author:
Bosworth, J.
      Hoffman, J.

text:
    John T. Williston v. William B. Jones and Henry Von Bauer.
    When it appears upon the face of a chattel mortgage that the mortgagor is to retain the possession and make sales of the goods mortgaged, the mortgage is absolutely void, and no question in relation to it is to be submitted to the jury upon a triahjl But where the mortgage contains no such provision, the fact that the mortgagor, for a time retained the possession, and during this period made sales, is not conclusive, but is one of those that are to be considered by the jury in determining the question of actual fraud.
    A creditor who seeks to impeach a chattel mortgage upon the ground of the continuance in possession of the mortgagor, is bound to show that he was a creditor during the time that this possession continued.
    Judgment for plaintiff upon a verdict in his favor.
    (Before Bosworth and Hoffman, J.J.)
    Feb. 11, 21, 1857.)
    Motion on the part of the plaintiff for judgment, upon a verdict taken subject to the opinion of the court at General Term.
    The cause was tried before Woodruff, J., and a jury, in October, 1856.
    The following is a statement of the pleadings and of the facts proved upon the trial.
    The complaint set forth that the defendants, on the 8th of December, 1854, wrongfully took from the possession of the plaintiff, and carried away property to the value of $237, consisting of starch, candles, and soap, as specified. It demands delivery of the goods and $100 for damages for the detention, or that the defendants pay the full value, with interest.
    The defendants unite in an answer, and deny generally the unlawful taking and the value.
    The defendant Jones defended on the ground that, about the 7th of December, 1854, Yan Bauer recovered in the Marine Court a judgment against Speilman and Kitz, for the sum of $158,87 : that, on the same day an execution was issued upon such judgment, and delivered to the defendant as a constable to execute; that by virtue thereof he seized the goods in question.
    It appeared that a chattel mortgage was executed on the 24th of November, 1854, of the property in question to the plaintiff; that it was given to secure various checks and notes; and that there was a debt due to the plaintiff at the time of giving the mortgage, and a large amount of notes not yet due.
    It next appeared, that the plaintiff took possession of the property on the 2d of December, 1854; the former clerk of the mortgagors continued as the agent of the plaintiff, to sell the remaining stock of goods, and on account of the plaintiff. The delivery of possession, and the exercise of acts of ownership by the plaintiff from that date are amply proven. -
    The case was given to the jury under the charge of the court, and they found a verdict for the plaintiff against the defendant Jones. Such verdict was talren with liberty to make a case on the question, whether a non-suit or motion to dismiss the complaint should have been granted, with leave to the court to order a non-suit, if of opinion that it should have been granted, and to be heard at the General Term in the first instance. Entry of judgment was stayed until such hearing.

      J. Palmer, for plaintiff.

      K S. Van Winkle, for defendant Jones.
   Bosworth, J.

The complaint alleged that the defendants wrongfully and forcibly took the goods from the possession of the plaintiff; that they were worth $237, and prayed judgment that they be restored; and for $100 damages for the detention thereof. It stated a cause of action. The answer put these allegations at issue. Jones also alleged that he was a constable, and, as such, took them on an execution in favor of Van Bauer v. Speilman & Kitz, and from their possession, and that the goods were their property.

It was, of course, competent for the plaintiff to rebut any evidence which tended to show that the goods were the property of Speilman & Kitz, by proving, if he could, that they were not the property of either, but were his own property. Alleging that he was in possession of them when they were taken, was stating a fact which imported, prima facie, that they were his property. There was no error in admitting evidence to show them his property. The question, of property was raised by the answer, and the Code put it at issue.

The mortgage was dated the 20th of November, 1854, and was filed on the same or the next day. The plaintiff demanded payment, and took possession on the 2d of December, 1854, and continued in possession, selling the goods on his own account, until the levy of the 7th of December, 1854.

The jury found for the plaintiff; and, of course, found that the mortgage was made in'good faith, and without any intent to defraud the creditors of the mortgagors.

Unless the court erred in refusing to nonsuit the plaintiff, judgment should be entered on the verdict. Leave was given at the trial to the defendant Jones, “to make a case on the question, whether a nonsuit or motion to dismiss the complaint should have been granted, with leave to the court to order a nonsuit if of opinion that such nonsuit should have been granted, and to be heard at the General Term in the first instance.” An exception had been taken to the refusal of the Judge to nonsuit. He might lawfully order that exception to be first heard at the General Term. He did so order; and that is the only question sent by his order to the General Term.

He was asked to nonsuit, on “ the grounds that the mortgagors were shown to have trafficked in, or prosecuted business with, the mortgaged property, as their stock in trade, between the date of the mortgage and its forfeiture, when the plaintiff took possession, the 1st or 2d day of December, 1854, and that the mortgage was, therefore, void as against the judgment referred to in the answer, and the process issued to enforce it, and so void as against the defendants. The court overruled the motion; and to its decision in that behalf, the defendants’ counsel then and there excepted.

I think the court was right in refusing to nonsuit, for several reasons.

1st. It was not then shown that Van Bauer was a creditor of the mortgagors.

2d. It did not appear that they had any creditors, either then or when the mortgage was given, except the mortgagee.

3d. If Van Bauer’s judgment had then been proved, the case does not show for what it was recovered, and if for a demand against the mortgagors, that it existed before the mortgagee reduced the property to his possession.

All the evidence there is as to the mortgagors having trafficked with the property was given by Johnson. He says, '“ after the mortgage was given, I remained there and conducted the business” until the 1st or 2d of December, when Williston demanded payment, took possession of the goods, and the key of the store. On cross-examination he said: “Between the 20th of November and 1st or 2d of December, 1854, the store was open, and the goods being sold out. I think I sold goods embraced in the mortgage between November 20th and December 1st or 2d; the goods were there for sale just as they were before the mortgage was given, and I would sell to all who would purchase; I sold goods, but don’t recollect the amount of sales.”

A jury, from this, and other evidence, might find that the sales were made with the knowledge and assent of the mortgagee, and the moneys used at the pleasure of the mortgagors.

If so, the mortgage would be void. But they might find that the sales were not anticipated by, or assented to, by the mortgagee, or if anticipated, that he expected the proceeds to be applied upon the debt secured by the mortgage. If so, I do not understand that the mortgage is necessarily, and, at all events, fraudulent.

C If it had been made to appear that, “ upon the giving of the mortgage, the mortgagors were permitted, by the assent of the mortgagee, to continue to sell the goods by retail, at their discretion and for their own use,” the mortgage would be fraudulent. (3 Kern. 583, 584.) J This was not so clearly proved that a jury might not have found to the contrary. The sales were during a very few days only. Actual knowledge that such sales were being made, and that, too, for the use of the mortgagors, was not directly proved. It does not appear from the case, that the mortgage authorized the mortgagors to continue in possession. I think, therefore, that when the nonsuit was moved, neither defendant was in a position to question the lona fieles of the mortgage, and the motion was properly denied.

That, after proving the judgment and execution, the question of fraud was one for the jury, under proper instructions from the court. The instructions do not appear, and must be assumed to have been correct. The motion for a nonsuit was not renewed after Jones had proved the judgment and execution.

The plaintiff should have judgment on the verdict.

Hoffman, J.

There is no exception to the charge, and it is to be assumed it left the law properly to the jury. The finding, then, negatives the supposition of fraud in the transaction.

What error of law has been in other respects committed ?

1st. The defendants insisted that the complaint should nave been dismissed, because the mortgagors prosecuted the business, and sold part of the goods from the date of the mortgage, November 24, to the date of the possession, the 2d of December; that this constituted absolute fraud in the law. The fact of such sales being made, and just as they were made before the mortgage, is fully proven. It is not expressly stated, but the inference may well be drawn, that the mortgagors received the avails.

That inference is not, however, a necessary one. A jury might, perhaps, have found the other way, that the sales were made in the expectation and under an agreement, that the proceeds should go to the mortgagee to reduce the debt.

It is the established rule in this court, adopted after considering the cases in the court of errors and Supreme Court upon that vexed question, that, in the case of mortgages, the retention of possession before the debt becomes due, and under a clause to that effect, is not of itself a proof of fraud. It is consistent with the import of the instrument. It is a question for the jury. (Hull v. Carnley, 2 Duer, 109.)

The same rule was recognized in Swift v. Hart, (12 Barb. 531,) which I refer to, because the same court decided it, and the case of Edgell v. Hart, next noticed.

In Edgell v. Hart, (13 Barb. 386,) the mortgage was of goods of a retail grocer, constituting his stock in trade. It was dated the 6th of August, 1849. Levies had been made under executions issued the 4th of October, 1849. Apparently, the judgments were of the 2d of October, but it was in evidence that the debt, at least to one of the plaintiffs in the judgment, was incurred in the spring of 1849. The mortgagee brought his action for the goods taken under the executions.

The mortgage contained the usual clause as to remaining in possession until default.

There was a schedule annexed to it, of the goods, and at the end of that was a clause declaring, “ that if any of the goods were sold upon credit, that shall be sufficient cause of forfeiture, and entitle said Edgell to treat the same accordingly at his election.” A prior clause forbade the mortgagor expressly to sell any of the goods on credit.

The Judge at the trial denied a nonsuit, and left the question of fraud for the jury. After argument on a case at Special Term, judgment was entered for the plaintiff.

