William and James Provoost put in their answer, alleging first, that under the will of the late William Provoost, the father of all the defendants, John S. Provost did not take any estate which he could mortgage; and, in the second place, that Mrs. Mary T. Provoost executed the bond in question as a surety for John S. Provoost, who borrowed from Carpenter for his own benefit the money for which the bond was given; and that she having since died, they, as the representatives of her estate, are not liable in law or in equity; and lastly, that they have fully administered upon her estate, and that no claim was made on this bond within the time allowed by law.
    Pending the suit, C. Carpenter died, and the suit was revived in the name of the complainant as his executrix, on the motion of the defendants.

      W. Inglis, for the complainant.

      E. Pierrepont, for the defendants.
   By the Court. Campbell, J.

Without going into details in reference to the interest of John S. Provoost in the estate of his father, we entertain no doubt that he had such an interest as could be sold, assigned or mortgaged. He will be entitled to his share of the proceeds of the real estate, at all events, on the death of his sister, and there is nothing in the will of his father which prevents him from making such disposition of that interest as he pleases.

The objection is not well taken by the defendants that they have fully administered, as the decree would only affect assets which may hereafter come into their hands.

The fact, however, which is set up in the answer of the executors, and which must be taken as true, that Mrs. Provoost executed this joint bond as a surety for her son, must control the question of their liability as executors under any circumstances affecting the present condition of the estate. As against her separate estate, the bond is not good, either in law or in equity. In all the eases where courts of equity have interfered and decreed against the representatives of a deceased joint obligor, there was a legal or equitable claim against such deceased obligor at the time of his entering into the joint obligation. It was thus in the case of Simpson v. Vaughan, (2 Atk. 30,) and in Thomas v. Frazer, (3 Ves., jun., 399.) In the former of these cases, the doctrine is first laid down by Lord Hardwiclte, and for more than a century it has continued to be the rule of the English court of chancery, and it has been adopted with scarcely an exception by American courts of equity. In the great ease of Devaynes v. Noble and others, (1 Merivale, 563,) Sir William Grant discusses this doctrine with signal ability, and he re-affirms it in the case of Sumner v. Powell, (2 Merivale, 36.) In the latter case, he says, “ The question is, whether any other effect can he given to this covenant in equity than it has at law. It has never been determined that every joint covenant is in equity to be considered as the several covenant of each of the covenanters. When the obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is conceived. A partnership debt has been treated in equity as the several debt of each partner, though at law it is only the joint debt of all. But these all have had a benefit from the money advanced or the credit given, and the obligation to pay exists independently of any instrument by which the debt may have been secured. So where a joint bond has in equity been considered as several, there has been a credit previously given to the different persons who have entered into the obligation. It was not the bond that created the liability to pay.” And in the case of Hunt v. Rousmanier, (8 Wheaton, 174,) Chief Justice Marshall says: “ That the courts are uniform in presuming a mistake in point of fact, in every case where a joint obligation has been given and a benefit has been received by the deceased obligor; that no proof of actual mistake is required, and the existence of an antecedent equity is sufficient;” and he adds, “ In cases attended by precisely the same circumstances so far as respects mistake, relief will be given against the representatives of a deceased obligor who had received the benefit of the obligation, and refused against the representatives of him who had not received it.” The doctrine is thus summed up by Jewett, Justice, in the recent case of Bradley v. Burwell, (3 Denio, 65.) “It is a general principle, that in case of a joint bond or obligation, if one of the obligors diés, his representatives are at law discharged from liability to the obligees, and the survivor alone can be sued. But in equity, the representatives of such deceased obligor are liable, unless the deceased was a mere surety; in such case, even equity will not extend by implication the responsibility from that of a joint to a joint and several undertaking.”

The answer of the executors alleges, that the bond and mortgage were given in this case to secure money borrowed by John S. Provoost, and his mother executed them as his surety. The representatives of her estate should not, therefore, have been made parties to this bill. A decree may be taken for the sale of John S. Provoost’s interest in the real estate described in the mortgage, and charging him personally for any deficiency. The bill must be dismissed as to the executors of Mrs. Provoost, with costs up to the time of their motion for the revival of the suit, to be paid out of the estate of Carpenter in the hands of his executrix.


