text:
    META VOLKMAN, and another, Plaintiffs and Appellants, v. HENRY FELDMANN, Defendant and Respondent.
    I. EVIDENCE.

    1. EES INTER-ALIOS ACTA—WHAT IS NOT.

      (а) Third party, conversations with.
    1. When one having a transaction with another refers that other to a third party for information or directions as to such transaction, the conversations with such third party upon the subject as to which information or directions were to obtained from him are admissible against the one so referring, and he will be bound by them in the same manner and to the same extent as if they had been had personally with him.
    (б) Acts done by a party without the knowledge op another and on which that other has not acted ; EXPLANATION OF.
    1. When proved and relied on by that other as evidence against the one doing them, may be explained.
    («) What admissible in explanation.

    1. Proof of attendant facts and circumstances.

      2. Proof of mental operations concurrent with the acts.

      2. MOTIVE, WANT OF.

      (a) When proof of, admissible.
    1. When the issue is whether in the transaction in question the defendant was acting for himself or another, and there is conflict of evidence as to what took place between him and plaintiff at its beginning, evidence on behalf of defendant that he had no motive to employ the plaintiff on his own behalf is admissible.
    Before Sedgwick and Speir, JJ.

      Decided January 2, 1877.
    'Appeal from judgment for defendant, on report of referee.
    The action was to recover money paid and laid ont by plaintiffs at request of defendant, for advertisements caused to be made by plaintiffs at request of defendant.
    On the trial, it was shown that the defendant requested the plaintiffs to procure certain advertisements to be made in newspapers, of sales of real estate. The main question was, whether he made the request in his own behalf and the plaintiffs proceeded thereon, or whether he made, to the knowledge of plaintiffs, the request on behalf of others, and the plaintiffs acted on the credit of others. The referee found in favor of defendant.

      Hutchins & Clinch, attorneys, and Edward S. Clinch, of counsel, for appellants.

      Henry Wehle, attorney, and of counsel, for respondent.
   By the Court.—Sedgwick, J.

There are many exceptions which call for no particular attention, inasmuch as they involved, in most cases, the exercise of discretion on the part of the learned referee, and the proper rules of law were undoubtedly recognized, as to the form of questions, to the admission of evidence on rebuttal which was properly part of the plaintiffs’ opening case, and to the order of proof.

The referee, however, refused to allow the plaintiffs to prove certain interviews between them and an auctioneer, in the absence of defendant, and the exceptions to this refusal were valid. An outline of the facts, is, there was an action of foreclosure of a mortgage of lands, and the auctioneer had charge of the sale. By the plaintiffs’ testimony, the defendant said to the plaintiffs: “I have some advertisements again for you. It may be that the auctioneer has given it away ; ” and he further said, as to a proposed advertisement, written out by himself, that one of the plaintiffs should call on the auctioneer, “to ask for the English paper it should be inserted in ; ” and also, “I have again an advertisement for you, of an auction sale larger than usual for you. Can you come along ? I want to introduce you to the auctioneer. If he has not given the advertisement away, I shall give it to you.” It was further testified, that the defendant said to one of the plaintiffs, that she “should show that advertisement to the auctioneer, to see if he approved of it.” The plaintiffs proposed, but the referee refused to allow them, to show that one of them called upon the auctioneer, and also what was then said by him.

The plaintiffs gave enough evidence to sustain a judgment, although there was much tending to a different conclusion, that the defendant employed the plaintiffs, on his own behalf, and the plaintiffs relied on Ms credit.

If the only reason for admitting the interview between the plaintiffs and the auctioneer was that it might then have appeared that the auctioneer did not make the employment, or that the defendant was not his agent, and thus it would show that defendant was acting for himself, it was not competent. But it was admissible on other grounds.

A general rule on the subject is stated in section 182 of Greenleafs Evidence: “The admissions of a third party are also receivable in evidence against the party who has expressly referred another to him for information in regard to an uncertain or disputed matter. In such cases, the party is bound by the declaration. of the person referred to, in the same manner and to the same extent as if they were made by himself. Thus upon a plene administravit, where the executors wrote to the plaintiff, that if she wished for further information in regard to the assets, she should apply to a certain merchant in the city, they were held bound by the replies of the merchant to her inquiries upon that subject. So, in assumpsit for goods sold, when the fact of the delivery of them by the, carman was disputed, and the defendant said, If he will say that he did deliver the goods, I will pay for them,’ he was held bound by the affirmative reply of the carman.”

The rule thus stated, would not admit testimony of an interview with the auctioneer, in absence of the defendant, in consequence of his saying, “Can you come along. I want to introduce you to the auctioneer ; if he has not given the advertisement away, I shall give it to you.” In that case, the plaintiffs were not referred, for anything that might affect their rights and on which they might act, to the declaration of the auctioneer, apart from the defendant. Nor does it seem that the plaintiffs were referred to the auctioneer to ascertain if the advertisement had been given to others. But the testimony, which, as it was given, might be considered by itself, viz. : that the defendant said that one of the plaintiffs “ should show that advertisement to the auctioneer to see if he approved of it,” did admit evidence as to the interview had with the auctioneer, in consequence of what the defendant then said. The same is true of any interview that might have been had upon the direction of the defendant to call on the auctioneer to ask for the English papers in which the advertisement should be inserted.

The rejection of the evidence of the interview as to the form of the advertisement and as to the papers that should be selected, calls for a new trial. The evidence, as it was on the trial, is almost sufficient to have justified testimony as to the general interviews between the plaintiffs and the auctioneer. This cannot be made certain, because the material facts are so broadcast over a great space of unimportant matter.

The plaintiffs should have been allowed to give testimony as to any facts, even mental operations, tending to explain why the entries in their books were against the auctioneer and not the defendant. They should not, however, be allowed to give mere reasoning in evidence.

Take all the case together, and I think there was enough ground to admit testimony as to the interview between Mr. Ackert and the lady whom he could not, on the trial, name or identify.

In the conflict as to what was in the beginning said Jby the defendant to the plaintiffs, it was proper to allow the defendant to show that he had no motive to employ the plaintiffs on his own behalf, that is, to show he had no interest in the sale.

I am of opinion that the judgment should be reversed, the order of reference set aside, and a new trial had with costs to appellant to abide the event.

Speir, J., concurred.


source: Caselaw Access Project

author: By the Court.—Speir, J.

license: Public Domain

text:
    BEEKMAN T. BURNHAM and GEORGE W. DOUGLAS, Plaintiffs and Appellants, v. MATHEW T. BRENNAN, Sheriff, &c., Defendant and Respondent.
    I. SHERIFF.

    1. EXECUTION.

      (a) Nulla bona, bbtubn of.
    1. Effect of.

      {a.) Action against sheriff, brought before such return, to
    recover goods levied on.
    1. Estoppel. The return will not estop the sheriff from claiming that the goods were the property of the execution debtor, or that he had a leviable interest therein.
    ' 1. Principle. The principle of an estoppel is that the party claiming it must have done, or omitted to do something, in reliance on the act or statement of the party against whom the estoppel is claimed, and in consequence of such reliance would be injured if proof that the fact was otherwise was admitted.
    (5.) Amendment of bbtubn.
    The court out of which the execution issued, has power to amend it nunc pro tune by striking out the return of nulla bona.

    *1. Hotice. It is not necessary to give any notice of motion for leave to amend to a party claiming goods under a levy made by the sheriff prior to such return.
    (e.) Tenancy in common. Ebaud in sale to one.
    Where two or more persons claim to be tenants in common of personal property by title derived from a common vendor, the sheriff under an execution against the vendor may, if the transfer to one of those claiming to be tenants in common is fraudulent and void, levy on and seize the whole property and the vendor’s interest so fraudulently transferred.
    1. TbESPASS OB BEPLEVIN AGAINST SHEBIFF IN SUCH case could no'; be sustained by the other parties in interest.
    1. A fortiori, an action brought by them and the fraudulent transferee cannot be sustained.
    H. APPEAL.

    1 Evidence beceived on.
    («.) Record evidence received in the first instance on appeal to avoid technical defects, provided it is such as cannot be controverted.

      E. (?., an order amending a sheriff’s return nunepro tunc.

    III. FRAUDULENT CONVEYANCES.

    1. Conveyances made with intent to hinder, delay and defraud creditors. Part 2, chap. 7, title 2, § 5, JR. S.

      (a.) CHANGE OP POSSESSION ; what does not satisfy the statute.