On appeal, the court held, that if the question had depended upon the mortgage alone, aside from the schedule, and the provision at its end, the nonsuit would have been properly refused,

But taking the two together, it was to be deduced, that the mortgagor was at liberty to sell the goods, provided he sold for ready pay, and not upon credit, and might sell upon credit if the mortgagee, did not object to it. The transaction, then, as it appeared on the face of the papers, could not be sustained.

The court, (Justice Welles delivering-the opinion,) cite and rely upon Wood v. Lowry, (17 Wend. 492,) and determine that Hoe v. Archer, (23 Wend. 653,) has not impaired the face of that authority.

The judgment was reversed, and a new trial ordered.

This decision was affirmed in the Court of Appeals. (Selden’s Notes of Cases, December, 1853.) The note is very inaccurate as to. the history of the case. But the judgment was affirmed, the court holding, that the mortgage was void, and that there was no question to be submitted to the jury respecting it.

We have not any other report of the case in the Court of Appeals, but in Ford v. Williams, (3 Kernan, 583,) Denio, Ch. J., says: “ This court has decided that where, upon the giving of a chattel mortgage on the stock of goods in a store, the mortgagor is permitted, by the assent of the mortgagee, to continue to sell them by retail, at his discretion, for his own use, as he had done before, the mortgage is fraudulent and void as against the creditors of the mortgagor, Edgell v. Hart, December Term, 1853.”

He then proceeds to state, that in the case then before the court, the Judge had charged, in effect, in accordance with that rule; but the case was distinguishable because there was testimony going to show that the mortgagor was to sell for cash, and apply the proceeds to the debt of the mortgagee, and that he did so apply them.

The differences between the present and the cases cited are these. In Edgell v. Hart, the instrument itself proved the fraudulent intent. Evidence could not displace the conclusion from it. Here the continued selling was a fact, with others, for the jury to consider. In Ford v. Williams, the mortgagee had never taken possession. The execution found the property in the hands of the mortgagor. The continuance of possession was very long; in one of the cases, about a year; here it was only eight days. We have here, also, a verdict against the existence of fraud in fact.

Another important question arises in the case, Was the title of the plaintiff, to the goods seized, void as to those particular'judgment creditors ? If it was not, then the seizure by the constable was unwarranted.

They obtained judgment in the Marine Court, on the 7th of December, 1854. On the 2d of that month, the plaintiff had taken full possession under his mortgage. There is nothing in the case to show when the debt to Speilman & Kitz was incurred.

The 5th section of the act (2 Revised Statutes, 136) is the important one upon which these questions depend. It declares fraudulent transfers not accompanied with delivery of possession, etc., against the creditors of the party. By the 6th section, the term “ creditors,” as used in the section, shall be construed to include all persons who shall be creditors of the vendor or assignor, at any time while such goods and chattels shall remain in his possession, or under his control.”

Such was the case of Fiedler v. Day, (2 Sand. S. C. R., 594,) cited by counsel. The creditors’ demand arose while the goods in question remained in the possession of the mortgagor.

The principle here is, that, continuing to uphold a fraudulent assignment is, as to subsequent creditors, precisely the same as creating it was to prior ones. The chief badge of fraud is the retention of possession, and a creditor who becomes such while this subsists, is equally defrauded, as if he were such at the date of the nominal transfer.

I once had occasion to consider the doctrine of the common law, prior to the statute of Elizabeth, (Chap. 13,) upon the subject of fraud in transfers of property. I examined in the Year Books all the cases collected in the cases of Eitzherbert and Brookes, which Mr. Reeves terms their substitutes^ They could all be classed under the following heads:

1st. Where there had been a covenous alienation between judgment and execution. 2d. After action commenced, and before judgment. 3d. Before action, but in fraud of an existing right; and there was a subdivision under this head of cases arising under the Sanctuary Acts.

So the law was stated in Sommes’ case, and in Upton v. Bassett, (Croke Eliz. 445,) that the common law only set aside conveyances fraudulent against him who had a former right, debt, or demand; but he who had a right more puisne could not avoid a gift or estate precedent, at the common law.

. The rule in a Court of Chancery, to let in subsequent creditors in setting aside a conveyance through the instrumentality of prior creditors, or by reason of an existing indebtedness, is also a proof of this doctrine.

The case then appears to come to this. The assignment is found by the jury as not fraudulent in fact, at least, that is the legal import of the verdict. Upon the question of fraud in law, it may probably be distinguished from the cases in the Court of Appeals which have been cited, by reason of those assignments containing on their face the proof of fraud. Here the fact of sales was, like other facts, to go to the jury. But lastly, if the cases are not distinguishable, then the parties under whom the defendant justifies, do not appear to have been creditors when “the property was in the possession or under the control of the debtor.”

It remains to be considered whether the defendants can be allowed now to produce the judgment record of the case in the Marine Court, which he offered on the hearing at General Term. It is proffered to show that the debt, in fact, existed before the 2d of December.

I do not see why a party who has had fall time to make out his case, and has omitted it, without surprise, should be given this indulgence at the hearing on appeal. Their equities, as creditors, appear to be equal.

Judgment for plaintiff on the verdict.


source: Caselaw Access Project

author: By the Court. Hoffman, J.

license: Public Domain

text:
    John Bissell v. Frederick V. Hamblin and James M. Sloan.
    An entry made by a public officer, in the discharge of his official duty, in a book which he is bound to keep as a record of his proceedings, is admissible in evidence to prove his performance of the acts to which it relates.
    The evidence is admissible even when the officer is a party to the action, and it is on his own behalf that the proof is offered.
    It is still a presumption of law that the entry was made by him in the proper discharge of his duty, and if mistake or fraud is alleged the proof lies upon the opposite party.
    (Before Bosworth and Hoffman, J.J.)
    Feb. 11; 21, 1857.
    Appeal, by plaintiff, from a judgment entered on the report of a referee.
    The facts, and the single question of law arising thereon, are stated in the opinion of the court.

      J. Bissell, appellant in person.

      W. A. Coursen, for respondents.
   By the Court. Hoffman, J.

The plaintiff was regularly commissioned by the governor of Ohio, under the laws thereof, to act as commisioner in the state of New York, to take testimony, acknowledgments, etc.

.He was employed by the defendants to take testimony in a case depending in one of the courts of Ohio, in which they were plaintiffs, and J. A., Harmon and George Knight were defendants. Having received the commission and instructions, he commenced, under one notice to the opposite parties, on the 8th of November, and adjourned to the 10th. Afterwards another notice, served in Ohio on the 23d of January, for the 31st, was laid before him. It was stated that Mr. Hamblin, one of the plaintiffs, was to be examined under it, but he was sick, and, until he recovered, the examination could not go on.

No particular directions were given to the plaintiff by the attorney leaving the notice. This notice, it is to be observed, was served in Ohio upon the attorney there. It apprised him that the depositions would be taken from day to day before the commissioner in New York, until they were all completed.

The instructions provided, “ that adjournments may b.e allowed if they are provided for in the notice, and there be a necessity therefor. If there be adjournments, they must be from day to day only, and the officer must note the fact, and also state the necessity therefor: this noticing shall be at the close of each day.”

There is some indefinite evidence as to what the attorney of the present defendants communicated to the plaintiff, as to the cause standing over until the proposed witness got well. It is not sufficient to prove that such attorney relieved the plaintiff from the duty, otherwise incumbent upon him, of keeping the commission alive by regular adjournments.

A document was laid before the referee, marked exhibit E, and the question in the case is as to its admissibility. It purports to be a record, kept by the plaintiff, of his entries of the various adjournments of the cause, stating the necessity therefor, and noting each at the end of the day, according to the instructions. It is proven to be in the handwriting of the plaintiff. It is also proven that he had neither clerk nor partner, and there is some slight evidence from one who occupied the same office, that he occasionally saw a paper in or on the plaintiff’s port-folio similar to this exhibit. That document closes with an entry of the 11th of March; that Mr. Hamblin (one of the plaintiffs- in the suit in Ohio) told him that he (the plaintiff) had better discontinue the adjournments ; that the claim had been assigned. Hamblin states that he may have told him that the claim had been assigned.

The sole question is, whether the record of the adjournments kept by the plaintiff is admissible as presumptive evidence of the adjournments?

The principle of the rule which admits official registers, entries, or books to be given in evidence, is, that they are made by authorized and accredited agents, appointed for that purpose. Those in question were made in the discharge of an official duty. The neglect of such an entry, if it had involved the loss of the cause, or the expense of a new commission, would have been a breach of his official obligation, as well as the neglect of his private agency for the parties. (Greenleaf on Evidence, § 483.)

The distinction is of course obvious, that such official entries are admitted in evidence between third parties. Here it is offered to sustain the claim of the party making them.

But we have a familiar case of even private entries being allowed in shop-books, in the party’s own writing. (Greenleaf, 117, etc.)

The cases cited by the plaintiff’s counsel prove the general rule to be, that when a person is required to do a certain act, the omission of which would make him guilty of a neglect of duty, it ought to be intended that he has duly performed it, unless the contrary be proven. (19 John. Rep. 345; 4 Wendell, 623; 10 East. 216.)

‘ We have, in this case, a public officer appointed under the law of a state. He was employed to act in his official capacity by the defendants. In fulfilling his duties to them, he was bound to make the entries of his adjournments. The only existing mode of proving these entries is his record. There is nothing to cast a suspicion upon their integrity. There is a little corroborative evidence to support them.

We are of opinion that the exhibit ought to have been received in evidence by the referee.