text:
    Lawrence v. Pool.
    A plea to a bill charging fraud in procuring a surrogate’s decree, which merely sets up the decree and alleges that all the parties in interest had notice of the pro* ceedings, without denying the fraud, is bad.
    In equity, in the argument of a plea, the defendant cannot object to the sufficiency of the bill.
    (Before Duer, Mason and Campbell, J. J.)
    May 23 ;
    June 4, 1849.
    The bill was filed by the complainant as a creditor of the estate of Isaac Lawrence, deceased, in behalf of himself and such other creditors as should choose to come in and contribute to the expenses of the suit. The object of the bill was to recover back a sum of money received by the defendant, out of a fund in the hands of the surrogate of the county of New York, created by the sale of I. Lawrence’s real estate, and to restrain any further receipts. The bill charged that the order of the surrogate declaring the defendant a creditor, under which he received the money claimed, was obtained by him by a variety of fraudulent representations and suppressions—that there was nothing due to the defendant, but that he owed the estate; and that the estate was insufficient to pay all the just debts. Some other matters are stated in the opinion of the court.
    The defendant interposed a plea in bar, setting forth the proceedings before the surrogate, upon his claim against the estate. That it was referred by the defendant and the administrator of I. Lawrence to three referees approved by the surrogate, and the reference made a rule of the supreme court. That the referees reported nearly 114,000 due to the defendant, and their report was confirmed by the supreme court, and a judgment rendered thereon. That the surrogate afterwards, on due notice &c. to all interested, proceeded to ascertain the debts against I. Lawrence, and decreed the defendant’s to be a valid and subsisting debt to the amount of the judgment, and directed distribution to be made rateably, under which decree the defendant received the money in question.

      L. B. Woodruff and G. Wood, for the defendant.

      W. B. Lawrence, for the complainant.
   By the Court. Mason, J.

The well established rule at law, that upon the argument of a demurrer to any pleading the previous pleading of the party demurring may be shown to be bad, has never been adopted in equity, and the party pleading to a bill is not allowed to sustain his plea by proving the bill to be defective. (Sperry v. Miller, 2 Barb. Ch. R. 632.) It is unnecessary therefore to express an opinion upon the objections taken by the defendant’s counsel to the sufficiency of the bill in this case. The plea must stand or fall upon its own merits.

The bill was filed to set aside a decree of the surrogate of the county of New York, in favor of the defendant, against the estate of Isaac Lawrence, deceased, which is alleged to have been obtained by false and fraudulent representations, and fraudulent suppressions of important facts. It specifies a number of circumstances in which the fraud is said to consist, and also alleges that all the facts of the case and the fraudulent nature of the transaction, were unknown to the administrator of Isaac Lawrence, and had been discovered by the plaintiff but a short time previous to the filing of the bill.

The plea merely sets up the decree without any denial of the fraud, or any other allegation whatever, except that all parties interested had notice at the time the decree was rendered; and it is not accompanied by an answer.

The rule in cases of this kind is thus stated by Chancellor Walworth : “ Where fraud or other circumstances are charged for the purpose of avoiding a release, (and the same is true with regard to a decreé or judgment) the defendant pleading, must by proper negative averments in his plea, deny the allegations of fraud &c., and must support his plea by a full answer and discovery as to every equitable circumstance charged in the bill, to avoid the bar. (Bolton v. Gardner, 3 Paige 273.) See also Story’s Equity Pleading, § 671, 681.

The plea must therefore be overruled, and the defendant must answer the bill and pay the costs of the hearing within -- days of the service of the order.


text:
    Currie v. W. Steele and others.
    To sustain a compromise, made between litigant parties, it is not necessary that each should know all the facts bearing upon the extent of his claim; provided the sacrifice made by him in the compromise, is not proved by him to have been greater than he would have made for the sake of a settlement, if such facts had been fully known to him
    The assets of a decedent at the time of his death, were in the hands of one who claimed as sole legatee, and so continued. The wife of the deceased, (whose relation as wife was contested,) opposed the probate of his will, and succeeded before the surrogate and on two appeals. Pending a third appeal, she compromised and settled the controversy, by receiving all her costs and charges, and a sum in gross, less by about one-fourth than her share of the estate. The amount of the estate was in fact, about one-fourth larger than she was aware of when she settled. In a suit by her to set aside the compromise, Held, 1st. That it was not to be treated as one made between trustee and beneficiary, or between parties standing in a confidential relation to each other. 2nd. That She was not entitled to relief on any ground, it being quite apparent that she would have settled in the same manner if she had known the amount of the estate.
    Where a gift in the nature of one mortis causa, is given upon a condition or understanding that it is all the donee shall receive from the donor’s estate ; on the latter’s overturning the cotemporary disposal of the estate, and coming in to share it, in violation of such understanding, she will be required to account for the amount of such donation.
    (Before Dueb, Mason and Campbelb, J. J.)
    May 24, 25, 26;
    June 9, 1849.
    This was a suit in equity, commenced in the late court of chancery, to set aside a compromise and settlement, made by the complainant in the latter part of April, 1843, with the defendant, William Steele. It appeared that Mungo Currie, of the city of New York, who from 1815, till his death on the first day of November, 1840, was either a clerk of, or kept an office with, W. Steele, left a will in his own hand writing, and apparently duly executed, by which he left all his property to his uncle, Robert Thompson, then the senior partner of Steele. This will was dated October 27,1840, and had subscribed to it the names of John Gemmel and Phoebe Finch as witnesses.
    It was delivered by Currie to W. Steele on the day of its date, together with an order drawn by Currie in his own hand, on Thompson & Steele, in favor of “ Sarah Finch” for one thousand dollars, which Steele, (on being requested by the complainant,) accepted at C.’s house on the same day. The order was in these words:
    “ In consideration of kindness and attention to me for the last twenty years, pay Mrs. Sarah Finch one thousand dollars in case of my demise. Five hundred dollars on the first day of February, and five hundred on the first day of May, both next ensuing.
    Mungo Currie.
    To Messrs. R. Thompson & W. Steele.”
    The complainant, Sarah Currie, formerly Sarah Finch, claiming to have been married to Mr. Currie for twenty years before his death, contested the proof of the will before the surrogate, on its being presented for probate by Thompson. After a contest before that officer, he decided that there had not been a sufficient publication of the will to entitle it to probate.
    Thompson appealed from this decision, and it was affirmed by the circuit judge.
    In December, 1841, R. Thompson died, having appointed the defendants, William and Robert Steele, his executors. They appealed to the chancellor from the decree of the circuit judge) and the appeal was dismissed by default. The chancellor refused to open the default in October, 1842, and from his order to that effect, the Steele’s appealed to the court for the correction of errors. In the case before the circuit judge, and the chancellor, and in the latter court, Richard Mott was the solicitor for Mrs. Currie.

