text:
    Abijah Mann, Jr. plaintiff and appellant, vs. Lewis Curtis, executor, &c. of Joseph D. Beers, defendant and respondent.
    In January, 1841, the North American Trust and Banking Co. agreed to receive from B. who was then indebted to that Company over $200,000, upon such claim, certain certificates of indebtedness of the company then held by the state of Indiana, to the amount of $175,000, if delivered within a certain time. In September following the state of Indiana, through its fund commissioner, promised to allow and pay to W. twenty-five per cent commissions on any amount which might be recovered on such indebtedness of the company ; there being an understanding between B. and W. that such commissions should he divided between them equally. Soon afterwards, the state of Indiana placed the said certificates in the hands of the plaintiff, and authorized him to permit B. to use them in payment of his debt to the company. Within the time limited for that purpose by the agreement between B. and the company, the former, with the permission of the plaintiff, tendered to the latter, (through its receiver,) the whole of the said certificates, in payment of his debt to the latter. In May, 1844, W. and B. transferred to 'the plaintiff one third of the commissions covered by the agreement between W. and the state. In November, 1847, W. delivered to the state of Indiana an instrument signed by him, releasing and transferring to the state, all his claim and interest under the agreement of September, 1841, provided the plaintiff and B. would assent thereto; which assent was given. In January, 1849, the state of Indiana, by its fund commissioner, assigned and transferred the said certificates, and all its claims against the company, to a third person, who subsequently assigned the same to the plaintiff. B. having died in 1863, this action was commenced in 1865 against the defendant, as his executor; the plaintiff claiming 'to be entitled to all the rights of the state of Indiana, as against B., and to have judgment against the defendant, as such executor, for the amount of the certificates, with interest; or, if such claim should be barred by the statute of limitations, then for two thirds of the commissions, which were to be paid by the state of Indiana to W. under the agreement of September, 1841.

      Meld 1. That the referee erred in not finding that the tender of the certificates to the receiver, by B. constituted a payment to the N. A. Trust and Banking Co. within the contemplation of the agreement between such company and B. For, although B. might waive such tender so far as his own interests were concerned, such waiver could not affect the rights of the state, (which had already attached,) to recover from B. the amount of the certificates which he had tendered to the receiver of the company under the agreement; which tender, « instanti, operated as, and was an extinguishment, pro tanto, of the debt of the company against B. in law and in equity, and extinguished also the liability of the company upon the certificates.

      2. No reinstatement of that debt by any agreement between the company and B. could deprive the state of the right which had already become vested in it to recover from B. the value of such certificates, and that unless the tender operated as a payment of the debt owing by B. to the company, a judgment in favor of the defendant was correct; inasmuch as B. did not become the debtor of the state, nor were any commissions earned,
    3. Even though the finding of the referee, in that regard, was erroneous, the plaintiff could not recover. .
    (Before Barbour, McCunn and Jones, JJ.)
    Heard March —, 1868;
    decided April 16, 1868
    Appeal from a judgment entered on the report of a referee.
    The facts in this case, so far as this appeal is concerned, are as follows:
    In January, 1841, an agreement was entered into between the North American Trust and Banking Company and Joseph D. Beers, who was then indebted to such company in an amount exceeding $200,000, whereby the former agreed to receive from Beers, upon such claim, certain certificates of indebtedness, theretofore issued by the company, then held by the state of Indiana, to the amount of $175,000, if delivered within a certain time.
    In September, 1841, an agreement was made between the state of Indiana, through its fund commissioner, (Noah Noble,) and Jabez M. Woodward, whereby the former undertook and promised to allow and pay to the latter twenty-five' per cent commissions on any amount which might be recovered on the claim of the state against the company; and there was an understanding between Beers and Woodward that such commissions should be divided between them equally.
    Soon after that, the state of Indiana placed the said certificates of the company in the hands of the plaintiff, and authorized him to permit Beers to use them in payment of his debt to the company.
    Within the time limited for that purpose, by the agreement between Beers and the company, the former, with the permission of the plaintiff, offered and tendered to the latter (through its receiver) the whole of the said certificates, in payment of his debt to the latter.-
    After that, and in May, 1844, Woodward and Beers transferred to the plaintiff one third of the commissions covered by the agreement between Woodward and the state, after deducting therefrom about $1500.
    In November, 1847, Woodward delivered to the state of Indiana an instrument in writing, duly executed, of .which the following is a copy :
    “ In consideration of twelve hundred dollars, received of M. G-. Bright, fund commissioner, &c. I hereby release and transfer all my claim and interest by virtue of the annexed agreement between me and Noah Noble, dated 17th September, 1841, to said M. G-. Bright, fund commissioner, &c. provided that A. Mann, Jr. and J. D. Beers shall assent to the same by signing such consent hereunto.
    Witness my hand and seal this 2d day of November, 1847. J. M. Woodward.-
    Witness—
    Richard Varice.”
    “Having received our proportion of the above $1200, we hereby assent to the above release and assignment and transfer,
    2d November, 1847. A. Maw, Jr.
    J. D. Beers.”
    In January, 1849, the state of Indiana, by its fund commissioner, assigned and transferred the said certificates of indebtedness, and all its claims against the North American Trust and Banking Company, to Charles Fincke, who, subsequently, assigned the same to the plaintiff.
    Beers died in 1863, and the defendant was his executor. This action was commenced in 1865.
    The plaintiff claims that he thus became entitled to all the rights of the state of Indiana, as against Beers; and that he should have judgment in this action against the executor of the latter, for the amount of the said certificates, with interest; or, if such claim shall be deemed to be barred by the statute of limitations, then, for two thirds of the commissions which were to be paid by the state of Indiana to Woodward, under the agreement of September, 1841. The referee found, as a conclusion of law, from the above facts, that the plaintiff was not entitled to judgment against the defendant for the cause of action above mentioned, being the first cause of action mentioned in his complaint; and from the judgment entered upon the report, the plaintiff appealed.

      A. Mann, Jr. appellant, in person.

      Charles F. Sanford, for the respondent, defendant.
   By the Court, Barbour, J.

It is proper to say that the referee has not found, as a fact, in the case, that the tender of the certificates to the receiver by Beers, constituted a payment to the Eorth American Trust and Banking Company, within the contemplation of the agreement between such company and Beers. But I am of opinion that the referee erred in this. For, although Beers might subsequently waive such tender, so far as his own interests were concerned, as he probably did, by paying the claims of the company with funds other than the certificates, such waiver could not affect the rights of the state, which had already attached, to recover from Beers the amount of the certificates which he had tendered to the representative of the company under the agreement, and which tender, eo instanti, operated, and was an extinguishment, pro tanto, of the debt of the company against Beers, in law and in equity, and, of course, extinguished also the liability of the company upon the certificates. Eo reinstatement of that debt, by any agreement between the company and Beers, could deprive the state of the right, which had already become vested in it, to recover from Beers the amount of such certificates.

Of course, unless the tender in question operated as a payment of the debt owing by Beers to the company, the judgment should stand; inasmuch as Beers did not become the debtor of the state, nor were any commissions earned. So, too, even though the finding of the referee, in that regard, was erroneous, as we think it was, there are, still, a few insurmountable difficulties which stand in the way of the plaintiff’s recovery.

First. The right of the state to recover from Beers the amount of the certificates because of his appropriation of the same to his own use, accrued upon and by the tender thereof to the company, and when that tender was made; and, therefore, this claim is barred by the statute of limitations.

Second. So, the right of Woodward, Beers, and the plaintiff to recover for the commissions was based upon the absolute promise of the state, contained in its agreement with the former, to pay twenty-five per cent commissions upon the collection of the certificates, and accrued at the same time, and because of the same act, and is, in like manner, barred. The right of the three to recover against the state for the commissions it had undertaken to pay, became absolute upon and by the tender.