Judgment reversed, the referee’s report set aside, and a new trial ordered, with costs to abide the event, unless the parties com sent to an order that the cause be sent back to the referee, upon the proofs already taken, .to the end that he may find in conformity with the judgment of the court; in which case the costs of the appeal are to abide the event.


author: By the Court. Woodruff, J.

text:
    Graham, and others v. Machado, and others.
    In an action against the drawer of a bill of exchange, payable a certain number of days after sight, an averment, in the complaint, that the drawee accepted the bill, is equivalent to an averment that the bill was presented to Mm for acceptance, and that he had sight thereof when he accepted it But an averment in the complaint, that the bill was “ duly presented for payment,” and “ payment duly demanded,” is not sufficient, within the rules of pleading established by the Code. The allegation that a bill was presented for payment, and payment demanded, is an allegation of facts; but whether these acts were so performed as to render them valid and binding is a question of law, to be deter mined by the court, and which cannot be withdrawn from its decision by the averment that they were “ duly performed.”
    To enable the court to determine the question, the facts from which the conclusion of law is to be drawn, and which the plaintiff will be bound to prove, upon the trial, must be distinctly alleged in the complaint. The allegation that the bill was duly presented for payment, and payment “ duly demanded,” omits material facts, the evidence of which the court has no right to imply; namely, that the bill was presented to the drawer, and payment demanded from him.
    So, where facts are relied on as sufficient, in law, to excuse such a personal presentment and demand, they should be set forth in the complaint, to enable the court to judge of the sufficiency of the excuse.
    The allegations that a presentment was “duly made,” and payment “ duly demanded,” are not warranted by the provisions in § 162 of the Code, which declares that in pleading the performance of certain acts as conditions precedent, a general averment, in the complaint, that all these acts w'ere duly performed, on the part of the person so pleading, shall be deemed sufficient. In the opinion of this court § 162 has no application to averments in a complaint necessary to charge the drawer of a bill of exchange; but is applicable only to conditions precedent expressed in a contract, and which, by its terms, are to be performed by a party to the contract, who is also a party to the action, and the performance of each of which conditions by himself, but for this section he would have been required to state in his complaint or answer.
    Although presentment of a bill of exchange to the drawer, a proper demand of payment, and its refusal, and timely notice of such demand and refusal are conditions precedent to the liability of the drawer, yet they are not conditions to be performed by him, nor expressed in the contract to which he is a party, and therefore, are not conditions of the character of those to which § 162, by its very terms, alone refers. When it is sought to charge the drawer of the bill, an allegation in the complaint that it was duly protested for non-payment, is not equivalent' to averments that it was presented for payment to the acceptor, and that payment was demanded from, and refused by him.
    Although, in a notice given by a notary to the indorser of a promissory note, or the acceptor of a bill of exchange, a statement that the note or bill, at its maturity, was protested for non-payment, is deemed a sufficient notice of a demand and refusal of payment, the assertion that the same words, as an averment in a pleading, must receive the same construction, rests upon no principle, and upon no sufficient authority.
    It is an error to suppose that any such rule of construction was laid down, expressly or impliedly, as a rule of pleading, by the Court of Appeals, in Coddington v Davis, (1 Comstock, 182.)
    It was upon the grounds above stated that the court placed its decision, in which all the Judges concurred ; but it was also held, by Woodruff, J., that the complaint was fatally defective in not stating at what time the bill in suit was presented to the drawer, nor when he had sight thereof, nor when he accepted it.
    He held that the want of these averments, admitting the truth of all the allegations in the complaint, rendered it impossible for the court to say that payment of the bill was demanded, or refused, on the day when, by law, such payment was demandable.
    Order at Special Term, overruling demurrer to the complaint, reversed, and judgment upon the demurrer for the defendants, with the usual liberty to the plaintiffs to amend their complaint.
    (Before all the Judges,)
    February Term, 1857.
    Appeal from order of Special Term overruling demurrer to complaint.
    The nature of the action, the terms of the complaint, and the questions of law raised by the demurrer, are fully stated in the opinion of the court.

      M G. Benedict, for appellants, defendants.

      H. Whittaker, for respondents, plaintiffs.
   By the Court. Woodruff, J.

The complaint, so far as it is material to state its contents, shows title in the plaintiffs as indorsees of a certain bill of exchange drawn by the defendants at the city of Hew York, on the 17th day of May, 1856, directed to John E. Martin at Lisbon, Portugal, payable sixty days after sight thereof, and then avers, that the said bill of exchange was duly accepted by the said John E. Martin, and became payable by virtue of such acceptance at Lisbon aforesaid, on the 18th day of August now last past. That on the said 13th day of August last, the same bill of exchange was duly presented for payment, and the payment of the money therein named duly demanded at Lisbon aforesaid, but the same was not paid; whereupon, and on the said 13th day of August now last past, the same was duly protested for non-payment,” and notice to the defendants,.etc., etc.

To this complaint the defendants demur on the general ground that the complaint does not state facts sufficient to constitute a cause of action, and assigning special grounds, that it does not allege, that the bill was presented to Martin, the drawee, for acceptance ; nor when, if ever it was so presented; nor when he had sight thereof; nor when he accepted it; nor to whom it was presented for payment.

The averment that the drawee accepted the bill, sufficiently embraces, if it does not necessarily involve the fact that it was presented to him, and that he had sight thereof. If this action was founded upon á refusal of the drawee to accept, then the proper averment would be, that the bill was presented to the drawee for acceptance, and that he refused; but where the ground of claim upon the drawers is the non-payment of a bill payable after sight, the averment of acceptance is made for the purpose of showing when the bill became due, or more accurately perhaps, to show that the demand of payment and refusal were at the right time to put the drawers in default. . The bill being accepted, the acceptance as between the holders and drawers, serves no other purpose. The precedents to be found in Chitty do not in such a case contain an averment that the bill was presented for acceptance, and so far as the objection here made goes to the mere failure of the plaintiffs to aver such a presentment, or to aver that the drawee had sight of the bill, the acceptance implies that when the drawee accepted, the bill was before him for that purpose, and that he then had sight thereof.

The averment in the complaint that the bill “ was duly presented for payment,” and payment “duly demanded,” is not within the rules heretofore prescribing the mode of declaring in such a case. Alleging a presentment and demand of payment is alleging facts, but whether they were duly made and done, if “ duly” has any clear legal signification, is a question of law to be determined by the court upon all the facts which may be proved, and a most material fact is not here alleged, viz.: that it was presented to the drawee and payment demanded of him; or if there exist facts which excused such a presentment to him, then those facts are wanting.

But we are referred to the provisions of section 162 of the Code, which it is insisted render it unnecessary for the plaintiff to state to whom the bill was presented for payment. That section provides that “in pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally, that the party duly performed all the conditions on his part;” and Mr. Justice Gridley, in Gay v. Paine, (5 How. Pr. R. 107,) applied this section to a complaint in this particular very much like the present, and held, that where a note was payable at a particular place, an averment that the note was duly presented to the maker, and payment duly demanded was a sufficient averment that the note was also presented at the place at which it was payable.

The court are of opinion that section 162 of the Code, in what is there contained relating to averring the performance of conditions precedent, has no application to averments necessary to charge the drawer of a bill of exchange. They deem this section applicable to conditions expressed in a contract which, by the terms thereof, are to be performed “on his part,” i. e., by the party thereto, and which, but for this section, he must state to have been performed by him in detail. And that the object of the legislature was to avoid prolixity in pleading, by permitting him to aver generally, (by grouping all the conditions to be performed by himself), that he had duly performed them all. The section substitutes a general averment of performance for a statement in detail of the performance of each distinct act which the party was bound to perform. Its purpose was not to give to the word “ duly,” when applied to a single, specific averment, any such comprehensive force and meaning as is claimed for it in this case, and make the use of that word by the pleader tantamount to an averment of every other fact necessary to make the presentment, which is averred, a legal presentment. It is obvious that if the provisions of section 162, relied upon by the plaintiffs, are applicable to pleadings on bills of exchange, it must go to the length of warrantingj(after a statement of the drawing of the bill, and the plaintiffs’ title thereto), a general statement that every thing was thereafter done which the law requires to charge the drawer with its payment, or that all the conditions, uj)on which the duty of the drawer to pay the bill to the plaintiffs arises, have been performed or have happened. The court are of opinion that, although the undertaking of the drawer of a bill of exchange is, that it shall be accepted and paid, and that if it be presented in due season, and acceptance or payment is refused, and he be notified, he will pay the same, which latter are treated, as in truth they are, conditions of his liability, yet they are not of the class referred to in the section cited.

It is pertinent to observe in regard to this subject, that if the legislature have provided a substitute for the former special and detailed mode of averring the performance of conditions, the pleader can only claim the benefit of the privilege given him when he adopts the substitute. If, instead of availing himself of the liberality extended to him in contravention of all pre-existing rules, he assumes to state what has been done and performed, he should so state the fact or facts, that the court may see that they do, in truth, amount to performance. The legislature, by providing a substitute for the former mode of declaring, have not sanctioned a complaint clearly bad under the pre-existing law, and not warranted by the new. And, therefore, in the present case, if the pleader undertook to state specifically a presentment for payment and refusal as the ground of his claim upon the defendant, he should so state the facts that the court can see upon the face of the complaint that it was a legal presentment.

