text:
    John Lyon and another, v. Benjamin Blossom and another.
    The complaint alleged that the parties had agreed that the value of certain sheds and fixtures sold by the plaintiffs to the defendant, should be appraised by two persons named, and if they were unable to agree, that they should select a third person as umpire; that they did disagree and selected a third person as umpire, who as such, valued the property at $2,550, for which sum, with interest and costs, judgment was demanded. The answer lost issue on these allegations.
    Upon the trial, the written agreement of the parties was had in evidence, by which it appeared that the person to be selected by the two first-named, as arbitrator, was to act with them as a third arbitrator and not as an umpire.

      Held, that there is a -wide difference between the power and authority of a person acting with others as an arbitrator, and the power and authority of an umpire, and that the difference necessarily affects the nature of the proofs to be given on the trial, both on the part of plaintiff and of defendant.

      Held, therefore, that the variance between the complaint and the proof upon the trial was material, and that the motion then made to reject the evidence of an award made by arbitrators ought to have been granted, and the complaint to have been dismissed.

      Held, that if the variance could have been disregarded on the trial as immaterial, the defendants should have been permitted to give evidence to impeach the validity of the valuation and award relied on, and so to amend their answer as to warrant the introduction of the proof that was offered.

      Held, that instead of granting a new trial, as no application to amend the complaint had been made, it must be dismissed, with costs.
    (Before Oaklet, Ch. J., Dues, and Slosson, J.J.)
    Feb. 11; Feb. 24, 1855.
    Motion on behalf of the plaintiffs for judgment, and a verdict in their favor, taken subject to the opinion of the court at General Term.
    The complaint alleged that the plaintiffs, on or about the 25th day of April, 1854, sold and delivered to the defendants certain sheds and fixtures on the premises at the foot of Montague street, Brooklyn, for which the defendants agreed to pay such an amount in money as the same were reasonably worth; that in order to arrive at a just valuation, it was agreed between them, that the sheds and fixtures should be appraised by Jas. B. Barney and Wm. Wright, who, if unable to agree, should select a third person as umpire, and that the valuation made by the persons named, or by the umpire, should be binding upon the parties. That Barney and Wright were unable to agree, and selected Robert White as umpire, and that the valuation put by him, and by a majority of the persons so selected and appointed, upon the said shed and fixtures was $2,550, for which sum, with interest, judgment was demanded.
    The defendants, in their answer, admitted that at the time mentioned in the complaint, the plaintiffs sold and delivered to them the property therein mentioned, and that they agreed to pay therefor at a fair and reasonable valuation. That at the time of the sale, it was agreed that the parties would be bound by the valuation to be put upon the property by the persons named in the complaint, Barney and Wright, and also, that in case they should be unable to agree, they should select a. third party to assist them in the appraisement.
    The answer then alleged that Barney and Wright had been nnable to agree, and had called in Robert White to give them his opinion and advice, bnt not for the purpose of having him make, either alone or with them, any decision in the matter. It averred that no valuation of the property had ever been made by Barney and Wright, and concluded with a general denial of all other matters in the complaint, and of the right of the plaintiffs to recover.
    The cause came onto be tried before the Honorable John Slosson, and a Jury, on the 7th day of December, 1854, and the following proceedings were had:
    The counsel for the plaintiffs offered in evidence the following submission, which was admitted by the counsel for the defendants to be signed by the plaintiffs and defendants. The counsel for the defendants objected to the same, on the ground that the same varies from the submission set up in the complaint, and particularly in not providing for the selection of a third person as umpire, or for any valuation or appraisement to be made by any person as umpire. The court overruled the objection, and the counsel for the defendants excepted.
    Whereupon, the same was read in evidence, as follows:
    “We hereby constitute and appoint James B. Barney and William Wright to appraise the sheds and fixtures now on the premises foot of Montague street, Brooklyn, known as Lyon & Haff ⅛ Naval Store Yard, and bind ourselves each to the other to abide by their valuation of the same, at which we, Lyon & Haff, agree to sell the same to Benjamin Blossom & Son, and we, Benjamin Blossom & Son, agree to buy the same of Lyon and Haff. It being hereby agreed, that in case the appraisers named above should be unable to agree in their valuation, they shall select a third and disinterested party, as usual in such cases, to assist them in the appraisement.
    “Witness our hands, this 25th day of April, 1854.
    “(Signed,) BENJAMIN" BLOSSOM & SON".
    “(Signed,) LYON & HAEE.
    “Witness, (Signed,) Josiah B. Blossom.”

