author: Freedman, J. Daly, F., J.,

text:
    CHARLES BATCHELOR, Plaintiff and Appellant, v. THE ALBANY CITY INSURANCE COMPANY, Defendants and Respondents.
    A compulsory reference, under subdivision 1 of section 271 of the Code, may be ordered, whenever it appears that the trial of any one of the issues will involve the examination of a long account, although the determination of some other issue may render it unnecessary to try the first-named issue at all.
    Whether the whole of the issues shall be referred, or the taking of the account merely, and whether the account shall be taken before the trial of the other issues, or after, are matters, in the discretion of the Court at the Special or Trial Term, to be governed by the particular circumstances of each case.
    If there is any evidence laid before the Court below, that the examination of a long account will be required, and that evidence is uncontradicted, or if there is a conflict of proofs created by counter affidavits, then the determination of the Court below must be held final and conclusive.
    Hence, held that an action brought for the recovery of the amount insured by an insurance policy, in which the proofs of loss consist of numerous items, may be referred.
    The adjudged cases, and the history of legislation upon this subject since the first publication of the Revised Statutes, reviewed.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      Decided June 11, 1869.]
    This was an appeal from an order made at Special Term by Mr. Justice Jones, directing the issues in the action to be referred for trial.
    The action was to recover damages for injury to furniture and other articles insured by a policy of insurance issue'd by the defendants.
    A reference was ordered on the ground that the trial of the action involved the examination of a long list of articles, constituting it an account under section 271 of the Code.
    From this order the plaintiff appealed to General Term.

      Mr. John A. Weeks for appellant.
    The trial of the issues will not .require the examination of a long or of any account in the sense in which that word is used in the section of the Code which authorizes a reference in certain cases.
    To constitute an account in the sense of that section, there must he both debit and credit items (5 Bos., 236 ; Van Rensselaer v. Jewett, 6 Hill, 373 ; 6 Wend., 503; 25 Wend., 687; Silmser v. Redfield, 19 Wend., 28). In McMaster v. Booth (4 How., 428), Judge Bareulo defines an account to be “ a computation or statement of debts and credits, arising out of personal property bought or sold, services rendered, materials furnished, and the use of property hired and returned ” (Keeler v. Poughkeepsie and S. P. P. R. Co., 10 How., 11). “ A commutation of debt and credits between the parties” is necessary to constitute an account. The examination of numerous items of damage does not constitute an account between the parties within the meaning of that term (Dewey v. Field, 13 How., 438; McCullough v. Brodie, 13 How., 347; 18 How., 213-311; 9 Abb., 436; Ross v. The Mayor, &c., 2 Abb. N. S., 266; Swift v. Wells, 2 How., 79; Miller v. Hooker, 2 How., 171; Freeman v. Atlantic Mut. Ins. Co., 13 Abb., 124; McLean v. East River Ins. Co., 8 Bos., 700 ; Sharp v. The Mayor, &c., 18 How., 213; McCullough v. Brodie, 13 How., 346).
    The requirement of the policy that the assured should deliver a particular account of such loss and damage signed and verified, &e., is the ordinary form of policies of insurance. The use of this phrase, “ particular account ” does not bring the cause within section 271 of the Code, as the'word “account” is used in the policy and in Section 271 in two entirely distinct meanings which belong to it.
    Besides, difficult questions of law are involved—the effect of the indorsement on the policy, “ loss, if any, payable to Charles Batchelor as owner,” which plaintiff claims entitles him to recover in his own right under the authority of Solmes v. Rutgers Fire Ins. Co., (8 Bos., 578), while defendants, under authority of Grosvenor v. The Atlantic Fire Ins. Co., 17 N. Y., 391, claim that they are discharged from all liability; also the questions of the" sufficiency of the proof, the conformity to the various requirements of the policy. There is no affidavit that the examination of any account is involved in the issues (Dedrick’s Admrs. v. Richly, 19 Wend., 108: Cameron v. Freeman, 10 Abb., 334: Graham v. Golding, 7 How., 260)
    The plaintiff is entitled to have these issues tried by a jury, and these questions of law decided by the judge presiding at such jury trial, and the judge below had no power to order a compulsory reference against plaintiff’s opposition (Dickenson v. Mitchell, 19 Abb., 286 ; Harris v. Mead, 16 Abb., 267; Goodyear v. Brooks, 4 Rob., 682).

      Mr. George W. Parsons for respondents.
    ' • There appear to be but two generic issues involved in the pleadings; all other questions appear to be collateral to those.
    1. As to the real ownership of the property claimed to be covered by the policy.
    2. The question as to the amount and.value of the property lost.
    Those issues depend upon questions of .fact; there are no dif•ficult questions of law involved; and the principal inquiry of fact evidently is as to the loss and value of numerous items of merchandise; and the defendants have a right to extend the inquiry as to value to every item claimed to be lost or damaged.
    There is a wide difference between the Revised Statutes and ’ the Code in respect to references. By the former only cases “founded on contract ” could be referred (2 R. S., vol. 2, p. 480, 3d ed.). Under the Code any action may be referred if the “trial of an issue of fact require the examination of a long account on either side ” (Code, sec. 271).
    Even where the action or defence is founded on a fraud it may be referred (Sheldon v. Wood, 3 Sand., 739 ; McMahon v. Allen, 10 How., 384).
   By the Court:

Freedman, J.

This' is an appeal from an order made at •Special Term referring the issues in this action to a referee to hear and determine the sanie, for the reason that the trial of the action involves the examination of a long account within the meaning of section 271 of the Code. The appellant insists that this is not a case in which a reference can be ordered against his objection. It is indeed strange to find that, notwithstanding the books are full of cases in which the question of the power of the Court to order a compulsory reference has been discussed, and an attempt made to solve and settle it, it has never, either before or since the Code, been clearly and distinctly determined what constitutes a long account within the meaning of the law. A review of the adjudged cases usually cited upon this point, as well as the history of legislation upon the same subject since the first publication of the Eevised Statutes, will be found highly interesting. I shall omit, however, to discuss the question in its constitutional aspect, as this point has neither been argued nor raised in the case under consideration. At the time of the publication of the Eevised Statutes in 1829, section 39 of the statute authorizing a reference in certain cases read as follows:

“ Sec. 39. Whenever a cause shall be at issue in any court of record, and it shall appear that the trial of the same will require the examination of á long account, on either side, such court may, on the application of either party, or without such application, order such cause to be referred to three impartial and competent persons.”

The next section of the same statute provided for the appointment of referees, as follows:

Sec. 40. If the parties agree on three persons as referees, such persons shall be appointed by the court; if they disagree, each party shall be, entitled to name one, and the court shall appoint the persons so nominated, if they are free from all exceptions, and such other person as .the court shall designate.”

Section 46 prescribed that all the referees must meet together and hear all the proofs and allegations of the parties together, but a report of any two of them shall be valid.

By chapter 499 of Laws of 1836 it was enacted that, in any cause which may be referred to referees, it shall be the duty of the court or judge ordering the reference, with the-consent of the parties, to appoint such one person as sole referee therein, as -may be agreed on by said parties. ' .

With the exception of this single change the statute remained unaltered as above until 1845; and so far from restricting the power of reference to matters of account alone, did not even confine it to actions arising ea> contractu. In practice, however, the courts seem to have confined it to such actions. ' In Thomas v. Reab (6 Wend., 503, decided in 1830), which was an action for the recovery of damages’ for breaches of various covenants, Sutherland, J., held: “It may well be that the trial of a cause in an action of covenant may require the examination of a long account, but this is not such case.”

Silmser v. Redfield (19 Wend., 21, decided in 1837) decides simply that actions of tort are not referable, although it is true Kelson, Oh. J., gives it as his opinion that the statute only applies to eases where accounts, in the common acceptation of that term, may exist, and require examination. - '

The' case of Levy v. The Brooklyn Fire Insurance Co. (25 Wend., 687, decided 1841) involved charges against the plaintiff: (1) That he had fraudulently caused the conflagration by which the property insured was injured, and (2) that in making up his statement of loss he had fraudulently overestimated the amount of his loss; and for these reasons the Chief-Justice said that/ without attempting to lay down a/ny general rule as to the reference of actions on policies of insurance, he was of the - opinion-that in a case involving such serious charges a party was entitled to the benefit of a trial before a court and jury.

In Van Rensselaer v. Jewett (6 Hill, 373, decided 1844), which was an action for the recovery of nine years’ rent, Bronson, J., vacated the order of reference upon the ground that the defend-ants rested their enti/re defence on the ground that they were never liable for any rent, and that for this reason no account between the parties, in the ordinary acceptation of the term, was involved.

■ The foregoing cases, and a report consisting of less than three lines of the case of Parker v. Snell (10 Wend., 577), to the effect that the Court refused to refer the cause, because there were but four items in the account, constitute the groundwork upon which the claim has since been, founded, that not only must there be a long account, but that it must be a mutual account between the parties; although the fact, that the statute did not restrict the power of reference to actions arising ex contractu, was distinctly-recognized by Cowen, J., in Lee v. Tillotson (24 Wend., 338, decided 1840).

By chapter 163 of Laws of 1845 the statute was changed, however, so as to apply only to “ causes founded xt/pon contract,” in which the trial, or the assessment of damages, will require the examination of a long account on either side. After the statute had been thus amended, but before the passage of the Code, the following two cases were decided, without reference, however, to the change introduced by the act of 1845, to wit: Swift v. Wells (2 How., 79), and Miller v. Hooker (2 How., 171). In the first-named of said cases, which is constantly cited in support of the theory therein advanced by Bronson, Ch. J., that one bill of goods, containing fifty different items, delivered at the same time, is in fact but one item, the gross amount of the bill was agreed upon at the time of sale, the defendant had no set-off of any kind, and the only question raised was as to payment; and in the second case, it was held, upon the authority of the preceding case, simply that an action founded upon one bill of lading containing eleven items did not require the examination of a long account.