We are also referred to the case of Woodbury v. Sachrider, (2 Abbot Pr. Rep. 402,) and upon the authority of that case the plaintiff insists that the averment in the present complaint, that the bill of exchange in question was, on the said 13th of August, duly protested for non-payment, obviates the objection above considered, because the protest of a bill, ex vi termini, imports presentment to the maker, demand of payment, and refusal thereof. With great respect for the learned Judges by whom, the case referred to was decided, we feel constrained to say, that the authority upon which that decision was distinctly placed, does not, in our judgment, warrant any such construction of the term protest in a pleading, and that it cannot be supported by any sufficient authority or established principle. The case of Coddington v. Davis, (1 Comstock, 183,) was supposed to warrant the construction now contended for. That was an action upon a promissory note against an indorser who had made a written request of the holders “ not to protest” the note, and a declaration that he would “ waive the necessity of the protest thereof;” the court held this to be, according to its fair interpretation, a waiver of demand and notice of non-payment. Obviously, if this case proves any thing applicable to a complaint on a bill of exchange, and furnishes a rule of pleading, it dispenses with an averment of notice of non-payment. This is so wide a departure from the rules of pleading recognizing the necessity of that averment for centuries past, that I doubt whether the court would, even in Woodbury v. Sachrider, have so ruled. A distinct averment of notice, upon which issue could be taken, never has been held, and we apprehend will not be held embraced in an allegation that the bill of exchange was duly protested. In no sense is it so included. By no general rule of commercial law is the giving of notice of protest or of non-payment a necessary part of the duty of the notary called upon to protest the bill.

But, in truth, the decision in Coddington v. Davis gave no rule of pleading whatever; the question there was a question of evidence merely. The action was on a promissory note. Protest of such a note was not necessary. The court say that the term protest, in its strict, technical sense, i. e., the formal memorandum of the notary making his official declaration of protest, has no proper application to a note, and that the term protest, as applied to such notes, has a popular meaning, in which, as matter of evidence, the defendant must be taken to have used the term. That he must be deemed, according to the reasonable interpretation of his letter, to have intended to dispense with something which it was otherwise necessary for the holders of the note to do, and that, “ in a case like that,” he must have intended to waive those acts which, among merchants and bankers, were included in the popular sense in which the word protest was used. The Court of Appeals certainly did not decide, that averring protest in pleading included an averment of notice of non-payment; nor did they, we think, intend so to decide, or by any implication sanction such a decision, and no more did they, that in pleading, averment of protest, includes an averment of demand of payment from the drawer. The protest of a foreign bill of exchange is a necessary official act, without which the drawer cannot be charged; it is based upon a demand of payment from the acceptor; no matter how formally done, the act of protest is wholly insufficient without a demand. Neither books of precedents nor adjudged cases have heretofore furnished any warrant for dispensing with the allegation of both in declaring upon a foreign bill, and we are not prepared to hold, that the averment of protest in the present complaint cures the defect in the allegation of demand and refusal above considered.

The court are to be understood to place the decision of the present appeal upon the grounds above stated. But as it may be useful, in the further conduct of the cause, if the plaintiffs should think proper to amend, I add some suggestions arising in my own mind on a consideration of the other and remaining objection to the complaint, which is, that the complaint does not state at what time the bill was presented to the drawee, nor when he had sight thereof, nor when he accepted it.

That the time when the bill was presented for acceptance, which is, in substance, the same thing as the time when he “ had sight thereof,” and the time when the acceptance took place, are both material, cannot be denied. (Holmes v. Kerrison, 1 Taunt. 323; Chitty on Bills, passim.)

A bill may not be accepted when presented for that purpose, and may afterwards be accepted. The present being a bill payable after sight, the presentment for acceptance was necessary, and it is material to the liability of the drawee that the acceptance took place at the time when the bill was so presented, otherwise the drawee was not charged and is not liable. The precedents in Ohitty cover this point by averring that the drawee, “ upon sight thereof, accepted,” etc. The complaint, stating neither presentment nor sight of the bill, simply says that the drawee “ duly accepted.” Such an averment is fully satisfied if the acceptor so accepted as to charge himself with the payment, whensoever his acceptance. It is not easy to see the propriety of giving to the word duly, in this connection, an effect tantamount to an allegation that the drawee accepted upon sight of the bill. But if this could be done, it still remains wholly uncertain when; that is, at what time the acceptance was made, and, therefore, wholly uncertain when the sixty days (which the bill had to run after sight) began to elapse, and when the bill became due; and upon this depends the sufficiency of the subsequent demand and refusal to charge the defendants.

It is true that the pleader has averred that by virtue of such acceptance the bill became payable at Lisbon on the 13th day of August. By this he must mean one of two things: Mrst, that the drawee, by the terms of his acceptance, specially appointed Lisbon as the place, and the 13th day of August as the day for payment; in which case it in nowise appears that the terms of the bill were in this respect pursued, and if not, then clearly the drawee is not liable. Or, Second, he means to say that the legal effect of the acceptance was to make the bill payable at Lisbon on the 13th day of August.

Whether this is true or not, depends upon the time when the acceptance was made. We cannot see, from the facts alleged, whether t]re proposition of the pleader is true or not. When a bill or note is payable, is a question of law, depending sometimes wholly upon its terms, and sometimes upon its terms and other extrinsic facts. Here it depends upon the bill itself and the day on which it was presented for acceptance, and of that day this complaint says nothing. And, it may be further added, that the inquiry whether any. and what number of days of grace were allowed, and whether these conformed to the usage and custom of the foreign country where the bill was payable, may also be material.

It is true that if we were to assume that the pleader has judged correctly of the legal construction of the bill, in connection with the day of its presentation, and that his inference that the bill became payable on the 13th of August is correct, we might go back from the 13th of August and, assuming that the usage and custom of the place of payment was, in respect to days of grace, the same as our own, by computation find on what day the bill was presented for acceptance. But this is reversing the course and office of pleading; it is asserting a legal proposition, and calling upon the court to assume its truth and infer every fact which must exist in order to sustain it. The pleading should state the facts, and whether the bill became payable on the 13th day of August or not will then appear, whether averred or not.

If the pleader may omit to state the day of presentment for acceptance, why may he not, after describing the bill, pass at once to the statement that such bill became payable at Lisbon on the 13th day of August ? The argument in support of such a pleading would be the same as is now submitted, viz.: assuming the truth to be that the bill became payable on the day named, the court can, and must infer the facts, to wit: that the bill was presented to the drawee, sixty days and the proper allowance for grace before that day, and was by him accepted at that time.

Ko construction of the 162d section of the Code will warrant such a reversal of the office of pleading.

When a bill is, by its own tenor, payable on a particular day, an averment that it was presented on the day upon which it became payable, according to the tenor thereof, has been held sufficient. (Bynner v. Russell, 1 Bing. 23.) Here no extrinsic fact was necessary to enable the court to say on what day it did become payable.

The order at Special Term overruling the demurrer must be reversed, and judgment thereon ordered for the defendants, but with leave to the plaintiffs to amend their complaint within twenty days on payment of costs of the demurrer and proceedings at Special Term thereon. Costs of the appeal $10, will-abide the event of the suit.

       To the reasons stated in this opinion for holding a complaint to be bad which merely avers that a foreign hill was “ duly protested”—if the averment must be construed to refer to our own law—it may be added, that unless the bill is drawn upon England, the court has no right to presume that the law of the foreign country upon which it is drawn is similar to our own. Upon the continent of Europe there is a great variance in the laws that regulate the demand of payment, and the time and form of a protest, and hence, unless the bill is drawn upon England, it would seem, that to enable the court to judge of the truth of the averment, the law of the foreign country where the bill is payable should be set forth in the complaint.


text:
    Page v. The New York Central Railroad Company.
    When a railroad company gives such published notice of the running of its trains, and such special notice in the cars of the necessity of changing ears, at any particular station, that every traveller of ordinary intelligence, by the use of reasonable care and caution, would obtain all requisite information as to the route to be travelled, and the cars to be taken at such intermediate point of the voyage, it discharges its whole duty in this respect.
    If a passenger, merely by a failure of his own to use such care and caution, instead of changing cars ata particular station, and there taking cars which go to the place to which he has paid his fare, continues in the cars in which he started, and is carried in another direction, the result is to be attributed to his own negligence, and not to a breach of duty or of contract on the part of the company.
    If by inadvertence he is started from a station at which he should have changed cars, in a wrong direction, and this is discovered in time to enable him to re turn to such station, so that he may go thence for the place to which he had bought a ticket, without any delay, and if he is permitted to return without charge, but refuses to do so, or to pay his fare for the route he is actually travelling, or to leave the cars, he may lawfully he ejected therefrom. If ejected, his own declarations made some days thereafter, that he was injured thereby, are not competent evidence in his own favor to prove the fact of such injury.
    Before Oakley, Ch. J., Bosworth and Hoffman, J.J.)
    Argued, Feb., 1857 ;
    decided, March 28, 1857.
    This action comes before the court on questions of law arising at the trial, being exceptions taken by the defendants to the charge of the Judge. It was tried before Chief-Justice Oakley and a jury, in November, 1856, when the plaintiff recovered a verdict for $175.
    The action is brought against the defendants as common carriers, to recover damages for an alleged grievance in carrying him over the wrong road, and wrongfully and forcibly ejecting him from the cars.
    The plaintiff, on the 8th of October, 1855, bought of the defendants, at Albany, a ticket from that place to Lyons, before six A. M. He took a train which left Albany at half-past six, A. M., and which from Syracuse passed over the old road, so called, through Marcellus, Auburn, Waterloo, and Vienna to Eochester. A second train left Albany at half-past seven, A. M., and from Syracuse passed over the new road, so called, through Lyons to Eochester. The ticket was good in either train to Syracuse. The principal questions of fact litigated, were: First, Whether the plaintiff, on reaching Syracuse, had notice, or might have known, if he had paid proper attention to the means used to give him notice, that he must leave the cars he was'in, at Syracuse, and wait the arrival of the next train? Second, Whether, after leaving Syracuse and before reaching Marcellus, he was told he was on the wrong road, and must take, at Marcellus, the train he would meet there going to Syracuse, and which would carry him there in time to meet the half-past seven, A. M., train from Albany to Lyons ? Third, Whether, notwithstanding such knowledge and information, and after a demand of fare on the old road from Syracuse, if he persisted in continuing on that route, he refused to leave the cars or pay fare, and was for that cause ejected from the cars at Vienna, without more force being used than was necessary for the purpose ? On all these points there was a great conflict of evidence. During the progress of the trial,
    George T. Dickinson was called as a witness on the part of the plaintiff, and testified as follows, to wit:

