text:
    Davenport, Plaintiff and Respondent, v. Gilbert, Appellant.
    1. A notice of protest, dated on the day a note matures, describing it by the name of the maker, and its amount, and as indorsed by the defendant, and stating that such note is protested for non-payment, and that the holders look to him for payment, is sufficient in form, without stating further descriptive particulars.
    2. Although the defendant was, at the time of receiving such notice, the indorser of another note in all respects like it, which was outstanding and unpaid, except that it was payable three instead of six months after its date; still the notice is not insufficient by reason of its uncertainty, it being shown that a suit was pending on the note first due when the second note was protested, and that the defendant had answered in such suit before the note in question matured.
    3. It is not sufficient, to charge an indorser, to leave notice of protest at a building in a city corresponding in number with that written under his indorsement, without proving that such building was, at the time, the indorser’s place of residence or business, and was left with some proper person therein.
    4. Nor is it sufficient that a notice was sent to the indorser’s office, without proving that it was there delivered to him, or to some person in charge thereof, or that no such delivery could be made.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 8;
    decided, April 30, 1859.
    This is an appeal by Jasper W. Gilbert, the defendant, from a judgment in favor of Samuel W. Davenport, the plaintiff, entered on a verdict rendered on a trial had before Chief Justice Oaklet and a jury, on the 10th of April, 1856.
    The suit is against the defendant, as payee and indorser of a note reading thus:
    “ $524tW • Hew York, January 1st, 1854.
    “ Six months after date I promise to pay to the order of J. W. Gilbert five hundred and twenty-four TW dollars, at the 7th Ward Bank, for value received, with interest.
    “ P. J. Thomas,
    “Ho. 222 West 30th street.
    “ Endorsed J. W. Gilbert,
    “64 Trinity Buildings.”

      The complaint is in the usual form of one by indorsee against the first indorser. The defendant’s answer denies that due notice of non-payment or presentment of the note was given to him, and avers that no such notice was ever received by or sent to him. The pleadings are not verified.
    At the trial, the note and indorsement thereon, in the form above stated, were read in evidence.
    The Hotary testified that he presented the note for payment at the Seventh Ward Bank, on the 3d of July, 1854; that payment was refused and the note protested; that on the 5th he left a notice thereof, directed to the defendant, “at 64 Trinity Buildings.” “ There was another notice of the non-payment of this note sent to J. W. Gilbert's office, at 22 William street. This notice was marked on the outside, 22 William street, and with J. W. Gilbert's address on the back. These two notices were both dated July 3d, 1854, and described the said note by the amount.” That the notice sent to Trinity Buildings, was similar to the one sent to 22 William street, which was read in evidence, ^iz

    “Hew York, July 3, 1854.
    “ Please to take notice that a note made by P. J. Thomas, for $524T0Jn indorsed by you, is protested for non-payment, and that the holders look to you for payment.
    “Harman 0. Westervelt,
    “ Hotary Public.”
    The plaintiff having rested, the defendant proved that at the time such notice was sent, he was indorser upon another note, in all respects like the one in suit, except that it was payable three months after its date, and that such other note was outstanding and unpaid.
    The plaintiff then proved, against the objection and exception of the defendant, that a suit was pending on such other note at the time the note in suit became due, in which suit the defendant had put in answer on the 8th of May, 1854.
    The evidence being closed, the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to prove a sufficient notice, because, (1), “no legal service of the notice had been proved; (2), “ the notice did not sufficiently describe the note, and might refer to either one of the notes aforesaid.”
    The Court overruled the motion. The defendant was permitted to go to the jury upon the question of fact whether he was misled by the form of the notice, but he declined to do so. The Judge then decided that the plaintiff was entitled to recover, and so instructed the jury. The-defendant excepted. The jury found a verdict for the plaintiff for the amount of the note and interest, and from the judgment entered thereon, the present appeal is taken.

      J. W. Gilbert, in person.
    I. The service of the notice of dishonor was insufficient. The notice must be delivered to the indorser, or left at his place of residence or business with a proper person, or left at such place when there is no person present. (Code, § 409; U. S. Bank v. Hatch, 1 McLean, 90; Rives v. Parmly, 18 Ala., 256; Coster v. Thomason, id., 717; Saul v. Brand, 1 La. An. R., 95; Lord v. Appleton, 3 Shep., 270; Bradley v. Davis, 13 id., 45.)
    II. The notice was insufficient on its face. It did not inform the indorser which note was intended. (Cook v. Litchfield, 5 Sand., 330, 332; S. C., Ct. of Appeals, Dec., 1853; Parsons’ Mercantile Law, 112; 5 Seld., 279.)
    III. The fa.ct that an action was pending on the note which first matured, was immaterial. The notice given referred as well to the one note as the other, and both were still unpaid. This notice would have been, in every respect true, if the six months’ note had never been presented for payment.

      H. G. DeForest, for respondent.
    I. The notice of non-payment was clearly sufficient. A notice exactly like it was passed upon in the recent case of Young v. Lee. (2 Kern., 552, and cases cited; see, also, Stackman v. Pan, 11 M. & W., 809; Beals v. Peck, 12 Barb., 245; Cook v. Litchfield, 2 Bosw., 137.)
    II. The evidence offered of the existence of another note of the.same amount did not deprive the notice of its legal sufficiency.
    Evidence of this nature at most only tended to show that the defendant might have been misled.

      The testimony that a suit had been commenced on the other note against Gilbert, and that he answered in that action before the maturity of this note was relevant to show the contrary.
    III. The defendant declined going to the jury upon the question whether he was misled, and the Court properly directed a verdict for the plaintiff.
   Moncrief, J.

Upon the hearing of this appeal, the defendant argued the following propositions:

1. The service of the notice of dishonor was insufficient.

2. The notice was insufficient on its face: it did not inform the indorser which note was intended.

3. The fact that an action was pending on the note which first matured was immaterial.

The first and last points were not much pressed upon the argument—the question mainly discussed being that presented by the second point. The first point, however, was distinctly made upon the trial and now forms part of the case, and must be considered in disposing of the appeal.

Notice of the non-payment of the note was necessary in order to charge the defendant as indorser. He was entitled to such a notice as would inform him of the protest of the note' in suit. In determining whether the notice was sufficient, the circum-stances of the ease—the fact that he had indorsed but two such notes; that one was past due, and either had or had not been protested; that a suit on that note was actually being litigated by him; that one was payable at three, and the other at six months after date; that the date of the present notice is the day of the maturity of the last note; all of which was within the knowledge of the defendant—may be taken into consideration with a view to show that the defendant could not possibly have been misled or mistaken in regard to the meaning of the notice and the identity of the note. There could be no uncertainty as to which of the two notes was protested on the 3d of July, 1854. One had been due for three months, and a suit thereon had been pending against the defendant for nearly the same period. The other note (the note in controversy) became due on that day. A similar notice was held good in Youngs v. Lee. (2 Kern., 552; see, also, 5 Seld., 286; 23 Wend., 626.)

It was proper to admit evidence of the fact of the suit pending upon the first note, and the answer of the defendant therein to meet" the suggestion that he was or might be misled by the notice in the present action—a suggestion based on the fact that the defendant had indorsed two notes of the same date and amount. Whether the defendant could or could not have been misled’was a question of fact; and he declined to submit it to the jury.

The Court did not err in its ruling with regard to the second or third point.

As to the service of the notice, the most liberal view that the evidence will admit on behalf of the plaintiff is, that the Notary left one notice at 64 Trinity Buildings, and sent another to the defendant’s office at 22 William street. The address marked on the note, affixed to the indorsement of the defendant, might, under certain circumstances, authorize a notice to be served upon some person at that place, or left there; but that would • not be a proper place to leave it, if the Notary knew it had ceased to be the" defendant’s place of business, unless his new place of business was not known or could not be ascertained' upon inquiry. It is the duty of the Notary, or of the holder, to make diligent search and inquiry for the maker, his place of business or residence, in order to present the note and to protest it for non-payment; and I can see no good reason why the same diligence should not be required and exercised as against the party alone to be made liable by such diligence. The proof of service should show either that the notice was served personally, or, if the indorser could not be found, that it was left at his resi denee or place of business, or furnish some sufficient reason for other service being made. It is a just inference from the evidence that the Notary knew the place of business of the defendant. The evidence did not show what place 64 Trinity Buildings was, what connection, if any, the defendant had with it, to whom, if to any person, the notice was delivered, or the relation such person had to the defendant, or what disposition was made of the notice at that place. The other notice was sent to the office of the defendant at 22 William street. It does not appear by whom or by what means this was sent, nor to whom it was delivered, nor that- it actually reached the building having that number. This, in my opinion, is not sufficient. Notice should be brought home to the defendant either by personal service or by leaving the same with some person at his place of business or residence, or some reasonable excuse should be given for the omission. (See 6 Duer, 492; 16 N. Y. R., 237; 11 Johns., 232; 3 Seld., 481; 24 Wend., 230.)

The act of 1857, (ch. 416, p. ■ 839,) seems to sustain this view, as its object is to relieve holders of notes, &c., from embarrassment as to the manner of serving notice in order to charge the indorsers. The act, however, in express terms, excludes from its operation all notes made prior to its passage, and, of course, does not affect the note in suit. '

The service of the notice not being sufficiently proved, the judgment must be reversed solely oh this ground, and a new trial ordered, with costs to abide the event.

Bosworth, Oh. J., and Hoffman, J., concurred.