      The order or draft for $1000, was paid by Mr. Steele to Mrs. Currie, (who receipted the amount as “ Sarah Finch,”) out of M. Currie’s funds in the hands of Thompson <fc Steele. In fact, Currie’s estate consisted of bonds, mortgages and securities, in their hands, with the exception of a little household furniture which remained in the possession of Mrs. Currie. The amount on the 18th August, 1843, was $8748 97, as appeared by the inventory then filed by W. Steele as administrator. The executors of Thompson retained these securities while the. litigation continued. They denied that the plaintiff ever was the wife of M. Currie, or that in case of an intestacy, she would be entitled to any part of his estate. They relied upon his letters, and various circumstances, in proof of this position. On the other hand, Mrs. Currie proved conclusively in this suit, that she was married to Currie as long ago as 1824 or 1825.
    While the appeal was pending in the court of errors, negotiations for a settlement of the controversy were conducted between W. Steele and the solicitor for Mrs. Currie; which after a considerable discussion and the gradual yielding of Steele as to the amount, resulted in her agreeing to receive $3500 and her costs, in full of all her rights and claims in and to the estate of Mungo Currie, and to permit Steele to take out administration. , This compromise and settlement was carried into effect on the first day of May, 1843. Mrs. Currie executed to W. Steele a full release and assignment under seal, of all her rights, interests and claims in and to the estate ; and Steele paid her the consideration agreed upon, $3500 ; and also paid to Mott, her solicitor, $300, in full for his costs and counsel fees.
    The bill, filed in 1844, sought to set aside this release and assignment, on the ground that Mrs. Currie was kept in ignorance of the value and extent of Currie’s estate; and charging fraud and collusion between her late solicitor and W. Steele, in effecting the settlement. The defendants in the suit were William and Robert F. Steele and R. Mott. They all answered, denying the personal imputations and other charges made by the bill, and insisting that the release was executed fairly and in good faith So far as it was shown by the evidence, Mrs. Currie’s knowledge at the time of the settlement, of the amount of the estate left by her husband, was derived from a memorandum in his hand writing, which made it about $7000.
    The cause was heard on the pleadings and proofs. Such additional facts as are necessary to a correct understanding of the decision, will be found in the opinion of the court.
    S. M. Woodruff and A. H. Dana, for the complainant.

      R. Mott and W. Inglis, for the defendant.
   By the Court. Duer, J.

The object of the bill in this case, is to set aside a release and assignment executed by Mrs. Currie, the complainant, in favor of the defendant, William Steele, of all her rights and interest in the personal estate of her deceased husband, Mungo Currie; and upon the argument, her title to this relief was placed upon the sole ground, that previous to, and at the time of the execution of the release, she was kept in ignorance of the nature and value of the assets in which she was entitled to share, and consequently in relinquishing her claims to the1 defendant Steele, made a greater sacrifice than, with a knowledge of the facts, which he was bound to communicate, she would have consented to bear.

In delivering our judgment, we deem it unnecessary to consider the various questions of law and of fact which were raised and discussed by the counsel upon the argument, since it is by a shorter process of reasoning that we have been enabled to arrive at a satisfactory conclusion.

It was strongly urged by the counsel for the complainant, that this cause ought to be decided upon the principles that courts of equity have uniformly and wisely applied to a settlement of accounts followed by a release, between a trustee and cestui que trust, and indeed between all parties standing to each other in a confidential relation ; but we are clearly of opinion, that these principles are only applicable where the rights and claims of the cestui que trust were undisputed, and where the settlement upon which a release was founded was intended, and was represented to embrace all the property to which the cestui que trust was entitled. It is true, that Wm. Steele, so long as he retained in his possession the assets of the deceased, before he obtained letters of administration, was in judgment of ■law a trustee for those who might ultimately appear to be entitled ; but it is not true, that the rights of Mrs. Currie as a cestui que trust, were acknowledged by him j nor was the sum, that, for the purpose of extinguishing her claims, he agreed to pay, and she consented to receive, either stated by him, or regarded by her, as the whole amount which, had her rights been admitted or established, she would have been entitled to receive.