      “ I am a fruit dealer; know plaintiff; am his partner; the firm is A. W. Page and Company, 146 W est street, in this city. I remember the fact of his going west last October, a year ago. He started for Lyons to purchase fruits; was well when he left; gone four or five days.” Plaintiff’s counsel here asked witness the following question, to wit: “Was he well when he came back?” To this defendants’ counsel objected as incompetent, as nothing had been shown making defendants responsible for nlaintiff’s health or physical condition on his return, which objection the court overruled, and defendants’ counsel excepted. The witness proceeded as follows, to wit: “ He complained very much of his back; he complains of his back still at times; when he takes cold he is affected very materially; it has interfered with his business.’’
    So much of the charge as is essential to a more perfect statement of the case, and to present the portions of it which were excepted to, was as follows:— •
    “ On the arrival of the train at Syracuse, it is their habit to stop or go slowly before reaching the depot, and the conductor there gives notice to passengers going to Lyons that they must change at Syracuse, and take the cars going by the new road. Mr. Rippy, a witness, says he heard no such notice, but only that twenty minutes would be given for dinner. That is an extraordinary feature in his evidence, gentlemen, because it has been shown that that train never stops there to dine. There is something about that which would require explanation. Mr. Rippy tells us that on arriving at the depot, Mr. Page, (the plaintiff,) left the cars for some ten or fifteen minutes. If he did leave, Mr. Rippy must be mistaken as to the time, because that train starts in five minutes. The cars went on the old road. Mr. Rippy says the tickets were examined, but that nothing was said by the conductor until on the examination after they had passed Marcellus, and then the conductor spoke to the plaintiff about being on the wrong road ; and Mr. Page then said, ‘You are in fault—you must send me back to Syracuse, and give me a passage there;’ and he goes on to say that the conductor refused to give him a passage back. The matter continued on in that way until they arrived at Vienna, where the conductor undertook to remove the plaintiff from the cars. He (the conductor) came into the cars, Mr. Rippy says, with those two brakemen; nothing was said at all; but the conductor pointed out Mr. Page, and he was immediately seized, and removed or put out of the cars. If that is so, gentlemen, then beyond all question the plaintiff has a right to recover, because it was clearly the duty of this company to offer to send this man back to Syracuse, to reach Lyons as he could have done in time, by meeting the train for the new road. If they did not offer to do it, they were clearly in the wrong; and as long as they chose to keep him in the cars, and not send him back, they had no right to remove him. If Mr. Rippy’s statement be correct, he evidently wanted to go to Lyons, and not to Rochester. If that is the truth of the matter, then the plaintiff had a right to recover.
    “ On the other hand, the defendants say that notice was given at Syracuse, as usual, for passengers to Lyons to change cars; and the brakeman, Richards, swears that upon that day, the 8th of October, when about to leave Syracuse, to go on the old road, notice was given to all persons going to Lyons to change; and he fixed that fact, and the date, by saying, that soon after his attention was called by the conductor to note it. If his attention was called to it, he would easily remember that he had not neglected to do so at that time.
    “ Here commences the discrepancy between the two parties. Notice might have been given, and Mr. Page or Mr. Rippy not have heard it; but the conductor states, that upon examining the ticket, before arriving at Marcellus, he found this man was on the wrong road; that he told him so, and that he should get out at Marcellus, and return to Syracuse, which he could do without additional pay, and arrive in time to meet the seven and a half, A. M., train to Lyons. The conductor says that, afterwards, when he got to Auburn, the plaintiff had not left, and he asked him why he had not; finding, further on, that he did not leave, he gave him to understand that he could not go on the road further than a distance equal to that from Syracuse to Lyons: at Vienna he told the plaintiff that he would take him to Rochester for the additional fare; this Mr. Page did not pajr, nor offer to pay; in that stage of the case, when they arrived at Vienna, the conductor says he called in the brakemen ; that he then told Mr. Page he should pay the additional fare or leave the car, and that he refused either to pay or to leave. That story they all three swear to, and that is in contradiction to the story told by Mr. Rippy. There is the painful part of the case, where you have to discover who tells the truth. Then, as the brakemen say, the plaintiff having refused to leave or pay the fare, they were ordered to take him out, and they did so, he making some slight resistance, and they using no further violence than was necessary. If. that be true, then the plaintiff has no right" to recover, because his conduct would be contrary to all reason, in not leaving at Marcellus. If the truth is as the conductor and brakemen state, then Mr. Page is undoubtedly in the wrong; and if he refused to get out at Marcellus, when told that he could return to Syracuse, and meet the train going to Lyons, and insisted in remaining in the car going to Rochester, it would be a presumption that he wanted to go to Rochester without paying his fare.
    It all turns, gentlemen, on the question as to who tells the truth. That you must decide yourselves, on the view you take of the evidence and all the surrounding circumstances, you must settle the matter according to your consciences, in the best way you can. If you come to the conclusion, that the story of the conductor and brakemen is true, in contradiction of Mr. Rippy’s statement of what occurred at Vienna, then Mr. Rippy would not be entitled to credit in any thing. If¡ on the contrary, you come to the conclusion that Mr. Rippy tells the truth as to what took place in the car, then there can be no doubt as to the truth of the other circumstances he narrates. If you place confidence in the statements made by Mr. Rippy, then the plaintiff is entitled to recover. If, on the contrary, you believe the conductor in his story, then your verdict must be for the defendants.
    On the question of damages, if you come to that, the same difficulty arises; for if you believe Mr. Rippy in contradiction of the brakemen as to what occurred in the car, then you cannot believe their statement in any particular, when they say Mr. Page did not complain of injury. We have, on this point, no evidence that the plaintiff did complain until he returned to this city. His partner and Captain Shaw say he then complained, and I believe they add that he still continues to complain. The doctor states he attended upon him, and cured him in May or June; but he probably may be disposed to speak with more certainty of that than others may think justified. The question was raised whether evidence as to the plaintiff’s complaints was competent to be laid before the jury, and I allowed it; but it by no means follows that you are to take those complaints as certain evidence of the extent to which Mr. Page suffered. If that were so, every man might make up his own damages, by making his own complaints. The usual course, where it is claimed that injury has been sustained, is to call a physician who can tell the nature of the injury in order that the jury may rest upon some safe grounds as to what the extent of that injury is. That would be the natural course. No physician has been called, however, and the matter is left, consequently, in a very uncertain position. If you come to estimate damages, then you will consider all the circumstances, and make due allowance for what the plaintiff has omitted to prove.
    The counsel for the plaintiff then asked the court to charge the jury as follows, to wit: “ That even if the agents of the company were authorized to eject the plaintiff from the car, yet, if in doing so, they used more violence, than was necessary, the defendants were responsible for damages.”
    The court so charged.
    The counsel for the defendants then asked the court -to charge the jury: “ That if they believed that notice was given to the passengers who held tickets, for the new road at Syracuse, as testified by defendants’ witnesses, then the plaintiff passed on to the old road through his own default, and the defendants were under no obligation to carry him on without his fare, or to return him to Syracuse.”
    The court refused so to charge, unless the plaintiff was shown to have heard the notice. Defendants’ counsel excepted to this refusal.
    The jury found a verdict for the plaintiff of $175.

      John Graham, for the plaintiff.

      John IT. Reynolds, for the defendants.
   By the Court. Hoffman, J.

The inaccuracy with which, as we apprehend, the charge of the Judge at the trial is presented to us, renders a new trial necessary. The Judge is stated to have said, that notice might have been given, and yet Mr. Page or Mr. Rippy not have heard it; and subsequently was requested to charge “that if they believed that notice was given to the passengers who held tickets for the new road at Syracuse, as testified by the defendants’ witnesses, then the plaintiff passed on the old road through his own default, and the defendants were under no obligation to carry him on without his fare, or to return him to Syracuse.”

The court refused so to charge, unless the plaintiff was shown to have heard the notice.

That the learned Judge meant to qualify this proposition by the idea that it would be sufficient if the plaintiff was in a position to hear such notice, we do not doubt. But as the charge is presented upon the case, the jury would have been misled, and the influence of the error in favor of the plaintiff is apparent.

We proceed, with a view to the new trial, to state our opinion upon the leading points argued by counsel, or arising in the cause.

It may be admitted, that the question is settled, in our state, that a restriction of a common carrier’s liability for goods is not to be effected by a general public notice, although it may be by special contract. (Parsons v. Monteath, 13 Barbour, 353 ; Moore v. Evans, 14 Barb. 524. See, also, The N. Y. S. Co. v. The Merchants' Bank, 6 Howard’s U. S. R. 382; Davis v. The New Jersey Ins. Co., 4 Sandf. Rep. 136.)