Judgment reversed, and new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: By the Court—Hoffman, Justice.

license: Public Domain

text:
    George Wade, Executor, &c., of George Rusher, v. John B. Rusher, David T. Easton and others.
    1. Where suit is brought by one of two partners against the other, to obtain an accounting and payment of a balance justly due from the defendant to the plaintiff, and to set aside as fraudulent a release from liability as such partner executed by the plaintiff to the defendant; a third person who has fraudulently and without consideration obtained from the defendant portions of the partnership property may also be made a party, in order to subject the property so held by him to the nayment of any balance due from the defendant to the plaintiff
    2. The cause of action is single, viz.: the right to an accounting and an application of the partnership property to the payment of the sum due from the defendant.
    3. The partner to whom a balance is due has a lien upon the partnership property, and upon other property into which it may have been converted by the debtor partner; not only as against him, but as against all assignees of it who are not Iona fide purchasers of it for value.

      4. Although portions of such property may have come to the possession of different persons, all such persons who are not purchasers of it for value are proper parties, as'the subject of the action, the partnership property is single, as well as the object of the action, an application of it to pay a balance to the partn'er to whom it is due.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 15;
    decided, April 30, 1859.
    This is an appeal by the defendant, Easton, from an order made by Chief -Justice Bosworth in December, 1858, overruling a demurrer taken by defendant, Easton, to the plaintiff’s amended and supplemental complaint.
    The original complaint was filed by George Wade, as executor of George Rusher, against John B. Rusher and Mary A. C. his. wife, and stated in substance as follows:
    That previous to the year 1841, George Rusher was engaged in business as a tinman in the city of New York, and had a stock therein of the value of $400; that in the said year 1841, a partnership was formed for carrying on such business between the said George and the defendant John B. Rusher, under the name J. B. & G. Rusher; John B. was to advance $800 in cash, and George his stock and fixtures, experience and skill, which were to be taken as of equal value with the said $800. The interest of ■ each in the capital, profits • and losses was to be same. . The partnership was to be continued from year to year until dissolved by mutual consent. It lasted until the 18th of September, 1851, when it was dissolved by such consent.
    The death of George Rusher, leaving a last will and testament by which the plaintiff was appointed his executor, and proof of the will in August, 1853, are then stated.
    It also stated that the books were kept, and the financial part of the concern'was managed by John; that they were carelessly kept, yet show a balance due to the estate of George of over $10,000; that the books have been examined by a competent accountant. Some details from them are then stated, from which the allegation of such a balance of debt appears to be made out.
    That the health of said George began to fail in 1845, after which John B. had the mangement, and George no information of the affairs of the concern, except as derived from him. John B. represented, when applied to for money, that the concern was earning little, and could not afford to pay more than was paid, as afterwards set forth.
    That from the time George Rusher became indisposed until the 2d of December, 1848, he received only $3 a week from his partner; from that date until the 4th of December, 1849, but $2, and from thence to the month of December, 1851, but $1, when the allowance was wholly stopped.
    That the said George brought an action in the Supreme Court against the said John B., to compel an account and payment of the balance due him, on the 15th September, 1851, and obtained an injunction. On the 18th of September, upon the representations of John B. of his utter inability to pay the amount due to George, it was agreed between them that the whole business should be assigned to George; and John B., in consideration thereof, should be fully released.'
    The bill states the repeated false and fraudulent representations of John B. made to induce this settlement, both as to his own inability to pay, and the state of the partnership business. In consequence of these representations, and believing and relying on the truth thereof, the assignment was accepted, the suit discontinued, and a release given to John B. from all liability on account of the arrearages of profits.
    That since such settlement, discovery has been made that John B. had applied the partnership earnings to his own use, and that of his wife, Mary A. 0. Rusher, except the sum of about $1,005.51 paid to George in his lifetime, and that the sum so applied amounted to $20,000.
    There is then an allegation that the profits and earnings were employed in purchases of real estate, and that John B. caused conveyances of such real estate to be made to Mary A. C., his wife; that such real estate, or some part of it, was purchased with the profits of the firm, and is held by said Mary as trustee for her husband, with the fraudulent intent to keep the same from the creditors of said John B. There is then a specification of various parcels of property alleged to have been thus purchased and holden, with an averment of the full knowledge by said Mary of the fraudulent acts of her husband.
    The complaint prayed, that an injunction against parting with or encumbering the property be granted; that a receiver of it be appointed; that the release be declared null and void; and that the property so held by'the said Mary might be declared liable for such sum as should, upon an accounting, be found due by the said John B. Rusher to said George, and that the plaintiff have judgment therefor.
    The amended supplemental complaint, so far as it is necessary to be recited for the present purposes, states that in the latter part of 1851, John B. Rusher employed the defendant Easton, to attend to certain professional business, who thus became ac quainted with such business and with the wife of John B.; that Easton became an inmate and boarder in his house; that the wife influenced the husband to give Easton a full power of attorney, authorizing him to sell, convey, and mortgage portions of the real estate; that Easton fraudulently and for a nominal consideration conveyed all the real and personal property of JohnB. Rusher amounting to upwards of $15,000 to one McGinness, who, on the same day, reconveyed it to said Easton. The lots and parcels of property so held by Easton and by Mary the wife-are specifically set forth. And it is averred that a large portion of the funds of the partnership, appropriated as aforesaid, are invested in the said several lots of land so held by said Mary and by said Easton. Edward K. Orrell and Mary Orrell are also made parties defendants by the said supplemental complaint, and it states that they are the father and mother of Mary A. C. Rusher, and that said Mary Rusher and Mary Orrell broke open a trunk belonging to John B. Rusher containing funds belonging to said firm, and took and stole from it $800, which money is in the possession of Mary Orrell, and is represented in whole or in part by certain specified real estate, the title to which is nominally in said Mary Orrell.
    The supplemental complaint prays for an injunction and receiver, “ and that the plaintiff may have judgment herein as before prayed;” by the words “before prayed,” referring to the original complaint.
    The defendant Easton, demurred to the amended and supplemental complaint oh the grounds: First, that several causes of action had been improperly joined, viz., causes arising on contract and causes arising in fraud, and causes of action against part of the defendants only, with other causes against all. Second, that the complaints do not state facts sufficient to constitute a cause of action against the defendant Easton. That they do not show the plaintiff to be a judgment creditor of John B. Rusher; that they show a' release of the original cause of action uncanceled; that they do not show a demand for the rescission of such release; neither do they ask any final relief against the defendant Easton.
    The demurrer was overruled, with liberty to withdraw it and answer within twenty days, and from the order entered thereon this appeal is taken.
    E. S. Van Winkle, for appellant.
    I. The grounds of demurrer first assigned, are sufficient to sustain the demurrer, viz.:
    That several causes of action have been improperly inserted in the complaint, causes of action founded on contract, and causes of action based on fraud and conspiracy to defraud, a cause of action by a creditor at large against one defendant only, with a ' cause of action for equitable relief against other defendants, and particularly against this defendant, founded on their and his alleged possession of property alleged to belong to the alleged. » debtor, and causes of action against part of the defendants only, with causes of action against all of the defendants.
    Section 167 of the Code of Procedure, shows what causes may be joined:
    1. “ All causes joined must arise out of the same transaction, or transactions connected with the same subject of actions.”
    2. “ Or all arise out of contracts express or implied.”
    3. “ Or all arise out of injuries, with or without force, to person and property, or -either.”
    4. Or all arise “ out of claims to recover real property with or without damages for the withholding thereof, and the rents and profits of the same.”
    5. Or all arise out of “claims to recover personal property with or without damages.”
    6. Or claims against “ a trustee by virtue of a contract, or by operation of law.
    “But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action, and must be separately stated.” (Boyd v. Hoyt, 5 Paige, 65.)