Section 226 of the Code as passed in 1848, and section 271 of the amendatory act of 1849, conferred authority upon the Court to direct a compulsory reference in any case, among others, where the trial shall require the examination of a long account on either side, and this power the courts have retained ever since. It will be seen that section 271 of the Code is again made broader in its terms than the provisions of the Revised Statutes, as amended in 1845. The latter provided for the appointment. of referees in actions founded on contract only, while the Code authorizes a reference in all actions whatever involving the examination of a long account, and it has consequently been held by this Court, in Sheldon v. Wood (3 Sandf., 739), with the concurrence of the entire Court, that the Court has power to order a reference in actions sounding in tort, where the trial of the issues of fact does require the examination of a long account.

The cases under the Code, which, upon a mere inspection, may appear to have been differently decided, will be found on careful examination to contain peculiar features and to rest upon peculiar facts, and that the question actually decided in them is to the effect only, and goes no farther than that the examination of a long account within the meaning of section 271 is not involved therein, but that they do not determine what is such account. They are, therefore, not in conflict with the decision of Sheldon v. Wood, supra.

In the same manner, it will be found that in several case's arising oh contract, a reference has been refused, either because the account involved thei’ein was not sufficiently long to warrant a reference, or because the examination of the account was not directly involved therein; but this class of • cases also fails to establish a rule by which it could be determined what does constitute a long account, and, according to which a decision of the Oom’t below upon this point, could be reviewed at the General Term.

The most important cases in which a reference has been denied are:

McMaster v. Booth (4 How., 428, decided in 1850). This case simply decides that an action of negligence cannot be referred, notwithstanding Barculo, J., in making the decision, adopts as the basis for it the language of Nelson, Ch. J., in Silmer v. Redfield, supra.

Draper v. Day (11 How., 439), that an action to set aside an assignment for the benefit of creditors, on the ground of fraud,is not referable.

Dewey v. Field (13 How., 437) was an . action against the sheriff for the recovery of damages for a false return to an execution.

McCullough v. Brodie (13 How., 347; 6 Duer, 659) was an .action for damages for false representations.

Sharp v. the Mayor, &c., of New York (9 Abb., 426), same case (18 How., 213), affirmed on appeal (31 Barb., 578), was an action for damages for a misrepresentation, and the affidavit upon which the order of reference was granted was clearly insufficient, for the reason that it merely recited that the trial of the action would occupy a long time, and that a number of separate and distinct facts would have to be proved, by a large number of witnesses.

The case of Ross v. the Mayor, &c. (32 How., 164; 2 Abb., N. Y., 266), decides only that in an action brought to recover damages not arising out of contract, á reference cannot be ordered, even though the items of damage, which are to be examined, be ever so numerous. -

In Stevenson v. Buxton (37 Barb., 13; 15 Abb., 352) it was held that ;n an action for specific performance, where the fact that the defendant never had title, and was not and never had been able to specifically perform, is set up in the answer, and is proved on the trial at Special Term, a compulsory reference cannot be ordered to assess the damages, but the case should be sent to the Circuit for trial.

In Dickinson v. Mitchell (19 Abb., 286) five items in plaintiff’s bill of particulars were held not to be sufficient to constitute a long account.

Harris v. Mead (16 Abb., 257) was an action for plumbing work. Substantially there were but two items, and five items of extras of trifling amount, with one exception. The Court, simply held it not to be a ease for a reference.”

The case of Goodyear v. Brooks (4 Robertson, 682) turns upon the peculiar issues raised by the pleadings. !

In Cameron v. Freeman (18 How., 310; 10 Abb., 333) it was held, at Special Term, that a reference against the will of the parties cannot be ordered, unless the issues in the action involve directly, and not merely incidentally, the examination of a long 'account. Several other similar cases may be found, which hold, without denying the power of the Court, that it is improper to refer a case, where it may become only collaterally important to examine into a long account, but these I cannot stop to consider.

In the following cases, among others, a reference was ordered upon the ground that the examination of a long account was involved :

In Masterson v. Howell (10 Abb., 118) it was held, by .Hilton, J"., that an action to recover compensation for indorsing, for defendant’s accommodation, notes exceeding twenty in number, is properly referable as requiring the examination of a long account..

In Jackson v. De Forrest (14 How,, 81) a receiver was appointed and reference ordered upon the Court’s own motion to determine the whole- issue.

In Atocha v. Garcia (15 Abb., 303), being an action to recover the value of board and lodging, Monell, J., ordered a reference, notwithstanding the complaint contained allegations of fraud, which constituted a ground of arrest, and the defendant -had been arrested' thereon.

In Hatch v. Wolf (30 How., 65 ; 1 Abb., N. S., 77), which was an action to recover damages for a breach of covenant to keep premises in good and. tenantable repair, the Court of Common Pleas, at General Term, upheld the order of reference.

Daly, F., J.,

in delivering the opinion of the Court, held: That the order directing a reference upon the ground that the action required the examination of a long account, is not an order affecting the merits, or which involves a substantial right, and is not appealable (citing Dean v. Empire Mut. Ins. Co., 9 How., 69 ; Bryan v. Brennan, 7 How., 359 ; Ubsdell v. Root, 7 Hilton, 173); and if the action is one in which a reference may be ordered, the order of the judge at the Special Term, whether the examination of a long account is or is not involved, is not one which the Court will reverse on appeal (citing Smith v. Dodd, 3 E. D. Smith, 348; Kennedy v. Hilton, 1 Hilton, 546).

In Mills v. Thursby (11 How., 113, No. 1) a general reference was ordered, although the examination of an account formed only a. principal part of the issue. Mitchell, J., held that, although the question of partnership or no partnership, alone, is a proper one to he decided by a jury; yet where it is so connected with the accounts of the firm as to require an examination of them, the cause should be referred.

That an action upon a policy of insurance may be referred, if it involve the examination of a long account, has been distinctly held in Samble v. the Mechanics’ Fire Insurance Company (1 Hall, 560).

In Lewis v. The Irving Fire Insurance Company, and same v. The Fulton Fire Insurance Company (15 Abb., 303, note), Scrugham, J., granted the motion to refer, although the answer not only denied that the plaintiffs lost hv the fire the goods claimed to have been lost, hut charged fraud upon the plaintiffs in making claim for more goods than they lost, &c.

In Dean and wife v. The Empire State Mutual Insurance Company (9 Hów., 69), being an action upon two policies of insurance, executed by the defendants to Mrs. Dean, it was held by Watson, Wright, and Harris, JJ., that, although the answer contained not only a denial of the value of the property, and- of Mrs. Dean’s ownership, but also an averment that part of the property belonged to Hoah S. Dean, and that he had made, in the application for insurance, false and fraudulent statements which rendered the policies void, the' Court at Special Term having decided, however, that the action involved the examination of a long account, it was referable, and that the decision of the Special Term ought not to he reviewed upon appeal.

Finally, it should not be overlooked that several sections of the Code refer to different kinds of account. Section 158, in prescribing the manner of pleading an account, refers to an account and a “ further account” generally. Section 95, in prescribing that, in an action brought to recover a balance of an account, the cause of action shall he deemed to have accrued from the time of the last item proved in the account on either side, expressly limits the operation of the section to “ mutual, open, and current accounts, where there have been reciprocal demands between the parties;” while section 271 applies to any kind of an account .which may exist on either side, provided it is a long one. The cases of Peck v. United States and Liverpool Mail Steamship Co. (5 Bosw., 226), Green v. Ames (14 N. Y., 225), and Hallock v. Losee (1 Sand., 220), have reference only to the account defined by section 95.

Therefore, in view of the fact that a review of all the cases bearing upon the point under consideration, and a comparison of the decisions therein made with the facts of each case, discloses not only the inexpediency but the almost utter impossibility of supplying the want of a statutory definition of the term “ long .account on either side,” by a judicial construction to be followed in all future cases, I shall not attempt to determine the meaning of these words, but will content myself to decide the case under consideration in accordance with the rule laid down in Whittaker v. Desfosse (7 Bosw., 678), by five of the judges of this Court, sitting in General Term. In this case the language of Justice Edmonds, in Gray v. Fox (1 Code R., N. S., 334), was criticised as an extreme view of one side of the question, and the remark of Justice Dean, in Keeler v. the Poughkeepsie Plank Road Co. (10 How., 11), as an unwarranted limitation of the power to refer on the other hand, and held that it is sufficient if it appear that the trial of any one of the issues will involve the examination of a long account, although the determination of some other issue may render it unnecessary to try the first-named issue at all; that whether the whole of the issues shall be referred, or the talcing of the account merely, and whether the account shall be taken before the trial of the other issues, or after, are. matters in the discretion of the Court, at the Special or Trial Term, to be governed by the particular circumstances of each case; and it was consequently further held, in the last-named case, that if .there is any evidence laid before tire Court below that the examination of a long account will be required, and that evidence is uncontradicted, or if there is a conflict of proofs created by counter affidavits, then the determination of the Court below must be held final and conclusive, and this is the meaning and intent of the cases.