But the case of passengers is very different from that of goods. The counsel of the defendants very justly argues, that the passenger owes a correlative duty to the company, which he is bound to observe. They are to take care of him, but he is also, in many respects, to take care of himself; and a wilful or a heedless neglect of reasonable regulations actually, or by a strong inference, made known to him, exempts them from any liability for the consequences.

If the plaintiff had travelled the road before, in the train leaving at the same hour, it would be a fact bearing upon the question of knowledge. The weight of that fact would depend upon the frequency and recency of the period of such travelling.

If the defendant gave such published notice of the running of its trains, and such special notice in the cars, of the necessity of changing cars at any particular station, that every traveller of ordinary intelligence, by the use of reasonable care and caution, would obtain all the requisite information as to the route to be travelled, and the cars to be taken at any intermediate point of the voyage, it discharges its whole duty in this respect.

If a passenger, merely by a failure of his own to use such care and caution, instead of changing cars at a particular station, and taking cars which go to the place to which he has paid his fare, continues in the cars in which he started, and is carried in another direction, the result is to be attributed to his own negligence, and not to a breach of duty, or of contract, on the part of the company.

The fact of the publicity of such regulations, the time, manner, and circumstances of publishing them, and whether sufficient to bring home actual notice to the passenger, provided he bestows reasonable care and attention, in order to inform himself, is one to be determined by a jury.

Merely pointing the plaintiff, at Albany, to this train of cars, as the one to be taken, is not an .engagement that such train would carry him to Lyons, without a change of cars, in the progress of the route.

Being directed to that train at Albany, as one in which he was to take a seat, would not give him a right, on reaching Syracuse, and being expressly told that he must there leave that train and wait the arrival of, and take a seat in the next train, in order to go to Lyons, to insist on being conveyed to Lyons in the train in which he started from Albany.

Hence, the question necessarily resolves itself into one of fact, and that is, did the company use such means, to give information before reaching Syracuse, of the cars to be taken at that place, in order to be carried to Lyons, that the exercise of reasonable care, attention, and caution, on the part of the passengers, would have brought that information to their notice?

If it did, it was the fault and negligence of the passenger, and not of the company, that the passenger to Lyons continued ignorant of the necessity of leaving the cars at Syracuse, and waiting there until the arrival of the next train. For the consequences of such negligence the company is not responsible.

If passengers for Lyons were not allowed to go as far as Syracuse in the train first leaving Albany, but, on the contrary, were required to start from Albany in the train which left last, those of them who might find it convenient to stop an hour at some intermediate point, would be very apt to complain of such a regulation, as being unnecessarily oppressive and unreasonable. A regulation which promotes the convenience of some passengers, and interferes in no way with that of others, should be regarded favorably, and, if every reasonable precaution is used to bring to all . passengers the knowledge of it, the company should not.be held responsible for the consequences resulting from the inattention of passengers, and their neglect of the means used to convey to them such information.

So, if the plaintiff was told, before reaching Mareellus that he must stop there, and return to Syracuse in a train he would meet at Mareellus, and that he might return in it without charge, it was his duty to have returned, if by doing so, he would' have reached Syracuse in ample time to take the train for Lyons. If he refused to do that he should not be held to have any right to continue further on the train in which he was riding.

If the plaintiff left Syracuse on the wrong train through his own neglect to attend to proper information given, that it was necessary for passengers for Lyons to wait at Syracuse for the next train, or was in fault in not leaving the cars at Mareellus, and, notwithstanding that, insisted on going further, the agents of the company had a right to put him out of the cars if he refused to leave them on being requested so to do.

The companjr, in such event, would not be liable for ejecting him from the cars, unless more force was exerted than was necessary for the purpose. If more was used, then it would be liable for any injuries produced, or damage caused, by such excess of force. (Angell on Carriers, § 527 a, and § 531, note 1.)

The plaintiff had not proved enough to make his own statements or complaint that he had a lame back admissible. No physical injury, caused by ejecting him from the car, had been proved which justified the inference that a lame back was the consequence of it. It is difficult to say why his complaints of pain or soreness in any other part of his system would not be equally competent.

There should be some proof of actual injury other than complaints of the party himself,-made several days subsequently, to justify the admission of such complaints. If those who witnessed the transaction give no evidence justifying the inference of actual injury, nor of any complaints of injury made at the time of the transaction, the mere fact that several days subsequently he complained of lameness in his back, without proof where he had been, or what he had been doing in the mean time, is no evidence that such lameness was caused by ejecting him from the cars. It does not amount to as much as an explicit declaration of his own, that he was injured by being ejected from the cars. Such a declaration would be clearly inadmissible.

This case is very different from that of Caldwell v. Murphy (1 Kern. 419).

In that case, it was proved by a physician that the plaintiff was injured internally. The witness under examination had taken care of the plaintiff from the time he was injured for about ten or eleven days; had assisted him in getting from his bed, and in getting down stairs, and had seen him repeatedly since. He was asked as to the condition of the plaintiff’s health since the accident, and answered, “he has invariably complained.”

There was sufficient foundation laid for such evidence. But the evidence given in this case reverses the rule, and if of any effect, tends to prove an inj ury from the mere fact of complaints at a subsequent period, without any evidence of injury or complaint at the time of the transaction in question.

A new trial must be granted, with costs to abide the event.


author: By the Court. Bosworth, J.

text:
    Coburn, appellant v. Baker and wife, and Gridley, receiver of Willett, respondents and defendants.
    When two persons exchange notes, each taking the note of the other, of the same date and amount, and payable at the same time, each note is the proper debt of the maker thereof, and each of such persons is a purchaser for value of the note he received from the other in exchange for his own.
    Hence, if Willet (one of the two) transfers the note he so received to another, as collateral security for the payment of a mortgage on premises which Willett had bought subject to such mortgage, and on an agreement to pay such mortgage as a part of the contract price; and if Coburn (the other of the two) and the maker of the note so transferred, pay it, Coburn cannot maintain an action against Baker and wife, by reason of the same premises having been conveyed to Baker’s wife before the note made by Coburn became due or was paid, subject to the same mortgage, and on her agreement to pay such mortgage as a part of the purchase money, to obtain a judgment compelling Baker and wife to refund to him the amount of such note, or that, in default thereof, the mortgaged premises be sold, and the proceeds of such sale be applied to reimburse to him the amount of such note, although Willett has failed to pay the note he gave to Coburn, and has become insolvent, and a receiver of his property has been appointed on proceedings supplementary to execution.
    Such a receiver, he having been appointed before the notes so exchanged were due, could have enforced payment, of the note made by Coburn, had it then belonged to, and been held by Willett, and the proceeds would, of right, be payable to the judgment creditors, at whose suit such receiver was appointed.
    Judgment, dismissing the complaint, affirmed.
    Before Oakley, Ch. J., Bosworth and Hoffman, J.J.)
    Argued, February 15;
    decided, March 20, 1857.
    This action comes before the court upon an appeal by the plaintiff from a judgment dismissing his complaint.
    One Bogart, being owner of the unexpired term of certain leasehold premises described in the complaint, executed two several mortgages of such premises; one dated May, 1851, to Jacob Christie, to secure the payment of $2000 and interest; the other, dated June 10, 1852, to J. B. Dunham and E. Scudder, to secure the payment of the further sum of $2000 and interest. Scudder assigned his interest in the latter mortgage to Dunham, on the 5th of October, 1852. • -
    Subsequently, and on the 24th of February, 1853, Bogart conveyed the premises to Wm. M. Willett, subject to these two mortgages, which were to be paid by Willett, as so much of the consideration-money. ■
    On the 22d of November, 1853, Willett, and Coburn, the present plaintiff, exchanged promissory notes with each other, each note bearing that date, and being for the sum of $1000, and payable three months from its date, and maturing February 25,1854.
    Willett, holding the note thus made by Coburn, and having paid to Dunham $1000 on the mortgage held by the latter, transferred this note to Dunham, as collateral or further security for the balance of said mortgage debt.
    Subsequently, and on the 13th of January, 1854, Willett assigned the leasehold premises to Josephine Baker, one of the defendants, subject to the moneys then due on both mortgages, which were to be paid by the said Josephine, as part of the consideration for the said assignment.
    Willett soon after this failed in business. Under proceedings supplementary to execution, the defendant Gridley was appointed a receiver of all his property and effects by an order dated the 14th of February, 1854, and made an assignment of the same date of all his property to such receiver.
    Coburn paid to Dunham, on the 25th of February, 1854, the note held by Dunham, but Willett wholly failed to pay the note which he had given in exchange for it to Coburn.
    Soon after the 25th of February, 1854, Willett agreed with Coburn to obtain for him an assignment of the mortgage held by Dunham, in consideration of Coburn having paid to Dunham the note which Coburn had given to Willett, and gave an order to Scudder, who had the mortgage in his possession, to make such an assignment. On the 11th of March, 1854, Dunham executed a satisfaction piece, acknowledging payment of the mortgage, and delivered it to Benjamin H. Baker, the husband of Josephine. It was filed with the register on the daj*- of its date. The execution, acknowledgment, and filing of the satisfaction piece were done without the knowledge of Willett or of Coburn.
    The complaint prayed that the said leasehold premises, and all the right and estate of Baker and wife, and of Gridley, as receiver, in and to the same, subject to said mortgage, be sold, and that out of the proceeds the plaintiff be paid $1000 and interest, and his costs of this action, and for such other, or other and further relief as might be just and equitable.
    The action was tried before Mr. Justice Hoffman, who found the foregoing facts, and gave judgment for the defendant, dismissing the complaint. From that j udgment the plaintiff appealed to the General Term.