Third. The instrument executed by Woodward, Beers and the plaintiff to the state of Indiana, on the 2d of November, 1847, not only assigns and transfers to the state their claims against it because of the commissions now claimed, thereby producing, in law, a complete relinquishment and discharge of their claims against the state, but such instrument expresses upon its face, an absolute and unconditional release and discharge of the state from all claims of all-and either of them, because of such commissions, for a full and sufficient consideration, received by each.

Fourth. No claim of the state of Indiana against Beers, whether including the said commissions or otherwise, was assigned by such state to the plaintiff or any other person, so far as appears in the case; the assignment and transfer made by the state to Fincke on the 31st of January, 1849, and, afterwards, by the latter to the plaintiff, being merely a transfer to him of all the claims of the state against the North American Trust and Banking Company.

The judgment entered upon the report of the referee, touching this cause of action of the plaintiff, should be affirmed, with costs.


source: Caselaw Access Project

author: By the Court, Barbour, J.

license: Public Domain

text:
    Abijah Mann, Jr. plaintiff and respondent, vs. Lewis Curtis, executor &c. of Joseph D. Beers, defendant and appellant.
    1. Neither hills of exchange, nor a guaranty thereof, are covered or will pass by, an assignment of a mere guaranty of the certificates of a banking company, in payment of which such bills are drawn.
    2. A schedule referred to in an assignment is so far at least a part of such assignment as to estop the assignor from denying the averments therein contained, and when such schedule shows that some years before the assignment (of which it is a part) was executed, the holder of certain bills of exchange had surrendered them to the drawers, and taken other obligations in lieu thereof, neither such bills, nor a guaranty of their payment, executed by a third person, will pass by such assignment; although it purports to transfer such bills and guaranty.
    (Before Barbour, McCunn and Jones, JJ.)
    Heard March 2, 1868;
    decided April 16, 1868.
    Appeal by the defendant from a judgment entered upon the report of a referee.
    This action was brought to recover from the defendant, as executor of the estate of Joseph D. Beers, $10,000, with interest, alleged in the complaint to have been advanced by the plaintiff to Beers under and in pursuance of an agreement between them that the said $10,000, together with a similar sum to be paid by Beers, should be emended for their joint benefit by the latter in the purchase of certain bills of exchange which had been drawn on England by the North American Trust and Banking Company and guarantied by Beers, and upon the further agreement on the part of Beers, that, in case such bills should not be collected from the company, he would repay to the plaintiff the said $10,000, with interest thereon..
    The allegations of the complaint, were in substance as follows:
    That the defendant’s testator, Joseph D. Beers, was, in his lifetime, indebted to one ¥m. Vyse, in a sum exceeding $100,000, upon a guaranty, under his hand and seal, that certain bills of exchange drawn by the North American Trust arid Banking Company, for about ¿615,000 sterling, on Palmers, McEIllop, Dent & Co. of London, should be accepted, but which were returned protested for non-acceptance to Vyse. That, Beers being insolvent and Vyse having died, the personal representatives of Vyse offered to sell Beers their claim against said company, thus guaranteed by him, for $20,000 ; and that Beers, not being able to raise that amount, agreed with the plaintiff that if the plaintiff would advance to him, (Beers,) the sum of $10,000, he would purchase said bills of exchange and claim with said guaranty, and assign one half interest therein to said plaintiff and one half of said guaranty; said one half of said guaranty to be collateral security for the payment to the plaintiff of said $10,000 in case the same was not realized from said company; and that if said $10,000 so advanced by the plaintiff was not realized by him from said company, Beers would pay said sum with interest. That on the 27th December, 1847, the plaintiff did advance to said Beers said sum of $10,000, with which, and $10,000 added by himself, he purchased from Vyse’s personal representatives said bills of "exchange and guaranty, and thereupon executed to Charles Eincke, in trust for 'the plaintiff, an assignment of an undivided one half interest in said bills of exchange or claim against said company, together with said guaranty. That on the 1st day of August, 1865, Fincke assigned such undivided half interest in said claim and guaranty to the plaintiff. That, in the year 1848, the plaintiff instituted proceedings in Beers’ name against The Horth American Trust and Banking Company to collect the claim, but without success, and that the assets of said company are exhausted. That no part of the claim against the company has ever been paid either to the plaintiff or Beers; and that no part of the $10,000, advanced by the plaintiff to Beers, has ever been paid, but the same remains justly due and payable, with interest from December 27, 1847.
    The defendant’s' answer put in issue all the allegations of the complaint in regard to this transaction, and set up the statute of limitations as an affirmative defense.
    The action was referred to Edward Fitch, Esq. as sole referee, to hear and determine, by order entered 25th January, 1866.
    On the trial it appeared in evidence that in 1842, William Vyse held certain bills of exchange, drawn upon London, (Palmers, McKillop, Dent & Co.,) by The Horth American Trust and Banking Company, and guarantied by Joseph D. Beers under his hand and seal, which had been protested and remained unpaid; the drawers having failed, and their assets being in the hands of a receiver.
    On or previous to the 21st of January, 1847, Beers purchased all the claims which Vyse had at the time of his decease, against the company; the plaintiff furnishing to Beers one half of the purchase price; and thereupon an assignment of such claims was made to Beers by the representative of Vyse. On the same day Beers assigned to Charles Fincke, for the benefit of the plaintiff, (who, subsequently, took an assignment from Fincke,) one half of all such claims, together with the guaranty of Joseph D. Beers to said Vyse of the payment of the certificates, of- the said company, which Vyse held or had a right to hold. The assignment also declares that the claims covered thereby are, with the evidences thereof, and a part of the guaran ties and collateral securities held therefor, principally mentioned and specified in a schedule thereunto annexed.
    The schedule referred to in the assignment bears date, January 3, 1842, and is in the form of a stated account between Vyse and the company. In it the company is debited with ten several promissory notes and sundry loans of money, and it also contains this charge: “ 1840, Dec. 15. Paid U. Am. Tr. & Bk’g Company for exchange on England, to the amount, in all, of ¿210,000 sterling, in five bills of ¿22Ó00 each, $46,777.77. Damages on protest of the bills. Interest afterwards.” It also declares that after the bills of exchange were dishonored, the president of the company urged Mr. Vyse to give them up and take as security the notes of the company, known as the Yates Trust, and, at the same time, in the same way, and from like representations, Mr. Vyse was induced to give up certain bonds and mortgages held by him as security for loans of money; and that the only security then held by him for the $46,777.77, with damages and interest, and for' such loans, were certain notes of the Yates Trust. There was no evidence in the case that Vyse held, at the time of his death, any claim against the company except those covered by that assignment to Beers.
    After the execution of those assignments, an attempt was made to collect the claims; but the company proved to be wholly insolvent, and all' efforts to collect ceased in June, 1849.
    The referee found, as a conclusion of law, that the plaintiff was entitled to recover against the defendant, as executor of the said Joseph D. Beers, the sum of $10,000 and interest, amounting in all to $23,961.10,

      Charles T. Sanford, for the appellant.

      A. Mann, Jr. respondent in person.
   By the Court, Barbour, J.

The evidence in the case, as it now stands, is wholly insufficient to sustain the finding of the referee, that the alleged agreement between Beers and the plaintiff, touching the purchase of the bills in question, was made. But such finding is by no means important, inasmuch as an action based upon the advance of moneys under such agreement is barred by the statute of limitations, and the plaintiff’s claim to recover must, consequently, rest solely upon his ownership of the bills of exchange and the sealed guaranty of Mr. Beers.