In the present case the motion for a reference was made and heard on the pleadings, and proofs of loss submitted by the plaintiff. The proofs of loss consist of one hundred and forty-five items of goods consumed by fire, of the alleged aggregate value of eleven thousand one hundred and twenty-seven dollars and twenty-four cents, and of forty-nine items' of goods saved from the fire, but damaged to the extent of two hundred and sixty-three dollars. This particular account of such loss and damage, the plaintiff was, by the terms of his policy, bound to render to the company, and the policy provided further that the amount of the loss or damage shall be paid sixty days after the receipt of said account. This particular account, therefore, as has been truly said by the learned justice who ordered the reference, is an essential element in the cause of action, and forms a part of the basis of the action; for, until it is rendered, no cause of action exists, and, when rendered, it limits and controls the recovery; and the said justice, upon the proofs before him, having found and decided that the account in question is a long account, within the meaning of section 271, that no difficult questions of law are involved, and the allegations of the answer being insufficient to raise an issue of fraud, the order appealed from should not be disturbed. I will conclude by stating that I did not fail to examine the cases of McLean v. the East River Ins. Co. (8 Bosw., 700), and Freeman v. the Atlantic Ins. Co. (13 Abb., 124), but that my views have not been changed thereby. In the first-named of these cases, a reference was refused at the Special Term on the sole ground that part of the defence was fraud on the part of the insured; and I must assume that the fraud was charged and averred in such form as to compel a determination of the question on the trial upon the evidence given in support of it. In the case last referred to, the Court, at General Term, it seems, did not deny the power of the justice at Special Term to order a reference in that particular case; but simply held, “ As the whole defense in this case rests upon the alleged fraud of the plaintiff, in not putting the goods on board, and also that the vessel was intentionally wrecked, and as both issues involved directly a charge of fraud, we do not thinh the case should have ieen referred; such questions are properly to be tried by a jury.”

The order appealed from should be affirmed with ten dollars costs.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    THE BOSTON SILK AND WOOLLEN MILLS, Plaintiffs and Appellants, v. GEORGE EULL, Survivor, &c., Defendant and Respondent.
    The district courts of the city of New York are not courts of justices of the peace within the meaning of subdivision 3 of section 304 of the Code.
    A plaintiff who sues in a court of record, in an action arising on contract and for the recovery of money only, and who recovers judgment for less than fifty dollars in consequence of a counterclaim interposed and established by the defendant in the action, is entitled to the costs of the action as a matter of course, provided his claim, together with the defendant’s counterclaim, exceed #400 in amount. A justice of the peace has no jurisdiction of such an action, within the meaning of subdivision 3 of section 304 of the Code, and the fact that the issues between the parties might have been tried and disposed of in a district court in the city of New York does not change the rule.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided June 11, 1869.]
    Appeal from an order made at Special Term, reversing the decision of the Clerk of this Court to the effect that the defendant is not entitled to the costs of this action, declaring the defendant entitled to such costs and directing the Clerk to adjust them.
    The appeal involves the question, which party is entitled to the costs of the action. The complaint was for goods sold and delivered between the 4th day of November and the 30th day of December, 1867. The answer “ by way of set-off or counterclaim ” set up an agreement as to quality, and to the further effect that all goods thereafter delivered, but not coming up to said quality, might be returned, and that credit should be allowed to the defendant therefor; that dealings took place between the plaintiffs and defendant during the years 1865,1866, and 1867, upon the basis of said agreement; that considerable portions of the goods so delivered under the agreement did not come up to the stipulated quality and were returned and received back, and credit allowed therefor to the defendant; that among the goods thus purchased were ninety-eight gross of tape, amounting to the sum of three hundred and ninety-two dollars, which were not of the quality stipulated for, but were, as soon as discovered, returned, on or about December 18,1867, which sum the defendant claimed as a set-off or counterclaim against any sum which the plaintiffs might recover for the goods stated in the complaint.
    The plaintiffs, in their reply, deny specifically each and every allegation in the answer, referring to the counterclaim therein set up.
    Upon the trial, the plaintiffs established their demand for ' $405.72, and defendant established; his demand for $392. Under the direction of the Court, the jury found a verdict for • plaintiff for $13.72.
    Upon the adjustment of the costs the defendant presented a bill of costs, which the Clerk declined to adjust, on the ground that the plaintiffs, and not the defendant, were entitled to costs.
    Upon this decision, an application was made at Special Term for an order directing the Clerk to adjust the defendant’s costs.
    The Judge at Special Term granted defendant’s motion and directed the clerk to adjust defendant’s costs.
    From this order the plaintiffs appealed to the General Term.

      Mr. George H. Forster for appellants.
    The costs in this suit depend on the construction of sec. 54, subdivision 4, and sec. 304, subdivision 3, of the Code, which are ■ as follows: •

      “ No justice of the peace shall have cognizance of a matter of account where the sum total of the accounts of both parties, * proved to the satisfaction of the justice, shall exceed four hundred dollars ” (Code, sec. 54, subdivision 4).
    “ Costs shall be allowed of course to the plaintiff, upon a recovery in the action of which a court of justice of the peace has no jurisdiction ” (Code, sec. 304 and subdivision 3.)
    " It is enough to entitle plaintiff to costs, that the facts of his case, as proved in a court of record, establish it to be one of. which a justice of the peace, by section 54, has no jurisdiction.” A plaintiff who sues in a court of record in an action arising on contract and for the recovery of money only, and proves contested demands which, with those established by the defendant, exceed §400 in amount, is entitled to costs as a matter of course, if he recover any sum whatever (Stilwell v. Staples, 5 Duer, 691 ; vide Crim v. Cronkhite, 15 How., 250).
    ' The fact that the Marine Court of the City of Hew York would have had jurisdiction of this action, while a justice of the peace would not, does not deprive plaintiff of the costs. The rule of the Code as to costs is a rule extending throughout the State, and the fact that the justices of the Marine and District Courts in the city of Hew York have a more extended jurisdiction than justices of the peace, does not make the rule as to costs different in this city from what it is in other parts of the State.
    The rule of the Code is the same for this city as for the parts of the State where courts of justice of the peace are held.

      Mr. Samuel C. Conable for respondent.
    This is an action of which a court of justice of the peace has jurisdiction (Laws of 1857, vol. 1, ch. 344, sec. 3, page 708, provide that the district courts in the city of New York shall have jurisdiction).
    “ In action similar to those as provided by sections fifty-three and fifty-four of the Code of Procedure, when the sum recovered shall not exceed two hundred and fifty dollars, notwithstanding the account of Tooth parties may exceed four hundred dollars.”

    This statement was an amendment of sections 53 and 54 of the Code, which limited the jurisdiction to §400.
    The case of Stilwell v. Staples, 5 Duer, 691, relied on by plaintiff, was decided at the October term, 1856; and before this amendment, and is based upon the statute as it is therein stated.

      The district courts of this city, then, have jurisdiction of this action (Crane v. Holcomb, 2 Hilt., 269).
    The district court of this city is a court of a justice of the peace within the meaning of subd. 3, sec. 304 of the Code.
    The case of Crane v. Holcomb, 2 Hilton, 269, decided at December Term, Common Pleas, is a complete authority in all points in favor of defendant.
    It establishes not only that the district is a court of a justice of the peace within the meaning of subd. 3 of sec. 304 of the Code, but also that it has jurisdiction of this action.
    The defendant claimed payment on the same by way of goods returned and Icept under an agreement to return them, of $392, and insisted upon being allowed .the same merely in reduction of plaintiff’s claim, and the jury' so allowed it. .
    It is well settled that payments made towards satisfying a debt are not demands, and constitute no part of an account, but extinguish the debt pro tanto (Crim v. Corthill, 15 How., P. R., 252; Malison v. Bloomfield, 10 Wend., 556; Mills v. New York, 10 Wend., 557; Lamoure v. Caryl, 4 Den., 370 ; 2 Cow., 418).
    The only account, therefore, proved or involved in the case was $13.72, the balance after deducting defendant’s payments.
   By the Court:

Freedman, J.

It appears sufficiently, from the allegations of the answer, that the ninety-eight gross of tape returned did not constitute any portion of the goods for the recovery of the price of which this action is brought. But whatever doubt might be indulged in upon a superficial perusal of the answer alone, is dispelled by the testimony of the defendant himself, who, upon his examination, testified that the ninety-eight gross were among a number of deliveries received from about June to October or November, 1867, that they had been settled for by note, which became due on the 24th day of December, 1867, and was paid at maturity.

The affidavits of George H. Francis and George H. Forster, submitted on the hearing at the Special Term, also prove distinctly that the ninety-eight gross of tape formed no part of the goods for which the suit was brought. There can, therefore, be no doubt that the defendant’s claim of three hundred and ninety-two dollars constituted a counterclaim within the meaning of section 150 of the Code (Lignot v. Bedding, 4 E. D. Smith, 285; Halsey v. Carter, 1 Duer, 667; Welch v. Hazleton, 14 How., 97; Gillespie v. Torrance, 25 N. Y., 306).

Counterclaims, under the Code since 1852, embrace both set-offs and recoupments as they were understood prior to that time (Pattison v. Richards, 22 Barb., 146).

A set-off is a money demand by the defendant against the plaintiff, and refers to a debt or demand independent of and unconnected with the plaintiff’s cause of action. It may exceed the plaintiff’s claim or fall short of it.

Becoupment, however, always implies that the plaintiff had a cause of action; the doctrine of recoupment was generally confined to damages for non-performance of the very contract sued upon (Seymour v. Davis, 2 Sandf., 239, and Dennig v. Kemp, 4 Sandf., 147), and a balance could not be certified in favor of a defendant before the Code (Sickels v. Pattison, 14 Wend., 257). Since the Code, however, of 1852, it seems that if the defendant’s demand is sufficient, a defendant may not only defeat a plaintiff’s claim by recoupment, but recover a balance, notwithstanding the former rule, to the effect that, in cases of recoupment, as opposed to set-off, a defendant could only use his claim to defeat that of the plaintiff (Ogden v. Coddington, 2 E. D. Smith, 317).

But while the counterclaim authorized by the Code embraces both set-off and recoupment, it is broader and more comprehensive than either (Vassar v. Livingston, 3 Kern, 256; Beardsley v. Stover, 7 How., 294). It secures to the defendant the full relief which a separate action at law, or a bill in chancery, or a cross-bill would have secured him on the same state of facts (Gleason v. Moen, 2 Duer, 642). It may be for either liquidated or unliquidated damages (Schubart v. Narteau, 34 Barb., 447), and for unliquidated damages arising on a contract different' from the contract on which the action is -brought (Lignot v. Redding, 4 E. D. Smith, 285), and of an equitable or legal nature (Currie v. Cowles, 6 Bosw., 453).