      The causes in this complaint manifestly do not all belong to one class, nor do they affect all the parties, nor are they sepa rately stated.
    The rule whereby the impleading of several parties not jointly concerned in all the transactions charged, has been held not to be multifarious, is only applied to cases where there was one connected interest all centering in the point in issue in the cause, or one common point of litigation, or that the joinder tended to prevent a multiplicity of suits. (See the two leading cases in this State; Brinkerhoff v. Brown, 6 Johns. Ch. R., 139; Fellows v. Fellows, 4 Cow., 682; see also Cross ads. New Haven R. R. Co., 7 Abb. Pr. R., p. 47.)
    What is the point in issue in this case, or the common point of litigation ?
    Is it not that John Rusher obtained the release by fraud ?
    If the release is good, can this action be sustained at all ?
    If the release is bad or null, will not the point in issue be whether John owed George anything ?
    If Easton has defrauded John of property, what has the plaintiff to do with that ?
    If John had filed this bill against Ms co-defendants, he might bring it within the rule that all the acts centre in the point in litigation, that is, combined fraudulent acts to deprive him of his property.
    If the conspiracy charged were to defraud the plaintiff," there might be a single point in issue within the meaning of the rule.
    H. The second cause of demurrer is as follows:
    The complaint does not state facts sufficient to constitute a cause of action against Easton, because:
    I. It does not show that the plaintiff is, or that the testator was a judgment creditor of John B. Rusher, and therefore entitled to ask relief against this defendant. (Wiggins v. Armstrong, 2 Johns. Ch. R., 144.)
    In this case the Chancellor says: “This is the case of a creditor on simple contract, after an action commenced at law, and before judgment, seeking to control the disposition of the property of his debtor under judgment and executions, upon the ground of fraud. My first impression was in favor of the plaintiffs, but upon examination of the cases, I am satisfied that a ereditor at large and before judgment and execution, cannot be entitled to the interference which has been granted in this case, (an injunction.)” In support of this position, he cited and commented on Angell v. Draper, (1 Vern., 399,) and Shirley v. Watts, (3 Atk., 200,) Bennet v. Musgrave, (2 Ves., 51,) Balch v. Wastall, (1 P. Wms., 445; Mitford, 115; Cooper Eq. Pl., 149,) The Corporation of New York v. Mapes, (6 Johns. Ch. R., 46,) Snowlen v. Noah, (Hop. R., 353,) Brinkerhoff v. Brown. (4 Johns. Ch., 671.)
    2. In this case the plaintiff has neither judgment nor execution, but on the contrary shows himself that he gave the debtor a release, which release is now in force, and yet he seeks to recover from Easton property which never even belonged to the debtor.
    3. The complaint does show an outstanding release of the alleged cause of action against John Rusher.
    4. It shows no privity of contract between the plaintiff and this defendant.
    5. There is no conspiracy to defraud the plaintiff alleged, but merely a conspiracy by some of the defendants to defraud another defendant, which is no ground of action by plaintiff.
    6. No demand for the rescission of the release is alleged. (Boughton v. Bruce, 20 Wend., 234.)
    7. No offer to return to John Rusher the property received from him as a consideration for the release.
    This is necessary. (Masson v. Bivel, 1 Denio, 69; Bruen v. Hone, 2 Barb., 586; Rosenbaum v. Gunter, 3 E. D. Smith’s, 203.)
    8. But plaintiff has no right to rescind. The release was given on a compromise of plaintiff’s claims, then sought to be recovered in a suit at law, and the cause of action therein was the very cause herein set up.
    The release is given in 1851.
    The original complaint is filed in 1854.
    The supplemental in 1858.
    This settlement was made at arms-length, when plaintiff’s testator had impleaded John Rusher for the fraud, and if they then took his mere assertions for truth, they are bound. (See Fisher v. Conant, 3 E. D. Smith’s, 199.)
    9. No final relief is asked against this defendant. No one is a proper party against whom no judgment is prayed.

      A third party cannot be impleaded merely to ask an injunction against him; there must be some substantive relief prayed for. (See Sweet v. Ingerson, 12 How. Pr. R., 331; Enos v. Thomas, 4 id., 48; Tompkins v. White, 8 id., 520; Dorman v. Killam, 4 Abb. Pr. R., 202.) There should be judgment for defendant Easton, on the demurrer, with costs

      James Morrogh, for respondent.
   By the Court—Hoffman, Justice.

The question may properly be examined upon the rules which would have governed a similar case before the Code; and then upon" the point, whether the Code has varied the rules we may find to have prevailed.

In the first place, it is necessary to advert to a most important position of the. defendant’s counsel, upon which much of his reasoning proceeds, and which I apprehend is erroneous.

The cause of action—the point in issue—the common point of 'litigation, is not, as he urges, the setting aside of the release given by George to John B. Rusher. The foundation and primary cause of action is the partnership relation between the two, the asserted debt from John to George upon the transactions of that partnership, the investment of the funds of the firm (among other property) in various parcels of real estate specified, and the right to follow that property for the satisfaction of that demand.

Test this point by the ancient practice of the Court of Chancery before the disuse of special replication, and the introduction of what is termed the charging part of a bill. The plaintiff here would have set out his case as representative of the deceased copartner, alleged an indebtedness, demanded an account, asserted a lien upon the property in which the firm funds were invested, and sought to reach it by a decree. The defendant would have set up a release by plea or answer. A special replication would have assailed the release on the ground of fraud.

But afterwards the system of anticipating a defense arose, and the pleader put it in the shape of a pretense of the defendant, and met it by a charge of matter designed to overthrow, it. (See Hoff. Ch. Pr., vol. 1,41-43.) An example is given by Lord Redesdale of an heir-at-law filing a bill upon some equitable ground; and expecting a will to be set up, states it by way of a pretence of the defendant, and makes charges to impeach it.

Although Mr. Justice Harris appears to consider that this mode of framing a complaint is no longer proper, yet in the case before him, the pretense and charge were clearly improper under the former system of pleading. The charge was merely a restatement of the fact alleged in the complaint, and the pretense a statement of the defendants’ denial of it. (Clark v. Harwood, 8 How., 470.)

I do not suppose that there is anything in the Code prohibiting a plaintiff from framing a complaint in the manner this complaint is framed—setting forth an original right off action; setting forth a defense,-such as an account stated, or release, which may interfere with that right, and making statements which tend to remove that defense. The test of the question is this : that, without the statements showing the original cause of action, irrespective of the release, the complaint would be useless, however sufficient its allegations might be to set aside that release. The case of Phillips v. Gorham, (17 N. Y. R., 270,) appears to me decisive of the point: indeed, it is a much stronger case.

I apprehend, then, that the primary subject of the action, and its primary object, is the right to, and relief by, an account of the partnership dealings, and the payment of the debt alleged to be due, with the judicial determination that a lien exists for that debt upon the property specified. The removal of the release is' subordinate and auxiliary thereto.

The next point of importance insisted upon by the defendants’ counsel is, that the plaintiff cannot sustain such a claim for relief as he seeks against the defendant Easton, until he has obtained a judgment for his demand against the copartner of his testator, involving, of course, the cancelment of the release; that a lien is indispensable to entitle any one to assert any claim to the real estate in the hands of Easton; and that the relation is precisely the same as that of a creditor without a judgment.

. I apprehend, however, that there are few points in the law of partnership more fully settled than this: that, where real estate has been purchased with partnership funds, each partner has an equitable lien upon it, not only as representing creditors to secure their rights through such lien, but for payment of his own eventual demand. If thé title is taken in the name of one, he is a trustee, and the copartner a cestui que trust. This equitable lién may always bé successfully asserted against the partner, against his heirs, devisees, or his voluntary assignees, and against all except purchasers for value without notice. (The cases are collected in Oollyer on Partnership, 4th Am. ed., §§ 125, 127, 135, and notes.)

If this conclusion is correct, then the two cases of Fellows v. Fellows, (4 Cow., 682,) and Boyd v. Hoyt, (5 Paige, 65,) appear to be decisive of the right to sustain the action as framed. When a judgment is obtained, a creditor’s bill may be filed to reach the debtor’s property; and different grantees of different parcels transferred fraudulently may be made parties to one bill. The lien affects every parcel and every grantee. The concurrence in accepting and upholding the fraudulent transfers creates a common responsibility, and makes the main object of the suit common to all.

It can scarcely be necessary to say, that the joinder of causes of action and of parties, which would have been allowed before the Code, will be permitted under the 167th section.

It remains to be examined whether the allegations of the present complaint are sufficient to bring the case within the rules of the authorities cited.

Easton is alleged to have been the attorney of John B. Rusher, and well acquainted with his dealings as well as those of his wife with the property in question. It is very clearly averred that the funds of the firm were invested in these specified parcels, some of which Mary took fraudulently to aid John.in deceiving creditors, or to deceive himself and get control. Easton gets a power of attorney, through which he effects a transfer of the legal title to himself of all these parcels without any consideration, and apparently in violation of his duty to John. • But, at any rate, under such conveyances as he claims upon, he stands exactly in John?s position—thelands in his name are charged and affected with the equitable lien as fully as they would be if they remained in John’s name.

The order at Special Term must be affirmed, with costs.


author: By the Court—Bosworth, Ch. J. Hoffman, J. (Dissenting.)

text:
    Simons, Plaintiff and Appellant, v. De Bare, Respondent.
    1. The record of an inferior court to be competent evidence of a due judicial determination of the facts which it declares such Court to have decided, must show on its face that the Court had jurisdiction both of the action, and of the persons of the parties.
    2. As the statute which establishes “ The City Court of Brooklyn ” and defines its jurisdiction, declares that “its jurisdiction shall extend,” (1st), to certain actions which it enumerates, “when the cause of action shall have arisen, or the subject of the action shall be situated within the said city; (2d), to all other actions where all the defendants shall reside or be personally served with the summons within said city;” such Court' is an inferior court, within the meaning of the rule first above stated.
    3. To constitute a court a superior court as to any class of actions, within the common law meaning of that term, its jurisdiction of such actions must be unconditional, so that the only thing requisite to enable the Court to take cognizance of them, is the acquisition of jurisdiction of the persons of the parties.
    4. Although section 4 of the statute establishing “ The City Court of Brooklyn ” enacts that, “ the said City Court shall possess the powers and authority in relation to actions in said Court, and the process and proceedings therein as are possessed by the Supreme Court in relation to actions pending in the said Supreme Court And all laws regulating the practice of the Supreme Court, and the course of procedure therein, shall, as far as practicable, apply to and be binding upon the said City Court, and the said City Court shall have power to review all of its decisions, and to- grant new trials;" such section cannot be so construed as to make a part of such statute, a subsequent act in relation to courts named in it, and not including said City Court, to the effect, that “ a voluntary appearance of a defendant is equivalent to personal service of the summons upon him.”
    5. The said 4th section prescribes generally the practice in actions, pending in the City Court of Brooklyn and its power over the process and proceedings in such actions, and cannot operate prospectively so as to apply to said Court subsequent statutory amendments of the Code of Procedure . which, in terms, in no way refer to said Court, in such sense as to enlarge its jurisdiction, and make it extend to actions of which, by the statute establishing and defining its powers, it has no jurisdiction.
    6. A judgment of said Court which purports to have been rendered “ on hearing Mr. Samuel Brown, for the defendant," does not, by such a recital alone, show that the defendant caused his appearance to be entered in the action, nor that he personally appeared therein, nor that any attorney of said Court served “ notice of an appearance, or retainer generally " for the defendant in such action; and is not, of itself, sufficient to show that such Court acquired jurisdiction of the person of the defendant.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Pierrepont and Moncrief, J. J.)
    Heard, April 9th;
    decided, May 7th, 1859.
    This is an appeal by the plaintiff from an order made by Mr. Justice Piebbepont, granting a new trial. The action, was tried before the said Justice and a jury, February 19th, 1858, when the plaintiff recovered a verdict for $2,500 damages. The action is assault and battery, and is brought by Henry Simons against Reuben B. De Bare.
    On the trial, the plaintiff called as a witness Fanny Behrman, who had been married to the defendant on the 17th of August, 1856. (The assault and battery were committed on the 16th of said August.)
    “ The defendant’s counsel objected to her being sworn, on the ground that she was incompetent as a witness against her husband. The plaintiff then offered to prove by parol that a divorce had been .granted, to which evidence defendant objected, and the objection was sustained. The plaintiff then offered in evidence a certified copy decree, of which the following is a copy:
    “ At-a.Special Term of the City Court of Brooklyn, held at the City Hall in the city of Brooklyn, on the '10th day of March, A. D., 1857,
    “ Present—Hon. E. D. Culveb, City Judge.
    “ Fanny De Babe, by Zion Bebnstein, her next friend, &c., against