It appears quite clear that neither the bills of exchange in question, nor Beers’ guaranty thereof, passed to the plaintiff by the assignment to him. Certainly such guaranty of bills is not covered by the assignment of Beers’ guaranty of the certificates of the company. So, to, the schedule, which must be considered a part and portion of the assignment, in so far, at least, as to estop Mr. Beers from denying the averments therein contained, (see Coke Litt. 352, a, b; Comyn’s Dig. Estoppel E, 2; Sinclair v. Jackson, 8 Cowen, 586,) shows that more than five years before such assignment was made, Yyse had surrendered to the company the bills of exchange, being the principal debt for which, alone, Beers was liable as guarantor, and took in lieu thereof other obligations of the company, called Yates Trust notes. It is impossible to construe the statement in the schedule that Yyse was urged by the president to give up the bills and take as security the notes of the company, known as the Yates Trust notes, together with the succeeding declaration that the only security then held by him for the sum covered by the bills of exchange was certain notes of the Yates Trust, in such a manner as to avoid this conclusion; although it may be evident, from the testimony of the plaintiff, that both he and Beers supposed, when such assignments were executed, that the bills of exchange, together with such guaranty, still belonged to the estate of Yyse, and were covered by the assignment.

Indeed, it requires a careful examination of the entire schedule in order to ascertain the true state of the claim. But, upon making such examination, it will be found quite apparent that such schedule, (which is drawn in a very inartificial manner,) was designed to show, not merely the then state of the indebtedness of the company to Vyse, but the origin thereof; or, in other words, to exhibit all the transactions between them touching the claims. Certainly, the claims of Yyse against the company then consisted of ninety-three notes of the Yates Trust, and the ten indorsed notes set forth in the schedule, and that he then held no other securities of the company whatever.

The judgment, so far as relates to this matter should, therfore, be reversed, with costs, and a new trial ordered.


author: By the Court, Jones, J.

text:
    James Hogan, plaintiff and appellant vs. Michael Cregan, defendant and respondent.
    1. In an action by a father for the seduction of a daughter, proof of a want of chastity, loose conduct and bad character of the latter is always admissible in mitigation of damages, and particular instances thereof may be given in evidence.
    2. A party is only concluded by the answers given by a witness on cross-examination, as to such matters as are merely collateral, and not as to those which are pertinent to the issue.
    8. To constitute seduction, it is necessary for the seducer to employ arts to overcome 'the resistance of the seduced, and by wiles and persuasions, without force, debauch her.
    4. Mere criminal connection, per se, does not constitute seduction. It may be the result of an agreement, the proposition for which may have originated with the female, or into which she may have entered coolly and deliberately,' well knowing the consequences, in order thereby to obtain some coveted pecuniary or other advantage. Such a criminal intercourse does not fall within the ordinary and popular acceptation of the term “ seduce,” to which the law also ascribes a different definition. Per Jobes, J.
    6. So, too, the criminal connection may have "been procured entirely by force; in which case, the offense is not seduction, but rape. Per Jobes, J.
    6. Where a question is raised as to the seduction by. tho defendant of a daughter of the plaintiff, by a contradiction between her testimony and that of the defendant, evidence of previous unchaste conduct, on her part, may be received, as tending to corroborate the defendant’s statement. Hence a charge to the jury that they have a right to consider evidence offered by the defendant tending to prove the previous want of chastity of the daughter, in connection with other evidence, as bearing on the question of actual seduction, is not errroneous.
    7. Whenever a party desires to have a proposition, whose accuracy the court neither admits nor denies in its charge, submitted to the jury, it is necessary, in order to bring up the question properly, for his counsel to call the attention of the judge to it, by specially requesting him to charge either the affirmative or negative thereof, as he desires, and in case of a refusal to do so, to except to such refusal.
    8. In actions for seduction, mere criminal intercourse, alone, is not a sufficient ground for exemplary damages. It and its results, however, entitle the master or employer of the female who is a party to it, who, at the time of the intercourse, had a right to her services, to recover compensation for any impairment of that right thereby, and for siich expenses as he may legitimately incur, or be legally liable for, by reason thereof.
    9. After the introduction of evidence on the trial tending to establish a seduction by the defendant of the 'daughter of the plaintiff, all evidence properly admissible on the assumption that it had occurred, should be received, because the jury, if they should find that there was a seduction, have a right to punish the defendant by exemplary damages. Hence proof of money paid by the plaintiff in consequence of the illness of his daughter arising from her illicit intercourse with her supposed seducer, is admissible.
    10. Any error in the exclusion of such proof is cured by the finding of the jury that that there was no seduction, as those expenses were not recoverable unless the contrary were true; and the judgment should not be reversed therefor.
    11. If, at the time such expenses are incurred, the daughter is over twenty years of age, no legal obligation rests on the father to incur them; and he cannot by voluntarily taking upon himself a duty not imposed by law, cast upon the defendant a burthen which otherwise he would not have to bear.
    12. A judgment will not be reversed to enable the plaintiff to recover only nominal damages. Per Jones, J.
    (Before Barbour, Garvin and Jokes, JJ.)
    Heard March 13, 1868;
    decided April —, 1868.
    This action was brought to recover for the loss of the service of the adult daughter of the plaintiff occasioned by her seduction and debauchment by the defendant. A verdict was found for the defendant. A motion for a new trial was made at special term, which was denied, and judgment was thereupon entered in favor of the defendant. The plaintiff appealed from the judgment and from the order denying a new trial.

      The points presented on the appeal sufficiently appear in the opinion of the court.