The plaintiffs in this action sued, to recover the price of specific quantities of goods sold and delivered within a certain specified period of time.

The counterclaim- of the defendant consisted of a money demand against the plaintiffs wholly independent of and unconnected with the plaintiffs’ cause of action, namely, of a claim for the value of other goods, which had been returned; although settled for, and taken .back by the plaintiffs, and which had nothing whatever to do with ■ the goods for which plaintiffs sued This claim, therefore, did not, properly speaking, go in reduction of plaintiffs’ claim; the defendant could not recoup it, but it constituted a set-off within the definitions hereinbefore laid down, for which the defendant might have brought a separate action Against the plaintiffs,-for the right of the plaintiffs to claim and of the defendant to counterclaim was reciprocal, as has been established by the verdict of the jury.,

The jury found in favor of the plaintiffs for the full amount of their claim, four hundred and five dollars and seventy-two cents, and in favor of the defendant for the full amount of the ■ defendant’s set-off, three hundred and ninety-two dollars, and, after deducting the same from the amount due to the plaintiffs, rendered a verdict for the difference, to wit", thirteen dollars and seventy-two cents in favor of the plaintiffs.

The total amount of the accounts and demands of both parties proved on the trial consequently was seven hundred and ninety-seven dollars and seventy-two cents.

Subdivision 3 of section 304 of the Code provides, that costs shall be allowed, of course, to the plaintiff, upon ’a recovery- in -the actions of which a court of justice of the peace has no jurisdiction, regardless of the, amount of the recovery (Stilwell v. Staples, 5 Duer, 691); and subdivision 4 of section 54 of the Code says that no justice of the peace shall have cognizance of a matter of account where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars. In construing these sections of the Code together, the right of the plaintiffs to recover the costs of the action seems not only clear, but appears to be fully established by the decisions in Stilwell v. Staples (5 Duer, 691), Crim v. Cronkhite (15 How., 250), Gilliland v. Campbell (18 How., 177), and see Glackin v. Zeller (52 Barb., 147).

The defendant insists, however, that this is otherwise since the passage of chapter 344 of Laws of 1857 (vol. 1, page 708), entitled “An act to reduce the several acts relating to the district courts in the city of New York into one act,” and claims .that as under the third section of said act jurisdiction has been conferred upon said district courts in actions similar to those as provided by sections 53 and 54 of the Code, where the sum recovered shall not exceed two hundred and fifty dollars, notwithstanding the accounts of both parties may exceed four hundred dollars, the district courts of the city of Hew York had jurisdiction of this action, and that for that reason and the further reason that they are courts of the justices of the peace within the meaning of that phrase in the Code, he is entitled to costs. It is true that by the language of the said third section the jurisdiction of the district courts is to be ascertained, not as has been the case before, by the amount claimed, but by “ the sum recovered.” It seems the plaintiff may claim any amount, and if he does not recover more than two hundred and fifty dollars, the court has jurisdiction; but the plaintiff can in no case recover more than two hundred and fifty dollars.

Section 49 of the same act provides, however, that where the amount found due to either party exceeds the sum for which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be entered for the residue. Assuming, therefore, that the district courts of the city of New York had jurisdiction to try the issues between the parties to this action, the question of costs is to be determined by construing together section 303, subdivision 4 of sections 304 and 305 of the Code; and in such case neither party is entitled to costs against the other, under the decision in Kalt v. Lignot (3 Abb., 190 ; affirming same case, reported in 3 Abb., 33, and 12 How., 535). The decision in the case of Crane v. Holcomb (2 Hilt., 269), relied on by the defendant as establishing a contrary doctrine, will be found, on close' examination, not to be in conflict with the last-cited case, for the reason that the answer in Crane v. Holcomb, in which case the plaintiff sued as indorser and holder of a promissory note made by the defendant, did not-set up an independent, demand against the plaintiff, for which the defendant might have maintained a separate action against the plaintiff, but an equitable defence against the greater part of plaintiff’s claim, namely, a counterclaim against the payee, while he was holder of the note, and then alleged further that the note came to plaintiff’s possession after maturity, and subject to defendant’s claim against it. The case was therefore correctly decided, notwithstanding the decision seems to have been placed upon different grounds.

But the question still to be determined is whether the district courts of the city of New York are courts of justices of the peace within the meaning of that phrase in the Code. The defendant has not been able to cite a case in which this point has been decided. Crane v. Holcomb, supra, is no authority on this point; and in Maguire v. Gallagher (2 Sandf., 402), the Court expressly declined to base its decision upon this theory. The district courts referred to were created in 1813 (2 R. L., p. 370, section 85), and were known until the year 1848 under the style of “ assistant justices’ courts of the city of New York.” By chapter 153 of the laws' of 1848 (p. 249), they were reorganized, and designated as “justices’ courts of the city of New York.” During the same session their name or style was changed to “ assistant justices’ courts of the city of New York” (Laws 1848, p. 404); and the Code of the same year refers to these courts by the same style (Laws 1848, p. 509). In 1849, the style of said courts was again changed' to that of “ justices’. courts' in the. city of New York, and in. 1852 to “district courts in the city of New York” (Laws 1852, chap. 324, p. 471). By the act of 1857, hereinbefore referred to, the last-named style was retained, and the said courts have been known by that name ever since. It will be found, however, upon an examination of the various statutes of this State passed since 1813, and which are too numerous to be mentioned in detail, that during the whole period of their existence under the aforesaid various names these courts have enjoyed and maintained, before and since the Code, and at all other times, a jurisdiction entirely distinct from that of courts of justices of the peace; they were organized in a different manner; they were regulated by special enactments, and treated as a distinct class of city courts of a jurisdiction inferior to that of courts of record, but greater than that possessed by courts of justices of the peace; provisions of law applicable to the latter were held applicable to the district courts only so far as they were made so by statute ; and the Code itself has maintained to the present day a marked and wide distinction between proceedings in, appeals from, and regulations appertaining to said district courts and courts of justices of the peace. The history of legislation upon this subject is therefore adverse to the claim set up by the defendant; and in Mills v. Winslow (2 E. D. Smith, 18), the General Term of the Court of Common Pleas expressly decided in broad terms that the said district courts and the marine court of the city of New York are not courts of justices of the peace within the meaning of the Code. The cases of Jackson v. Whedon (1 E. D. Smith, 141), and Davis v. Hudson (5 Abb., 64), tend to establish the same doctrine.

Another important reason why the construction contended for by the defendant cannot be sanctioned, is, that no statute should be so construed as to work injustice. If the plaintiffs had commenced their action for the recovery of the sum of four hundred and five dollars and seventy-two cents claimed by them in a district court, and the defendant had failed to appear, the plaintiffs could have taken judgment only foi two hundred and fifty dollars. Their claim would have become merged in the judgment, but the judgment would not have constituted a bar to the claim of three hundred and ninety-two dollars of the defendant, and the defendant could have collected his entire claim in a separate action instituted for that- purpose in a court of ■record.

The order appealed from should be reversed, with ten dollars •costs, and the decision of the Clerk affirmed


author: Fithian, J.

text:
    SQUIRES L. NEWBERRY, Plaintiff, v. THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, Defendants.
    The purpose of the act of the legislature (chap. 428, Laws of 1855), requiring a party, where property has been destroyed by a mob, to give notice to the mayor of the city, or sheriff of the county, of any previous threats of such mob so to destroy property, is to enable such sheriff or mayor, or both, to take the proper and necessary precautions for the protection of property so threatened.
    Such notice, by the party injured, is unnecessary where it appears that the mayor and sheriff had notice from other sources of the existence of an organized mob, and its threats and attempts to destroy property generally, in a city.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided June 11, 1869.]
    This case was tried before Mr. Justice McCunn and a jury.
    The action was to recover for property destroyed by a mob on the 14th of July, 1863. Plaintiff was a jeweller,,and had a place of business at No. 299 Tenth avenue, New York, in which were his tools and implements of trade and a small stock of goods. Between eight and nine o’clock in the morning of the 14th of July, 1863, plaintiff was informed by a neighbor that his premises were to be attacked by the mob that morning at nine o’clock; that thereupon, being in fear of bodily harm, he and his family left the premises quickly, being followed, he said, by persons he supposed to be the mob. It further appeared that about one o’clock of that day plaintiff’s premises were attacked and sacked, and his property totally destroyed, to the amount of about one thousand nine hundred dollars, by a mob of from one hundred and fifty to two hundred persons, acting in concert. The plaintiff did not notify the Mayor of the city or Sheriff of the county of the intent of the mob to attack his premises, pursuant to the provisions of section 3 of chapter 428 of the Laws of 1855, under the provisions of which statute this action was brought. At the close of plaintiff’s proof the justice dismissed the complaint, on the ground of the failure of the plaintiff to give such notice. Plaintiff’s counsel excepted, and the exceptions were ordered to be heard, in the first instance, at the General Term.