Her title to any share of the personal estate of the deceased, depended upon the facts whether she was his lawful wife, and whether a paper written and signed by him a few days before his death, and in which her name was not mentioned, was properly attested and .published as his last will and testament; and these facts, when the negotiation was entered into, which terminated in the release and assignment that are now sought to be impeached, had long been, and were still, the subject of a legal controversy between the parties; nor without an amicable settlement, was there much reason to believe that this controversy would be terminated. Her object in entering into this negotiation, was to be relieved from the delay, .expense and hazards of a protracted litigation, and for the sake of a speedy and final settlement, she consented to make a considerable deduction from the sum which, should her claims be established, she knew she would be entitled to receive.

The transaction was, therefore, not a settlement between a trustee and a cestui que trust, but a compromise of conflicting claims between litigant parties ; and it is by the rules that a ■court of equity applies in judging of the validity of such a compromise, that our determination must be governed.

Hence,, the complainant, even upon the supposition that all the facts she was entitled to know, were not disclosed to her, is not entitled to the relief she seeks merely upon the ground that the sum which she agreed to accept as the consideration for releasing her claims, was less than that proportion of her husband’s estate which, as his widow, she might justly demand ; for a partial sacrifice of this description is involved in every compromise of a just demand, and the very term compromise, implies its existence. To entitle her to relief, it must also appear that the voluntary sacrifice which the compromise involved, was greater than with a full knowledge of the nature and value of the assets in which she was entitled to share, she would have consented to make. In other words, it must appear that, owing to the concealment of which she complains, she has sustained a loss, the amount of which this court has now the means of ascertainining. For such a loss, if any such has been sustained, she may justly claim to be remunerated; but it is evident, that in order to ascertain its existence and extent, the sum that, in making the compromise, she was content to abate, must be deducted from the amount to which she would be entitled, should the release be set aside and a new distribution of the assets of her deceased husband be now decreed.

There can be no ground of complaint, if the moneys which the defendant, Steele, has actually paid to her from the estate of the deceased, are equal in amount, making the deduction that has been stated, to the whole sum that, upon a distribution of the assets according to the rules that the statute prescribes, she would have a right to demand. Upon this supposition, she has sustained no loss, and can be entitled to no relief.

In applying these principles, the first inquiry is, what was the sum that, in making the settlement with the defendant Steele, and for the sake of that settlement, the complainant was willing to abate from her just claims as widow of the intestate ?

The allegations are, that she believed, and by a misrepresentation and concealment of material facts, was induced to believe, that the whole value of the assets that had come into the hands of Steele was $6600, in addition to the sum of $1000 which he ■had already paid her in satisfaction of the draft in her favor, which her husband had drawn shortly before his death, and delivered to her as a donatio mortis causa, and which Steele, in the name of his firm, had accepted. She also believed, and it is evident that it was so understood by her counsel and other advisers, that of this $6600, the sum of $4300 belonged to her as the widow of the intestate; that is, distributing the entire sum between herself and the brothers and sisters of the intestate, according to the rules that the statute prescribes. In making the compromise, and upon the condition that the defendant Steele would defray all the costs of their litigation, she consented to accept from him $3500 in satisfaction of her claims, and this sum which she has actually received, was the consideration of the release and assignment that we are now required to annul. Hence, to free herself from an expensive and vexatious litigation, and in order to realize the funds, of which she stood in need, she submitted as she believed to a loss of $800. Nor is it possible to doubt, that had she then possessed all the information that the answers and the evidence in this cause have disclosed, she would, from the same motives, have consented to an equal sacrifice. Hence, from any estimate of the actual loss of the complainant, this sum of $800 must be deducted ; since, in a case in which no actual fraud can be justly imputed to the defendants, and that such is the present case, the complainant’s counsel candidly admitted ; it would be palpably unjust to set aside the release for the purpose of restoring to her the sum that she then agreed to surrender. She may be entitled to a remuneration for any loss that her involuntary ignorance occasioned, but she has no right to consider this sum as a portion of that loss, and should it appear in the result that, deducting this sum, no loss has been sustained, she can have no title to the relief that is prayed, and the bill must be dismissed.

The total amount of the inventory that has been filed by the defendant Steele, since he obtained letters of administration, is $8748 97. Nor is there any reason whatever for doubting that this inventory comprehends all the personal estate of the intestate, with the exception of the furniture that the complainant was allowed to retain; and it is equally clear upon the evidence, that it includes the $1000, which, as already mentioned. was paid to her in satisfaction of the draft which the defendant accepted. If the release were set aside, it is this sum of $8748 97, that it would be necessary to distribute; and crediting the complainant with the proportion that, as the widow of the intestate, she would be entitled to receive, and charging her with the sum she has actually received, and with the $800 which, in making the compromise, she consented to abate, the result will be as follows :

Under the present statute of distribution, (2 R. S. 96, § 75, subd. 3,) she would be entitled to the gross sum of $2000, and deducting this sum, to a moiety of the balance.

Then, $8748 97, whole sum to be distributed.