      B. 0. Conable, for the appellant, plaintiff.
    I. The court erred in refusing to allow the plaintiff to prove the amount paid by him in consequence of the illness and confinement of his daughter.
    I. The plaintiff had proved that the defendant had debauched his daughter, and that at the time of the debauching she was under age, and lived in his family, where she performed various acts of service for him; that she became pregnant by reason of her illicit intercourse with the defendant, and was confined and delivered of a child at the plaintiff’s house; and that the plaintiff' bore the expense of her confinement. This proof made out a clear cause of action, and entitled the plaintiff to show the amount of damages he had sustained, one item of which was the necessary expenses which he had been compelled to pay.
    II. It is not a good objection to the plaintiff’s proving the amount of expenses paid by him that his daughter had become of age prior to her confinement.
    1. She was under age at the time the cause of action accrued, which arose when she was seduced; from that time the plaintiff had a cause of action against the defendant.
    2. The expenses paid by the plaintiff were the necessary result of the defendant’s wrongful acts, although not incurred till after the daughter became of age.
    3. At the time of the daughter’s confinement she was still living with the plaintiff, and supported by him; and continued, except during her illness, to perform service for him as she always had.
    4. Even if of age at the time she was seduced, it would make no difference; her father would still be entitled to recover, under the facts in this case. (Badgley v. Decker, 44 Barb. 577. Lipe v. Eisenlerd, 32 N. Y. Rep. 229. Reeves Dom. Rel. 292.)
    3U. Eor is it any good objection to the plaintiff’s proving the expenses paid by -him, that the defendant afterward gave. evidence tending to show that the daughter was a female of unchaste character.
    1. Evidence of unchastity only goes to the damages ; the plaintiff is entitled to recover his actual damages, although his daughter was of previous unchaste character. (Ackerly v. Haines, 2 Caines’ 292. White v. Nellis, 31 N. Y. Rep. 405. 2 Greenl. Ev. § 577. Verry v. Watkins, 7 Carr. & Payne, 308.)
    IV. The court erred in allowing a witness (Campbell) to contradict the daughter about being in a supper room, both because such evidence was immaterial, and the defendant having interrogated the daughter on the subject, was concluded by her answer. Howard v. City Fire Ins. Co., 4 Denio, 502. Commonwealth v. Buzell, 16 Pick. 158.)
    V. The court erred in allowing the defendant to prove acts of improper intimacy between the daughter and the' other persons, as the defendant having interrogated Margaret on the subject, was concluded by her answers; the evidence was immaterial, and evidence of specific acts of unchastity was incompetent; the defendant could only give evidence of general character for chastity.
    VI. The court erred in charging the jury, that, in order to constitute seduction, the defendant must use insinuating arts to overcome her opposition and gain her consent; and must, by his wiles and persuations, without force, debauch her.
    It is no defense to a civil action by the father for the seduction of his minor daughter, that she consented willingly, and that no insinuating arts, wiles, or persuasions were employed to'gain her consent; nor even would it be a defense if she had invited or solicited the connection.
    She has no right to consent. The action is brought for injuries done to the rights of the father, without his consent. The daughter is his servant, and he is entitled to her service; and in this case she was actually in his service. She could not, by any contract or act of her own, either • with or without the intervention of a third person, deprive her father of that right. To say that the presence of willingness on the part of the infant daughter, and the absence of wiles or artifices on the part of the seducer, is a defense to an action by the father for his damages, is equivalent to saying that the infant has it at all times in her power to deprive her father of his right to her services, without his consent. Such a doctrine is contrary to reason and to the fundamental principle that no man can be divested of his rights by the act of another, without his consent.
    VII. The court erred in charging that, if the testimony of the defendant was true, there could be no doubt that he was not guilty of seducing the defendant’s daughter, and the plaintiff could not recover.
    The defendant, in his testimony, admitted a clear case for the plaintiff; that he took the plaintiff’s daughter out for a walk, to a house of assignation; invited her to go in, which she did; he then had connection with her, and after-wards had connection with her at the same and other places; and did not deny that he was the father of the child. Upon this evidence the only question for the jury was one of damages. (Verry v. Watkins, 7 Carr. & Payne, 308.) The court, in the case last cited, in charging the jury, said: “ If you think that the defendant had such intercourse with the daughter of the plaintiff, as caused him to be the father of the child to which she gave birth, your verdict must be for the plaintiff.” (Ackerley v. Haines, 2 Caines, 291.)
    VIH. The court erred in charging that the jury had the right to consider the evidence tending to prove the previous unchastity of the plaintiff’s daughter, as bearing upon the question of actual seduction.
    1. The only ground on which this- evidence could be received or considered, was upon the question of damages. (Ackerley v. Haines, 2 Caines, 291.)
    2. It is no defense to such an action that force was employed to overcome opposition, or to accomplish the seduction. The doctrine that the use of force is a protection to the wrongdoer, against an action by the parent for his damages, is monstrous and absurd. It implies that the defendant has the right to do by force what he would not have the right to do by artifice and persuasion. In other words, that the defendant was justified in depriving the plaintiff of his right to his daughter’s service, provided he made use of force in doing so. The jury were substantially instructed to find in favor of the defendant, in case he employed force to debauch the plaintiff's daughter. This led to their verdict for the defendant; for the daughter testified that the defendant did make use of force.
    3. Besides, the daughter being an infant, as in this case, was legally incapable of giving consent. She could not, by consent or contract, bind herself; much less could she bind her father. Even if, without the use of wiles or artifice, the infant did consent to, or even solicit, the intercourse, the defendant had no right to do the act, even as against herself, much less as against her father. Any other doctrine is repugnant to every fundamental principle of law, as well as morality. But the court did not put it to them upon this ground, but as bearing upon the question of actual seduction, for the court says: “ For it must be difficult to believe that a woman notoriously unchaste, could, in contemplation of law, be seduced.” This part of the charge misled the jury; from it they had the right to infer, and they were substantially told, that if they found the plaintiff’s daughter was of previous unchaste character, they should find a verdict in favor of the defendant.
    IX. Upon the conceded facts of the case, as testified to by the plaintiff’s witnesses, and admitted by the defendant, the jury were bound to find a verdict for the plaintiff* and their finding the other way is against evidence.

      Edward McCarthy, for the respondent, defendant.
    I. It was not error to reject testimony which the plaintiff proposed to offer, to show that he, had paid the expenses of his daughter’s confinement. At the period of her confinement the young woman was over twenty-one years of age. Her father was under no legal obligation to pay the lying-in expenses, and the father, no more than a stranger, can recover them by suit against the defendant. Neither could the rejection of this proposed proof have affected the verdict of the jury. It could have been given only as evidence of specific damage, which resulted from the defendant’s wrongful act; if admitted, it would have been matter for the jury to consider when they should have come to determine the amount of damages to be given the plaintiff. But the jury did not get so far as this. By their verdict, they say that the plaintiff is entitled to no damages whatever. (Baynes v. Sinclair, 23 Vt. Rep. 113. Sargent v.-, 5 Qowen, 121.) The principle is the same in this case as in that where the expense of rearing the child is sought to be recovered by the father of the person seduced. And the same answer is to be given in both cases. Where the parent voluntarily incurs expenses, which indawhe was under no obligation to bear, he cannot charge them as a loss consequent upon the act of the defendant. These were freely and voluntarily assumed by the parent.
    II. Evidence offered by the defendant was admitted, tending to show that the plaintiff’s daughter was a person of lewd character. To the admission of this evidence objection was made by the plaintiff, on the ground that the defendant was concluded on this point by the previous testimony of the daughter—who could not therein be contradicted, the evidence offered being immaterial. It was not error to admit this testimony.
    1. In an action to recover damages for the seduction of a servant, evidence of the servant’s unchaste and dissolute conduct and character has always been recognized as material and important. It may be a partial or a complete defense to the action. The jury may give it no more weight than would suffice to reduce a verdict of damages to a mere compensation for loss of service, or they may lay so much stress upon it as to reject he claim of the master to damages altogether. And whether their verdict, influenced by this species of evidence, be for the plaintiff in a merely nominal sum, or for the defendant, is of no consequence.
    2. The facts, being admitted, that the relationship of master and servant subsisted between the plaintiff and the person alleged to have been seduced; that there was criminal intercourse between this person and the defendant, to which the plaintiff did not consent, the plaintiff is entitled to exemplary or merely compensatory damages, or to none at all, just as in the opinion of the jury the circumstances surrounding a particular case either present or are devoid of, features of aggravation. These circumstances arise, always and necessarily, from the previous character of the servant. The verdict, based upon consideration of these circumstances, is to be respected, whether it award nominal damages only, to a plaintiff, or entirely acquit the defendant.
    3. This action is never brought to recover mere compensation for loss of service. Exemplary damages are always sought after, and frequently recovered—and these can be asked for and given only where there has been a seduction: the degradation of an innocent child or servant; the consequent shame and dishonor of her parent or master. Where there has been no seduction of an innocent person, consistency in applying the rule requires that exemplary damages be not given; that the plaintiff recover no more damages than by strict construction will make good his loss, and if no actual or tangible loss has been sustained, that he get no damages at all.
    4. Previous unchastity or lewdness of the servant may be shown in two ways. First, by evidence of general bad character, and unchaste conduct; second, by evidence of particular acts of lewdness. The servant herself cannot be questioned on these matters; rather, is it her privilege to refuse to answer any questions that will tend to her disgrace; but all other persons who have knowledge, may testify both as to the general bad character of the servant and as to particular acts of lewdness on her part. If she, herself, choose to answer respecting these matters, she can therein be contradicted, because these are material to the issue, can always be put in proof, under the general plea of not guilty, and if clearly established, will authorize a verdict of merely nominal damages, or for the defendant.
    5. The testimony offered and admitted was material; it directly affected the issue, for it went to show the commission of particular acts of lewdness and unchastity, by the plaintiff’s daughter. (Very v. Watkins, 7 Carr. & Payne, 308. Taylor on Evidence, 1164. Rex v. Robbins, 2 Moody & Rob. 512. Andrews v. Askey, 8 Carr. & Payne, 7. Greenleaf on Evidence, vol. 2, 10th ed. eh. on Seduction. Cook v. Ellis, 6 Hill, 466. 1 Phillips on Evidence, 760, 4th Am. ed. Carpenter v. Wall, 11 Adol. & Ellis, 803. Dodd v. Norris, 3 Camp. N. P. C. 519.).
    HI. The exceptions taken at the trial, viz: (First.) To that part of the charge which says that in order to constitute seduction the defendant must use insinuating arts to overcome the opposition of the seduced, and musit by his wiles and persuasions without force seduce her; or (Second,) to that part of the charge which says, that if the testimony of the defendant be true, he was not guilty of seducing her, and the plaintiff cannot recover; or (Third,) to that part of the charge which says, that the jury in this case have .a right to consider the testimony offered by the defendant, tending to prove the previous unchastity of the plaintiff’s daughter, are untenable.
    1. The third exception can be disposed of in a word. The authorities are unanimous, and the principle is undisputed, that this kind of evidence shall be admitted. Whether it go to defeat the action altogether or to reduce the verdict to a mere compensation, is nothing to the purpose; the exception is general. Had the court instructed the jury that they ought to weigh this evidence, in determining the question of damages, the charge, undisputedly, would have been correct. Indeed, the court went further than the exception, for the charge says, “ This evidence, in connection