    1. Restate ant. At the time of the sale of the fixtures of a restaurant, and assignment of the lease of the building in which it was situated, to two vendees and assignees, an undivided half to each, the vendor handed the keys to one of the vendees, saying he thereby put him in possession. He then took them from that vendee and handed them to the other one with the same statement; the latter vendee then, for the time being, went behind the counter and commenced receiving checks from the customers; he took his breakfast and dinner at the restaurant, and was there during the evenings, and rainy days and Sundays; he had, however, been in the habit of going behind the counter, receiving checks, eating there, and being there evenings, rainy days, and Sundays, for a long time prior to the alleged sale. The vendor attended (except when detained by sickness) and went about the saloon as usual, and sometimes went behind the counter. A party who had been associated with the vendor, and had the principal charge of the business under him, still remained, and had full charge to run the place under the vendees, and did so in connection with the vendor. In fact, he was employed by one or both of the vendees to superintend and take charge of the business; he made all the purchases, but made those that were made on credit in the name of the vendees. There was no change in the signs. One of the transfers was made some time before the other ; but at that time there was not even a formal delivery.
    Held,

      no actual and continued change of possession under the statute.

    3. Symbolic and constructive delivery.

    Not sufficient to satisfy the statute.
    3. Transferror and transferee.

    Joint possession of, does not satisfy the statute.
    4. Two transferees.

    Where one to whom an undivided interest has been transferred, goes into possession thereof, and after-wards the remaining interest is transferred to another, the possession of the first transferee does not satisfy the statute requiring a change of the possession" from the transferror to the second transferee of the property, the interest in which is transferred to him.
    5. Motive for leaving the property where it was at the time of sale.

    That it was so left for the benefit of the vendees, and for the purpose of retaining customers and preventing the business from being broken up, does not dispense with the actual change required by the statute.

    6. Party formerly conducting the business, continuing to do so substantially as before.

    Although employed by the transferee to superintend and conduct the business, his possession is not such possession of the transferees as the statute requires. (a.) The statute means to discountenance this.

      (b.~) GOOD FAITH ; what does not satisfy the statute requirement as to.

    1. Full value. The sale of the property for its full value, which was paid, is not sufficient, if the motive for the sale and purchase on the part of the seller and purchaser was to hinder, delay, or defraud creditors, in the collection of their debts.
    3. Notice to pub chaser. If the transferror was actuated by an intent, &c., and the transferee had notice of such intent, the statute is not satisfied, whether the transferee paid any money or not.
    3. Inquiry, refraining from when put on guard.
    ‘ 1. If the transferee has before him facts which would put a person of ordinary intelligence and prudence on his guard, or create a suspicion, which, being followed up, would lead him to find out that there was a fraudulent intent on the part of the transferror, his abstaining from jnaking such inquiry is a want of good faith.

      (e.) HINDER AND DELAY.
    1. Meaning of terms in the statute.

    Putting an obstacle in the path, or interposing some time, unjustifiably, before the creditor can realize what is owed out of his debtor’s property.
    IY. EVIDENCE.

    1. Witness, non-pboduction op. Documents, destbuction op. If a party who has it in his power to call a witness who is
    friendly to him, and is in a position to give material evidence, omits to do so, or if he destroys papers bearing on the issue, such omission or destruction must tell against the party so omitting or destroying, unless the omission or destruction is satisfactorily accounted for.

      2. Admissions by an owneb op pebsonal pbopebty made apteb HE HAD PABTED WITH THE TITLE.

      (a.) When admissible.

    1. When there is prima facie evidence that the transfer from the party who made the admission, to the party against ' whom it is offered, was fraudulent as to the party who offers it.
    Y. Tenants in common op pebsonal pbopebty.
    1. Seizure under execution against the party from whom one of them derived title.
    1. Right of action, &c. See supra, Sheriff.

    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    The action is for the taking and detention of personal property. The answer contains a general denial, and sets up that the property in question belongs to one William H. Lane, and that it was taken under an execution against him in favor of one James C. Greggs.
    The plaintiffs obtained possession of the property under the claim and delivery proceedings. The goods in question were the fixtures of a restaurant, at the corner of Hall place and Seventh street, in the city of New York.
    The defendant in execution, William H. Lane, had been engaged in the business of keeping a restaurant for years. His son, Albert S. Lane, had been associated with him in the business many years, and was a member of the firm at the time of the alleged purchase by the plaintiffs. The plaintiff, Beekman T. Burnham, a real estate broker, and son-in-law of William H. Lane, claimed under a bill of sale executed by the latter, of one-half the property, and delivered January 15, 1873. The plaintiff, George W.' Douglas, claimed under a bill of sale from William H. Lane, January 10, 1873. Douglas was connected with the Department of Public Works.
    The premises were leased by Albert S. and William H. Lane from Jesse Brown, at the rent of $4,500 per year. The restaurant occupied the corner room, the ladies’ room and the cellar. A barber’s shop was on the first floor, and the city rented the remainder at the rate of $5,000 per year. The bills of sale purported to convey the good will, and all the personal property connected with the restaurant, together with the lease of the city. The consideration named in the bill of sále to Douglas is $2,500, and it conveys a half interest. Douglass at the time handed over $500 and signed a paper guaranteeing the payment of two notes of $1,000 each, given by Albert S. Lane to William H. Lane. No delivery of property appears to have taken place at this time.
    The consideration named in the bill of sale to Burn-ham was $4,000 for the remaining one-half interest, being $1,500 more than Douglas had given five days before. Burnham assumed in writing the payment of a mortgage given by Mrs. William H. Lane for $1,500 on some real estate in Westchester county, delivered up some notes of William H. Lane’s, released a loan of $74.38, and gave a check for $50.46. Both bills of sale were executed on the premises.
    The delivery of the property was made by the attorney who transacted the business between the parties, who, having obtained the keys, handed them to Mr. Burnham, saying he thereby put him in possession of the restaurant, and then took them from his hands, and put them into the hands of Mr. Douglas, saying the same thing.
    Other facts in relation to the change of possession and good faith of the parties appear in the charge and opinion.
    On the trial, evidence was received, under plaintiffs’ objections and exceptions, of admissions and statements made by William H. Lane a long time after his alleged sale to plaintiffs.
    There was evidence that William H. Lane, who was not called as a witness, was sick; but it also appeared that plaintiffs had made no effort to procure his testimony.
    It also appeared that pending this action the attorney for the plaintiffs destroyed a guaranty given by Douglas, at the time of the transfer to Mm, to Lane to pay the notes of Albert S. Lane, and also an agreement made by Burnham, at the time of the transfer to him, to pay the mortgage of Mrs. Lane; and evidence was given concerning such destruction.
    It also appeared that, after issue joined in the action, the sheriff returned the execution, under which he had levied on and taken the goods in question, nulla bona.

    After the evidence had closed on both sides, plaintiffs’ counsel claimed that inasmuch as it appeared that the sheriff had returned the execution wholly unsatisfied, and as the return, in its legal effect, released the levy and disabled the sheriff from claiming a return to him of the property, and as he could not sell it if returned, and had no writ in his hands, and therefore was not entitled to the return, the plaintiffs were entitled to a direction from the court that the jury find a verdict for the plaintiffs; and moved for such direction. Motion denied. Plaintiffs excepted.
    The court thereupon charged the jury :
    “ Gentlemen: In this case the plaintiffs are Beekman T. Burnham and George W. Douglas. The defendant is Sheriff Brennan. On April 15, 1873, the sheriff levied upon the goods that have been in dispute before you. He levied by virtue of a writ he had in his possession—a writ of execution upon a judgment in favor of Mr. Greggs, who has been a witness against William H. Lane. He had no right to take these goods, unless they were the property of Mr. Lane. The plaintiffs here, Messrs. Burnham and Douglas, say that they were the owners of the goods, and not Mr. Lane, and on these issues they are bound to establish that before you. Their position is that each was the owner of one undivided half of the goods at the . time this levy was made, and each had an interest of one half in the furniture of the restaurant and the other property.
    “If Mr. Douglas was the owner of one half, still the sheriff would have had a right to seize under the execution, provided Mr. Lane was the owner of the other half. The same is true of Mr. Burnham. If Mr. Burnham was in fact the owner of one half, and Mr. Lane remained the owner of the other half,—that is, if the transfer to Mr. Douglas was not good,—the sheriff still had a right to take the goods under his process, and sell out the interest of Mr. Lane.
    “ The practical bearing of that is this : you must be satisfied that both transfers of the one half of this property to each of the plaintiffs was good, or else the defendant must have a verdict.”
    [Plaintiffs’ counsel excepted.]