Deduct 2000 00

6748 97

One-half, 3374 38

Add 2000 00

$5374 38, whole amount to which complainant is

- entitled.

She has also received, and is to be charged with,—

$1000 00 amount of draft.

3500 00 paid in compromise.

800 00 which she consented to abate.

$5300 00

Leaving a balance of $74 38, as the only sum, that upon any equitable principle we could decree to be paid to her; a balance however, far more than covered by the value of the furniture, for which, upon a new distribution of the assets, she would be compelled to account, and by the commissions to which the administrator would be entitled.

There is, however, a possible objection to the mode of computation which we have followed in arriving at this result, and this objection it will be proper to notice.

The draft of $1000, it may be said, was a valid donation made to the complainant by her husband before his death, and consequently this sum ought not to be reckoned as a portion of the assets in respect to which he died intestate, but should be deducted from the sum .total of the inventory, so as to confine to the residue the distribution under the statute, between the widow and the next of kin. Without stopping to inquire whether the delivery of this draft was valid as á donatio mortis causa, (a question as to which serious doubts might be raised,) there is another, and it seems to us, a conclusive reply to the objection. It is absolutely certain, that when the draft was placed in the hands of the complainant, the intentions of the husband were, that she should have no other or larger sum from his estate than it embraced. That such were his intentions, is rendered manifest by the terms of the paper which he wrote and signed on the very day that the draft is dated, and which he doubtless believed would operate as an effectual disposition of his property; and the circumstances of the case conclusively show, that his intentions were perfectly known to her when she received the draft. Hence, the fulfilment, by her of the intentions of the donor, was a tacit condition .annexed to the gift; since, could he have foreseen .that his will would be set aside, the gift, it is certain, would never have been made.

She violates this condition, when availing herself of the in-formalities in the execution of the will, she claims as widow a full distributive share of the .estate. In preferring this claim, she induces by her own act, an entire failure of the consideration on which the gift was founded ; and certainly in a court of equity, if not of law, renders the gift a nullity. A just regard to the intentions of her husband, might have led her to confirm the disposition of his will, but when in disregard of his wishes, she elects to set them aside, there is a plain equity that she should be compelled to bring the payments made to her under .the draft into the common fund for distribution, and be charged with that amount as a part of the.share to which under the statute she is entitled.

It is this rule that we have followed, and it seems to us, that there is no escape from the conclusion to which it has led us, namely, that the complainant has sustained no loss whatever by the settlement and release which she desires to vacate; that is, no loss beyond that to which, from very reasonable motives, her deliberate assent was then given. So far from having been prejudiced by her alleged ignorance of the value of the estate when she executed the release, it is highly probable, that the setting it aside, instead of being a benefit to her, would be a positive injury, by compelling her, upon a more just distribution of the assets, to refund a portion of the moneys she has already received.

The bill must therefore be dismissed.

Justice to the parties requires us to add a few observations. Had there been no compromise between the parties, we have no doubt whatever that the complainant must ultimately have succeeded in establishing her claims. Without a judicial repeal of some very plain provisions of the revised statutes, the will of Currie would never have been sustained; and that the complainant was his" lawful wife, unless we impute direct perjury to many of the witnesses, cannot now be doubted. But it by no means follows, that the defendant, Steele, acted with bad faith in opposing her claims. In seeking to maintain the validity of the will, he acted under the advice of eminent counsel; and the circumstances of the case, as they appeared immediately after the death of Currie, justified him in believing that the allegation of a marriage between him and the complainant, was a fraudulent pretence, which his duty to the next of kin of the deceased required him to resist, and, if possible, to defeat. The suspicions that at this time covered the case, may now be removed, but originally it was a case of very strong suspicion. Nor is this all that our duty requires us to say.

The very gross charges of collusion, bribery, and fraud, that the complainant has preferred in her bill against Mr. Steele, and her then solicitor and legal adviser, Mr. Mott, we are bound to say, are utterly groundless, and ought never to have been made. They are not only fully denied in their answers, but are effectually refuted by the evidence; and for those reasons, they were very properly abandoned by the able counsel for the plaintiff.

Under these circumstances, could we reach the party to whose rash suspicions and rash advice, the filing of the bill and the charges it contains must be ascribed, costs would be given to the defendants. But it is evident, that the complainant has been deceived by him in whom her confidence was reposed; and in consideration of her sex, her ignorance, and her poverty, we think it a fair exercise of our discretion, in dismissing her bill, to exempt her from the usual penalty.

The bill is dismissed without costs.