      with other evidence, is competent as bearing upon the question of actual seduction.” This part of the charge is correct, and for the obvious reason (given in the charge itself) to wit, that a woman of notoriously bad character, a common prostitute, cannot be seduced. Though this exception had been as precise as the charge, it would not have been well taken. The court had already said: “ Previous unchaste character of the seduced female is no defense to this action;” it maybe taken into consideration; ought to be considered, however, in determining the fact of seduction. And this fact should be carefully considered, because its presence ought to influence your verdict, certainly as to the degree, perhaps as to the nature of the offense.”
    2. The second exception is equally groundless. It excepts to what the charge does not contain. The court does not say that upon the testimony of the defendant, the plaintiff’s daughter was not seduced by him»; the court advances an opinion only. “It seems to me,” says the learned judge, “the defendant was not guilty of seducing the plaintiff’s daughter, if his evidence be true.” Surely such.an opinion could have been properly given.
    The court had already instructed the jury, that they were to determine whether the defendant was guilty of seducing the plaintiff’s daughter. ■ Again, says the court, “It is for you, the jury, and not for me, to say whether the plaintiff has made out a case.” The expression of opinion, then, was properly given, and could not have misled the jury.
    Even if it had been an absolute statement, qualified only by the hypothesis of the truth of the defendant’s evidence, as the exception asserts, it nevertheless would have been correct as a matter of law. If the defendant told the truth, he did not seduce the plaintiff’s daughter. But the exception itself ought not to be regarded, for it is not an exception to the charge or to any part of the charge. The court neither said “ that .if the testimony of the defendant be true, there can be no doubt he was not guilty of seducing her,” nor that “ on this hypothesis the plaintiff can not recover.”

      Throughout the charge, indeed, the court lays stress upon the fact of seduction. And properly, too, for if there had been no seduction, there could have been no damages, except by way of strict compensation for actual loss of service. But nowhere is it intimated that there must be seduction proved, or the plaintiff could not recover. On the contrary, it is strongly expressed, that mere seduction does not conclude the action ; that it is but an aggravating circumstance. The charge might have explicitly declared, that criminal intercourse, and consequent loss of service, were the necessary elements to maintain the action, but no such instruction was asked for. What bearing such an instruction could have had upon this evidence, it is hard to see. Not a word or sentence of the. case shows that the services of the child were of any value whatever to the plaintiff; that their loss affected him in any degree. If the jury had been directed to find a merely compensatory verdict, by what evidence could they have measured it ? Like almost every other case of its kind, this action is brought to recover exemplary damages. It shows cause for these or for none at all. (2 Greenleaf’s Evidence, 10th ed. 508. 8 Blackford, 123. Ackerly v. Haines, 2 Caines, 291.)
    3. The court says, “Seduction is the offense of a man who abuses the simplicity and confidence of a woman, to obtain by false promises what she ought not to grant. He must use insinuating arts to overcome her opposition and gain her consent, and must by his wiles and persuasion, without force, debauch her.” This language is the foundation of the plaintiff’s first exception.
    As a legal definition, and in the abstract, this part of the charge is entirely correct. Criminal connection, and seduction, are very different offenses in degree, surely, if not in kind. To have sexual commerce with a prostitute, or a public woman, though she be a minor, and though it give her parent or master a perfect legal right to maintain the action, per quod servitium' amisit, is not seduction, nor what the law means by this term. Neither is it seduction to debauch a female vi ei armis. To employ force to debauch a female is no defense to the person against whom an action for loss of service is brought, and the court nowhere in this charge lays down a contrary principle. But an impure assault is no more a seduction than is mere carnal and mutually voluntary intercourse. Any one of the three offenses may be proved either to aggravate, mitigate, or to lead to the rejection of damages; but it is not error to distinguish between them, nor yet to instruct that seduction does not imply force, any more than that rape is not seduction. For what purpose is evidence of previous unchastity always admitted, other than to show whether supposed loss of service arise from voluntary sexual commerce, or the more aggravated offense of seduction, or of impure assault ? (Bouvier’s Law Dic. vol. 2, Seduction, and cases there cited.)

    In the light of the evidence offered, this instruction not only was correct, but apt and appropriate. Loss of service is the legal gravamen of this complaint, but the virtual ground of the action is the seduction of the plaintiff’s daughter. The plaintiff chose the old form of declaration in case, not trespass, and complains that the defendant did “ entice and persuade ” his child and servant. Not a word of the complaint charges or implies force by the defendant against the female. Not a word of the evidence justifies the supposition that force was used by the defendant. The young woman voluntarily accompanies him to, and cohabits with him at public brothels, many times. It was as necessary, then, as it was apposite, for the court to instruct the jury what seduction was, leaving it for the jury to say whether such an offense was made out.
    The charge of the court was correct.
   By the Court, Jones, J.

The daughter of the plaintiff in this case, on her cross-examination, had been interrogated • as to being in a supper room with one Campbell and as to acts of intimacy between her and said Campbell and one Dougherty. Afterwards the defendant called, on his behalf, Campbell and Dougherty and interrogated them as-to those matters concerning which the daughter had been questioned. This was excepted to. The objections now urged, to its admissibility, are, 1st. That the evidence was immaterial. 2d. That the defendant having interrogated the daughter on the subject was concluded by her answer. 3d. That evience of specific acts of unchastity was incompetent. The objections are all clearly untenable. Evidence of unchastity, loose conduct, and bad character of the daughter is always admissible, in mitigation of damages. (Stark. on Ev. vol. 2, p. 991. Saunders on Pl. and Ev. vol. 2, p. 785.) Such unchastity and loose conduct may always be shown by proving particular instances thereof. The defendant was not concluded by the answers of the daughter. A party is concluded by the answers given on cross-examination only as to such matters as are merely collateral, and not as to those which are pertinent to the issue. (Bok v. Vincent, 12 Abb. 137. Newton v. Harris, 6 N. Y. Rep. 345.) As this defendant had a legal right to prove in mitigation of 'damages matters showing the unchastity, loose conduct and bad character of the daughter, they were pertinent to the issue.

The next exception presented for consideration is to that portion of the charge wherein the judge charged that “In order to constitute seduction the defendant must use insinating arts to overcome the opposition of the seduced, and must by his wiles and persuasions, without force, debauch her.” The definition is strictly accurate. This is the ordinary meaning and acceptation of the word “ seduce.” I have been unable to find that the law attaches any different meaning to it. Indeed it is, substantially, the definition given in BurriH’s Law Dictionary. The bare fact of criminal connection does not of itself constitute seduction. It may be the result of a mere bargain, an immoral one, it is true, incapable of enforcement,, but still a bargain, the proposition leading to which may have emanated from the woman, or which she-mayhave entered into coolly and deliberately, well knowing the consequences, in consideration of obtaining some pecuniary or other coveted advantage thereby. Such a criminal intercourse does not fall within the ordinary and popular definition and acceptation of the term “ seduce,” and the law has ascribed a different definition to it. Again; the criminal connection may have been compelled by force. To designate such an act, the law uses the term rape, not seduction.