      “ In every sale of this kind, there are three parties under the statute,—the buyer, the seller, and the creditors of the seller, if there are any such. In this case, there were creditors. Now, the law says (as morals would say), there being three parties interested, under these circumstances the seller and the buyer must pay due attention to the rights of creditors; and the law imposes very reasonable duties in that respect on the purchaser. It says, in substance, that if a man buys a thing, he can take it into his possession and appear to the world to be the owner of it, or not, as he chooses. If he does take possession of it, and becomes the ostensible owner, so that the world can see it, the creditors of the former owner can see it, and those asked to give credit to the owner .can see it. There can be no injustice done, for the whole world is notified that the property has changed hands. On the other hand, if the buyer of the property does not choose to do that simple thing, and give notice to the world that there has been a sale, so that by no possibility can any one be injured or misled, then the law puts upon him the burden (or rather, under the circumstances, he takes it upon himself), that when there is a legal contest about the affair, the buyer must prove to the jury, by evidence satisfactory to them, that his purchase was in good faith and for a good consideration.
    As the learned counsel for the defendant stated to you, the ordinary provision of law is that there is no presumption of wrong-doing or fraud; but in this case, from the peculiar provision of the statute, that general rule finds an exception in this class of cases, and if the buyer of property does not choose to change the ownership of property visibly, and continue that change, then he takes upon himself the responsibility of satisfying the jury that there was not any fraud ; that it was in good faith.”
    [Plaintiffs’ counsel excepted.]

      “I may have occasion hereafter to explain that word ‘ fraud.’ It 'does not mean anything criminal, but doing what the law considers injustice to the creditors. Therefore you must take this case up and ask yourselves whether the evidence in the case, as given by the plaintiffs or the defendants (it makes no difference where the evidence comes from) satisfies you that that sale was made in good faith, and without any intent to hinder, delay, or defraud Mr. Greggs, or the other creditors of Mr. Lane. My mention of Mr. Greggs leads me to impress upon your mind this, that there-may be an intent which the law holds will avoid the sale, although the purchaser does not know the name of the creditor. The names of the creditors may be unknown, so far as the buyer is concerned, and yet he may have an intent to defraud creditors in general. The knowledge of the name is a matter of slight importance, provided the thing is intended. Therefore, gentlemen, it is your duty to take up this case as the evidence shows it, and examine it in the light of your knowledge of human affair's.
    “ Every part of the history of this case is valuable, and has significance from the first to the last. It either indicates that this transaction was in accordance with the ordinary transactions in which men take property, or the contrary; and it is for you to say whether it was or not. In estimating these matters, the first thing for you to consider is the relations of the parties as the evidence discloses them. On what terms were Mr. Lane, and Mr. Douglas, and Mr. Burnham % How much did they know of each other, or how little, as given in evidence in this case ? Were the matters that preceded the sale such as indicate to you (because the burden of proof is on the plaintiffs) that Messrs. Burnham and Douglas approached these matters as buyers ordinarily do \ If you are satisfied they have, from the evidence, one point is made by them. Proceed, gentlemen, and look at the consideration. So far as the question of valuable consideration goes, the consideration in both cases was valuable enough to sustain these conveyances, if there was good faith, which they are bound to show to you. Therefore look at the character of the conveyance in the light of the question, was there good faith %

    “ Mow, that leads me to say to you, that the consideration may be perfectly good, and may be perfectly adequate; that is, may be equal to the value of the property; but it does not follow necessarily from that that the transaction was not to defraud creditors, as you can see for yourselves as business men. If you knew your debtor had a house, some real estate, and you knew where to fix it, to see what changes went on in respect of it, you would consider that as giving him a great deal more credit than if he had so much money as that house was worth in his pocket; because you could not find out, you would not know what had become of it; and therefore, in such a case as that, you being a creditor, if a man your debtor sold the house and got the money, full value for it, and then went off, you would find you were severely injured, although, in fact, the man had got all the property was worth. Therefore, you see the importance of examining closely this consideration that was passed.
    “I do not go over the facts of the case. Both counsel have stated them correctly; and no doubt, you remember them.
    “Then, gentlemen, the next and perhaps as important a thing as any in examining this question of good faith, is this: On the theory of the plaintiffs, these parties, Messrs. Douglas and Burnham, became the owners of this restaurant, a business of its own, and according to their position before you, which they are bound to maintain, they took charge of it as owners, with the motives that ordinarily influence owners; that is, that they should not lose money, but should make it; especially that they should not lose the money that they put into the business. Now, you remember exactly what has been testified to you: the burden of proof being on the plaintiffs, what they did, how the keys were passed over, how Mr. Douglas went behind the counter on the next night and took money, how thereafter from night to night he did the same thing, and calling in there for his meals, &c. You recollect how Mr. Burnham testified he went there after that. You must take these circumstances info consideration, with the testimony given by them with respect to what their habits in respect to going there previously were; and, having these facts in the case, say are you satisfied from them that these gentlemen acted as owners of this property \ You will inquire what do owners generally do, what examinations do they make, how do they insure that expenses shall not be too great, that income shall be turned over properly. Experience tells you what people do in respect of property that they become owners of; and it is for you to say, in the light of what has been given in evidence, whether the plaintiffs did in good faith take possession of the property as owners, and meant to become owners.
    “Then you proceed in the case down to December, 1873. During that time there is some evidence as to who was there. William H. Lane and Albert Lane, besides the plaintiffs. The sheriff testifies that W illiam H. Lane was there, with his hands in his pockets. I don’t think that is a fact of much importance, except as you connect it with other facts in the case, which you must find according to the evidence. About December, 1873, William H. Lane proposed to sell the property to Mr. Pierson. Gentlemen, you will take that testimony exactly for what it is worth. Let me caution you against giving too much weight to it; because if the other parts of the case show you that William H. Lane was not the owner, but the plaintiffs were, his declaration .did not amount to much. But, on the contrary, if you are convinced the transfer was not made in good faith, then you do not need the assistance of that declaration; it makes no difference whether Mr. Lane said so or not; but still you are bound, as one fact in the case, to consider it and give it its due weight.
    “Then, about a year after January 15, when the second transfer was made, about January, 1874, Mr. Lord, acting as attorney for Lane, but also being at that time the attorney for these plaintiffs (because the suit had been then commenced and was in progress some months), destroyed an important part of the evidence as to the consideration of this transfer. You must consider that fact as of great importance in this case. You must weigh Mr. Lord’s testimony, and if you are satisfied that the destruction of these instruments was accidental, or rather thoughtless, that he did not have in his mind then what their bearings on the issues of this case were, or that the rights of Messrs. Burnham and Douglas were to be thus preserved, but was an impulsive act under Mr. Lane’s directions to destroy them and destroy the notes, you will consider it of less importance, and then you will only regret that you did not have the papers before you. But if from the evidence you are obliged to say that the destruction of these papers, under the circumstances, at that time, had any relation to the matter of this transfer, were destroyed with the idea of having anything to do with it, then it is a very important fact against the plaintiffs, and you must so consider it.”
    [Plaintiffs’ counsel excepted.]
    Plaintiffs’ counsel thereupon requested the court to charge:
    ‘ ‘ First.—That where the articles sold are of such a nature that a manual' delivery cannot be made, a constructive or symbolical delivery is sufficient to satisfy the requirement of the statute of frauds, and in such a case the sale is valid, if it is made in good faith and for a fair and reasonable price.-”
    By the Court.—That I refuse to charge.
    Plaintiffs excepted.
    “ Second.—That between the 10th and 15th of January, 1873, William H. Lane and the plaintiff Douglas, were tenants in common, and the possession of Lane was in judgment of law the possession of Douglas.”
    By the Court.—I cannot charge you that, gentlemen, because it is a question of fact for you to say whether that transfer to Douglas was good. If it was, then William H. Lane and George W. Douglas would have been tenants in common, and the possession of Lane would be, in judgment of law, the possession of Douglas. But then it would not be such a possession as would prevent the burden of proof being on them to show the transaction was a fair one.
    Plaintiffs excepted.
    “ Third.—That after the 15th of January, 1873, the plaintiffs, Burnham and Douglas, were tenants in common, and if the latter was in possession, his possession was, in judgment of law, the possession of both.”
    By the Court. — I cannot charge you that, although the principle is correct; for it is a question of fact for you whether Burnham did go into possession after the 15th of January. If he did go into possession, and this sale was a good one, and Douglas’s sale was a good one, then they were tenants in common; and if Douglas was in possession, his possession, in judgment of law, was the possession of both.
    Plaintiffs excepted.

      “Fourth. — That the sale in question would be valid, if made in good faith and for a fair price, .without an actual or continued change of possession, if the property sold was left in the restaurant for the benefit of the vendees, and for the purpose of retaining the customers and preventing the business from being broken up.”
    By the Court.—That might be a reason satisfactory to them in a business point of view, but it would not satisfy the law. They had no right, for the sake of making* a transfer between themselves, to do injustice to third parties. They must make an actual and open change of possession, or else take the responsibility of showing to you that the transfer was a fair one.
    Plaintiffs excepted.
    “Fifth.—That the return of the execution by the sheriff unsatisfied, after the levy had been made and after the property had been replevied, was an abandonment of the levy, and that the defendant is not entitled to a judgment for a return of the property.”
    By the Court.—That I refuse.
    Plaintiffs excepted.