    “ Reuben B. De Babe.
    “ This action having -been brought on to be heard upon the complaint herein, and upon report of Wm. T. B. Milliken, Esq., a referee duly appointed in this action, from which it appears that all the material facts' charged in the said complaint are true, and that said defendant was, at the time of said marriage, physically ■incapable of entering into the marriage state, and that said incapacity still exists and is incurable.

      “ Now, on motion of O’Brien & Higinbotham, attorneys for the plaintiff, and on hearing Mr. Samuel Brown, for the defendant, it is ordered, adjudged and declared that the said marriage between the said plaintiff and the said defendant mentioned in the complaint was null and void, and the same is hereby declared a nullity, and the said parties are, and each of them is, freed from the obligations thereof.
    “ And it is further adjudged and decreed, on the stipulation and consent of the parties, that the said plaintiff, Fanny De Bare, do recover and receive from the defendant, and that said defendant do pay to her the sum of twelve hundred dollars in full for all claim of dower, and right of dower, and thirds, in the estate and property of the defendant, and in full for the costs and disbursements in this action, and that said plaintiff, by the said Zion Bernstein, as her guardian and next friend, do execute to said defendant a full and satisfactory release thereof for the consideration aforesaid.
    “Endorsed.’ Filed March 10, 1857, 3:30 p. M.
    “ Kings Countt, Citt of Brooklyn, i “ In the Clerk's Office of the City Court of Brooklyn, j lss-J
    “ I do hereby certify that I have compared the foregoing copy of an original decree of divorce with the original now recorded in my office, and that the same is a correct transcript thereof and of the whole of said 'original.
    “ In witness whereof, I have hereunto signed my name and [l. s.] affixed the seal of the said The City Court of Brooklyn, this 23d day of November, 1857.
    “ Sam. L. Harris,
    “ Clerk of the City Court of Brooklyn.
    “Defendant objected to the admissibility of said decree as evidence of the facts therein cited, because it did not appear from said decree that the City Court of Brooklyn had jurisdiction to declare the marriage contract a nullity, or had acquired jurisdiction of the person of the defendant, or jurisdiction of the cause of action or subject matter of the proceeding. The Court overruled said objections severally, and decided that said copy decree was admissible in evidence, to which several rulings the counsel for defendant did then and there except. Said certified copy decree was then read in evidence, to which reading defendant objected. The court overruled the objection and the defendant excepted. The plaintiff again offered said Fanny Behrman as a witness in the action against the defendant. The defendant objected to the admissibility of said witness. The Court decided that said person was a competent witness as to matters which occurred prior to the marriage, to which decision defendant excepted. Said witness was then sworn in the cause, and testified to matters which occurred prior to the marriage material to the issues in behalf of the plaintiff and against defendant.”
    A verdict having been rendered in favor of the plaintiff, and a motion made for a new trial having been granted, the plaintiff appealed from the order granting a new trial to the General Term.

      P. Y. Cutler, for appellant (the plaintiff).
    I. The mere fact that a decree was made, the res ipsa, may be proved by a production of the decree without the pleadings. (1 Greenl., § 511.)
    II. A record of a court having a seal and clerk proves itself, because it is a record of a court of record, and imports absolute verity, (Greenl., § 503;) and it is conclusive between the same parties upon the matter adjudicated, because it is presumed to have jurisdiction. (1 Phill. Ev., 385, and notes; note 714, p. 1061; as to foreign Courts of Admiralty, see Story’s Confl. L., 643 ; Coke Litt., 352 a.)
    III. The City Court of Brooklyn is as much a court of record as the Superior Court is a court of record, and its records under seal are entitled to equal respect.
    1. That the Court had jurisdiction of the parties is proved by the record.
    (a.) It was not necessary to prove that they were residents of Brooklyn, any more than it would be necessary to prove that the defendants in the Superior Court were served in the city.
    (6.) If the defendants had not been served at all, they would be bound, because they appeared by attorney, and that appearance is noted in the record. (Cow. & Hill’s Notes, 799, 800; Starbuck v. Murray, 5 Wend., 148.)

      (c.) Besides, consent confers jurisdiction over the parties where the Court has jurisdiction of the subject matter. When parties voluntarily come before a Court having jurisdiction of the subject matter, and submit to its jurisdiction, they are concluded.
    2. A court of limited jurisdiction is not necessarily an inferior court. No court of record is an inferior court, and the Brooklyn Court is a court of record.
    IV. The error, has been in deeming the Brooklyn Court an inferior court. It is an inferior court in one sense, because its judgments may be reviewed; but every court in the United States, except the Supreme Court of the United States, is an inferior court in the same sense. In the legal acceptation of the term, it is not an inferior court, although a court of limited jurisdiction. Every court in the United States is of limited jurisdiction. (Barber v. Winslow, 12 Wend., 102; Notes to Phill. Ev., C. & H., 1016; Selin v. Snyder, 7 Serg. & Rawle, 166; S. C., 11 id., 436; Raborg v. Hammond, 2 Harris, 42, 50; Brittain v. Kinnaird, 2 Brod. & Bing., 432.)
    V. Even the proceedings of inferior courts are prima fade evidence of jurisdiction, when the jurisdictional facts are recited in those proceedings; and, although in England the cases have “fluctuated from absolute verity to mere nullity,” yet, in America, the rule is that they are evidence until the contrary be shown. (See the whole subject discussed, in 2d vol. Notes to Phill. Ev., 1014.)
    On page 1016 the note proceeds:
    “In New York we may safely consider these jurisdictional recitals as prima fade evidence.”
    Citing Barber v. Winslow, (12 Wend., 102;) and that case, and the cases therein cited, fully sustains the position.
    VI. The record was rightly received in evidence, and was of itself full proof, whether viewed as the proceeding of a superior or inferior court, that the Court had jurisdiction of the parties and subject matter, and the judgment should not have been reversed for that reason.
    G. Dean, for respondent.
    I. The City Court of Brooklyn is a court of inferior and limited jurisdiction. (Const, art. vi, §§ 3 and 14.)

      1. The Supreme Court only has general jurisdiction in law and equity.
    2. The power of the Legislature is limited to the establishment of “ inferior local courts.” And if the act had purported to make the City Court of Brooklyn a court of “ general ” jurisdiction, it would have transcended the powers of the Legislature.
    3. The acts establishing the court, (Laws of 1849, p. 170, and Laws of 1850, p. 148,) expressly limit its jurisdiction. (§ 2, act of 1849.)
    II. The fact having been established that the decree offered was that of an inferior court, the authorities are clear' that enough was not shown to make the copy decree which was introduced in evidence admissible. (Bloom v. Burdick, 1 Hill, 130; Yates v. Lansing, 9 Johns. R., 437; Hart et al. v. Seixas, 21 Wend., 40.)
    1. There should always appear sufficient on the face of the proceedings in an inferior court to show that it has jurisdiction of the cause of which it takes cognizance. (Powers v. The People, 4 Johns., 292; Bloom v. Burdick, 1 Hill, 130; Noyes v. Butler, 6 Barb., 613; Foot v. Stevens, 17 Wend., 483; Peacock v. Bell, 1 Saund., 73; Kundolf v. Thalheimer, 2 Kern., 593; Frees v. Ford, 2 Seld., 176: Turner, Adm’r, v. Bank of North America, 4 Dall., 8.)
    HI. The decree not setting out facts showing jurisdiction, the divorce is not proved, and Fanny Behrman was an incompetent witness in the cause.
   By the Court—Bosworth, Ch. J.

If the City Court of Brooklyn is an inferior court, within the meaning of the rule— that the jurisdiction of an inferior court will not be presumed in support of the validity of its proceedings, but, on the contrary, enough must appear upon its records, or be otherwise proved, to show that it had jurisdiction of the subject matter of the action and of the parties, in order to make its records evidence in another court—the present appeal may be briefly disposed of.

That Court has no jurisdiction of any transitory action, unless one of two facts exists: All of the defendants in it must either “ reside or be personally served with the summons within said city.” (Laws of 1849, p. 170, §2, sub. 2.)