The next exception to the charge, as stated in the ease, is to that portion wherein the judge charged, If the testimony of the defendant be true there can be no doubt he was not guilty of seducing her, and the plaintiff cannot recover.” The words “ and plaintiff cannot recover,” are not in the charge as given. The balance of this portion of the charge is, under the evidence, strictly correct.

The next exception to the charge is to that part of the charge wdierein the judge charged the jury “ that they had a right to consider the evidence offered by the defendant, tending to prove the previous unchastity of the plaintiff’s daughter.” The exception, as taken,' is not well founded. The jury clearly had a right to consider that evidence in mitigation of damages. But the judge charged that the jury had a right to consider it in connection with other evidence as bearing on the question of actual seduction; and perhaps the exception may be considered as extending to this. Even if so, the charge, under the evidence in this case, was correct. There being a question as to whether the defendant did seduce the daughter, raised by the contradiction between the testimony of the daughter and the defendant, the evidence of previous unchaste conduct might well be considered as tending to corroborate the defendant’s evidence.

From the points of the plaintiff’s counsel he would seem to be laboring under the impression that his case is in a shape to raise two questions not before adverted to, viz: 1st. That the fact of a criminal intercourse is of itself sufficient to justify a recovery of damages beyond a mere compensation for loss of service and a reimbursement for expenses incurred; or 2d. That it is sufficient to justify at least a recovery for such loss and expenses. In this, I think, he is in error. All the portions of the charge excepted to are correct. The difficulty is, the charge does not go far enough; it neither affirms nor denies either of these propositions. To bring the question up, the counsel should have called the attention of the court to them by specifically requesting him to charge the affirmative of them,' and excepting, in case of refusal so to do (Waugh v. Waugh, 28 N. Y. Rep. cited from p. 109.)

But suppose we consider these questions as if they were properly brought up. Allowing a plaintiff in this class of actions to recover damages other than to compensate for the loss of service and to reimburse such expenses as the plaintiff was under a legal liability to incur, is an anomaly in the law. This anomaly has thus far covered those eases only where the female was seduced, (as that term is above defined,) by the defendant.. The anomaly had its origin in detestation of the act of the man, who, after having by his arts, guile and persuasions lured a young, virtuous, inexperienced girl from the path of virtue, casts her off as a thing of shame, plunging her into the deepest of misery, and inflicting the greatest of all injuries on her parents and family. As the commission of the act of connection was with her consent, she could not, under the rules of law, sustain an action in her own name. The courts, then, with the view of punishing so outrageous an act, which otherwise would go unwhipt of justice, allowed the master, when a female servant had thus been seduced, to recover exemplary damages in an action brought to recover for the loss of the servant’s services. Following out the same doctrine, exemplary damages were allowed in all cases where the defendant, by his arts, persuasion and guile had induced the female to consent to the particular act of connection, although she may have previously been unchaste, or guilty of loose and immodest conduct; but as it necessarily followed that the seduction of one previously unchaste, or guilty of loose and immodest conduct, would not be as outrageous, as that of one pure and virtuous, the defendant was allowed to give the matter in evidence. The practical effect of this was to proportion the exemplary damages to the nature and character of the seductive arts used, and the previous character and conduct of the seduced; in some instances the damages being merely nominal.

As the action is founded on the relation of master and servant between the plaintiff and the seduced, and the loss of service sustained by the master through the act of the defendant, the exemplary damages being simply a superstructure upon this foundation, it followed that if the foundation was destroyed the superstructure fell with it. Therefore if either the relation of master and servant did not exist, or the master sustained no loss of service, the whole action fell, and no matter how outrageous the conduct of the defendant, no damages could be recovered against him. It will therefore be seen that the means of punishment devised by the courts was inadequate to meet all cases. It, perhaps, is to be regretted that the courts were, by their indignation and detestation of a defendant’s arts, led, against all principle, to fasten on this class of actions the doctrine that exemplary damages could be recovered. They have frequently been obliged to resort to flimsy pretexts to render the doctrine applicable to particular cases, and, after all, there are many cases which they have been unable, by any pretext or fiction, thus far discovered or announced, to subject to the doctrine.

If the courts had not interfered at all, there can be but little question that legislative enactments would have furnished a remedy based on rational principles, and covering all cases deserving to be provided for. As, however, the doctrine, on which exemplary damages are given in these actions, is, that otherwise the defendant would escape from merited punishment, since the seduced could bring no action, it is clear it has no application where the connection was had by force, for in that case the woman would have a right of action for assault and battery, the forcible connection being part of the battery, and rendering it an exceedingly aggravated one.

It is equally clear the doctrine has no application, when the connection was had without the use of force or seductive arts. Exemplary damages are given, not to punish for the mere act of connection, but for the disgraceful, dishonorable and outrageous conduct of a man in inducing a female to throw down the barriers of repugnance, modesty and virtue, stifle the monitor of morality, and consent to-an act, the inevitable result of which is degradation.

In closing this branch of the case, I refer to a few extracts from an opinion of that eminent, discriminating jurist, Chief Justice Bronson. (Bartley v. Richtmyer, 4 N. Y. Rep. 38.) “ The principle is the same as it is in an action for beating a servant, by means of which the master loses his services; In neither case does the act done to the servant give any right of action to the master, unless it results in an injury to him. For the beating itself the servant may sue, and so she might, for the debauching, if it were not for her consent. The principle is plain enough; but it has, to some extent, been lost sight of by the courts in their zeal to punish the defendant, and do something to heal the wounded feelings of others. It is obvious from the nature of the case that the master ought not, in point of principle, to recover any thing more than a compensation for the pecuniary loss which he has sustained, and such was formerly the rule in this action, as it is still where the master sues for the battery of a servant. But it is now settled that a father may recover exemplary damages for the seduction of his daughter. And verdicts for exemplary damages have also been allowed in a few instances, where the action was not brought by the father. But this error has not yet become bo inveterate as to be beyond the reach of judicial correction.”

Again, he says: “It is worthy of grave consideration whether it would not be well for the legislature to restore the old rule by limiting the recovery to the value of the services lost, and the amount of the expenses incurred in consequence of the injury. Parents would not be less watchful over their daughters for knowing that they could not make a pecuniary profit by their dishonor; and females would not be less chaste, if they knew that disgrace and shame, without any reward, would certainly follow transgression.” “The seducer deserves the severest censure; but if he is charged with any thing more than the pecuniary damages resulting to the parent, it is well worthy of consideration whether the matter should, not be regarded as a public, rather than a private wrong. I cannot yet consent to the modern doctrine that woman’s virtue should be fenced about by penal statutes If it has no higher and: more holy shield, it certainly will not withstand the trial. If such laws were not intended for good, I should regard them as an insult to the sex. There is nothing in this particular case which should tempt us to amend the law, if we had a right to do it, to uphold the verdict. Although Gitty was a witness on the trial there is not a particle of evidence to show that there was any thing Wee seduction, in the ease. JFor aught that appears, she may have heen as much in fault as the defendant.”