      “ Sixth.—That if Burnham and Douglas, or either of them, employed Albert S. Lane to superintend the restaurant for them, the possession of Albert S. Lane was their possession.”
    By the Court.—No ; that is just the thing that the law means to discountenance. That is done under a bushel, so far as the creditors are concerned. You must take all the facts in the case. Now, gentlemen, such a declaration as Mr. Douglas made to Albert S. Lane, to go on and run the place, does not constitute that open change of possession which the law means under the circumstances of this case.
    Plaintiffs excepted.
    The defendant’s counsel requested the court to charge, among other things:
    “First.—The law declares every sale or transfer of property by a debtor to be fraudulent and void as against the creditors of the party making such sale, where it is made with the intent to hinder, delay, or defraud the creditors of the party making the sale.”
    By the Court.—You can see the force of all these words. That is the law. To hinder and delay is to do something which is an attempt to defraud, rather than a successful fraud ; to put some obstacle in the path, or interpose some time, unjustifiably, before the creditor can realize what is owed out of his debtor’s property.
    Plaintiffs excepted.
    “Second.—The burden rests upon the plaintiffs to prove that the sale or transfer was made in good faith, and without any intent to defraud such creditors, and if he has failed in that proof he cannot recover.”
    The Court so charged.
    Plaintiffs excepted.
    “ Third.—If the jury shall find that the goods were sold for their full value, yet if the motive for the sale and purchase on the part of the seller and purchaser was to hinder, delay, or defraud the creditors of Lane in the collection of their debts, then the transaction was void as against the creditors of Lane, and the verdict must be for the defendant.”
    By the Court.—I charge you that, gentlemen, as I have before.
    Plaintiffs excepted.
    “Fourth.—If this alleged sale was made by Lane with the intent to hinder, delay, or defraud his creditors, and the plaintiffs had notice of such intent, then the verdict must be for the defendant, whether the plaintiffs paid any money or not.”
    By the Court.—If Mr. Lane meant to defraud his creditors, and the plaintiffs had notice of that, no matter how much was paid, the transaction is void.
    Plaintiffs excepted.
    “Fifth.—To refrain from inquiry when the circumstances are such as would put a man of ordinary prudence on inquiry, is in judgment of law a want of good faith.
    “Sixth.—If the circumstances attending this alleged sale by Lane to the plaintiffs were such as would have led a man of ordinary prudence to make inquiry, and such inquiry would have shown reasonable ground for believing that the sale was being made for the purpose of hindering, delaying, or defrauding creditors of Lane, then the transaction was fraudulent in law, and the plaintiffs cannot recover.”
    By the Court.—That is the law, gentlemen, and it follows from what I first said that when a transfer of this kind of property is made the buyer owes some duties to third parties, to creditors ; and then if he has before him facts which would put a person of ordinary intelligence and prudence on his guard, or create a suspicion which, being followed up, would lead an ordinary man to find out there was a fraudulent intent upon the part of the seller, and such a purchaser abstained from making such an inquiry, in the face of the existence of such facts, that is a want of good faith; and you must say whether in this case there were facts that would put the plaintiffs on inquiry, and if there were, and they did not make that examination which men of ordinary prudence should make, that is for you to find.
    Plaintiffs excepted.
    “Seventh.—A joint possession by buyer and seller after the sale will not amount to an actual change of possession within the meaning of the statute.
    “Eighth.—If the jury should find this property after the alleged sale remained in the joint possession of Lane and the plaintiffs, then such sale was presumptively fraudulent, and plaintiffs cannot recover, unless the good faith of the parties be proved by the evidence.”
    By the Court.—That is so. There must be an actual change oí possession from Lane to the plain- • tiffs.
    Plaintiffs excepted.
    “ Ninth.—If a party has it in his power to produce witnesses upon material points, who are admittedly friendly to him, and does not do so, and their non-production is not explained; and if papers which are material evidence in an action have been destroyed by parties thereto or their agent while it is pending, the jury should take such facts into consideration in forming their judgment upon the issues.”
    By the Court.—That is, no doubt, the law, gentlemen. If you believe that there has been any omission to call witnesses on either side, who might have been called and in the power of the party to call, and who, if called, would have aided you in determining this case one way or the other, then you must consider that fact as telling against the party who omitted to call them.
    Plaintiff excepted.
    “ Tenth.—Then, in such a case, the presumption of law is that the facts which could be proved by such . witnesses, or such papers, are unfavorable to the party so failing to produce such witness, or destroys such papers.”
    By the Court.—I do not charge you that in these words. I do not think there is any presumption of law of that kind. But it is a fact which you must consider, to say why they were not called, and if you consider they were not called because their evidence would tell against them, that is a fact you must consider with all the other facts in the case, to determine the question of fraud.
    Plaintiffs excepted.
    The jury rendered a verdict for the defendant, and assessed the value of the property at $810, and that defendant have possession thereof, and assessed the damages for the detention at $137.07.
    Judgment was entered accordingly, and plaintiffs appealed to the general term.

      George W. Lord, attorney, and of counsel, and Nelson Smith, of counsel, for appellants, among other things, urged:
    I. Whether there was an actual and continued change of possession within the meaning of the statute, was a question of fact for the jury; yet the judge instructed the jury, as a matter of law, that there was no such change.
    II. The clear and uncontroverted evidence established such actual and continued change of possession. (a.) On January 15, 1873, the plaintiffs, under their bill of sale, were the owners of the lease of the entire building, and had it in their possession. They were tenants of the entire building in which the goods and chattels were. (&.) Each of the plaintiffs had in his actual possession a bill of sale of the undivided half of the goods and chattels in the restaurant, (e.) Immediately after the delivery of the bills of sale, all the keys of the building were delivered to them. This was the only remaining act necessary to put them in full, entire, complete and actual possession (Gray v. Davis, 10 N. Y. 285).
    III. The court erred in refusing to charge that if Burnham or Douglas employed Albert S. Lane to superintend the restaurant for them that his possession was their possession. The court charged, in express and unequivocal language, directly to the contrary.
    IV. The court erred in permitting the witness, Edward Pierson, to testify to the declarations of W. H. Lane, made in December, 1873, nearly a year after the sale (Tilson v. Terwillager, 56 N. Y. 277; Sprague v. Kneeland, 12 Wend. 161). The case of Adams v. Davidson, 10 N. Y. 309, is directly opposed to Cuyler v. McCarthy, 40 Id. 221, 235.
    V. The court expressly charged the jury that they must take his (W. A. Lane’s) declarations as one of the facts in the case (Porter v. Dalley, 5 N. Y. Leg. Obs. 335; Salmon v. Owen, 5 Duer, 511; Knight v. Forward, 63 Barb. 311; Peck v. Crouse, 46 Id. 151; Loremore v. Campbell, 60 Id. 62).
    VI. The court also erred in charging the jury that if Mr. Douglas was the owner of one-half and W. H. Lane was the owner of the other half, that then the sheriff had a right to seize the property in the manner he did, and that the jury must be satisfied that both transfers (viz., the transfer to Douglas and the one to Burnham) were good, or the defendant would be entitled to a verdict. A sheriff cannot seize and take into his possession the entire property on an execution against one joint-owner (Phillips v. Crook, 24 Wend. 389 ; Waddell v. Crook, 2 Hill, 471; Walsh v. Adams, 5 Denio, 125; and these cases are all cited and approved in Hall v. Carnley, 1 Kernan, 508). The Code, § 274, has made provision for just such a case. It provides that “judgment maybe given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” Under this provision, if the transfer to Douglas was good he might have judgment against the defendant for the value of one-half, and the defendant, having demanded affirmative relief, might have judgment against either one of the plaintiffs for one-half the-value, and so vice versa.