The judgment or decree given in evidence does not even recite that De Bare resided within that city when that action was, or may be claimed to have been, commenced, or when the judgment in it was rendered; nor that he was ever personally served with the summons in that action, within that city or elsewhere.

The act organizing that Court was passed the 24th' of March, 1849.

Section 8 of the Code does not, in terms, apply to that Court any provisions of the Code, except sections 69 to 126, both inclusive. That Court is not named in section 9. It is by no means clear, therefore, that the concluding sentence of section 139 applies to that "Court. That sentence was incorporated into the Code by the amendments enacted in 1851. (Laws of 1851, p. 887, § 139;, p. 904, §470, [§2;] id., appendix, p. 51, § 139; Laws of 1849, p. 644, § 139.) If it does not apply to that Court, then the voluntary appearance, in any transitory action, of a defendant not residing within that city, would not give to that Court jurisdiction of such action. Consent cannot confer upon any court jurisdiction of an action, when 'jurisdiction of it is not conferred by law.

To constitute a court, a superior court, (within the meaning of the rule we are considering,) as to any class of actions, its •jurisdiction of such actions must be unconditional, so that the only thing essential, to enable the Court to take cognizance of them, is the acquisition of jurisdiction of the persons of the parties.

In Kemp's Lessee v. Kennedy et al., (5 Cranch, 173,) Chief Justice Mabshall, in speaking of the Court of Common Pleas for the county of Hunterdon, New Jersey, (the judgment of which, and the proceedings upon it, being relied on as a" defense,) said, that, “In considering this question, therefore, the constitution and powers of the court in which this judgment was rendered must be inspected.

“It is understood to be a court of record,- possessing, in civil cases, a general jurisdiction to any amount, with the exception of suits for real property.

“In treason, its jurisdiction is over all who commit the offense” * * *: “with respect to treason, then, it is a court of general jurisdiction, so far as respects the property of the accused.” The action was ejectment, and the defendant made title under a judgment of such Court of Common Pleas, confiscating the real estate in question by reason of the treason of the person who was the common source of title.

The New York Common Pleas has been decided not to be. an inferior court, within the meaning of the rule under consideration, because, by 2d Revised Statutes, 135, 2d edition, 1, it had power to hear, try and determine “ all transitory actions, wherever the cause may arise,” and was also a court of record, proceeding according to the general course of the common law. (Foot v. Stevens, 17 Wend., 483; Hart v. Seixas, 21 Wend., 40.)

In Frees v. Ford, (2 Seld., 176,) the present County Courts of this State were held to be inferior courts, and that it was essential to the validity of their judgment's that “ all the facts necessary to give the court jurisdiction, as well over the subject matter of the suit, as of the parties, must appear in the record.”

By the 30th section of the judiciary act, (Laws of. 1847, p. 328, § 30,) their jurisdiction extends to the transitory actions named in it, “ when all of the defendants, at the time of commencing the action, reside in the county in which said court is held,” * * * and “ when the debt or damages claimed” do not exceed the sums specified.

They had not, therefore, a general and unconditional jurisdiction of any transitory action, and were also, in respect to the cases in which jurisdiction of the actions enumerated existed, so far as it depended on the residence of the defendants, limited to those in which the debt or damages claimed did not exceed a specified amount.

Without entering into a more detailed statement of the facts of the various adjudged cases, or of the reasons on which they were decided, we think it may be stated, as a settled rule, that when the judgment of a local court, in a transitory action, is offered as evidence that a particular fact has been judicially determined by competent judicial authority, the record of the judgment will be no evidence of that fact, unless 'it affirmatively appears, by the record itself, that all the facts necessary to give the court, jurisdiction, both of the subject matter of the suit and of the parties to it, existed: if the court, by the law creating it, has no jurisdiction of that particular action, nor of any transitory action, unless all the defendants resided, or were personally served with the summons, within the city within which such court is required by law to be held.

Such a court is not only one of limited jurisdiction; but its jurisdiction of every action—of the action itself—being made to depend either upon the place where the defendants reside, or the fact that'they are “personally served with the summons” within a designated locality smaller than a county, it is an inferior court within the common law meaning of that term.

If the court had a general jurisdiction of an enumerated class of actions, without reference to the place where they arose or the parties to them resided, or to the amount sought to be recovered, being a court of record and proceeding according to the general course of the common law, it might be, quo ad hoc, a superior court, within the meaning of the rule under consideration.

Having jurisdiction in the action, jurisdiction of the persons of the parties in it might be acquired by their voluntary appearance.

But the difficulty in the present case is, that the court had no jurisdiction of the subject matter of the suit; of the action itself, unless the defendant resided within the city of Brooklyn or was personally served with the summons within that city.

Such a court is an inferior court, within the common law meaning of that phrase. Its judgment must show on its face, that the defendant resided or was personally served with the summons within that city, to be per se evidence in another court of a valid judicial determination of any fact which it purports to decide.

This is not shown by the decree or judgment which was received as evidence, that the defendant and his wife had been divorced by that court, in an action between them instituted for that purpose.

But, it is insisted that the 4th section of the act creating the court, and the amendment made to section 139 of the Code, in 1851, have, together, the effect to enlarge the jurisdiction of that court, and make it more extensive than it was by the statute alone, by which the court was created.

That 4th section reads thus: "The said City Court shall possess the powers and authority in relation to actions in said court, and the process and proceedings therein as are possessed by the Supreme Court in relation to actions pending in the said Supreme Court. And all laws regulating the practice of the Supreme Court, and the course of procedure therein shall, as far as practicable, apply to and be binding upon the said City Court, and the said City Court shall have power to review all of its decisions and to grant'new trials.” (S. L. of 1849, p. 171, §'4.)

We think this section must be construed as prescribing the practice in actions in the City Court of Brooklyn, and its power over the process and proceedings in such actions; and that it cannot be so construed that subsequent amendments of the Code, not referring to that court, shall be held to enlarge, and as having been intended to enlarge its jurisdiction.

If the Legislature had intended, by the amendment made in 1851 to section 139 of the Code, to extend the jurisdiction of that court by force of such amendment, to all transitory actions against persons not residing within the city of Brooklyn, on their voluntary appearance therein; it would seem that section 8 would have been so amended as to designate it as one of the courts to which that section was applicable, and that section 9 would have been so amended that such court would have been named in it.

It is quite clear, as we think, that section 4 of the act creating that court, does not apply to it, the provisions of section 135 of the Code, so as to enable a person to commence an action in it, against a sole defendant not residing within the city of Brooklyn, by the publication of a summons. The concluding sentence of section 139, as it was amended in 1851, does not, in our opinion, affect the question of the jurisdictional capacity of the court, nor change it from an inferior to a superior court.

This view renders it unnecessary to decide the question, whether a copy of the judgment of a superior court, in an action of divorce, without a copy of the pleadings, would be competent and sufficient evidence that the parties had been and were divorced by a regular and valid judicial determination, provided the judgment recites the nature of the action, and the appearance of the ¡parties in court, and that they were heard on the application for judgment. Being an inferior court, it was necessary to produce a judgment roll which showed on its face that the court had jurisdiction both of the action and of the persons of the parties. This not Raving been done, the judgment was erroneously-received as evidence, and the order granting a new trial on account of that error, must be affirmed with costs.

It may also be observed, that if “a voluntary appearance" of R. B. De Bare would as effectually give that court jurisdiction of that action, as the personal service of a summons upon him within the city of Brooklyn; the judgment does not recite that he caused his appearance to be entered; nor that he personally appeared therein; nor that any attorney of the court served “ notice of an appearance or retainer generally ” (Rule 11) for him in that action; nor that “Mr. Samuel Brown” who was heard for him, was an attorney; or had served notice of appearance for him; or that he had been retained for him in that action.

Hoffman, J. (Dissenting.)

The objection to the judgment produced rests upon the ground that the City Court of Brooklyn is a court of inferior limited jurisdiction, and hence, in the language of the defendant’s points, “ there should always appear sufficient upon the face of the proceedings to show that it has jurisdiction, of the cause of which it takes cognizance. The decree in question did not set out facts showing such jurisdiction."

The City Court of Brooklyn was organized by an act of the Legislature of the 24th of March, 1849. (Sess. Laws 1849, ch. 125.) It was declared to be a court of record, and its jurisdiction to extend to the following cases i 1. To the actions enumerated in section 103 (new 123) of the Code of Procedure, when the cause of action shall have arisen, or the subject of the action shall be situated within the said city. 2. To all other actions, where all the defendants shall reside, or be personally served with the summons within said city. 3. To actions against corporations created under the laws of this State, and transacting their general business within said city, or established by law therein.

.This action, to pronounce the nullity of the marriage, was within the jurisdiction of this Court, provided the defendant resided or was personally served with the summons within the city of Brooklyn. It is said that neither of these facts appears upon the document produced.

It deserves notice that the objection comes from the defendant in this action, who was the defendant in the cause in which the proffered judgment was given.

The first question I shall examine is, whether the last clause of the 139th section of the Code, adopted in 1851, that a voluntary appearance of a defendant shall be equivalent to personal service of a summons upon him, does not apply to the proceedings in the City Court of Brooklyn.

The Code, as passed on the 12th of April, 1848, contained in the 8th section the same provision as to the titles of the second part applicable to all courts, and those applicable to the enumerated courts, as is found in the present 8th section, except that the number of the titles was twelve instead of fifteen. The section, as it now stands, was adopted the 11th of April, 1849.

When the Code of 1848 went into effect, the City Court of Brooklyn had not been established. It was organized by an act of the 24th of March, 1849, to go into effect on the 1st of May ensuing, except some few sections, as to elections, &c., which went into effect immediately.