         See Harris v. Clarke, 3 Comst. R. 93.


text:
    Boreel and others v. The Mayor, Aldermen and Commonalty of the City of New York.
    A grant of a municipal corporation, having the right to land on the shore and under the water of a river or harbor, of the land under water from high water mark, to A. in fee, reserving so much of the soil under water as was required for a street, which was to become the exterior line of the filling up of such land, and the same, as well as the wharves built out therefrom, were to be public streets and wharves; and which grant contained a covenant of the corporation, that A. and his heirs &c., fulfilling their covenants, might have and enjoy the wharfage and all the advantages of the wharves to be erected;—conveys conditionally in respect of the wharf or bulkhead made by the street, an interest, which is real property; and it is not to be considered as a mere covenant.
    Such an interest is an incorporeal hereditament.
    Incorporeal hereditaments, are not subject to taxation by the provisions of the revised statutes concerning the assessment and collection of taxes.
    They are not land, real estate or real property ; nor are they chattels or personal property; as defined in the tax law.
    (Before Doer, Mason and Campbell, J. J.)
    May 19, 20;

    June 9, 1849.
    The bill in this cause stated that the defendants, on the 1st of August, 1810, by deed under their corporate seal, granted to John Jacob Astor, now deceased, and to his heirs and assigns, two water lots, one of them, (in relation to which the controversy in this cause has arisen,) situate between King and Hamersley streets, in the city of New York, and extending westerly in breadth from high water mark on the Hudson River, four hundred and twenty-eight feet, to the line established as the permanent line of West street, and in length, from north to south, one hundred and fifty feet, saving and reserving however out of such water lot and soil under water, so much of the same as would be necessary to make Washington street sixty feet wide, and West street seventy feet wide; the streets to be extended and continued through the premises as the same should be directed by the corporation of the city, agreeably to a map annexed to the deed.
    The deed contained a covenant by the grantee, that he, his heirs, or assigns, would build, on the requisition of the corporation, such wharves and streets on that portion of Washington and West streets which passed through the premises, as should be necessary to make them respectively of the width stipulated for, and would also keep them at all times thereafter, in good order and repair, and that the same should always be used as public wharves and streets ; and also a covenant on the part of the corporation that the party of the second part, his heirs and assigns, keeping and performing the covenant &c. on his and their part to be performed, should and might at all times thereafter, have and enjoy the wharfage and benefits and advantages growing or arising from the wharves to be erected on the west end of the premises.
    The bill then alleged that Mr. Astor had erected the wharf on the west end of the premises, as contemplated by the grant, and that the same had at all times since its erection, been used and occupied as a public street or wharf. That Mr. Astor had for several years past been assessed by the assessors of the eighth ward, (in which the premises are situated,) as the owner of the bulkhead, being parcel of the wharf so built by him, and taxes had been imposed on the bulkhead accordingly, and that such taxes not having been paid, the corporation had sold the bulkhead wharf or street, for the non-payment of some of the taxes, to one John L. Brower for the term of five years, and were about to give him a lease therefor, pursuant to such sale; and also that they intend to sell the bulkhead for other taxes which had been assessed thereon.
    The bill then stated the death of Mr. Astor, and that the complainants have succeded to his rights in the premises by devise from him, and that they are advised that the interest secured to Mr. Astor, his heirs and assigns, in or out of the wharf; was not, and is not now, the subject of taxation by the laws of the state. .The bill prayed that the corporation of the city might be enjoined from granting a lease to Brown under the sale heretofore made, and from selling the bulkhead for the remaining taxes imposed thereon, and from assessing any taxes thereon in future, and for other and further relief.
    To this bill the defendants demurred for want of equity.

      Willis Hall, for the defendants, argued the following proposition :—
    The bulkhead of the complainants, between King and Hammersley streets, is a proper subject of taxation—
    1. If the fee of the land belong to them, then the bulkhead is properly taxed as real estate.

      2. If the fee belong to the corporation, then the franchise transferred to them to take wharfages on the bulkhead, is “ a chattel,” and properly taxed as personal estate. 1 R. S. 387. (The argument of Mr. Hall is noticed m the opinion of the court.)

      Jonathan Miller, for the complainants.
    1. The fee of the land for Washington and West streets, remains in the corporation by virtue of the reservation contained in- the grant.

      2. West street being a public highway, of which the bulkhead is a part, neither it nor the bulkhead is the subject of taxation, in whomsoever the fees is vested.
    . 3. If it were the subject of taxation, it should be taxed to the owner,, viz., the corporation, who should pay the taxes upon it. ; 4. The right to receive the wharfage, &c., is not, under the provisions of the statute, the .subject of taxation, in advance of the receipts of such wharfage because,

      a. It would be an income tax, and upon an uncertain income.

      b. Property out of which income arises, and not the income itself until realized, is the exclusive subject of taxation.
    c. The owner of such property, must pay the tax upon his property, whether he use it or not. The benefit which he may derive from its occupation, cannot be taxed in advance, anymore than the loss which he may sustain by its use can diminish his tax.

      d. If the user by the owner cannot be taxed in advance, his grantee of the user cannot; for the user is equally valuable whether enjoyed by the owner of the land or by another, and the subject of taxation in the one case as well as the other.
    5. There is no covenant, either express or implied, contained in the grant, that the grantee should pay the tax on the bulkhead.
    6. There is an express covenant on the part of the grantors, that the grantee should always have and receive the wharfage.