    VII. The defendant having returned the execution to the sheriff’s office, “no property, real or personal,” on March 3, 1874, he thereby waived his levy, and he was no longer entitled to judgment for a return of the property. The execution was dead the instant it was returned nulla bona, and the sheriff could not sell the property under it, and therefore he was not entitled to a judgment for its return (Comstock v. Stowell, 2 How. 53). Mr. Justice Bronson said, in a case where the execution was returned nulla bona, “The sheriff no longer has any right to a return of the property, and consequently he has no right to a judgment for its value.” The return of nulla bona is conclusive on the sheriff (Sheldon v. Payne, 3 Seld. 457; Townsend v. Olin, 5 Wend. 207; Pennington v. Loring, 8 Johns. 20 ; Slergerland v. Swart, 13 Id. 255 ; Vail v. Lewis, 4 Id. 449; Carpenter v. Stilwell, 1 Kernan, 61). Mr. Gwynne, in his work on sheriffs, says: “After the return of an execution to the clerk’s office the writ is fundus officio; the sheriff cannot re-take it or act under it” (page 424). He adds, that a return of no property cannot be impeached (see page 474, and authorities there cited). The return is conclusive on the sheriff (Gwynne on S. 473; Devoe v. Elliott, 2 Caines, 243 ;. Vail v. Lewis, 4 Johns. 450; Phillips v. Dana, 3 Scan. 557). It may be said that the court had the power to allow the return to be amended; but clearly no amendment that was allowed without notice to the plaintiffs could affect their rights. On March 3, when the execution was returned nulla bona,, the plaintiffs were entitled to judgment. How could that right be taken away by an ex parte order made long after the suit had been tried % The return cannot be amended, even by order of the court, so as to affect rights of persons not parties to the original suit which accrued before amendment (Emmerson v. Upon, 9 Pick. 167; Furnant v. Paul, 3 Greenl. 260 ; Putman v. Hall, 3 Pick. 445; Maur v. Osgood, 7 Greenl. 146).
    VIII. The court also erred in charging the jury, that the destruction by Mr. Lord, the attorney of the plaintiffs, of the guaranty given by Douglas to Lane, to pay the notes of Albert S. Lane, and of the agreement given by Burnham to pay the mortgage of Mr. Lane, was a fact “of great importance in the case,” and that if the destruction of those papers had any relation to the matter of the transfer, it was a “very important” fact against the plaintiffs, (a.) The evidence clearly showed that the destruction of the papers was a thoughtless act, done in a moment, without reflecting that there was an action pending; done under Mr. Lane’s declarations, that the notes and mortgage guaranteed had been paid by plaintiffs. If such was the case, then the fact was of no importance whatever. (b.) But even if the destruction was willful, and intentional, it was not an important fact against the plaintiffs, because it was done without the direction, assent or knowledge of the plaintiffs. A principal is never chargeable with the consequences of a willful act of an agent even within the scope of his authority; much less is he so chargeable for an act beyond the scope of his authority, (c.) The papers in question were not in the custody of Mr. Lord, as the agent or attorney of the plaintiffs. They were papers given to Mr. Lane, for his benefit, and were delivered by him to Mr. Lord, to be kept for him.
    IX. The court also erred in charging the jury that if the circumstances attending the sale were such as would have led a man of ordinary prudence to make inquiry, and such inquiry would have shown a reasonable ground for believing that the sale was being made for the purpose of hindering, delaying, or defrauding creditors, “then the transaction was fraudulent in law.” But the court went even further, in charging the proposition of defendant’s counsel, that “torefrain from inquiry, when the circumstances are such as would put a man of ordinary prudence on inquiry, ‘ is, in judgment of law, want of good faith.’ ” The omission to make inquiry might be a circumstance to be taken into consideration by the jury; but to say that such omission made the sale fraudulent in law was going beyond all precedent or authority.

      X. The court also erred in charging the jury as to the non-production of witnesses. It was an undisputed fact in the case, that Mr. Lane was sick, and unable to attend the trial; yet the court, at the request of the defendant’s counsel, made use of language which was calculated to leave on the minds of the jury the impression that the failure of the plaintiff to produce Mr. Lane upon the stand was, under any circumstances, a fact against them from which they might infer fraud. But fraud must be proved; it cannot be inferred from facts which merely raise a suspicion (Jagger v. Kelley, 52 N. Y. 274; Dudley v. Danforth, 61 Id. 621).
    XI. The plaintiffs had a right to leave the chattels in the restaurant for their own benefit, and to prevent the business from being broken up, without an actual or continued change of possession, provided the sale was in good faith and for a fair price, and yet the court refused so to charge (Bissell v. Hopkins, 3 Cow. 166 ; Clute v. Finch, 25 Barb. 428; Woodworth v. Wood, 21 Id. 343 ; Guffin v. Cramton, 10 Bosw.).

    Vanderpoel, Green & Cuming, attorneys, and Robert S. Green, of counsel, for respondent, among other things, urged:
    I. The rulings of the learned judge on
    the admission of evidence were correct. The evidence as to the declarations of William II. Lane was properly admitted, and the motion to strike out was properly refused, (a.) No ground of objection was stated (Fountain v. Pettee, 38 N. Y. 184). (b.) There had been no change of possession and the declarations were admissible (Adams v. Davidson, 10 N. Y. 309 ; Newlin v. Lyon, 49 Id. 661; Willies v. Farley, 3 Car. & P. 395).
    II. There should not be a reversal in consequence of the sheriff’s return to the execution. (a.) The question of the return of the execution was a matter between the plaintiff in execution and the sheriff. It in no way affected the right of the plaintiffs. It had none of the elements of estoppel as regards them (Baker v. McDuffie, 23 Wend. 289). It could be no defense to the sheriff, in a suit by the plaintiff in execution. He might have been prosecuted for a false return, and a recovery had by showing that Lane had an interest in the very goods in question. (&.) The return was subsequent to the commencement of this suit. If the strict rule is applied to shut out subsequent proceedings, the same strictness limits the plaintiffs’ recovery to the condition of things at the commencement of this suit.
    III. There is no ground for reversal involved in the exceptions to the judge’s refusal to charge the plaintiffs’ requests, or to his modifications of such requests. 1. There was no error in the judge’s refusal to charge the first request (Hartford v. Archer, 4 Hill, 291-297; Stout v. Rappelhagen, 51 Howard). A request to charge, to be available on an exception to a refusal to charge the same, must be presented with such precision that it is the duty of the court to charge the proposition, in the terms of the request, without qualification (Carpenter v. Stillwell, 11 N. Y. 61; Winchester v. Hicks, 18 Id. 558 ; Bagley v. Smith, 10 Id. 489). 2. There was no error in the judge’s refusal to charge the plaintiffs’ second request. The question of fact he properly left to the jury, involving as it did the disputed question of the validity of the transfer to Douglas, but instructed them as to the law upon the facts as they should find them (Vedder v. Fellows, 20 N. Y. 126). 3. The same is true with reference to the third request. 4. There was no error in the charge in respect to the fourth request. The statute, in the absence of an actual and open change of possession, required that the transfer should be shown to be a fair one. 5. There was no error in the charge that the jury must be satisfied that both transfers were good, or the defendant was entitled to a verdict. If the judgment debtor, at the time of the levy, was the owner of an undivided part of the property, the same was subject to levy, and the sheriff was justified in taking the whole property, and could sell the interest of the debtor therein (Smith v. Orser, 42 N. Y. 132). The sheriff stood in the place of Lane, the judgment debtor, and no action of replevin could have been maintained against him by his co-owner (Kusarle v. Allen, 13 N. Y. 173; Foster v. Magie, 2 Lans. 183; St. John v. Standring, 2 Johns. 468; Farr v. Smith, 9 Wend. 338; Koningsberg v. Lauritz, 1 E. D. Smith, 215; Agel v. Bets, 2 Id. 188). 6. There was no error in the judge’s refusal to charge that, if Burnham and Douglas, or either of them, employed Albert S. Lane to superintend the restaurant for them, the possession of Albert S. Lane was their possession. The judge’s charge in this regard was correct. Albert S. Lane was the son and partner of William H. Lane, the judgment debtor, and vendor. He was the Co. of Lane & Co., spoken of in Burnham’s bill of sale; he was engaged at the restaurant at the time of the alleged sale, and had been previously. He was the purchasing agent. The continuing of such a person in charge was not that change of possession which is required by the statute (Stout v. Rappelyea, 51 How.; Hollacher v. O’Brien, 5 Hun, 277; Jones v. O’Brien, 36 Super. Ct. Rep. 58).
    IV. There was no error in the charge as made by the court upon the several requests submitted by the defendant, (a.) As to the second request: The charge was predicated on the fact that the evidence had not shown an actual and continued change of possession, which, under the statute, rendered the sale presumptively fraudulent, and threw on the plaintiff the burden of proof to show it was in good faith and without intent to defraud creditors. There was no such change of possession as the statute required (Randall v. Parker, 3 Sandf. 69 ; Stout v. Rappelhagen, 51 How. Pr. ——; Daily Register, April 21, 1876; Hollacher v. O’Brien, 5 Hun, 277). (b.) As to the third request: This request assumes a participation in the fraudulent intent by the purchaser. The statute is operative, except in the case of a purchaser for a valuable consideration, without notice (3 Rev. Stat. Banks’ ed. marg. p. 137, § 5). The payment of the full value does not relieve the transaction of fraud, if both parties unite in the intent to defraud (Randall v. Parker, 3 Sandf. 69 ; Hanford v. Archer, 4 Hill, 271). (c.) As to the fourth request: As before stated, the statute only saves a purchaser without notice. Payment is not enough; there must be good faith, (d.) As to the fifth request: This is correct (Baker v. Bliss, 39 N. Y. 70 ; Williamson v. Brown, 15 Id. 362). (e.) As to the sixth request : Under such circumstances the law charges the party with constructive notice (Baker v. Bliss, 39 N. Y. 70 ; Williamson v. Brown, 15 Id. 362; Pringle v. Phillips, 5 Sandf. 157; Danforth v. Dart, 4 Duer, 101; Claflin v. Lenheim, 5 Hun, 269 ; Weiss v. Brennan, Superior Ct., Apl. Term, 1876). (ƒ.) As to the seventh and eighth requests: A joint possession by vendor and vendee is not the actual change contemplated by the statute (Boyd v. Dunlap, 1 Johns. Ch. 478, 484; Jones v. O’Brien, 36 Sup. Ct. (4 J. & S.) 58 ; Randall v. Parker, 3 Sandf. 69). (g.) There was no error in the charge of his honor that if a party has it in his power to produce witnesses upon material points, who are admittedly friendly to him, and does not do so, and their non-production is not explained, and if papers which are material evidence in an action have been destroyed by parties thereto, or their agent, while it is pending, the jury should take such facts into consideration in forming their judgment upon the issues. Neither William H. Lane nor Albert S. Lane were produced as witnesses. William H. Lane was shown to be sick, and to have been so for some time, but no steps were taken to procure his testimony. The papers destroyed were the papers connected with the pretended consideration of the bills of sale, and were destroyed by the attorney of the plaintiffs while this suit was pending. The judge declined to charge that any presumption was raised, but charged that it was a circumstance to be considered by the jury. He had previously stated the rules which should govern the jury in considering the circumstances. The absence of material testimony is a suspicious circumstance, to be considered by the jury (Brooks v. Steen, 6 Hun, 516; Gordon v. People, 33 N. Y. 501; People v. Dyle, 21 Id. 578; Wylde v. R. R. Cos., 53 Id. 156; Bovee v. Kelly, 7 J. & S. 27). So is the destruction of important documentary evidence (1 Greenleaf Ev. § 37; 1 Cow. & Hill's Notes to Phillips Ev.; 1 Starkie Ev. 34; Leeds v. Cook, 4 Esp. 256).
   By the Court.—Speir, J.