      Mr. David McAdam for plaintiff.
    The object of the notice to the mayor and sheriff is to enable them to take the necessary means to protect the property threatened with violence. The threats here were immediately followed by the threatened acts of the rioters; there was no time for preparation or notice; the plaintiff fled for his life; the evidence shows the dangerous combination against him and his property$ and the final destruction of his property, showing the exercise of great force and an utter disregard of consequences. The dangerous character of the mob clearly appears. There was no time for notice—no need of notice; the destruction commenced before the plaintiff found security for his life, and ¡wus finished long before any notice could possibly find the Mayor or Sheriff, who, at the time, were as much unable to protect the plaintiff’s property as he was himself. The statute must receive a reason, able and liberal construction; and it is only where a party has .time to notify the sheriff, and neglects to do so, that the omission is fatal' (Schiellien v. Board of Supervisors of Kings Co., 43 Barb. S. C. R., 490; Ely v. Board of Supervisors, 36 New York, 297). The question whether the plaintiff had time to notify the Mayor •and Sheriff, before the alleged injury and destruction were consummated, was a question of fact for the jury to determine, from ' the evidence and the circumstances -surrounding the case, as in .the actions last cited (43 Barb., 490; 36 N. Y., 297). The question of reasonable time is always a question of fact for the jury (Green v. Haines, 1 Hilt., 254; Conger v. Hudson River R.R. Co., 6 Duer, 375 ; Lawrence v. Ocean Ins. Co., 11 Johns., 241).

      Mr. Richard O’Gorman for defendants.
    A party seeking relief afforded by statutory provisions must establish by proof that he has complied strictly with the requirements of the statute. The plaintiff has failed to furnish such proof, and, on the contrary, the evidence adduced shows that he has violated or neglected to obey the requirements of the law, in that he did not use due diligence to prevent the damage which is the subject of his complaint. His flight from his house, leaving it unprotected, evinces an extreme diligence in caring for his person, which induced an equally extreme negligence of his property. He failed -and neglected to notify the Mayor of the city or the Sheriff of the county, after being apprised of the threat to destroy his property by the mob, “ of the facts brought to his knowledge.”
    The notice is prescribed by the statute as an imperative prerequisite to the right to recovery; and nothing but a destruction of the property simultaneous with the plaintiff’s knowledge of the threat or attempt, or the duress of superior force rendering it impossible or extremely dangerous to notify the officers named, can excuse an omission of that duty. The evidence shows that neither of these excuses existed; that the time and opportunity of the plaintiff to perform the duty was ample. Therefore, his omission thereof, whether induced by negligence or ignorance of the provisions of the law, must preclude a recovery. The neglect of the plaintiff either to protect himself by his own efforts, or, by notice to the Mayor or Sheriff, to invoke the protection which it was the duty of the authorities charged with the preservation of the public peace to extend to him, has permitted the injury which he has sustained, and therefore, upon the adjudicated principles of law, independently of the special provisions of the statxite, the complaint was properly dismissed (Wilds v. Hudson River R.R. Co., 24 N. Y. Rep., 430; Johnson v. Hudson River R.R. Co., 20 N. Y. Rep., 73).
   By the Court:

Fithian, J.

In these cases the statute provides that no recovery shall be had for property destroyed or injured by a mob, if it appear that the destruction or injury was occasioned, or in any manner aided, sanctioned, or permitted by the carelessness or negligence of the party seeking to recover. Nor shall any recovery be had unless such party shall have used all reasonable diligence to prevent such damage, and shall have given notice to the mayor of such city, or the sheriff of such county, immediately after being apprised of any threat or attempt to destroy or injure the property by any mob or riot, of the facts brought to his knowledge; and, thereupon, it is made the duty of the officer so notified to use all legal means to protect the property. And if he refuse or neglect to do it, an action may be maintained against the officer, for the value of the property destroyed, by the injured party. ■

It is clear, upon the face of this statute, that its object and purpose in requiring notice of any threat or attempt by a mob to injure property, was for the purpose of protection to the property, to enable the constituted civil or military authorities, or both, to meet and overcome riotous, illegal force by organized legal force, and thus afford protection to persons and property. And in such case if a party, knowing that injury to his property had been threatened by mob violence, omit to give notice of that fact to the civil authorities, who could and would have afforded protection if they had been notified, he shall not recover, because it is his own fault and neglect that the injury was not prevented.

But the object and purpose, or reason for giving such notice, have no application to the circumstances and conditions under which plaintiff’s property was destroyed in this case. This court will and must take judicial notice that on the 14th day of July, 1863, a very considerable portion of the city of New York, including that part where plaintiff’s premises are situated, was under the absolute and uncontrollable domination of an organized, riotous, and rebellious mob ; that in those parts of the city where it held sway, the civil and military authorities were excluded by force, and utterly powerless to offer successful resistance to the riotous proceedings; that for more than a day previous to and after the destruction of plaintiff’s premises, both the Mayor and Sheriff knew of this mob and all its proceedings,, and were exerting every available power and means at their command to subdue it, and that without success, until aided by the strong arm of military power. What good, for any purpose of protection, would or could have resulted from the plaintiff giving notice to the Mayor or Sheriff that this mob had threatened his property \ They both knew already that all the property in that part of the city, as well as human life, was threatened by this mob, and were exerting their utmost power to subdue it. It is clear that the provisions of the statute in regard to notice is not applicable to a case of this kind (Shudlim v. The Board of Supervisors of Kings Co., 43 Barb., 490; Ely v. The Board of Supervisors of Niagara Co., 36 N. Y. Rep., 297).

The exception of the plaintiff must be sustained, the order dismissing the complaint reversed, and a new trial ordered, with costs to abide the event.


text:
    OTIS MILLS, Plaintiff and Respondent, v. JAMES S. WATSON, Defendant and Appellant.
    A purchaser of lands, encumbered by a mortgage before executed by the seller, agrees as part of the purchase price to assume and pay the mortgage' debt when due. By such agreement the purchaser, as between him and the seller, becomes the principal debtor for payment of the mortgage, and the seller Ms surety.
    In such case, if the purchaser omit to pay the mortgage debt when due, the seller may lake an assignment of the mortgage to himself and foreclose the same, or sue on the agreement and recover the amount paid by him in obtaining the mortgage, not exceeding the amount unpaid on such.mortgage. In such an action, written receipts indorsed on the mortgage by the mortgagee, are competent evidence to show payments thereon. The plaintiff in such action can only recover the amount paid by Mm.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided June 11, 1869.]
    This case was tried at Special Term, before Mr. Justice Freedman.
    This was an action in equity, in the nature of a bill quia timet, to compel the defendant specifically'to perform a covenant of payment and indemnity in favor of plaintiff.
    In September, 1853, the plaintiff being the owner in fee of certain' lands and premises in the city of Charleston, South Carolina, executed and delivered his bond, and a mortgage on such premises, to one Baker, executor, &c., to secure the payment of $4,200, in five years from date, with interest annually.
    • In November, 1855, Baker, the mortgagee, assigned this bond and mortgage to Charles M. Groves, trustee of Mary C. Dukes. Afterward, in April, 1856, the plaintiff Mills sold and conveyed the mortgaged premises to'the defendant, by a deed of indenture executed by both the parties thereto, in consideration of $500 cash paid, and the further consideration that defendant Watson did therein covenant and agree with plaintiff Mills to “ well and truly pay o/rhd satisfy ” the bond above described, and “ hold harmless the said Otis Mills, his heirs, executors, and administrators, from all loss and damage whatsoever, by reason of the said bond and mortgage.”
    In June, 1860, one James M. Carson was appointed “ trustee of Mary C. Dukes,” in place of Charles M. Groves, and the bond and mortgage was thereupon assigned to Carson as such trustee. In May, 1863, the defendant Watson, not having paid the said bond and mortgage, or any part thereof, in pursuance of his co venant so to do, the plaintiff Otis Mills paid to Carson, the then holder of the bond and mortgage, $3,823.44, in full satisfaction of the amount then remaining unpaid on said bond and mortgage, and took from said Carson an assignment thereof to himself, by the description of “ Otis Mills, executor Est. E. A. Miller,” one thousand dollars of which sum was paid by crediting to Mills, as cash paid, a debt which he held for that amount against the holder of the mortgage, and the remaining $2,823.44 was paid by the check of “ O. Mills & Co.” on a bank in Charleston, and which check was paid by the bank in certain bills, called “ Confederate notes,” which were proven to be worth 20 cents per dollar only, in gold.
    Afterward, Mills commenced this action to compel defendant to pay this bond and mortgage in full. It appeared that while the bond and mortgage was held by Groves’ trustee, there were indorsed by him, over his own signature on the bond, four several receipts, acknowledging the receipt by him, from the plaintiff Mills, of several payments of principal and interest on said bond, as follows: October 4, 1856, $294; February 21, 1859, $224; April 9,1860, $224; and January 18, 1858, $1,294. These receipts were offered and admitted in evidence on the part of plaintiff, to show payments by him of said amounts on the bond and mortgage. The receipts were objected to as incompetent evidence against defendant to show payments by plaintiff.
    The justice at Special Term held that the action could be maintained to enforce the specific performance of defendant’s covenant to pay the amount of the bond and mortgage; that plaintiff was entitled, as assignee of the bond and mortgage, to recover the full amount thereof, and that the receipts were evidence against defendant. Judgment was accordingly entered that defendant pay to plaintiff §5,859.44, with interest on $4,200 from May 14, 1863. No interest was allowed on the three pay ments first receipted on the bond. The defendant appealed.