In 1848 and in 1849, the 139th section of the Code was merely that jurisdiction was acquired from the service of the summons, or allowance of a provisional remedy. In 1851 the clause was added, “ A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.”

In Mahaney v. Penman, (4 Duer, 601,) it was held at Special Term, two other Judges concurring, that a defendant who voluntarily appeared and answered, could not, in his answer, take the objection of a want of jurisdiction in the Superior Court.

The case of Burckle v. Eckhart, (3 Comst., 132,) was cited, where the Court of Appeals held, upon a question of the jurisdiction of a Vice-Chancellor, the cause of action appearing to have arisen elsewhere than in his circuit, that a voluntary appearance by a solicitor did not give jurisdiction. “ The residence of a party within the circuit was a jurisdictional fact which must exist before the Court can act at all, either by issuing process or accepting the appearance of the defendant.”

This case was decided in December, 1849, and in April, 1851, the clause of the Code referred to was adopted. (Laws 1851, p. 887.)

When the Legislature, in March, 1849, established the City Court, must it not have meant that the proceedings and practice should be regulated by the Code of Procedure, passed in 1848 ? Was it to be left to some other course of proceeding, except as expressly provided ? The argument, from the omission in the enumeration of the courts in the 8th section, in ■ 1848, is of no weight, as this court did not exist, although the omission in 1849 is so. Yet it seems to me that the 4th section of the act was adopted with a view to meet the very point. It directs, “ that the City Court shall possess the powers and authority, in relation to actions in the said Court, and the process and proceedings therein, as are possessed by the Supreme Court in relation to actions pending in said Supreme Court. And all laws regulating the practice of the Supreme Court, and the course of procedure therein, shall, as far as practicable, apply to and be binding upon the said City Court.”

It deserves notice that the preamble to the Code uses the phrase, that a uniform course of proceeding in all cases should be established.

The powers of the Supreme Court in relation to actions—■ the process and proceedings in such Court—all laws regulating its practice and the course of its procedure, define and govern the mode of action in the City Court, of course where applicable, and when not otherwise specially regulated. It seems to me, that not only was the law of the Code which governed the Supreme Court as the Code then existed, necessarily declared to be the law of the City Court when constituted, but that the section was prospective, and whatever rule should subsequently govern the proceedings in the Supreme Court should be equally applicable to this.

If so, when the amendment of 1851 gave a rule to the Supreme Court, it gave one equally to the City Court.

The City Court has applied, and determined cases upon, provisions of the Code not within the four first titles mentioned in the 8th section, (§§ 69 to 126, inclusive.) Toomey v. Shields, (9 Legal Obs., 66,) involved the consideration of section 128.

It may aid this examination to advert to the provisions respect ing other of the courts enumerated in the 8th and 9th sections, for example the Superior Court. The jurisdiction which it could possess in an action like the present to declare a marriage null, under section 33, (sub. 2,) could only be when the defendant resided, or was personally served with the summons, within the city of New York. The Code is expressly made to regulate its course of procedure by section 8. Thus it stood in 1848 and 1849. Then in 1851, the change in the 139th section was made. The effect was undoubtedly to enlarge the jurisdiction of this Court by permitting the voluntary appearance to be the same as personal service.

Now, if by force of the 4th section of the act as to the City Court, the Code was to govern its course of procedure, it seems difficult to say that the effect of the change in 1851, shall not be to enlarge its jurisdiction, when it is so as to the Superior Court. Grant that the Code was applicable at all, it seems to follow that all subsequent amendments of the Code not clearly inapplicable, will regulate this Court as well as the others. On what ground is a distinction to be made, between different subsequent amendments, so as to render some applicable and others not so. There are some, of course, which clearly cannot apply.

The argument that jurisdiction is not to be deduced by implication, but must be expressly given, seems to me as forcible in relation to the Superior Court as to the one in question. We extend the jurisdiction of the former by the new clause, because the Code itself makes the Code relate to such Court, we do the same here because a particular statute makes the Code apply.

The effect of an appearance in an action is stated in several cases. The party admits himself to be regularly in Court, and all defects in the summons, and its service, and even the total omission of any service, becomes immaterial. (Webb v. Mott, 6 How. Pr. R., 439; see as to the course in Chancery, 1 Barb. Ch. Pr., 81, 1 Hoffman’s Pr., 170, particularly the case of Capell v. Butler, 2 Sim. & St., 462.)

We have in the present case, undoubted jurisdiction of the subject matter of the action, viz., the annulment of the marriage contract for physical incapacity, provided the defendant resided or was served within the city of Brooklyn. We have a recital in this judgment of what is equivalent to a general appearance, to an admission that he was regularly in Court, with a consent recited to certain portions of the decree or judgment.

This is not properly a consent that a tribunal shall have jurisdiction of a case which the law has expressly or impliedly forbidden it to entertain. It is tantamount to an admission of residence, or of personal service, completing all that was necessary to perfect the jurisdiction. .

The meaning of the rule that consent cannot give jurisdiction, is well explained in the case of Overstreet v. Brown. (4 McCord’s R., 79.) Jurisdiction cannot be given to a court merely by consent of parties; but if the court has jurisdiction of the matter, and one party has some privileges which exempt him from that jurisdiction, he may waive the privilege if he chooses so to do. This is repeated in nearly the same language in Bostwick v. Perkins. (4 Geo. R., 47.)

Mr. Justice Hand, in Kundolf v. Thalheimer, (2 Kern., 593-599,) adverts to such a distinction, between jurisdiction depending upon residence of the person, which could be waived by appearance and pleading, and jurisdiction of the subject matter. He refers to Frees v. Ford, (2 Seld., 176,) which arose upon pleadings, and observes that the pleas in that suit were, in truth, nothing more in effect than demurrers to the complaint.

So in the case of Burckle v. Eckhart, (ut supra,) the main objection was, that the Vice-Chancellor had not jurisdiction of the causes or matters, because they did not arise within his circuit; and Justice Gardiner notices that a defendant may dispénse with service of process as he may waive any other personal privilege. But there, the bill alleged that the defendants were nonresidents, and the latter appeared and admitted it. The want of jurisdiction appeared on the record.

It should be noticed, that there is much late authority to show “ that recitals or statements, in the record of an inferior court, of facts constituting jurisdiction, may be received as prima facie evidence of such facts.” By the Court, Paige, P. J., in Harrington v. The People, (6 Barb., 607-610,) Willard, P. J., in Adams v. Saratoga & Washington Railroad Company. (11 id., 455.) This decision was reversed on appeal, (note at p. 415,) but on the ground that the evidence offered to disprove the jurisdictional facts recited in the record, should have been received in evidence. (April,-1852.) I have not been able to find a report of the case in the Court of Appeals. See, also, Barber v. Winslow, (12 Wend., 102,) as to the distinction in this particular between the rules of evidence and the rules of pleading. See, further, Clyde & Rose Plank Road Company v. Parker. (22 Barb., 324.) The recitals in a discharge under the insolvent laws are held to be prima, fade evidence only, of jurisdictional facts. (Stanton v. Ellis, 2 Kern., 575.) But. this is .a qualification of the statute. (2 R. S., 38, § 19.) .

. It must be admitted, that, many of the judges, in the authorities cited to support the position of Justices Paige and Willard, use very different language. Yet it appears to me, that if the proposition can be maintained, that the clause of the 139th section, before discussed, applies to this Court, then a record of such Court, (using the term in the sense of a judicial determination of rights of the parties in .a cause,) which shows on its face jurisdiction of the subject of the action, and a voluntary appearance of the defendant, meets the requisition of the rule; that the record shall show, jurisdictional facts, in its just sense.

3. This does not, however, fully decide that there may not be a technical difficulty still existing, that the whole of the proceedings, which constitute the roll, should be produced, I proceed to that question.

Mr. Gresley (On Evidence in Equity, 109,) says: Where a decree contains a recital of a bill and answer, it may be admitted in . evidence, without further proof of them. He cites Trevor, Ch. J., in Wheeler v. Lowth, (Comyn’s Dig. C. 1, p. 97,) and Twisden, Justice, in Trowell v. Castle. (1 Keble, 91.)

Trowell v. Castle is. an express authority to the point, where the exemplification was under seal. This distinction-would.not, I apprehend, be.now regarded. But in the present case, the decree is authenticated by the seal of the Court.

Duller, Justice, (Buffer’s R. P., 235,) thus states the. rule: If a party wants to avail, himself of a decree, only,, and not of the answer of depositions, the decree, -being under the seal of. the court, and enrolled, may be given in evidence" without producing the biff and answer, and the opposite party will ■ be at liberty- to show.that the point in- issue was- not ad idem with the present* issue. He cites Lord Thanet v. Patterson. (K. B. East. 12, Geo. II.)

Under decisions in oar State, the enrollment of the decree would be unnecessary. (5 Wend., 47; 5 Paige, 304.)

In Layburn v. Crisp, (8 Carr. & Payne, 397,) upon a trial at bar,- all the Judges concurred in holding that a decree in Chancery, with the bill and answer, was admissible in evidence without producing the depositions. Lord Abinger said he was not certain, but that the decree would have been receivable without the bill and answer being put in.

In Davies v. Lowndes, (1 Bing. N. C., 597,) also a trial at bar, a decree in Chancery was read in evidence. It does not appear whether the pleadings were introduced. (Blower v. Hollis, 1 Cromp. & Meeson, 393.)