When the testimony was closed, plaintiffs’ counsel moved the court that as it then appeared that the sheriff had returned an execution on March 3, 1873, wholly unsatisfied, on the judgment on which the sheriff made the levy, that such return released the levy and disabled the sheriff from claiming a return to him of the property ; and he not being entitled to a return, the plaintiffs are entitled to a direction from the court that the jury find a verdict for the plaintiffs. The motion was denied, and the plaintiffs excepted. If the plaintiffs’ motion should have been granted, it would be an end of the case. This proposition will be first examined.

This suit was commenced May 29, 1873, and the return on the execution was made nearly a year thereafter. The objection could not have availed the plaintiffs at the time of the levy or before the return and while it remained in the sheriff’s hands. The return, therefore, of the writ was a matter between the plaintiffs in the execution and the sheriff. It in no way affected the rights of the plaintiffs. It could be no defense to the sheriff in a suit by the plaintiff in execution. Here it has none of the elements of estoppel as it regards these plaintiffs. The return was subsequent to the commencement of the suit, and if the strict rule is invoked to shut out subsequent proceedings, it would seem, by parity of reasoning, that the same stringent rule would limit the plaintiffs’ recovery to the condition of things at the commencement of the suit.

The return of the writ is conclusive in that suit; and generally the sheriff is concluded by his own return until amended (Watson on Sheriff, 72 ; 1 Ld. Raym. 184). But this rule should be confined to cases where the party against whom it is sought to be impeached collaterally derives some interest from or under it; otherwise there is no reason for shutting out the truth of the matter. There can be no pretense that the plaintiffs had done or omitted to do anything by reason of the return. The issue on the merits was framed long before the return, and a technical estoppel is interposed from subsequent proceedings which had no existence when that issue was joined. I am of the opinion that this is a sufficient answer to the motion, and that the return created no such estoppel.

In addition, and for greater certainty, the defendant’s counsel procured and produced on this appeal the record evidence showing that the sheriff had corrected and amended his return mine pro tunc. The rule seems to be well settled that record evidence may be admitted on an appeal to avoid technical defects. It is, however, subject to the qualification that the evidence shall be such as cannot be controverted. In Bank of Charleston v. Emeric, 2 Sandf. 718, Oakley, Ch. J., says, “It is a well settled and useful practice in respect of documents which speak for themselves, and on which no questions can arise except such as are apparent on their face, to permit them to be produced on the argument, when they have been inadvertently or unadvisedly omitted on the trial.” The objection against the revival of the writ goes to the power of the court. The doctrine is too familiar for repetition that the court has the completest jurisdiction over its records. It had the power to do what was done here—to authorize the correction of the return, to give life and vigor to the process by erasing the return of “ no property real or personal.” The plaintiffs were not entitled to notice of the motion to correct or revive. They had no legal interest in the question. They must be looked upon in this connection as trespassers committing the wrong prior to the return of the execution. They' acquired no rights founded on the faith of the return; nor, strictly speaking, did they lose any by the revival of the process (Jarvis v. Sewall, 40 Barb. 449 ; Barker v. Binninger, 14 N. Y. 270). This last case is in all respects an authority directly in point.

The charge of the learned judge is predicated on the fact, that the evidence had not shown an actual and continued change of possession, which, under the statute, rendered the sale presumptively fraudulent, and threw on the plaintiffs the burden of proof to show it was in good faith and without intent to defraud creditors. If there was no such change of possession as the statute required, then the presumption of fraudulent intent created by the statute must be removed by the party claiming under the sale proving that the transaction was in good faith and without any intention to defraud; and although the question of intent arising in the case is one of fact for the jury to try, yet the plaintiffs claiming under the sale must not only prove that it was in good faith but that it was without any such intent to defraud creditors. From the facts in the case I think the court was clearly right in its view that there was no such change of possession as the statute required. The facts in this respect, when fairly stated, are as follows:

The goods in question were in the restaurant corner of Hall place and Seventh street. William H. Lane had for years carried on the business there, and had associated with him in such business his son, Albert S. Lane. When Douglas got his bill of sale on January 10, 1873, no delivery, actual or in form, took place. Five days after-wards, when the bill of sale was made to Burnham, the attorney who drew the papers handed the keys to Burnham telling him he thereby put him in possession, and then went through the same formality with Douglas. Douglas went, for the time being, behind the counter, and commenced receiving checks from the customers who were eating their meals there. Burn-ham continued his business as a real estate broker, and was at the place once a week. Douglas was at the time connected with the Department of Public Works, engaged in his duties from 8 A. M. to 5 p. m., got his breakfast at the restaurant, and had done so for fifteen years, he took his breakfast from 6 to 7 a. m. and dinner from 6 to 7 p. m. In the evenings he attended to the business. During his absence the business was entirely attended to by William H. or Albert S. Lane or both, and William only left when he got there. Before January, 1873, Douglas had gone behind the counter and taken money for checks at the request of Lane; he would be there rainy days and all day on Sunday. After the alleged sale, William H. Lane remained there and attended except when detained by sickness ; lived just across the street; when in there, he went about the saloon as usual, and sometimes went behind the counter. No change took place, so far as Albert S. Lane was concerned; he had full charge to run the place, and did so with his father, William H. Lane. No evidence of a change of sign, and the two Lanes were in possession when the sheriff' made his levy.

This court has put a very plain construction on this statute as to change of possession: “an actual change of possession of the goods sold, in the statute of frauds, means an open, visible and public change, manifested by such outward signs, as render it evident that the possession of the owner as such has wholly ceased ” (Randall v. Parker, 3 Sandf. Sup'r. Ct. 60). It is important to bear in mind this construction put upon the statute in disposing of the several refusals and requests to charge. The court decided, and rightly, I think, that the facts disclosed by the evidence threw the burden upon the plaintiffs to show affirmatively the entire good faith of the transaction, and an honest intent not to defraud creditors. The language of the charge is, “the burden rests upon the plaintiff to prove that the sale or transfer was made in good faith and without any intent to defraud such creditors, and if he has failed in that proof he cannot recover.” The learned counsel for the plaintiffs appears to have assumed that the evidence of a change of possession was clear and uncontradicted, and that the court should have directed a verdict for the plaintiff. In support of this assumption, he refers to the fact that Douglas, immediately after the delivery of the bills of sale, went behind the counter and received the checks from the customers, and that this was an open act of possession. As to this it is only necessary to refer to the whole conduct of Douglas. While he did this only at the time being to satisfy himself of the propriety of entering upon his possession, he actually continued his own business during the whole day, taking his meals early and late at the restaurant, as he had done for several years, and coming to the restaurant on rainy days and Sundays, attending to business generally. He put Albert S. Lane as manager to attend to the business, which he did in the same manner and under the same circumstances under which he had performed it before the sale/ This clearly was not an open, visible and public change manifested by such outward signs as render it evident that the possession of the owner had wholly ceased. It seems to me, that all the circumstances attending the sale are calculated to excite suspicion in the minds of sensible business men accustomed to the every-day fair transactions relating to the purchase and sale of property of this description. There were no schedules of the property; no outward change of sign, and nothing to notify the public that the establishment had undergone any change as to the ownership.