      Jno. Miller, for plaintiff and appellant, among others,
    made and argued the following points:—
    I. After the purchase from Bogart by William M. Willett, subject to the two mortgages made by Bogart, which were allowed by Bogart to Willett as part of the consideration, and which Willett agreed to pay, he (Willett) in equity became the principal debtor on said mortgages, and Bogart security.
    When Willett assigned the premises to the defendant Josephine Baker, subject to the payment of the moneys then due on the mortgages, to be paid by her as part of the consideration for the assignment, then the ' defendant, Josephine Baker, became in equity the principal debtor, and Willett the first security, and Bogart the second security for the payment of said mortgage. (Marsh v Pike, 10 Paige, 595 to 597.)

      II. Subsequent to the deposit of the appellant’s note with Dun-ham, and on the 13th of January, 1854, Willett conveyed the mortgaged premises to the defendant, Josephine Baker. After such conveyance, the parties stood thus in relation to the mortgage held by Dunham:-—-1. Josephine Baker, principal debtor. 2. Wm. M. Willett, first security, fortified by the note of the appellant. 3. Stephen Bogart as the second security. While the parties stood in this relation, find on the 14th of February, 1854, Willett, under the supplemental proceedings, made an assignment to James Grridley, Esq., the receiver. At this time Willett had no beneficial interest in the mortgage, nor any claim against Josephine Baker, or against the mortgaged premises, which could pass under the assignment. The payment by an assignor out of his own funds, after assignment of a debt for which he was surety before the assignment, does not vest in the receiver the claim against the principal; such claim belongs solely to the assignor, as much so as the earnings of the assignor subsequent to the assignment.
    III. At the time of the assignment by Willett to the receiver, on the 14th of February, 1854, the legal and equitable rights of Willett, in relation to Josephine Baker, to the mortgage, the mortgaged premises, and the appellant’s note, were simply these:— 1. That Josephine Baker, or the mortgaged premises, should pay the mortgage, in exoneration of himself and the note; and 2. That thereupon the appellant’s note should be returned to him.
    IV. The receiver acquired no greater rights in regard to the note than Willett would have had, provided he had not made an assignment; and such rights Were subject to the same equities and duties on the part of the receiver, which would have devolved on Willett, if no assignment had been made. (Payne v. Cutler, 13 Wend. 605-606; Rogers v. Gwathmey, 12 Wend. 484; Ibid. 14 Wend. 575; Smith v. Van Loan, 16 Wend. 654, 661.)
    Y. The utmost that the receiver can in any event claim, and all he ought in equity to claim, adverse to the interests of the appellant, is what he could have enforced against the appellant if the note had been surrendered by Dunham to the receiver.
    YI. If the note had been surrendered to the receiver by Dun-ham, he could not have collected any thing upon it against the appellant, as the consideration had failed. Consequently it would have been of no value in his hands. (Story on Bills, § 184.)
    YII. It was the duty of Willett to either pay the note he gave to the appellant, or to redeem the appellant’s note pledged with Dunham, and to re-exchange notes with the appellant. And the receiver’s rights on the appellant’s note would have been subject to the same duties.

      J. JE. Burrill, for defendants and respondents.
    I. The appellant is not entitled to be subrogated to the rights of Willett in respect to the mortgage. 1. The note made by plaintiff having been made upon an exchange of paper, was based on a valuable consideration, and Dunham, having takgn it in payment of the balance due on the mortgage, was a holder for value, and entitled to recover the same against Coburn. 2. The note made by Coburn to Willett, and which he transferred to Dunham, was the property of Willett, and when Coburn paid the note he paid his own debt. (Dowe v. Schutt, 2 Denio, 621; Wooster v. Jenkins, 3 Denio, 187.) 3. The note made by Coburn was not made for the parpóse of being applied to the payment of the mortgage. 4. If Coburn seeks to enforce his remedy against Willett, it must be upon Willett’s note, and for nothing else. (Wooster v. Jenkins, 3 Denio, 187.) 5. Coburn never in anywise became bound to Dunham for the payment of Willett’s bond and mortgage, nor did he ever become in any way the surety of Willett, in respect thereto. (Story’s Eq. §§ 331-499; Sandford v. MacLean, 3 Paige, 122; Dowe v. Schutt, 2 Denio, 621; Wooster v. Jenkins, 3 Denio, 187.)
    II. The agreement alleged to have been made between the plaintiff and Willett, by which Willett agreed that Dunham might assign the mortgage to him, was made after the maturity of the notes, and consequently after the assignment to the receiver.
    III. Conceding, for the sake of the argument, that by the conveyance of the premises by Willett to Baker, subject to the mortgage, the land, or the defendant Baker, became the principal debtor, and Willett became the surety, as is claimed by the plaintiff, it follows that Willett, as such surety, could have compelled Baker to have paid the debt, and. to have saved Willett harmless, although Willett had neither paid nor been sued. (Story Eq. Juris. 780, 849, 850; Hayes v. Ward, 4 John. Ch. 132; Champion v. Brown, 6 ib. 406-7.) 2. The mortgage was due at the time of the conveyance to Baker, and if the latter assumed the payment, and covenanted to pay, then there was a breach of the covenant instan ter. 3. The right of Willett to compel Baker to pay, or his right of action against Baker for not paying the mortgage, are dioses in action, which passed by the assignment from Willett to the receiver, on the 14th of February, 1854.
    IV. The judgment should be affirmed.
   By the Court. Bosworth, J.

The view taken of the plaintiff’s rights and position, by his counsel, we understand to be, in brief, this:—

If the note made by Coburn had continued in Willett’s hands until the defendant Gridley was appointed receiver, and had, on that day, been delivered to Gridley, as such receiver, Gridley could not have maintained an action upon it, because the consideration of it had wholly failed, by reason of the insolvency of Willett, and his consequent inability and failure to pay the note which he gave in exchange to Coburn. That the note would have been valueless and invalid in the hands of such receiver.

That at the time Willett assigned to the receiver, the legal and equitable rights of Willett, in relation to Josephine Baker, and to the mortgage, and to the mortgaged premises, and to Coburn’s note, were: 1st. That Josephine Baker, or the mortgaged premises, should pay the mortgage, in exoneration of himself and the note, and, 2d. That thereupon Coburn’s note should be returned to him.

That Coburn having been compelled to pay the note, because it had been hypothecated to Dunham, and the debt which it was made to pay being one which the mortgaged premises or Josephine Baker should pay, and for the payment of which Willett was a mere surety as between himself and Josephine Baker, the plaintiff was, in effect, a surety for Willett, and should be subrogated to his rights.

In Dowe v. Schutt (2 Denio, 623) the court held, that when two persons exchange notes, each taking the note of the other, of the same date and amount, and each payable at the same time, each note is the proper debt of the maker thereof, and each holder is a purchaser for value. As the note taken by either is a debt due to the holder, and is his property, he may sell it on such terms and at such price as he pleases. Although discounted on usurious terms, that cannot affect its validity as respects the maker. That in such cases the relation of principal and surety does not exist, and that a promise of either maker to indemnify the other cannot be implied. The cases uniformly hold and fully sustain these propositions. (Rice v. Mather, 3 Wend. 62; Cameron v. Chappell, et al., 24 Wend. 94; Chitty on Bills, 84-85.)

In Wooster v. Jenkins (3 Denio, 187) the question was fully considered, and the court held, that after such an exchange of notes the rights of each holder were the same as if he had taken the note held by him for money paid or goods sold. That each party was bound to pay his own note, and that no contract of either to indemnify the other could be implied. That the remedy of each was on the note he had taken, and neither could recover against the other, in an action for money paid to the use of the party making the note which had been paid.

The settled doctrine would seem to be, that any indorsee of such a note, before its maturity, has the same rights against the maker of it as if each note had its origin in a distinct and independent transaction, and the consideration of it was property sold and delivered to the maker.

These views, if sound, dispose of the whole case. The note, if it had been held by Willett, and if it had passed into the hands of Gridley, as receiver, on the 14th of February, 1854, would have been valid and available in his hands, and collectible for the benefit of the particular creditors of Willett, at whose suit Gridley was appointed receiver.

Under such circumstances, if any one has a right, in consequence of the payment of this note to Dunham, to resort to the mortgaged premises to obtain payment of the amount of this note, it is Gridley, the receiver, and he would hold whatever he might collect for the judgment creditors of Willett, at whose suit the receiver was appointed. (Nantucket Pacific Bank v. Stebbins, ante, 341.) .

Although Willett had failed, even if no receiver had been appointed, and Willett had then held the note made by Coburn, the latter could not have instituted an equitable action, on the 14th of February, 1854, to compel the set off of one note against the other, because neither note was then due. (Keep v. Lord, 2 Duer, 78; Bradley v. Angel, 3 Com. 475.)