In Wynn v. Harman, (5 Grat., 157,) a decree in. partition and the report of the commissioners sufficiently designating the land referred to, was admitted without producing the whole record.

In Whitmore v. Johnson's Heirs, (10 Hum., 610,) the rule is explicitly admitted, that if a decree is in itself sufficiently comprehensive to show what was adjudged, and jurisdiction, it would suffice without producing the bill and answer. These were recited, but not in detail. The defect was, that the decree did not show that personal estate was exhausted, which was a statutory prerequisite to a sale of real estate by the tribunal which had ordered such sale.

When the fact of jurisdiction is made out, every intendment of regularity is made to support a judgment or decree, and regularity of proceedings. (21 Wend,, 40.) Particularly is this the case, when the decree is proffered to be used against a party who was a party to the suit itself, and when he himself can immediately contradict its recitals, even by his own oath. It was decided by the King’s Bench, in Ackworth v. Kempe, (Doug., 40,) that a writ of execution is evidence of a judgment as to the party to the action in which it is given.

Order affirmed.


author: Hoffman, J.

text:
    Joseph H. Westcott, Plaintiff and Appellant, v. Walter Keeler, Respondent.
    1. Where the complaint states, and the uncontradicted evidence given at the trial tends to prove, that M.- (the plaintiff’s assignor) lent to the defendant money, -on the security of a note made by B., payable to his own order, and indorsed by him and by the defendant, and that on such note maturing, M. surrendered it to R. for a new note of the same amount, payable on demand, made and indorsed by R, and so surrendered it at the defendant's ■ request and on his promise to indorse such new note, and that the defendant refused to indorse such new note, or pay the money so lent to him, it is error to dismiss the plaintiff’s complaint, although the surrendered note has been destroyed.
    2. On such a state of facts, the defendant is liable as borrower, and an action may be maintained against him as such; the note which he indorsed as security for the loan having been surrendered at his request to the maker of it.
    3. Such a cause of action is assignable, and the assignment in this case transferred it.
    4. Such evidence entitles the plaintiff to a peremptory charge that a verdict be given in his favor, or requires that the cause be submitted to a-jury, with instructions that if the defendant borrowed the money, and if the note left as security for the loan was surrendered at his request, the plaintiff is entitled to recover.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, April 5;
    decided, May 7, 1859.
    This is an appeal by the plaintiff from a judgment dismissing his complaint, and also from an order -denying a motion for a hew trial.
    The action was tried before Mr. Justice Pierrepoht, and a jury, on the 1st of November, 1858. The plaintiff sues as the assignee of a cause of action, which, as stated in the complaint, is in substance as follows:
    On the 6th of September, 1854, one Schuyler H. Mattison loaned to the defendant$3,000, upon the note of one John W. Eumsey for that amount, payable on the 1st of October then next, drawn payable to Eumsey’s order, and indorsed by him and by .the defendant. The loan was made by Mattison to the defendant on the collateral security of said note, and of a certificate for 100 shares of the stock of the Suffolk Bank.
    At about the time said note fell due, the defendant went to Mattison and told him said Bank had failed, and asked him for an extension of the time for the payment of said note, and proposed to him to take a new note of Rumsey indorsed by the defendant, which Mattison agreed to do, and at defendant’s request went with the old note to Rumsey on the day it fell due; took from him a new note dated October 1,1854, for $3,000 drawn to his own order, payable on demand, by him indorsed and to be indorsed by the defendant, and left the old note with Rumsey, who destroyed it.
    The defendant refused to indorse the new note, dr to pay the moneys so loaned to him. Rumsey, since the first note matured, has. paid various sums on account of the moneys so lent; the balance unpaid being $704.50, with interest from the 23d of December, 1856.
    The answer, substantially, denies each allegation of the complaint ; alleges that the loan was made to Rumsey, and not to the defendant; that the defendant was the agent of Rumsey in procuring it, and was known to Mattison to be such agent; and that said loan was made upon an agreement reserving interest at the rate of eighteen per cent per annum.
    On the trial, Schuyler H. Mattison was called as a witness on the part of the plaintiff, and testified, among other things, as follows: “ On September 6th, 1854, Walter Keeler came into my office and requested a loan of $3,000 until the 1st of October, and offered as security John W. Rumsey’s note for $3,000, due October 1, 1854; I said I didn’t wish to loan money to anybody; that I wanted my money in my business; finally he pressed the matter so hard that I consented to let bim have it if he would pay it promptly when due; I got up out of .my chair at my desk; Mr. Keeler sat down and indorsed the note made by Mr. Rumsey to his own order, and indorsed by him; he then handed me 100 shares of Suffolk Bank stock; I think it was 100 shares of $50 each; he said, take this too, and I replied, I don’t want it, I know nothing about the Bank or Mr. Rumsey, I loan the money on your own responsibility, as I have frequently done before; he insisted on my keeping the stock, and I did so; I requested Mr. Bain, my clerk, to write an order on Bliven & Mead for $3,000, payable, I think, to bearer; I signed the order and handed it to Mr. Keeler; he went out of the office with it, and returned in about twenty minutes with a check to my 'order for the money drawn by Bliven & Mead, and I indorsed it and handed it to him; Keeler’s language when he came in, was, 1 Mattison, I want you to lend me $3,000 till the 1st of October, I will give you Ramsey’s note with my indorsement for $3,000;’ never had seen, or to my knowledge heard of Rumsey, and only knew Suffolk Bank by its locality; on the 1st of October I had put the note in my safe; not in Bank, and kept it in safe; Keeler called, and then said Bank had failed, or got into difficulty, and wanted time, and proposed to give new note for amount, payable on demand, which he said he would pay in a few days; I said, very well; then he said, ‘I am very busy; you are going past the Bank several times a day, I wish you would call on Mr. Rumsey and get a new note for the old note; bring it to me and I will indorse it;’ I told him I would; I immediately went up to Bank with the old note, and spoke to the gentlemen at the counter, and inquired for Mr. Rumsey; he said, ‘ I am the man;’ he asked me to step back to his private office, and I went; I handed him the old note, and told him Mr. Keeler had requested me to call for new note,; he said, ‘yes; Mr. Keeler has seen me on the subject;’ he made and handed me the new note.” Witness identified note, which was marked “ A.” It was as follows:
    “ $3,000. New Yobk, Oct. 1st, 1854.
    “ On demand, I promise to pay to the order of myself, three thousand dollars, at value received.
    “J. W. Rumsey.”
    It was indorsed “J. W. Rumsey,” and following receipts were indorsed on it. “Oct. 20,1854, rec’d on within note one thousand dollars, S. H.Mattison;” “Nov. 1st, rec’d on within one thousand dollars, S. H. Mattison;” “ 1855, Jan. 24th, rec’d on the within note one hundred, $100, S. H. Mattison.”
    “ I went directly to Keeler’s office, and said, ‘ here is this note, I want you to put your name on it;’ he replied, ‘never mind, Mr. Rumsey will pay it in a few. days;’ said I, ‘he may, but that is not our agreement; you was to indorse it; 1 loaned you the moneyhe repeated the same answer two or three times, that Rumsey would pay it in a few days, and I left the office; I asked him probably one hundred times, also Rumsey, for the money for two years, till I sold it.” (Witness reads from back of note a receipt from Rumsey, Oct. 20, 1854, for $1,000; and on November 1, 1854, for $1,000; also sum paid by Rumsey January 24, 1855, $100.) Says “that he sued Rumsey on the note and got judgment, and after judgment Rumsey paid further, and left balance as claimed by summons, $704.50; I assigned this claim to plaintiff.” Assignment read, and dated March 9th, 1857, viz.:
    “ Know all men by these presents, that I, Schuyler BL Mattison, * * of the first part, for and in consideration of the sum of five hundred dollars, to me in hand paid by Joseph H. Westcott, * * of the second part, have * sold, assigned, * * and by these presents do * sell, assign and set over unto the said party of the second part, all the indebtedness, cause of action, claim and demand whatsoever which I, the said party of the first part, now have against Walter Keeler, of said city, for borrowed money, and for a failure and refusal on his, the said Keeler’s- part, to indorse, according to promise, a promissory note of John W. Rumsey, dated October 1,' 1854, for $3,000, payable on demand, taken by the said party of the first part at the request of the said Keeler, in renewal of a note dated September 6, 1854, drawn by said Rumsey, and indorsed by said Keeler, and payable October 1st, 1854, for $3,000, on which said Keeler originally borrowed moneys, which said indebtedness, after several payments made by said Rumsey, did, on the 28d day of December. 1856, amount to seven hundred and four dollars and fifty cents, or about that sum, and bears interest from that date.” * * *
    • Mattison’s order on Bliven & Mead for the $3,000, their check to Mattison’s order for that sum, indorsed by him, and subsequently by Rumsey, and the certificate for the 100 shares of Suffolk Bank stock, (which certificate stated Rumsey to be the proprietor of such stock,) with a blank power of attorney to transfer it, were produced on the cross-examination and read in evidence. John Gr. Bain, was. also examined on behalf of the plaintiff, and gave evidence in substance like that of Mr. Mattison. The plaintiff then rested and the defendant' moved to dismiss the complaint on the grounds,
    “ First. That the original loan was made on the first note, and was merged in it.
    “ Second. That the action was not brought, and could not be sustained, on the first note.
    “ Third. That the agreement to indorse the second note was void within the statute of frauds.
    “ Fourth. That if the action was brought for the deceit, it was not sustained by the pleadings or proof; and,

      “ Fifth. That even if it was, such right of action could not be assigned, and did not pass to the plaintiff under the assignment.” The Judge granted the motion, and the plaintiff excepted to his decision.
    The plaintiff moved at Special Term, on a case, for a new trial, and the motion was denied. From the order denying it, and from the judgment dismissing the complaint, the plaintiff appealed to the General Term.