The objection is made and exception taken to the eleventh request to charge, that if the circumstances attending the alleged sale were such as would have put a man of ordinary prudence to make inquiries, and such inquiry would have shown reasonable ground for believing that the sale was being made for the purpose of hindering, delaying or defrauding creditors of Lane, then the transaction was fraudulent in law, and the plaintiff cannot recover. This is a case of constructive notice, which, under the circumstances the law, and not the judge, charges the party with. The rule is laid down by Selden, in 15 N. Y. (Williamson v. Brown, 362), that when a purchaser has knowledge of any fact sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase he is presumed to have made the inquiry, and ascertained the extent of such prior right or to have been guilty of a degree of negligence fatal to the claim to be considered a dona fide purchaser. This rule is affirmed in Baker v. Bliss, 39 N. Y. 70.

I have examined the several exceptions taken to the rulings on the admission and exclusion of testimony, and am unable to detect any serious errors in them. If the views of the court on the question of an actual and continued change of possession and intention of the parties are correct, then the several requests and refusals to charge need not be further noticed. They are all supported by qualifications, the necessary result of the views entertained by the court on the trial.

The judgment must be affirmed with costs.

Curtis, Ch. J., concurred.


author: Sedgwick, J. By the Court.—Speir, J.

text:
    GEORGE F. DOW, et al., Plaintiffs and Appellants, v. JAMES DARRAGH, Defendant and Respondent.

    I. OPENING CASE AFTER PARTY HAS RESTED.
    1. Motion to compel referee to hear and determine to OPEN.

      (a.) No power in the court to grant.

      H. TRIAL BEFORE REFEREE TO HEAR AND DETERMINE, HOW CONDUCTED ; PRACTICE.
    1. Opening case after party has rested.

      (a.) Sound discretion. It rests in the sound discretion of the referee.
    (5.) Review of discretion. Cannot he had on motion to compel the referee to open.

      (e.) Discretion, when properly exercised.

    I. When the party before he rested had full opportunity to discover the facts which he subsequently proposes to prove, and the evidence thereof, and after he rested his adversary departed for his place of business and residence in a distant country; it is a proper exercise of discretion to refuse to open the case to admit proof of such facts on an allegation that they were not discovered until after the departure -of the adversary.
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.
    Appeal from an order denying a motion made by the plaintiff compelling a referee appointed “to hear” and determine ’ ’ the issues in the action to re-open plaintiff’s case after the plaintiff had rested, and after the defendant had returned to his place of business in India.
    The motion was heard at special term, before his Honor Judge Sedgwick, who rendered the following opinion:

      I am of opinion that the court has no power to grant this motion; but that while the case is on trial before the referee, the relief asked is placed by the Code within the discretion of the referee, acting as the court.
    This decision being placed upon a want of power, the order is appealable.
    Motion denied. Ten dollars costs to defendant.
    The facts sufficiently appear in the general term opinion.
    Stanley, Brown & Clark, attorneys, and of counsel for appellants, urged:
    —I. The evidence which plaintiffs propose to produce before the referee is material, pertinent and competent. It is not cumulative; and no objection could have been successfully made to it had it been produced before the referee before the plaintiffs rested their case.
    II. The, affidavits show conclusively that the matters proposed to be given in evidence were neioly discovered— discovered after plaintiffs had rested their case. The positive allegations in plaintiffs’ affidavit, that he as matter of fact discovered the fraudulent overcharge and omission to credit interest, after resting his case, are not denied: nor is there any denial that the fraudulent overcharge of defendant on the cocoa-nut oil was 3,400 rupees, nor that the interest on balances in defendant’s possession whrh ought to be allowed on the accounting is $5,000.
    III. To refuse to permit plaintiffs to give on the accounting, evidence newly discovered of positive frauds of defendant upon them by overcharges and by omission of credits due to them, amounting to thousands of dollars, is a substantial denial of justice. It is not a matter for which plaintiffs could bring a new suit. If they could, the defendant is a non-resident and out of the jurisdiction, and service could not be obtained upon him. Besides, it is much more convenient to all parties concerned, that the evidence be taken on the present accounting.

        Note. The action was brought for an accounting as to the business done between the plaintiff’s firm of George W. Dow & Sons, and the defendant, James Darragh, under a certain contract.
      The trial of the action was commenced in November, 1874, at a special term of this court, before the Hon. J. J. Freedman. The main controversy upon the trial was as to the effect of the arbitration and award set up in defendant’s answer. The court decided that the award was indefinite in form, but so far as it had been executed and made definite by the acts of the parties, it would be upheld. The court further decided that inasmuch as it would be difficult to determine how far it had been executed without the talcing of the accounts between the parties, as to all matters and questions involved in the suit, an order of reference should be made to hear and determine the issues.
      Under this decision the order of reference, in addition to referring the issues for hearing and determination, further ordered that the referee take, state and determine the accounts of and between the parties in accordance with law and equity.

        The taking of the account was therefore involved in and a part of the trial of the issues.
      The question as to whether, under an order of reference to take and state accounts wholly separate, and disconnected from the trial of issues, the court has not power to give directions from time to time as to the principles on which the account should be stated, or specially to direct certain matters to fee inquired into and taken into account, or even to direct specified items to fee charged or credited, does not appear to the reporters to have been involved in this case or passed on by the court.

   Sedgwick, J.

IV. If the court will not grant the order applied for, then the plaintiffs are remediless; as no valid exception can be taken to the decision of the referee on appeal from the judgment (Barb. Ch. Pr. 631, bottom paging, note ; Fielden v. Lahens, 6 Abb. Pr. N. S. 341, opinion of Parker, J., in court of appeals ; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282, 295).

V. The court has power to order the referee to reopen the case and take the testimony. This action was brought in the superior court of the city of New York, —a court of record, having full equity jurisdiction. It is still pending in this court. The court has referred such of the issues in the cause as the court did not determine at special term, to one of its officers to hear and determine them, and has ordered that officer to toJce and state the accounts of the respective partners. But the court has not lost its power or control over the case, or in any way abdicated it. The referee is its own officer and agent, and subject to such orders as it may make in furtherance of equity and justice. It may, for good cause shown, remove a referee and appoint another, or take the case entirely into its own hands, and determine it without the aid of a referee. It has the power to remove an officer ; much more has it the power to regulate the action of the referee. In what case it will exercise such power is another and a different question. This power is not so much the creature of statutes as an incident to the general and necessary powers of the court- to administer justice. It should be borne in mind by the court that the suit is an equity suit, and the referee appointed to take and state the accounts has the same duties and is subject to the same control that the master was subject to in the court of chancery. Who ever heard it solemnly argued that the court of chancery was inferior in any point of power to the master which that court had appointed '( Yet it is argued that the referee has more power over the litigation than the court of equity which appointed him. We look in vain in the statutes for anything given by the legislature to the referee, making him, in any point, superior to the court, and the court below gave no reference to any such statutes (Ford v. Ford, 35 How. Pr. 321; Macpherson v. Ronner, 40 N. Y. Super. Ct. [8 J. & S.] 448.) The doctrine defendant’s counsel contends for is highly derogatory to the court and extremely dangerous to suitors.

VI. Section 272 of the Code, headed “report to stand as decision by the court,” does not take from the court .any power to order further testimony to be taken in a case like the present. But the present is not the case prescribed for, because it is not sought here to review the decision of the referee upon evidence upon the trial, but is in the nature of an application for a new trial upon newly discovered evidence which did not appear on the trial. And it is perfectly settled that such applications may be and are constantly made and granted on affidavits of matters dehors the record. A motion for a new trial on newly discovered evidence must be made before judgment. Nothing whatever is gained by waiting until after the referee has reported, and then moving to set aside his report. The court can do now what it could do then ; and it is much more convenient for all the parties, that the testimony be taken now, before the accounting is completed, than that the report should be set aside, and a new accounting had.

VII. Plaintiffs have been guilty of no negligence that should deprive them of their rights, in favor of one Avho has defrauded them in a trust-relation to them of a partner, in matters exclusively in his knowledge and under his control, which frauds were unlooked for and unsuspected by them until a month before they offered to prove them.