We think the present action cannot be maintained on the facts found. The complaint was properly dismissed, and the judgment must be affirmed, with costs.


text:
    Martha Garner, and others v. The Manhattan Building Association.
    In an action to recover the possession of real estate, a complaint which states that, on a day named, a person, whose, name is given, was in possession and seized thereof in his own right in fee, and died so seized and possessed; that the plaintiffs are his only heirs at law, and, as such, are seized in fee and entitled to the possession; that the defendant is wrongfully in possession, claiming title, and refuses to give up possession, though requested so to do, states facts constituting a cause of action.
    The defendants, by their answer, and by the evidence given at the trial, claiming a right to the possession under an unexpired lease, executed by the plaintiffs’ ancestor, in his life-time, held, that it was competent for the plaintiff to prove in reply any facts which put an end to the lease, or gave a right to the plaintiffs to require the possession to be given up to them, and the defendants’ possession to be wrongful.
    (Before Oakley, Ch, J., Bosworth and Hoffman, J.J.)
    Submitted, February 18;
    decided, March 28, 1857.
    This action comes before the court on an appeal by the defendants from a judgment entered on the report of a referee. It was commenced about the 25th of May, 1855, and was brought to recover the possession of certain real estate described in the complaint.
    The complaint states, that on and before the 1st of May, 1843, one John Garner, then of the county of Rockland, and state of New York, was seized in his own right in fee, and lawfully possessed of all that certain lot, piece, or parcel of ground, situate and being in the city of New York, and particularly describing it.
    The said John Garner died, so seized of the said lands and premises, some time in the said year 1843, intestate, leaving him surviving his widow, the said Martha Garner, and his children, and sole heirs-at-law, the plaintiffs, Frederick Garner", Mary Garner Ward, now the wife of the plaintiff, Adam H. Ward, and David Garner.
    The said plaintiffs, Frederick Garner, Mary Garner Ward, and David Garner, are seized in fee and entitled to the possession of the said lands and premises, subject to the life estate of the said Martha Garner, in one equal undivided third part of the same.
    That the said David Garner is an infant under the age of'twenty-one years, and that the said Adam H. Ward, by an order duly made by this court, has been appointed his guardian, for the purpose of prosecuting this action on his behalf.
    The defendants are a corporation or association organized under the laws of the state, and the plaintiffs have been informed and believe, that the defendants are wrongfully in possession of the said lands and premises, and wrongfully claim a right thereto, and, although often requested, have refused, and still refuse, to deliver up possession of the said lands and premises to the plaintiffs, and unjustly withhold the possession thereof from them.
    By reason of such continual wrong-doing on the part of the said defendants, the plaintiffs have sustained damage to the amount of three thousand dollars.
    Wherefore the plaintiffs demand judgment against the said defendants for said sum of three thousand dollars, together with the costs of this action; and also that the defendants deliver up to the plaintiffs possession of the said lands and premises, and every part thereof.
    The defendants by their answer made title, under a lease of the premises dated May 1, 1843, executed by John Garner to one Derrick D. Foster, for twenty-one years from that date; an assignment of the lease by Foster to Demarest, and by Demarest to John McDonald, and a mortgage of the premises by McDonald to the defendants on the 19th of November, 1851, to secure the payment of $4000 lent to him by the defendants, and a foreclosure of such mortgage, and a purchase of the unexpired term of the lease by the defendants at the foreclosure sale.
    The facts thus alleged in the answer having been proved, the plaintiffs put the lease from Garner to Foster in evidence.
    The lease contained these covenants on the part of Foster, the lessee, viz.

      “ And it is agreed, that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises, or to distrain for any rent that may remain due thereon. And the said party of the second part doth covenant to pay to the said party of the first part, the said yearly rent as herein specified.
    “And further, the said party of the second part shall, from year to year, during the term of the lease, pay, or cause to be paid, all ordinary and yearly taxes on said lot, assessments for public improvements herein excepted; which assessments shall be paid by the said party of the first part.”
    The plaintiffs proved—the defendants objecting and excepting to the admission of the evidence—that the tax on the lot and premises for the year 1853, being exclusive of interest $27.15, was confirmed on the 20th of July, 1853, was returned as unpaid in the month of June, 1854, and was paid in the following March by the plaintiff, it then amounting with interest to $32.28 ; that the taxes for 1854, amounting to $23.23, and the Croton water taxes for 1853 and 1854, amounting for each year to $10.35, remained unpaid until the 5th of March, 1855, when they were paid by the plaintiffs.
    The last payment of rent made under the lease was made on the 22d of November, 1854, and in full for rent up to the first of that month. Neither of the plaintiffs then knew of any of the defaults in the payment of taxes.
    The referee decided that the plaintiffs were entitled to the possession of the lands and premises, that the defendants wrongfully withheld the possession from them, and that the plaintiffs recover the possession. No exceptions were taken to this decision. Judgment having been entered on the report, the defendants appealed from the judgment.

      A. B. Tajipen, for defendants and appellants,
    made and argued the following points:—
    I. The complaint does not state facts sufficient to constitute a cause of action. 1. Under the statute, the plaintiff should aver ip his complaint, that on some certain day, which shall be after his title accrued, he was possessed of the premises, and that being so possessed thereof, the defendant on some certain day to be stated, entered, etc.; there is no such averment in the complaint. (2 R. S. 4 ed. 566 ; 10 Wend. 414; 2 Duer, 673 ; 6 Cow. 147.)
    II. The issue upon which this action was determined is not presented by the pleadings, and the referee erred in admitting the testimony. If the plaintiff claimed a forfeiture of lease as the ground of action, the defendant ought to be so advised, and all the material facts should be averred to raise the questi on oí forfeiture. The unlawful withholding is a question of law. The courts have always been strict in their requirements to prevent forfeitures. (2 Duer, 673, above cited; 5 Denio, 129.)
    III. The taxes reserved in the lease are in the nature of a reservation of -rent, (Taylor’s Landlord and Tenant, 2d ed., § 395,) aud a complaint in ejectment for rent would not be good without full averments. (2 Revised Statutes, 4 ed. 750.)
    IY. If taxes be not in the nature of a reservation of rent, the landlord must show a demand in order to sustain his action. (17 Johns. 66.)
    Y. The covenant to pay taxes does not, in the lease in question, bind the assignee of the lessee, and therefore does not run with the land. The assignee is liable only for his own default. (15 Johns. 278; 4 Selden, 468, and cases there cited.)
    YI. The plaintiffs received rent after the time when it appears by the tax records the taxes were unpaid, and this is a waiver of forfeiture. If the defendants are to be charged with knowledge of the tax from the tax books, so also are the plaintiffs. The tax books are public records. (See Act in relation to taxes in the city of New York, 1 R. S. 4 ed. 763.)
    YII. Ko taxes were unpaid at the commencement of this action. If the plaintiffs paid them, they have an action for re-imbursernent. The evidence shows that the defendants used due dilligence in ascertaining and paying all arrears, and the plaintiffs’ own act, in paying the taxes while McDonald was in possession, and in omitting to bring their action until long after defendants purchased, is a waiver of forfeiture.
    YIII. The plaintiffs, having violated their covenant for payment of assessments, cannot maintain an action against the defendants, while they, the plaintiffs are in default.

      IX. The assignee of the reversion has not the right of re-entry, unless the covenant is with the lessor, his assigns, etc. (Comyn’s Landlord and Tenant, 151.)
    X. The referee’s report is erroneous, and the judgment thereon should be reversed.

      Geo. A. Schufeldt, for plaintiffs and respondents.
   By the Court. Bosworth, J.

But one exception was taken during the progress of the reference, and no exception was taken to the final decision of the referee. At all events no such exception appears in the case. Only two questions of law arise on this appeal. Those questions are, first, does the complaint state facts sufficient to constitute a cause of action ? and second, is the exception, which was taken during the trial, tenable ?

The defendants, in their printed points, take the position that the complaint does not state facts sufficient to constitute a cause of action. This objection may be raised in any stage of the action. (Code, § 148.)

The complaint states that John Garner was seized of the premises in question, in his own right in fee, and was in the lawful possession of them on and before the 1st of May, 1843. That he died so seized, in that year, intestate, leaving one of the plaintiffs, his widow, and the other plaintiffs, his only heirs-at-law him surviving.

That those named as heirs are seized in fee, and entitled to the possession, subject to the life estate of the widow in an undivided third part thereof. That the defendants are wrongfully in possession, and claim a right thereto, and although often requested, have refused, and still refuse, to give up the possession, and unjustly withheld possession from the plaintiffs, and prays j udgment that they deliver up possession to the plaintiffs.

We think there can be no doubt, that such a complaint, under the Code, is good on general demurrer. (Code, §§ 142, 471.)

The objection taken during the progress of the trial was general, and was to the effect, that no evidence was admissible, under the pleadings, to show the non-payment of taxes or the breach of any of the covenants contained in the cause.

It was competent for the plaintiffs to prove any matter which, in legal effect, would avoid the lease, and prevent its operating as a bar, or obstacle, to the plaintiffs’ right to recover. The Code performs, for the plaintiffs, the office of a pleader, who can commit no mistake, in replying to an answer which sets up, by way of defence, new matters, not constituting a counter-claim. It pleads for him, and in proper form, in avoidance of the answer, any matter which it is in bis power to prove, and which is sufficient to accomplish that result. (Code, § 168.)

It follows that neither of the questions of law, which the defendants are permitted to raise on this appeal, is tenable.

The ease of Garner v. Hannah, decided at the October General Term, 1856, is decisive of all questions in this-case relating to the merits. Ante, 262.

The judgment must be affirmed, but with liberty to the defendants in this action, by notice, or on petition, to apply for such relief against it as they may be advised, and without prejudice to their right to bring an action to obtain such relief, if so advised.