The first proposition, then, viz. that in these cases the bare fact of a criminal intercourse is sufficient to justify exemplary damages, is not warranted by any principle, or any adjudged case. With reference to the second proposition, viz. that the bare fact of a criminal intercourse entitles the master, who, at the time of the intercourse, had a right to the services of the female servant which has been impaired by that act, to recover compensation for the impairment of that right, and' for such expenses as he legitimately incurred and was legally liable for, I think it is correct, but in addition to the difficulty that the judge’s attention was not called to this point, and no request was made to him to submit the case to the jury in this aspect, there is another; the services lost were of the most trivial character, and would call for but nominal damages. Indeed no evidence of their value was offered. Judgments áre not reversed to enable a recovery of but nominal damages. If, then, the plaintiff is not entitled to recover for the expenses which he offered to prove, it would be improper to reverse the judgment for an error in not submitting it to the jury in ■ this aspect, even if the judge had been requested so to submit it.

This leads to the last exception remaining to be noticed, which is to the exclusion of the answer to the question, State the amount paid by the plaintiff in consequence of the illness of his daughter arising from her intercourse with the defendant ? ” When these expenses were incurred, the daughter was over twenty-one years of age. Therefore, under the proof in this case, there rested no legal obligation on the plaintiff to incur these expenses. He cannot, by voluntarily taking upon himself a duty not imposed by law, cast upon the defendant a burden which otherwise he would not have to bear.

But at the time the question was asked, the evidence was admissible in another point of view. Proof had been given tending to show a seduction of the daughter by the defendant. It could not then be told how the jury would find on the question of a seduction. All evidence, then, properly admissible on the assumption of there having been seduction, should have been received. Eow, as in the event of the jury finding that there was seduction, they had a right to inflict on the defendant exemplary damages, all evidence which would tend to furnish data for such damages should be received. It certainly is proper that a seducer' should pay lying-in expenses, as well as those of medical attendance. And when these are paid by the parent or master, that fact, and the amount of the expenses, should certainly form an item in the exemplary damages given, as well as the injury done to the girl, the disgrace brought on her or her family, or the laceration of the feelings of the parent or those standing in loco parentis.

I think, therefore, there was error in excluding this testimony. But since the jury, after the question of seduction had been fairly put to them, found that there was no seduction, the error has become immaterial. The proposed evidence had not, and could not have, the slightest bearing on the question of seduction, upon which alone the jury rendered this verdict. As these expenses were not recoverable except in case of seduction, and as the jury has found there was no seduction, upon which finding the testimony offered could not possibly have exerted any influence, the error in excluding it has become immaterial, and the judgment should not be reversed therefor.

Judgment affirmed, with costs.


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    S. S. Smith et al. plaintiffs and respondents, vs. Abraham D. A. Miller, impleaded, &c. defendants and appellants.
    1. The presentment of a check upon a bank in the city of Hew York, through the clearing house, the next day after it is drawn, is in season to charge the maker, if not paid and notice is given him.
    2. Even without evidence that such is the regular course of business for presenting checks drawn on banks in that city, the court can take judicial notice of the fact. A custom so well established and universally acted upon must be presumed to be generally known.
    3. Where, upon presentment of a draft to its drawees, for payment, they give their check for the amount, upon a bank in the city of Hew York, which is not presented to the bank on which it is drawn, until the next day, when it is presented through the clearing house, and payment refused, the draft will not be deemed paid, as to the drawers, so as to prevent a recovery against them for the debt for which the same was given; even if the check, had 'it been presented on the day it was drawn, would have been paid.
    (Before Monell, Garvin and Jones, JJ.)
    Heard May —, 1868;
    decided May 30, 1868.
    This was an action by the plaintiffs for goods sold and delivered by them to the defendants, in which the latter set up, among other defensés, that of payment.
    On the 16th of Hovember, 1867, the defendants being indebted to the plaintiffs, in the sum of $2968.69, balance due for sugar theretofore purchased from the plaintiffs, by the defendants, the plaintiffs wrote to the defendants as' follows:
    “Hew York, Hov. 16, 1867. Messrs. Miller & Greenier, Buffalo, H. Y.
    Dear Sirs: It is important to us to have our last sugar closed up by Tuesday. If you have not yet remitted us the balance on your lot, please do so on receipt of this, as we only wait for your amount to enable us to do so.
    $2968.69. Respectfully yours,
    • John M. Smith’s Sons & Co.”
    In response, the defendants, on the 18th of Hovember, 1867, mailed, at Buffalo, to the plaintiffs at Hew York, the following "draft.
    $2968.69. “Buffalo, Hov. 18,1867.
    At sight after date pay to the order of John M. Smith’s Sons & Co. twenty-nine hundred and sixty-eight -fifa dollars, value received, and charge to account of
    ' Miller, . Greenier & Co.”
    To Jas. K. Place & Co. Hew York.”
    On the 19th of Hovember, 1867, between 1 and 2 o’clock, the plaintiffs, (composing the firm of John M. Smith’s Sons & Co.,) indorsed the above draft and presented it to the drawees for payment; the drawees gave their check on the Manufacturers’ Hational Bank, dated Hew York Hovember 19, 1867, payable to the plaintiffs’ order, for the amount of the draft, to the plaintiffs, and received from them the draft.
    Thereupon the plaintiffs wrote to the defendants:
    “New York, 19th Nov. 1867. Messrs. Miller, Greenier & Co.
    , Gentlemen: Your favor of yesterday’s date, covering order on James K. Place & Co. for $2968.69, balance bill on sugars, has been received and said draft has been paid.
    We remain yours truly,
    John'M. Smith’s Sons & Co.”
    On the 19th of November, 1867, about 2 p. M. the plaintiffs deposited the check, indorsed by them, in their own bank, (The Citizens’ Bank.) It went from there to the clearing house, and was presented by the clearing house to the bank on which it was drawn, on the 20th of November, 1867,. a^iout twelve o’clock, when payment was refused. Thereupon the plaintiffs wrote to the defendants:
    “ New York, Nov. 20, 1867. Messrs. Miller, Greenier & Co. Buffalo, N. Y.
    Gent.: We wrote you yesterday acknowledging receipt of your order on James K. Place & Co. for $2968.69, and 'stating the same had been paid. We received in the usual course Messrs. Place & Co.’s check for the amount, but on presentation at the bank on which it was drawn said check was refused payment; the amount therefore remains unpaid by you. We are yours,
    John M. Smith’s Sons & Co.”
    This action was brought to recover the amount of the debt, for which the draft was drawn by the defendant.
    It appeared on the trial that during the whole- of the 19th of November, there was on deposit in the bank on which the check was drawn sufficient funds to pay the check, and that at the close of banking hours on that day there remained money enough in thfe bank to pay this check

      The judge directed a verdict for the plaintiffs. A motion for a new trial on the judge’s minutes, was made and denied. Judgment being thereupon entered in favor of the plaintiffs against the defendants, the defendant Miller appealed therefrom.

      J. W. Choate, for the appellants, defendants.

      E. T. Gerry, for the respondents, plaintiffs.
   By the Court, Jones, J.

There were three points raised and argued by the appellants’ counsel, on the argument of this appeal. Two of them were as to the rejection of certain evidence offered by him. The third and principal one was, that by the receipt of the check and neglect to present it on the day of its receipt, during the whole of which day there was sufficient funds in the bank to pay it, the draft is to be regarded as paid, as against the drawers, although there was no express agreement to accept the check in payment ; and that it results from this that the debt for which it was drawn, being the demand- sued on, must be regarded as paid.