Blanchard & Miller, attorneys, E. L. Fancher, and Theodore F. Miller, of counsel for respondents, urged:

I. The court has a general supervision over its referees to annul and set aside its own orders of reference, where incompetency or impropriety are alleged against the referee (Bainbridge v. Livermore, 56 N. Y. 75, and cases there cited). This question, however, does not arise upon this appeal. The idea of any impropriety on the part of the referee was expressly disclaimed below. But the court will not interfere with the conduct of a case pending before a referee appointed to hear and determine, or with his ruling upon matters of discretion. Such a referee is the court; he alone can pass upon questions of discretion. He must exercise a sound judicial discretion, and where he grossly abuses his power his decisions are reviewable upon appeal, just as are those of a trial court where discretion is grossly abused. “The trial by referee shall be conducted in the same manner, and on similar notice, as a trial by the court” (Code, § 272). ‘ The mode of conducting its trial, therefore, must be within the discretion of the referee, so far as relates to all questions within the ordinary discretion of a judge on the trial of a cause” (Palmer v. Palmer, 13 How. 365; Pratt v. Stiles, 9 Abb. 153). The decision of the learned judge below was, therefore, correct, if the admission of the proposed new evidence was a matter of discretion with the referee.

II. It was a matter of discretion. It is purely a matter of sound discretion whether a judge or referee shall permit a party to introduce proof irregularly, or to re-open his case after resting. “H the testimony was closed the day before, it was discretionary with the court whether to open the case or not to receive the additional evidence, and the decision is not reviewable here. The withdrawal or absence of witnesses who might be called in reply, or other circumstances, may have rendered the decision proper” (per Church, Ch. J., Caldwell v. N. J. Steamboat Co., 47 N. Y. 295). “After plaintiff rests, it is a matter of discretion whether to allow the case to be re-opened” (Solomon v. Central Park, N. & E. R. R. Co., 1 Sweeny, 303; Burgen v. White, 2 Bosw. 92; Meyer v. Goedel, 31 How. 457; Ford v. Niles, 1 Hill, 300). The court had, therefore, no power to interfere. It would have been very unjust to the defendant had the referee received the proposed proof of “new claims,” under the circumstances. The plaintiff had a longer day in court than is usually accorded to suitors. The defendant remained to meet the case made against him, and when it was closed and he had been fully cross-examined, he returned to India to attend to his neglected business.

By the Court.—Speir, J.

No incompetency or impropriety on the part of the referee is claimed on this appeal, nor on the motion below. It is not, therefore, a case where the court has a general supervision over its referees to annul and set aside its own orders. By section 272 of the Code, ‘‘ the trial by referee shall be conducted in the same manner and on similar notice as a trial by the court.” The discretion of the referee, so far as it relates to all questions within the ordinary discretion of a judge on the trial of a cause, is the same. The relief asked for comes within the discretion of the referee acting as the court, and the learned judge was clearly right in placing his decision upon the ground of a want of power.

The referee exercised a sound discretion in refusing to open the case. The defenses were put in, as it appears, directly to meet the claims presented in the plaintiffs’ case after the defendant had been detained fifteen months on the trial and had returned to India. The plaintiff had rested, and after the defendant’s departure one of the plaintiffs, it is alleged, discovered new claims from the defendant’s books of account, which had been in the possession of the referee during a period of nine months, and which they had examined during that time. It is a matter of discretion whether a case shall be opened after the plaintiff rests. In this case I fail to find any excuse for this long delay, and under the circumstances it would have been unjust to the defendant; especially, as the plaintiffs had already a sufficiently long day in court. The order must be affirmed with costs, &c.

Curtis, Ch. J., concurred.


text:
    JAMES W. SMITH and Another, Executors, &c., Plaintiffs and Respondents, v. CHARLES L. FROST, Defendant and Appellant.
    I. TRUSTEE; CONVERSION; TROVER.

    1. Possession wrongfully obtained.

      (a.) A trustee who, through a purchase in his own name, and for his own benefit, of property belonging to the cestui que trust, in relation whereof he is trustee, from one holding the same in pledge, or hypothecation, or under a mortgage or lien, in a manner in which he is authorized to sell, acquires possession thereof, is chargeable with a conversion.

    2. Demand and refusal.

      (a.) Although he acquires the possession rightfully for the purposes of the trust, yet if, when by the terms of the trust, the property is deliverable to the cestui que trust, he on demand refuses to deliver, lie is chargeable with a conversion.

    3. Fobm of action.

      (a.) Agreement.

    1. The cestui que trust need not base his action an the agreement which raises the trust.

      (b.) Trover.

    He may bring a common law action of trover for the conversion.
    II. VALUE OF NEGOTIABLE SECURITIES.

    1. Evidence oe.
    (».) The testimony of a witness as to the market value at a somewhat remote period, founded: on a general recollection, based on his keeping the run of the market price in consequence of Ms being very much interested in the company which issues the securities, is competent and sufficient prima farie,

    ALTHOUGH
    he has no recollection of buying or selling, or as to any sales or purchases made, at that period.
    Before Curtis, Ch. J., and Speir, J.

      Decided January 2, 1877.

      Marsh & Wallis, attorneys, for appellant; Mr. Sheppard, of counsel.

      Emott, Burnett & Hammond, attorneys, for respondent ; James Emott, of counsel.
   By the Court.—Speir, J.

The statement of facts in this case is contained in 39 Superior Court Reports 389 (7 Jones & Spencer), and is substantially the same as appears on the argument now before us. On the former appeal a new trial was ordered upon the ground that all the evidence in the case going to show that the defendant undertook the duties of an agent, or of a trustee and to act in the matter for the interest and on behalf of the plaintiff, yas admitted by the trial judge only so far as it would tend to show notice, and that the evidence should be strictly limited to the question of notice. The result of the error or misunderstanding, whichever it was, between counsel and the court, was to leave the real issue between the parties untried. On this trial the same evidence was in effect received without limitation as to notice, and the jury, under the direction of the learned judge, found a verdict for the plaintiff.

The main objection now made by defendant’s counsel against the plaintiff’s recovery is that the complaint does not state any cause of action against the defendant. The allegations in the complaint are the ownership of the property, its possession by the defendant, demand by the plaintiffs for its return, and refusal by the defendant. If the defendant, while acting as trustee, bought or undertook to buy these bonds,' and to get title to them for himself, he then wrongfully converted them. The plaintiffs do not sue upon the agreement, but upon the tortious acts of. the defendant after having entered into the agreement from which he cannot escape. The proof in the case showing the relation which defendant bore to the plaintiff’s testator, was such that the purchase, or attempted purchase, of the bonds by defendant from any one, was necessarily a conversion, does not change the character of the action. The plaintiff’s action is for a conversion of sixteen bonds of the Toledo, Peoria & Warsaw Railway Company. These were in the possession of the defendant. Assuming the possession of the defendant to these bonds was rightful, competent and material evidence could be furnished to show that the existing relations between him and the plaintiffs made defendant’s detention of the bonds wrongful, and his refusal to deliver them upon demand a conversion. Whenever these vouchers—ten old bonds—were produced for cancellation not only the title of the plaintiff’s testator to the bonds in the action, but his right to the possession became unqualified, and after demand and refusal an action would lie against the defendant, and no averment would be necessary but ownership, demand, and refusal.

The only exception to the charge requiring our attention is that there was no legal evidence of the value of the bonds, and that the court erred in submitting Secor’s valuation to the jury. The evidence offered as to valuation was that'of Mr. Secor, who states that in March, 1870, the market price was from 84 to 86 cents on the dollar ; that he had no recollection of buying or selling any bonds in March, 1870, or as to any sales or purchases, made at that period ; and in answer to this question on cross-examination, “ Then your estimate is more a matter of judgment than recollection, isn’t it, of what you think it was at that time?” he said, “My estimate is based on keeping the run of the market price, because I was very much interested in it. Having a very large interest in the road I kept the run pretty well of the market price.” It appeared that at the time of the trial (which was in April, 1876) he had been president of the company for four years; that his brother, who preceded him, came into office in March, 1870, and it substantially appeared that he had been largely interested in the road from its organization. The court instructed the jury that as the plaintiffs had the burden of proof, they must take it as evidence, on behalf of the plaintiff, that the bonds were not worth over 84 cents on the dollar at the time claimed, unless Secor is discredited by the jury on that point. But in considering whether he is to be discredited as a witness, they must also consider that defendant, who has the means of producing evidence of what the value of the bonds was, does not in fact produce it. I cannot discover any errors in the charge to the jury, or to the remaining exceptions to the refusal to charge.

The judgment and order denying the motion for a new trial must be affirmed with costs.

Curtis, Ch. J., concurred.