      Mr. William G. Choate for appellant.
    A grantee who covenants to pay a mortgage existing on the land granted, and to indemnify the grantor against the same, is hable on his covenant, after an accord and satisfaction of the mortgage debt by the grantor, only for the value or amount of such accord and'satisfaction; and there was error in the finding that the defendant owed on his covenant any greater sum by reason of the payment of Confederate notes, than the value of said notes:
    Upon the conveyance of the equity of redemption to the defendant and his covenant, he became the principal debtor, and the plaintiff became his surety (Halsey v. Reed, 9 Paige, 446, 452; Marsh v. Pike, 10 Paige, 595 ; Harley v. Harrison, 24 N. Y., 171).
    The plaintiff, then, has the rights and remedies of a surety.
    A surety who extinguishes the debt by an accord and satisfaction can recover of his principal, not the amount of the debt extinguished, but the value of the property taken in satisfaction (Bonney v. Seeley, 2 Wend., 48 L; Ainslie v. Wilson, 7 Cow., 662; Sedgwick on Damages [4th ed.], pp. 323-325).
    The plaintiff was not entitled to all the benefits of the bond and mortgage, as a purchaser. He was entitled to hold the mortgage as a lien on the land for the security of his claim against the defendant on the covenant (Lewis v. Palmer, 28 N. Y., 271; Story’s Eq. Jur., sec. 490, 490 d).
    The bond was clearly extinguished by payment.
    It was the plaintiff’s bond. Defendant could never have been sued on it, nor can he now ; and by its surrender to the plaintiff, upon satisfaction, it was extinguished. It cannot be said to be security in the plaintiff’s hands, for it was security only against himself. It might he otherwise if the bond were the bond of the defendant, and the plaintiff had joined in it as surety.
    With the mortgage, however, it was otherwise. That binds by a valid lien the defendant’s land. It is collateral to the bond.
    The plaintiff is in equity entitled to be subrogated; but neither justice nor equity entitles him to take advantage of this security to recover more than the amount due to him from the defendant. He too'lc the lien of the mortgage as security only. The receipts indorsed on the bond were improperly received as evidence of payment by the plaintiff (see Foster v. Beals, 21 N. Y., 249).
    The plaintiff was a competent witness to prove those payments, if made, and he was not called.
    The action is in the nature of a bill quic/j timet, to obtain specific performance of covenant to pay a debt of the plaintiff.
    Yet, upon the findings of the court, the plaintiff is under no liability under that debt; the debt is discharged; and he has a claim at law against the defendant for damages only, with a right in equity to enforce the lien of the mortgage against the land, by way of security for his claim for damages.
    That of which he asks the specific performance is already performed by himself.

      Mr. John L. Cadwalader for respondent.
    This Court, as a court of equity, has jurisdiction to decree the specific performance of the defendant’s covenant to pay and satisfy the bond and mortgage outstanding (Story’s Eq. Jur., vol. 2, sec. 880, p. 194; Milford’s Pleading, by Jeremy, 148 ; Farnham v. Mallory, 5 Abb., N. S., 380; S. C. [less fully], 40 N. Y., 527; Champion v. Brown, 6 John. Ch., 398, 407 ; Hayes v. Ward, 1 John. Ch., 132; Marsh v. Pike, 1 Sand. Ch. R., 210; S. C., 10 Paige, 595).
    The covenant of the defendant was in part payment of purchase-money, and was not a contract of indemnity. It was an absolute engagement to pay; and an action could have been maintained, and the amount collected, the moment the mortgage became due, and without waiting for or setting up any damage, and the judgment would provide for the application of the money, as in this case. It was simply collecting the purchase-money of tl^e property sold to the defendant and paying the mortgage (Rawson’s adm’r v. Copeland, 2 Sand. Ch., 251; Post v. Jackson, 17 John. R., 238, also 479; in the matter of Negus, 7 Wend., 499; Wetherby v. Mann, 11 John. R., 516).
    The plaintiff, therefore, was entitled to purchase the security and enforce it as any other person. But here he was obliged to pay, and the amount paid or the currency in which it was paid is not material. ‘ ¡Nor is the form of action material, whether it be an action to enforce the covenant or tp foreclose the mortgage. The Court will give the plaintiff the relief to which he is justly entitled in this action. But Farnham v. Mallory, supra, is a direct authority to enforce the covenant, whoever held the mortgage.
    The payment of interest proved by the indorsements on the bond was properly received; and it is clear that, if the court had jurisdiction of the subject-matter in action, payment of the interest may also be decreed (Livingston v. Painter, 43 Barb., 270).
    The evidence was admissible as a declaration and entry against the interest of the party making it, and also as a part of the res gestee, and a contemporaneous act done at the time of the payment.
   By the Court:

Fithian, J.

I concur with the Justice at Special Term that this action can be maintained in equity. By the covenant in the deed from plaintiff to' the defendant, the latter, for a good consideration, undertook to pay plaintiff's debt to a third person. The defendant thereby, as between him and the plaintiff, became the principal debtor, and the plaintiff his surety. It is a well-settled rule of equity that a suit in equity may be instituted and maintained by a surety, to compel payment by the principal upon a covenant of indemnity; and unless there be some good reason shown to the contrary, the Court will decree specific performance, upon the same principle that they entertain a bill of quia timet (2 Story’s Eq., sec. 880, p. 194; Marsh v. Pike, 1 Sandford, Chy., 210; 10 Paige, 395).

The action is properly brought in the name of plaintiff individually. The assignment of the mortgage must be construed as the assignment to him in his individual capacity. The words “ executor est. B. A. Miller,” following plaintiff’s name in the assignment, must be rejected as surplusage, or considered as descriptio personas only, as in the cases of Peck v. Mattoon, (10 N. Y., 509), and Ogdensburg Bank v. Van Rensselaer (6 Hill, 240); especially so in this case, as there is no evidence of the existence or death of any such person as R. A. Miller, or that he left an estate, or that plaintiff was his executor.

I am also of opinion that the receipts were competent evidence prima facie to show payments by plaintiff upon the bond. There was no question as to the genuineness of the signature' of the then holder of the mortgage. The defendant, by his covenant, became the principal debtor on the bond and mortgage, and could be so considered and treated by whoever held the mortgage, and a personal judgment could have been obtained against him in an action to foreclose the mortgage. Assuming, as we must, that the law of South Carolina is the same as ours in that respect, in any such action, these receipts would be competent in favor of defendant to reduce the recovery. They are made against the interest of the party holding the mortgage, are indorsed upon the bond itself, and must be considered a part of the res gestee. Besides, I do not see how the defendant is bound in the premises.

Upon the law of the case, as claimed by the defendant, plaintiff was entitled to recover all that he had paid. Striking the receipts from the case, then the production and proof of the bond and mortgage, in the absence of any proof on the part of defendant to the contrary, would have been prima facie evidence of payment by the plaintiff of the full amount of it, while the evidence by defendant clearly shows that the sum paid by plaintiff, at the time of the assignment to him, was not in satisfaction of the whole amount of the mortgage debt, but only of what re mained after deducting these payments.

The remaining question is as to the amount of the decree.' While I am clearly of opinion the plaintiff cannot, upon the facts in this case, have a decree in equity for any greater amount than he has paid, yet, in the view'I take of the evidence, it is unnecessary to examine that question at length. In this case, the production of the bond and mortgage on the trial is proof of due assignment thereof to the plaintiff; and proof of the receipts was of itself prima facie proof of the payment of the full amount thereof by the plaintiff. The onus then was upon the defendant to show (if he claimed such to be the fact) that the plaintiff obtained the mortgage for a sum less than the full amount secured thereby. This the defendant has undertaken, but, I think, wholly failed to do. The only question is in respect to the item of $3,823.44, which defendant insists was not paid in full by the plaintiff. One thousand dollars of this item was paid by plaintiff, crediting thereon a debt of that amount,, owing to him by the holder of the mortgage. This debt was not disputed; it was therefore so much cash. “ The balance (about-$2,823.44) was paid by a check of O. Mills & Co., on a bank in Charleston.” It is true that in judgment of law the delivery to a creditor, by a debtor, of a check or note, for or on account of a precedent debt, is not of itself evidence that the check or note was taken in payment or satisfaction of the debt; yet-it may always be shown by proof that it was, in fact, so taken. Here the proof is positive that this check of 0. Mills & Co. was so taken. The only witness who did speak on the subject, and he one of the parties to the negotiation, swore the balance was 'paid ” by this check. The witness then proceeds to state: “ The currency at that time was Confederate treasury notes, and checks on banks at that time were paid in that currency.” The witness does not state, except inferentially, how this check of 0. Mills & Co. was paid, nor is it material to inquire. The question .is not what the payer of the check realized upon it, but what it was worth to the plaintiff, or what it cost him to obtain it. There is no evidence of the precise amount of the check on its face, but as it was given in payment of a certain balance, viz., $2,823.44, presumptively it was for that amount on its face. It must be presumed also, in the absence of proof to the contrary, that the drawers of the check had sufficient funds in the bank to meet it, and that it was accepted and paid by the bank. There was no proof of protest or complaint by the person to whom the check was paid. It must be considered, therefore, that the check was given for the amount it called for, and that was for the number of dollars and cents named therein, in the money of account of the United States. This Court cannot acquiesce in the right of the drawers or acceptors of the check, without the consent of the holder, to extinguish the obligation thereby created, in any other way than by the legal-tender money of the United States, any law or custom- of the State of South Carolina to the contrary notwithstanding. Had it appeared affirmatively that the plaintiff had purchased a certain quantity of illegal and unauthorized promises to pay, worth as property but twenty cents on a dollar of their face, and that, by a compromise between him and the holder of the mortgage, the holder had taken these promises at their full nominal face or value, in satisfaction of this mortgage, another question would have arisen. But it suffices to say no such facts appear; and there is no evidence in the case to negative the presumption that O. Mills’ check was worth its face in United States currency.