The question as to whether a draft is, under such circumstannces, to be regarded as paid as against the drawer, has twice been before the Court of Appeals. In the case of Kobbe v. Clarke, decided in 1853, (Selden's Notes, No. 4, p. 11,) it seems to have been so regarded. But in the case of Turner (or Tanner) v. Bank of Fox Lake, (2 Appeal Cases, N. Y. Trans. 344,) it was held it should not be so regarded. There was an element in the latter case which did not exist in the former, and on the existence of which the latter decision turned. In the latter case the check was presented for payment through the clearing house on the day after it was received by the payee, and the evidence showed that this was the regular course of business for presenting checks drawn upon banks in the city of Hew York,

Upon these facts, which did not appear in the first case, it was held, that although if they did not exist the nonpayment of the check on the day of its receipt might be sufficient laches to discharge the drawer of the draft, yet by reason of the existence of these facts, there was no such laches in presenting the check on the day after its receipt through the clearing house, as would dishonor the drawer In the case at bar it appears that the check was presented through the clearing house the next day after it was drawn. It is true there is no evidence that this is the regular course of business for presenting checks drawn on banks in the city of New Tork. Such evidence was. offered, and excluded as being unnecessary. I think, however, judicial notice may be taken of such being the regular course of business. It is so well established and so universally acted on, and has been, for so many years, that it must be generally known. (1 Greenl. on Ev. p. 10, § 6. Smith v. The New York Central Railroad Co., 43 Barb. at p. 231.) It is not therefore necessary to send this case back for a n.ew trial simply to have proof supplied of a fact so known and conceded. "Under the. authority, then, of that recent case in the Court of Appeals, the draft in question was not to be considered paid as to the drawers.

The exceptions taken to the exclusion of evidence were,

1st. To the rejection of questions asking the bank officers if the check would have been paid if it had been presented on the 19th. It is unnecessary to pass on this exception, since in the disposal of the third point it has been assumed that the check would have been paid if it had been presented on the 19th.

2d. To the rejection of the offer to show why, although there were funds in the bank on the 20th, at the time of the presentation of the. check, it was not paid. The reason is immaterial, unless it was some negligence or fault on the part of the plaintiffs, which was not offered to be shown.

Upon the points raised and argued, (and we have examined no others,) I am of opinion the judgment should be affirmed, with costs.


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    George Jones, plaintiff and appellant, vs. The Merchants’ Bank of Albany, defendants and respondents.
    1. The maker of a promissory note cannot recover back choses in action pledged /by him as security for its payment with' the,,holder, simply when and because an action upon such note is barred by the statute of limitations. If the note :was originally obligatory, nothing short of actual payment, or a tender of it, will enable him to do so.
    2. The provisions in the Code of Procedure for the limitation of actions, do not entirely extinguish, for all purposes, a debt arising on an express obligation, although neither under seal, nor founded upon a judgment or decree, merely because no action has been brought upon it within six years after it accrued.
    (Before Robertson, Ch. J., and Barbour and Jones, JJ.)
    Heard June 6, 1866;
    decided April 1, 1867.
    In the former report of this case, (4 Robertson, 221,) the individual opinion of Robertson, Ch. J. was inserted by mistake as that of the court. The following opinion of Jones, J. was actually that of the court, and was accidentally omitted to be published in its proper place.
   By the Court, Jones, J.

The only question presented for consideration and decision in this case is: Can adpromissor, after the right of action upon his promissory note has become barred by the statute of limitations, bring an action to recover from his promisee a pledge which was pledged as security for the payment of such note, without either actual payment, or tender of payment of such note?

To enable the plaintiff to recover in this action, the above question must be answered in the affirmative. It, therefore,' devolves on the plaintiff to convince the court that an affirmative answer must be given to the question.

The plaintiff’s sole argument in support of the affirmative of the question, put in syllogistic form, is: After extinguishment of the principal debt, a creditor has no right to retain collaterals pledged for its payment; in this case, by expiration of the statute of limitations, the principal debt is extinguished; therefore, the creditors (the defendants) have no right to retain the collaterals which were pledged for its payment. This is a perfect syllogism, and if both the premises are correct, the result claimed is inevitable. The difficulty, however, is as to the correctness of the minor premise. Is the principal debt extinguished by operation of the statute of limitations ? The plaintiff says it is; the defendants say it is not. This presents the precise and only point for decision.

The Revised Statutes contained the following provision, (part 3, eh. 4, title 2, article 2:)

Section 18. The following actions shall be commenced within six years next after the causes of such action accrued, and not after:
1. All actions of debt, founded upon any contract, obligation or liability, not under seal, except such as are brought upon the judgment or decree of some court of record of the United States, or of this or some other state.
2. All actions upon judgments rendered in any court not being a court of record.
4. All actions of account, assumpsit, or on the case, founded on any contract or liability, express or implied.”

The provisions of the Code (by which provisions this action is to be governed) are:

“ Section 74. Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except * *
“ Section 89. The periods prescribed in section 74 for the commencement of actions other than for the recovery of real property, shall be as follows :

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Section 91. Within six years.

1. An action upon a contract, obligation or liability, express or implied, except those mentioned in section 90.”

The eases provided for in section 90 are causes of action arising on judgments or decrees of courts within the United States, and upon sealed instruments. Although there is some slight difference in the phraseology, yet the provisions of the Code are substantially the same as those of the Revised Statutes.

The question .presented, then, is this: Is a debt arising on an express obligation, not under seal, and not being a judgment or decree of a court within the United States, extinguished by force of the above provisions of the Code, by reason of an action not having been brought on the obligation, for the recovery of the debt,- within six years after the cause of action accrued ? It seems to me that this question must be answered in the negative, upon the authority of Waltermire v. Westover, (14 N. Y. Rep. 16.) In that case the action was ejectment. The plaintiff claimed the premises under a purchase made by him at a sheriff’s sale, under a judgment recovered December 15,1847, against one Robert Westover. The defendant claimed, under a purchase made by one through whom he claimed title, at a sheriff’s sale, under a judgment recovered against said Robert Westover, on the 25th of July, 1837. The latter judgment was recovered before a justice of the peace, and on the 27th of July, 1837, a transcript of it was filed, and the judgment docketed, in the office of the clerk of the county where the premises in question were situated. On the 12th of July, 1844, the premises were sold, under the judgment, to a person through whom the defendant claimed title. On the trial, these facts appearing, the plaintiff ’s counsel claimed that, inasmuch as the judgment rendered by the justice was more than six years old, and barred by the statute of limitations, and of no validity, the sale by the. sheriff, under the execution issued on such judgment, and the conveyance by the sheriff to the purchaser, passed no title. The court ruled otherwise, and ordered a verdict for the defendant. Judgment was entered on the verdict in favor of the "defendant, and affirmed at general term. An appeal was taken to the Court of Appeals. Two of the points urged in the Court of Appeals, by the appellant’s counsel, were, that it would be anomalous to allow a judgment to be enforced by execution, after the party had" lost "all right to maintain debt or scire facias on it, and that the judgment, .being lifeless at the time of the sale, the execution was equally so. The Court of Appeals decided, first, that the statute could only be held to reach and subvert the remedy by execution, by holding that the debt itself was discharged, or by interpolating language not expressly, or by fair implication, contained in the statute; and, secondly, that the debt itself was not discharged, and that there was no warrant for interpolating in the statute language, not expressly, nor by any fair implication, contained therein. The judgment in favor of the defendant was therefore affirmed. '

It will be seen that, in this case, the question whether the debt itself is discharged by reason of the operation of the statute of limitations, arose upon the second subdivision of section 18 of article 2d, of title 2 of chapter 4, part 3, of the Revised Statutes. As, however, the language of the section which prescribes the limitation, applies as well to the first and fourth subdivisions as to the second subdivision, and, as the language of sections 74, 89 and 91 of the Code (under which sections, it is claimed, that the debt in the case at bar is extinguished) is substantially the same as that of said section 18 of the Revised Statutes, and the first and fourth subdivisions thereof, it follows that- the case of Waltermire V. Westover is a direct adjudication against the proposition that the debt in the case at bar is extinguished by the operation of the statute of limitations.

The minor premise of the plaintiff’s syllogism is, therefore, untrue, and, consequently, the conclusion which would follow if it were true, does not result.

The judgment should be affirmed, with costs.

Barbour, J. concurred.