      James W. Gerard, for appellant (the plaintiff).
    I. The plaintiff can recover, either:
    1. On the original loan.
    2. Or on the indorsement of the defendant on the note surrendered to the maker at his request.
    3. On the promise to indorse a new note.

      a. On 'the original loan, for securing which the original note was left as collateral security. Taking the note did not merge or destroy the contract of loan, for which the plaintiff can recover, merely accounting at the trial for the note taken as collateral security for the loan, which the plaintiff did. (Jackson v. Shaffer, 11 John., 513; Swartwout v. Payne, 19 id., 294; Hughes v. Wheeler, 8 Cow., 77; Davis v. Anable, 2 Hill, 339; Andrews v. Smith, 9 Wend., 53; Muldon v. Whitlock, 1 Cow., 290; Johnson v. Weed, 9 John., 310; 1 Kern., 368.)
    5. The plaintiff could recover against the defendant' as indorser on the original note which was; given up to the maker at defendant’s request. The surrender or destruction of the note did not destroy the right of action. (Olcott v. Rathbone, 5 Wend., 490;
      Hughes v. Wheeler, 8 Cow., 77; Edwards on Promissory Notes, p. 633.)

      c. Or on the promise to indorse the new note, the consideration of which promise was the original loan, or the surrender of the original note, on which the defendant was indorser, at the defendant’s request.
    II. These causes of action, all and each of them, are on contract, and are assignable by the 111th section of the Code. Zabriskie v. Smith, (3 Kern., 332,) has nothing to do with this case.
    III. The promise of the defendant to indorse the new note, is not within the statute of frauds. The statute of frauds has nothing to do with it. It is an original undertaking, founded on good legal consideration. (Meech v. Smith, 7 Wend., 318.)

      John E. Burrill, for the respondent (the defendant).
    I. The original note was given to Mattison, the assignor 'of the plaintiff, and received by him in payment of the money loaned, and instead of an absolute liability to pay the loan, the defendant incurred, the conditional obligation of indorser of the note, and Mattison’s right of action rested exclusively upon the note. (Whitbeck v. Van Ness, 11 John. R., 409; Francia v. Del Banco, 2 Duer, 138; Booth v. Smith, 3 Wend., 66.)
    II. The plaintiff was not entitled to recover upon the original note.
    1. The complaint does not contain any allegations authorizing a recovery upon the original note; nor is the action brought upon such note; nor did the plaintiff at the trial claim the right to recover upon it.
    2. Even if Mattison could have maintained an action upon the original note, the plaintiff could not, because the assignment does not transfer to him any interest in the note, or any right of action upon it. •
    3. Even were the complaint based upon the note, arid the assignment sufficient to transfer such right of action, the plaintiff was not, on the evidence, entitled to recover upon it.
    HI. The plaintiff was not entitled to recover, upon the alleged agreement to indorse the second note. /
    1. The complaint was not based upon any such right of recovery.

      2. The agreement was void within the statute of frauds. (Gallager v. Brunel, 6 Cow., 349; Carville v. Crane, 5 Hill, 483.)
    IV. The plaintiff was not entitled to recover on the ground of fraud or deceit on the part of defendant, in not indorsing the note.
    1. Even if Keeler did promise to indorse the new note of Rumsey when it should be received, and Mattison gave up the old note to Rumsey, and took the new one, and Keeler then refused to indorse it—this did not establish any fraud upon the part of Keeler. (Gallager v. Brunel, 6 Cow., 349; Fisher v. N. Y. C. P., 18 Wend., 610; 1 Rawle, 311; Alston v. The Mechanics' Mut. Ins. Co., 4 Hill, 329.)
    2. Even had such conduct, on the part of Keeler, amounted to a fraud or deceit, so as to authorize Mattison to recover therefor, such right of action was not assignable. (Zabriskie v. Smith, 3 Kern., 322; Hyslop v. Randall, 4 Duer, 662.)
    The judgment should be affirmed.
   Hoffman, J.

The evidence seems to establish, with reasonable certainty, that Keeler, the defendant, applied to Mattison for a loan for himself of $3,000, proffering as security the note of Rumsey indorsed by himself, and Suffolk Bank stock as additional security. Mattison hesitated, stating he did not know the Bank or Rumsey. He afterwards consented. An order was drawn on Mattison’s banker, and Keeler sat down and indorsed the note, and gave it to Mattison.

The order was onBliven & Mead, the bankers, signed by Mattison, payable to bearer. They gave a check on the City Bank, payable to Mattison or order, for $3,000. He indorsed it. Keeler took Matfcison’s order to the banker’s, and brought back the check. Mattison delivered the indorsed check to Keeler, and it is produced in evidence, indorsed by Rumsey, not by Keeler.

Testimony was also given, tending to prove that the note was kept by Mattison in his own hands, and that about the time of its falling due, Keeler, the defendant, called, informed Mattison of the failure of the Bank, and requested time, proposing to give a new note for the amount, payable on demand; that defendant requested him, from some reasons of convenience, to call on Rumsey, get a new note for the old one, to bring it to him, the defendant, and he would indorse it. This was done, and the old note given to Rumsey; a new one obtained, and proffered to the defendant for indorsement, which he refused to make. Both the old and the new note were drawn by Rumsey, to his own order.

The assignment from Mattison to the plaintiff was produced in evidence, and transfers all the indebtedness, cause of action, claim and demand which he had against the said Walter Keeler for borrowed money, and for a failure and refusal on his part to indorse, according to promise, a promissory note of John Rumsey, dated October 1, 1854, for |3,000.”

The first note was dated September 6, 1854.

The evidence given in the cause would have warranted a jury in finding two facts: First. That the original loan was made to Keeler at his request, and as far as Mattison knew for Keeler’s own use and benefit, and upon the faith of Keeler’s indorsement of Rumsey’s note. Although the note was made by Rumsey, and the stock certificate was in' his name, the jury may have been warranted in considering that both were given to enable Keeler to raise money for himself. Second. That the old note was surrendered to Rumsey by Mattison, upon Keeler’s express promise to indorse a new one which Rumsey was to give. It is to be- noticed that the old note, as well as the new one, was by Rumsey, to his own order.

If the jury had been allowed to pass upon this evidence, and had found these facts, the case would have been presented of an original debt by Keeler to Mattison for money advanced by the latter directly to him, on his credit mainly, and secured by his indorsement; and of the surrender of the legal evidence of his liability by a trick and fraud, either devised at the time, or perpetrated by the refusal to give the promised renewal of this evidence.

If, as is contended, the original cause of action arising from the loan of money, was merged in the indorsement of the first note, (2 Duer, 138,) yet, when that indorsement was destroyed by the unwarranted act, or through the substituted agreement of the indorser and borrower, the party must be entitled to resort to the original right.

The cases cited, of which Noel v. Murray, (3 Kern., 167,) is an example, are cases where the point has arisen, whether an admitted original liability has been relinquished by acceptance of .other security; and the question always is, was there. an agreement to receive the latter in payment ? Conceding that there was an agreement to'take the indorsement in place of the money demand, the point that there was a restoration of that demand by the withdrawal of the indorsement through deception, remains unaffected by any such case.

It is again insisted, that the agreement to indorse the second note was void, by the statute of frauds. Carville v. Crane, (5 Hill, 483,) and Gallager v. Brunel, (6 Cow., 349,) are cited. Those cases establish that a parol agreement to indorse the note of another for goods purchased by him, is not the ground of an action. There was no original debt between the parties to the promise.

Again, it is urged that the plaintiff, as assignee, is not entitled to recover. First, because the assignment did not pass any interest which could be the subject of an action; next, that if there was any such interest, it was not assignable.

The assignment transfers all the claim or demand of Mattison against Keeler for borrowing money, and for a failure on his part to indorse the note. The indebtedness of Keeler, and the cause of action, claim and demand of Mattison are transferred. The instrument is ample to assign whatever the assignor could claim.

The case of Zabriskie v. Smith, (3 Kern., 322,) was a case of a cause of action solely arising out of deceptive representations of the standing and credit of a purchaser of goods. The cause of action rested exclusively upon the deceit. There was nothing of an independent liability from contract expressed or implied, or on any other account, except this; it was held not to be an assignable claim.

But a right of action for the conversion of personal chattels is assignable, (2 Kern., 622;) and I apprehend that whenever a right is vested in one, growing out of a contract of any nature, it is assignable; and if the assertion of the original right involves the establishing of fraud or deceit connected with the action, the right to prove this follows the right to the original cause of action, and vests in the assignee with it.

The counsel of the defendant raises one other point, .that there was nothing upon which to go to the jury; that there was no conflict of evidence, no witnesses being called by the defendant, and there were only legal questions raised.

He cites Barnes v. Devine, (2 Kern., 18,) and some other authorities have been referred to. " In the case of Barnes v. Devine, the unsuccessful party was the one who rested his case at the trial upon legal propositions alone, and omitted to request a submission to the jury. He was the mover there. In the present instance, the defendant’s counsel succeeded in getting a dismissal on legal grounds. The plaintiff has a right to say, that in this case a verdict should have been ordered in his favor, or the evidence should have been submitted to the jury, and the motion of the defendant denied.

We think there must be a new trial, with costs to abide the event.

Bosworth, Oh. J., and Moncrief, J., concurred.

Ordered accordingly.