      7. The corporation are bound, therefore, to refrain from doing or permitting any act to defeat the grantee, or impede him in the collecting of such wharfage.
    8. If the user of the bulkhead by the grantee personally, or by others with his permission express or implied, for a consideration fixed by the parties or established by law, be a proper subject of taxation, then it is taxable only as personal estate.
    9. Taxes imposed on personal estate ; or more correctly speaking, on the owner thereof, do not thereby become a specific lien on the particular personal estate, as they do in the case of real estate. And for non-payment of taxes on personal estate, no sale can be made of any property except the goods and chattels of the person assessed, after distress made of the particular goods and chattels, to be sold by virtue of a warrant issued for such purpose.
    10. Although dioses in action are made by law the subject of taxation, to be assessed upon the owner; yet they cannot be sold for non-payment of such taxes.
    Such taxes are to be made by distress and sale, not of all the personal estate assessed, nor of any designated portion of the assessed personal estate, but by distress and sale of the goods
      and chattels generally of the person assessed, by a warrant against him for such purpose. (Laws of 1848, p. 318,319, § 9.)
    11. An execution on a judgment is to be levied of the goods and chattels of the defendant. By virtue of an execution a bond, and mortgage or stocks cannot be sold. (Denton v. Livingston, 9 Johns. 96 ; Ingalls v. Lloyd, 1 Cowen, 240.)
    12. If the right which the plaintiffs have, to receive the wharfage, be the subject of taxation; it is an incorporeal right or thing, and consequently not the subject of distress arnd sale under or by virtue of a warrant to collect the taxes, any more than a bond or mortgage would be.
   By the Court. Mason, J.

The first question which presents itself is, What is the estate or interest which the plaintiffs have in the bulkhead or wharf?

It was not pretended on the argument, that they own the land on which it is erected. It is built on the permanent line of West street; and West street, extending easterly from the permanent line seventy feet, was expressly excepted from the grant. The words are, 11 Saving and reserving nevertheless out of the several water lots and soil under water above mentioned, so much of the same as will be necessary to make Washington street sixty feet wide, and West street seventy feet wide.” The title to the land then never passed out of the defendants by this conveyance, and of course they are the legal owners of the bulkhead and wharf erected thereon by Mr. Astor under the covenants in the grant.

The equivalent which Mr. Astor obtained for his expenditures, was the right to receive the fees or dues levied on vessels for the privilege of laying at the wharf and receiving and discharging their cargoes.

As to the nature of this right, the learned counsel who argued this cause were not agreed. The counsel for the plaintiffs contended that it is a matter resting in covenant only. We are of opinion however that this interest is real property, and that the part of the deed relating to it, is to be considered as a conditional grant, and not a covenant. It is as follows: “ The parties of the first part for themselves and their successors, covenant with the said party of the second part his heirs and assigns, that the said party of the second part, his heirs and assigns, paying and performing,” &c., 11 shall and may lawfully at all times hereafter fully and freely have, use, and enjoy, to his and their own use, all, and all manner of wharfage, benefits and advantages growing, accruing or arising by and from the wharf,” &c., to be erected.

It was clearly the intention of the defendants, that Mr. Astor • •should have all the right to the wharfage which they themselves possessed, after he had paid the stipulated consideration by filling! up the street and erecting the bulkhead, and that this right should* pass to his heirs. So the parties have themselves considered it. It appears by the bill that he or the plaintiffs have always collected. the wharfage, and that the defendants have endeavored to tax his right to do so, on the ground of its being real estate belonging to him; and it would therefore be unreasonable, as well as contrary to the intention of the parties, to put such a construction on the deed as should enable the defendants still to retain the legal right to collect the wharfage, and give the plaintiffs merely a right of action against them, to recover it. The objection to holding it to be a grant is, that the word “grant’ is not used, but only the word covenant. But in many cases the law creates a good grant without express words, because it is the design of the law to render all contracts binding and effectual so far as the intention of the parties may be gathered from the deed; and such interpretation is much stronger against the grantor, because he is presumed to receive a valuable consideration for what he parts with. (Shep. Touch. 232; 2 Roll. Abr. 56.) “ It never had been held necessary,” said Lord Kenyon, in Shool v. Pincke. (5 T. R. 129,) “ that the word 1grant’ should be used in a grant, it being sufficient if the intention to grant be manifested by a deed.” The deed then under consideration makes a1 grant’ to Astor and his heirs, of. the fees and duties payable out of the use of the wharf, while the fee of the wharf itself remains with the defendants ; and this is precisely the estate or interest known as an incorporeal hereditament. “ Corporeal hereditament,” says Blackstone, (2 Com. 191,) “ are the substance, which may be always seen, always handled. Incorporeal hereditaments are but a sort of accident which inhere in and are supported by that substance, and may belong or not belong to it without any visible alteration therein. Their existence is merely an idea and abstracted contemplation, though their effects may be frequently objects of our bodily senses; and indeed if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing or hereditament which produced them.”

This wharfage issues out of and is produced by the land, yet is separated from it. It is part of the franchise originally granted by the crown to the corporation of New York, of all the wharf-age arising, and to be collected from the whole island; (Kent’s City Charter, page 87,) and by the corporation transferred, as far as this property was concerned, to Mr. Astor, without the right to the soil. Such being the nature of the interest of the plaintiff, we are of opinion that it was not reached by the assessment or sale complained of by the bill.