The judgment should be affirmed, with costs.


text:
    LOUISA A. ROE, Administratrix, &c., Plaintiff and Respondent, v. ABRAHAM B. CONGER, Defendant and Appellant.
    Where there are no exceptions, a verdict of a jury and judgment thereon will not be disturbed where there is competent evidence to support it, although the preponderance of evidence may be the other way.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided June 11, 1869.]
    This case was tried before Chief-Justice Robertson and a jury.
    The action was for goods sold and delivered. In ¡November, 1867, plaintiff held an auction sale of certain farm produce, stock, and farming utensils, before then belonging to the estate of which she was administratrix. The defendant, a neighboring farmer, sent two of his hired men to purchase for him property at this public auction. One of them purchased, and had struck off to him, for the defendant, various articles of property, to the amount in all of eight hundred and. fifty-eight dollars and thirty-five cents; and the other purchased and had struck off to him, at the sale, articles to the amount of ninety-one dollars and ninety-five cents. All -the articles, so purchased, were delivered and taken to the defendant’s farm, and used thereon. The defendant acknowledged his liability for articles to the value of eight hundred and thirty-six dollars and forty cents, but refused to pay for the balance, about one hundred and fourteen dollars, alleging that the purchase of those articles was wholly unauthorized by him. He so testified, and the two hired men corroborated him in that respect on the trial. There was some evidence tending to show that the hired men.had discretionary authority as to what they should purchase on defendant’s account; also some evidence tending to show that all the property, including the articles in dispute, was bid. off in the name of defendant, by the hired men,, respectively, and defendant’s name given to the auctioneer as the purchaser; and that afterward defendant ratified these acts of his agents, and agreed to pay. The preponderance of evidence, however, was the other way.
    The jury found a verdict for the plaintiff for the full amount claimed.
    The defendant appealed.

      Mr. James A. Seaman for appellant.
    The verdict was against evidence, and should be set aside.
    The sale of the goods in question was at auction, and there is no doubt that the defendant was not present at the sale. He can be charged with the amount in dispute only by establishing either that the goods which he denied having purchased were bought by his agents authorized to buy them, or that he agreed to become responsible for their purchases as his own.
    There was no original authority to purchase the goods in question shown by the testimony. Both of the men who are alleged to have bought them for the defendant, while testifying that they had been authorized by him to buy some things, srich as hay, oats, &c., deny that they were authorized to buy the goods in dispute, and state that they bought those things for themselves, gave their own names in at the sale, and were personally charged with them by the auctioneer. There was no testimony by which these statements .are contradicted.
    The jury could have had no right to interpret any thing in the conversation or acts of defendant as amounting to an acceptance by him of the purchases in question as his own, and as a.promise to pay for the goods so bought; such a promise would have been within the statute of frauds. The Judge’s charge was explicit on this point. Tet, as the proof is all to the effect that the defendant did not authorize the purchase, the jury must have founded their verdict upon some such supposed subsequent assumption of the debt by him.

      Mr. Alfred Roe for respondent.
    No exception having been taken to the charge of the Justice this Court will review only the exceptions taken to certain parts of the evidence relative to questions of law, and none of such exceptions are well taken.
   By the Court:

Fithian, J.

In the opinion of the Justice before whom the cause was tried, there was a sufficient conflict of evidence on those points to send the case to the jury. The case was so submitted in a very clear charge, to which no exception was taken by either party. The jury were instructed' substantially that in order to find a verdict for the plaintiff, they must be satisfied from the evidence, either that defendant Conger authorized the purchase of the articles in dispute, or that they were purchased on his account, and he afterward ratified the act. >

By finding for the plaintiff the full amount of her claim, the jury must have found one or both of the above propositions against the defendant. I cannot say there is such a preponderance of evidence against it as to justify the court in reversing the decision of a jury on question of fact, especially where the amount in controversy is so small.

The judgment should be affirmed, with costs.


author: Barbour, C.J.

text:
    CHARLES H. SMITH, Plaintiff and Appellant, v. TIMOTHY J. COE, Defendant and Respondent.
    A statement, by a judge of some or all of the reasons which have operated upon Ms mind and induced his ultimate decision upon a question before him is not a subject of exception.
    A proceeding before a judge other than the one before the trial was had, and that, too, after the latter had, upon a similar motion, denied the same, was wholly irregular.
    The proper course for the aggrieved party was to have appealed from the first order to the General Term.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided June 18, 1869.]

      Mr. Joshua M. Van Cott for appellant.

      Mr. John M. Martin for respondent.
   By the Court:

Barbour, C.J.

These are appeals from two orders, denying the plaintiff’s motions to review and re-settle the case.

The first of those orders was made at Chambers by the Justice before whom the cause was tried and the case settled, and denied the plaintiff’s motion to insert certain matter in the case which such Justice had directed to be stricken therefrom on the settlement. It was as follows :

After a motion had been made on the part of the defendant to dismiss the complaint and granted by the court, the plaintiff’s counsel asked the Judge, “ whether he ruled that the plaintiff so abandoned his interest in these premises as to deprive him of the right to insist upon the performance of the covenant 2 To which the court answered, Yes, sir.’ And, thereupon, the plaintiff’s counsel excepted to that ruling.” It is the matter within the quotation marks that was sought to be inserted in the case. Affidavits showing that «those proceedings occurred upon the trial were read in evidence, and viere undisputed.

, The second motion was of the same character, and was made at Special Term before another Judge, after the first motion for a re-settlement had been made and decided.

It is not true, as is claimed by the defendant’s counsel in his argument here, that it rests with the judge and his conscientious sense of duty to say what shall be inserted in or excluded from, a case, in an action tried before him.” The appellant has a perfect right to put into his case on appeal from a judgment rendered at a jury term, all the rulings and decisions of court directly affecting his rights in the action, and to which he regularly and duly excepted. But a statement by the judge of some or all of the reasons which have operated upon his mind, and induced his ultimate decision upon the question before him, is not the subject of an exception. The first motion to re-settle the case and insert the proposed matter was, therefore, properly denied, and the order thereupon should be affirmed with costs.

Those reasons are sufficient to require the affirmance of the second order. It may be proper, however, to say that the proceeding before a judge other than the one before whom the trial was had, and that, too, after the latter had, upon a similar motion, refused to permit the insertion of the excluded matter, was wholly irregular. Upon the decision of the first motion, the "question was so far res judicata, that no other motion of the same character could properly be made, even before the same judge, without obtaining leave to make it. The proper course for the aggrieved party would have been to appeal from the first order to the General Term, as he has since done. The second order must, therefore, be affirmed, with costs.


author: Jones, J.

text:
    TIMOTHY McCARTHY, Plaintiff and Respondent, v. PETER McQUADE et al., Defendants and Appellants.
    Effect of section 5, title 2, chap. 7, part 2 R. S., with reference to the charge of the judge; and what uncontroverted facts will not, as matter of law, constitute an immediate delivery, &c:, under this section.
    If the facts bearing on the question of Immediate delivery, followed by an actual and continued change of possessions, are uncontroverted, the judge should determine, as matter of law, whether there was such immediate delivery, &c., or not; if he determine there was, he should charge the jury that it devolved on the defendant to prove that the sale, &c., was fraudulent, and made with the intent to hinder, delay, or defraud creditors; it he determine there was not, then he should charge the jury that it devolved on the plaintiff to show to their satisfaction that the sale, &c., was made in good faith and without any intent to defraud, and if the plaintiff failed so to show to their satisfaction, that then they should find a verdict for the defendant. If the facts bearing on the question of immediate delivery, &c., are in dispute, then the question, as to whether there ’was such immediate delivery or not, should be submitted to the jury, with instruction that as they found on that question, so would the burden of proof on the question of fraud devolve; if in the negative, it would fall on the plaintiff to prove to them satisfaction that the sale, &c., was made in good faith and without any intent to defraud; and if he failed so to satisfy them, their verdict must be for the defendant; if in the affirmative, it would fall on the defendant to prove to their satisfaction that the sale, &c., was fraudulent, and made with the intent to hinder, delay, or defraud creditors; and if he failed so to prove, then the verdict must be for the plaintiff State of facts which in this case were held as matters of law insufficient to show an immediate delivery, &e.
    Before Monell, Jones, and Fithian, JJ.

      [Decided July 2, 1869.]
    This case was tried before Mr. Justice Monell and a jury.
    The action was to recover damages for the conversion of certain personal property. The defence was, that the alleged conversion consisted in the levying on the property under an execution issued on a judgment rendered against one Peter McCarthy, and that the property was either the property of Peter, or Peter had an interest therein liable to levy and sale on execution.
    The plaintiff, Timothy McCarthy, and one Peter McCarthy were brothers. Prior to the 25th of September, 1867, Peter had been carrying on the liquor business at No. 385 Seventh avenue', and Timothy had been in the employ of Samuel W. Milbank, as carman, for three or four years, at weekly wages of eleven or twelve dollars, Milbank supplying the horse and cart. .Peter had been sued, and on the 25th of September, 1867, judgment was imminent. On that day Peter made a bill of -sale to Timothy of the stock, fixtures, goods, chattels, and merchandise belonging to him, and then in his store at 385 Seventh avenue, and also of the good-will of the business; he also assigned to Timothy the lease of the premises.
    The consideration alleged to have been given for this bill of sale and assignment was $1,200, which, it is alleged, was paid by Timothy, giving his brother Peter $100 cash, and assuming a debt of $1,100, due from Peter to Milbank.
    Timothy paid to Milbank $500 of this indebtedness in cash, and gave his note for the balance. Timothy claimed to have raised the $500 thus: In 1865, he says he loaned to one Thomas Keane, liquor dealer, the sum of $300, for which loan he took no acknowledgment. This $300 he called in, and borrowed from Keane $200 more- Keane had previously sold liquor to Peter, 'and when asked if he had been on friendly terms with Timothy, replied, “ Hothing more than coming in and out.”
    Timothy testified that he made no examination as to the quality of the liquor in his brother’s store, nor any inquiry into his business prior to the purchase; he further says, there was not to exceed $200 worth of property on the premises when he purchased, consisting of ten gallons of gin, twelve gallons of spirits, four boxes of cigars, worth about $12, and furniture and shelving worth about $50. .
    The Sheriff testified that on the 27th September he went to the premises to make a levy, and found there four barrels of Bourbon, three other barrels and some demijohns, and the other three barrels contained sherry wine, spirits, and gin.
    There is no proof that any liquor had been brought into the premises between the time of the sale to Timothy, on the 25th, and the visit of the Sheriff, on the 27th September; but plaintiff testified that after he bought*out his brother he bought liquors from. Thomas Keane, and Thomas Keane swore that plaintiff bought of him gin, whiskey, and sherry, to be delivered on the 28th, and they were delivered on the 28th.
    It Ayas shown that on the 25tli, after the execution of the bill of sale by Peter to Timothy, both brothers went up to the store, and Timothy hired one Shea, Avho had been bar-keeper for Peter, as his bar-keeper. Timothy left his brother Peter in the store from the 25th to the 30th. Timothy never put up his sign, but in a Aveek or ten days after the 25th changed the sign of P. McCarthy, which had been previously on the premises, by erasing the letter “ P.”
    Plaintiff testified generally that Peter gave him possession on the 25th.
    This was the condition of the evidence, when defendants’ counsel offered in evidence a letter written by Peter to defendants, dated September 26, 1867, which was objected to by the plaintiff’s counsel, and objection sustained.
    In this state of the proof, defendants’ counsel asked the deputy sheriff what Peter McCarthy said at the time the levy was made, which question was objected to by plaintiff’s counsel, and objection sustained.
    The Justice charged, among other things: “ The laAV in regard to fraudulent sales and transfers of property is simply this, that every sale of property which is not accompanied by an immediate delivery and folloAved by an actual and continued change of possession, is presumed to be fraudulent and void as to creditors, and is conclusive evidence of a- fraud, unless the jury is satisfied from the evidence that the sale was made in good faith, and without any intention to defraud, hinder, or delay creditors. Therefore this sale to the plaintiff, from Peter McCarthy, >vould be void if you shall find that it was made with intent to defraud the creditors of the latter. But it is necessary to go a step farther. Although the transfer may have been made by Peter McCarthy Avith intent to defraud his creditors, yet, unless Timothy McCarthy Avas cognizant of sneh intention, it would not avoid the sale. A purchase made without any knowledge of any fraudulent intent on. the part of the vendor is protected. So that even if you shall find that Peter McCarthy did transfer this property with intent to defraud his creditors, yet if you shall also find that Timothy McCarthy did not know of, and was not a party to, the fraud, your verdict will be for the plaintiff.

      “ The second branch of the case applies to the goods purchased by the plaintiff after the execution of the bill of sale, and for that property he is entitled to recover, although you shall find the bill of sale void, provided you shall also find that he purchased those goods in good faith for himself, and not for his brother Peter.
    “ It is not important, except in one view of the case, whether the goods were purchased from Brewster or from Keane. But you have a right to look at the evidence of such purchase in connection with the question of fraud; and if you are satisfied that the plaintiff testified untruly that he made the purchase from Keane, when in fact it was made from Brewster, you have a right to discredit him in other particulars. It is claimed by the defence that there are several badges of fraud in the transaction, all of which you have a right to consider in examining the evidence' in the case. In the first place, there must be a sufficient consideration to, uphold the sale. You have a right to look at the value of the property transferred, and if you find that the consideration paid was grossly inadequate, or far exceeded the value of the property, it would be a fact proper for you. to consider on the question of the good or bad faith of the transaction. You have a right, also, to look at all or any of the acts of the parties—not the declarations of Peter, but any act of his in relation to the possession of the property. I excluded the declarations of Peter, after the execution of the bill of sale, but I allowed evidence of his acts in respect to the property as properly bearing upon the question of fraudulent intent. There is some evidence, I believe, that Peter was at the time the transfer 'of the property is claimed to have been made, in nos-session, and that he continued in possession for two or three days afterwards. The testimony upon that subject is proper for you to consider on the question of fraudulent intent on his part. In short, gentlemen, you have a right to take all the facts and circumstances of this case into consideration, for the purpose of satisfying yom* minds whether this was or was not a pretended sale. If you are satisfied it was a pretended sale, as respects all the property—that the goods purchased subsequently to the bill of sale were really purchased in the interest of Peter McCarthy, under cover of his brother’s name—then you will find a verdict for the defendants.

      “ On the question of valuation, you have heard the testimony on both sides, and you will assess the value according to the best judgment you can form on all the evidence. If you find for the plaintiff, you will add interest from the 5th day of October.”
    The defendants’ counsel requested the Court to charge:
    First—That as matter of law the undisputed facts of this case show that, at the time of the levying, there had not been an immediate delivery followed by an actual and continued change of possession.
    Second—That upon the undisputed facts of this case the plaintiff is required to prove the sale in question was in good faith, and without intent to defraud creditors, and if the plaintiff does not so prove, the verdict should be for the defendants.
    The Judge refused to charge as requested, otherwise than as he had already charged. To which refusals exceptions were taken.
    The jury rendered a verdict for plaintiff. Judgment was rendered thereon, from which the present appeal is taken.

      Mr. Henry L. Clinton for appellants.
    The Court .below erred in refusing to charge as matter of law that the undisputed facts in this case show that at the time of the levy there had not been an immediate delivery followed by an actual and continued change of possession. To this refusal defendants’ counsel excepted.

      The Court below erred in refusing .to charge, as requested by defendants, that, upon the facts of the case as appeared in evidence, the plaintiff was required to prove that the sale was made in good faith, and without intent to defraud creditors. To this refusal defendants excepted (Randall v. Parker, 3 Sand., 69).

      Mr. Albert Mathews for respondent.
    The Court correctly charged the jury that, although the vendor had a, fraudulent intent in making the sale, yet, if the plaintiff was a bona fide purchaser without notice of or privity to the fraud, the intent of the vendor alone would not vitiate tho plaintiff’s title (Dunham v. Waterman, 3 Duer R., 183; Griffen v. Marquand, 17 N. Y. R, 29; Carpenter v. Muren, 42 Barb. R., 303; 2 R. S., p. 137, sec. 6).
    The evidence (if any existéd) tending to show a want of immediate delivery and change of possession, was properly submitted to the jury. The Court properly refused to charge, as matter of law, that the plaintiff was himself bound to show his purchase made in good faith, &e.
   By the Court:

Jones, J.

In the case of Randall v. Parker (3 Sandford), the sale was made by the son to the father; the son delivered possession by handing to him the keys of the premises; the father then went behind the bar, handed back the key to the son, and appointed him his agent to carry on the business. The son then took down the sign bearing the name of Theodore Randall, and put up another bearing the name of Randall only, and continued to carry on the business in the same manner as before.

The Court held that this evidence showed no such actual change as is contemplated by the statute; that the actual change meant by the statute is an open, visible, public change, manifested by such outward signs as render it evident that the possession of the owner, as such, has wholly ceased; that in the case at bar, the change was constructive and secret, not actual and apparent; that the goods'remained in the same house, in the same position, applied to the same uses, and, so far as the public had any means of judging, in the possession and under the control of the same person as owner; that the substitution of the sign bearing only the surname of “ Randall,” if intended not to deceive, but inform the public, was a pretence and mockery, and the delivery of the key, although symbolically a delivery of the goods, as between the parties, in respect to creditors, was an idle and unmeaning ceremony; and, therefore, held that the Judge, following the words and spirit of the statute, should have instructed the jury that they were bound to presume that the alleged sale, so far as it affected the rights of creditors, was fraudulent and void.

The evidence in this case at bar, as to an actual change of possession, is no stronger than that in the case of Randall v. Parker. There is no conflicting evidence concerning the facts bearing on this point. They are all conceded. It thus becomes a question of law whether they constitute an actual change or not.

The case of Randall v. Parker, therefore, governs this.

There being, then, no evidence of an actual change of posses sion, the jury should have been charged, as requested, that there was no such change, and should have been further charged, as requested, that the effect of no such change was to throw on the plaintiff the burden of proving that the sale in question was in good faith, and without intent to defraud creditors, and that, if the plaintiff failed so to prove, then the verdict should be for ,the defendant.

It remains to be seen whether the change as given - substantially covers the requests.

' Where there has been no actual change of possession under a sale, the statute throws on the vendee the burden of proving affirmatively good faith, and want of an intent to defraud (2 R. S., part 2, chap. 7, art. 2, sec. 5).

This, in eases like the present, changes the burden of proof as to these matters (there being no actual change of possession shown), from the defendants to the plaintiff. Instead of the defendants being required to prove affirmatively a fraudulent intent, the plaintiff is recpiired to prove the absence of fraud, and also to prove good faith in the transaction.

I think the charge of the learned Judge did not put'this base to the jury in this light. He charged them, “ This sale would be void if you shall find that it was made with intent to defraud creditors of Peter.” Again, “ There is some evidence, I believe, that Peter was, at the time the transfer of the property is claimed to have been made, in possession, and that he remained in possession two or three days afterwards. The testimony on that subject is proper for you to consider on the question of fraudulent intent on Ms part.”

The evident bearing of these portions of the charge is to put the case to the jury as if the burden of proof was on the defendant to prove a fraudulent intent, and to give to the evidence of no change of actual possession no other force that any other evidence bearing on a fraudulent intent would have.

These portions of the charge are not controlled or modified by any other expressions contained therein.

The charge, then, instead of covering the requests, is antagonistic thereto.

It may be said that the question as to whether there was an actual change was one for the jury to determine, and that consequently, as the requests called on the Judge to determine it, they were properly refused. H the plaintiff gives evidence tending to prove sufficient facts to constitute an actual change, and the defence introduces evidence contradictory thereof, then it becomes a question of fact for the jury to decide, under proper instructions from the Court upon the conflicting evidence, whether there has been such actual change or not. But when the facts are uncontroverted, then the question whether their effect is to constitute an actual change becomes a question of law for the Court (Randall v. Parker, supra), the same as, under similar circumstances, the question whether the effect of the facts is to constitute negligence becomes a question of law (Gonzales v H. R. R. R. Co., Court of Appeals).

The judgment shoiild be reversed for the error in refusing to charge as requested.