. The assessment was on the bulkhead; the visible, tangible substance ; and not on the invisible right to the profits issuing out of that substance ; and the sale was in accordance with the assessment. The possession under the comptroller’s deed, of the visible property, would not vest the purchaser with the incorporeal or invisible right, which was not sold, or pretended to be sold. All that was sold was the fee of the bulkhead, subject to the rights of the public therein. And although it was doubtless the object and intention of the corporation, by means of the sale, to reach the interest of Mr. Astor and his representatives in the wharfage, yet as the proceedings are upon the face of them ineffectual and void for that purpose, they do not perhaps within the meaning and spirit of the late decisions on this subject, cast such a cloud upon the title of the plaintiffs, as to warrant the interference of this court to set them aside. (Simpson v. Lord Howden, 3 Myl. & Cr. 97, and cases there cited; Van Doren v. The Mayor &c. of New York, 8 Paige, 388.)

The bill, however, distinctly raises the question whether the right to the wharfage thus granted is or is not liable to taxation under the laws of the state. That question has been argued at length before us, and it was conceded by the counsel for both parties, that the principal object of the suit was to obtain the decision of the court on this point. We therefore proceed to consider it.

. The subject is entirely of statutory regulation, and the revised statutes define very clearly the several descriptions of property subject to taxation.

The first section of the act in relation to the assessment and collection of taxes, (1 R. S. 387,) is as follows : “All lands and all personal estate within this state, whether owned by individuals or by corporations, shall be liable to taxation subject to the exemption herein specified.”

The next section declares that the term “ land,” as used in that chapter, “ shall be construed to include the land itself, all buildings and other articles erected upon, or affixed to the same, all trees and underwood growing thereon, and all mines, minerals, quarries and fossils, in and under the same, except mines belonging to the state; and the terms real estate,’ and ‘ real property,’ whenever they occur in this chapter, shall be construed as having the same meaning as the term ‘ land,’ thus defined.”

. The estate in question, being an incorporeal hereditament, or a right issuing out of the land, clearly does not fall within the definition of lands, contained in the foregoing sections.

Is it included in the term ‘ personal estate’ ?

The third section of the same act declares that “ the terms - . ‘ personal estate’ and ‘ personal property,’ wherever they occur in this chapter, shall be construed to include all household furniture, monies, goods and chattels, debts due from solvent debtors whether on account, contract, bond and mortgage, public stocks, and stocks in monied corporations.”

The learned counsel for the corporation contended with much earnestness, that the interest of the plaintiffs in the wharfage, was an ‘ incorporeal chattel,’ and therefore liable, under the definition of personal estate’ in this section, to taxation as a chattel.

. But upon referring to the passage in 2 Stephen’s Com. p. 72, which was cited as authority for this application of the term, it will be seen that the author explains the term incorporeal chattels to mean interests arising out of personal property, as incorporeal hereditaments are interests or rights issuing out of land. The right in question, we have shown to be of the latter description, and to be strictly an incorporeal hereditament.

And even were the doctrine true, the law nowhere authorizes the separate assessment of different kinds of personal property, as is done with regard to real estate, and their sale for the nonpayment of the tax assessed.

The individual owning personal property is assessed in respect of all his personal property, of whatever kind and wherever situated ; and payment of the whole tax thus assessed, can be enforced by distress and sale of any part. But the tax forms no specific lien on any part of the personalty, and no authority is given by law for its sale. The value of any chattel, forms part of the estimate of the personal estate, and the aggregate amount of the tax on the whole personal property of any individual, is collected out of any portion that may be within reach of the collector.

We are therefore obliged to decide that this franchise, valuable as it is, is neither land nor personal estate subject to taxation by the laws of this state ; and that, not only this particular kind of incorporeal hereditament, but all incorporeal hereditaments whatever, are by a singular omission in the statutes, exempt from contributing their just proportion to the public burthens, and must continue to be so exempt, until the legislature shall take the necessary action in the premises.

The demurrer must be overruled. The plaintiffs are entitled to a decree, declaring that the right to wharfage granted and secured to John Jacob Astor by the grant mentioned in the bill and now owned by the plaintiffs, is not by the laws of this state subject to taxation ; that the assessment of taxes upon the bulkhead mentioned in the bill, and the sales for the non-payment of such taxes, or of any of them, in so far as they sought or were intended to reach that right or interest, were null and void; and the defendants must be perpetually enjoined from assessing such interest. And although the court will not, upon this bill, enjoin the defendants from assessing and selling to a private individual, a piece of their own land which they have dedicated to the use of the public as a public street and wharf, yet it is proper that in any conveyance which they may grant upon a sale of the bulkhead in this case, a clause should be inserted that the conveyance shall in no manner prejudice or affect the right of the plaintiffs to receive the wharfage as heretofore, and the decree will contain a direction to that effect

No costs allowed to either party.