      The counsel for the plaintiffs thereupon .called William S. Wright, who testified that he was one of the arbitrators named in the submission. That he knew the signature of Robert White, and that the names signed to the award hereinafter set forth, were the signatures of himself and of the said Robert White. That witness and James B. Barney, the other arbitrator named in the submission, appointed White under the authority contained in the submission, in consequence of their being unable to agree upon the appraisement. That White had consented to act with the arbitrators. The counsel for the defendants then asked the witness, whether the defendants, or either of them, were notified of the time or place of the meeting of the arbitrators, or to attend any hearing before them, or before said Robert White. The plaintiffs’ counsel objected to any such proof, on the ground that no such defence was set up in the answer* .
    The court sustained the objection, and excluded the proposed evidence. To which ruling and decision of the court, the defendants’ counsel then and there duly excepted.
    The counsel for the defendants then asked the witness whether James Barney, named as an arbitrator in the submission, was notified to be present or consult with witness and Robert White at the making of the valuation or award. To this question, the plaintiffs’ counsel objected, on the same ground as last above stated, and the court sustained the objection and overruled the question. To which ruling and decision of the court, the defendants’ couneel then and there duly excepted.
    The counsel for defendants then asked witness whether he was a brother-in-law to one of the plaintiffs, which was objected to by plaintiffs’ counsel on the same grounds as above. The court sustained the objection, and the counsel for defendants duly excepted to such ruling and decision of the court.
    The counsel for the plaintiffs thereupon offered to read in evidence the following award:
    The counsel for the defendants objected to the award being received, or read in evidence, on the ground that the plaintiffs had complained, upon an award made by Robert White, as umpire, and that no submission had been shown authorizing Robert White, as umpire, to make any award or valuation between the parties in reference to the property in question; also, that the award offered did not purport to Re the award of White, as umpire; also, that under the submission which had been proved, the award was required to be made and signed by all of the arbitrators'* also on the grounds that there was no evidence to show that Barney had been notified to attend and consult with the other two, or that the defendants had been notified of the time and place of the meeting of the arbitrators, nor that the arbitrators had been sworn. The court overruled the objection, and decided to admit the award in evidence. To which ruling and decision, the defendants’ counsel then and there duly excepted.
    Whereupon, the award was read in evidence, as follows:
    “ We, the undersigned, William S. Wright, one of the appraisers appointed April 25, 1854, by Messrs. B. Blossom & Son, and Messrs. Lyon & Haff, to appraise the sheds and fixtures on the premises foot of Montague street, Brooklyn, known as Lyon & Half’s Uaval Store Yard, and Robert White, the person selected by Messrs.. James B. Barney and William S. Wright, appraisers appointed! as- aforesaid, (Barney and Wright being unable to agree in their valuation,) having, with said James B. Barney, examined the sheds and fixtures referred to in the agreement of purchase between Messrs. B. Blossom & Son, and Lyon & Haff, dated April 25, 1854, do certify that we appraise the said sheds and fixtures at two thousand five hundred and fifty dollars, as a just and fair valuation of the same.
    “ Dated August 21st, 1854.
    “(Signed,) ROBERT WHITE.
    “(Signed,) WM. S. WRIGHT.”
    Robert White, called by the plaintiffs’ counsel, testified that he had been appointed under the submission by Wright and Barney, they having disagreed.
    Being cross-examined by the counsel for the defendants, the witness testified that Wright and Barney called upon him to get him to act under the submission. That he at first objected, but afterwards consented and went with them to the sheds mentioned in the submission.
    The defendants’ counsel then offered to show by the witness, that when he went, as last mentioned, to the sheds with the arbitrators, no consultation was had as to the valuation or appraisement, and that wben sucb -valuation was made, said Barney was not present, or notified to be present witb tbe others. To this, plaintiffs’ counsel objected, on tbe ground tbat no sucb defence bad been set up in tbe answer, and tbe court sustained tbe objection. To wbicb ruling and decision of tbe court, tbe defendants’ counsel then and there duly excepted.
    Tbe counsel for tbe plaintiffs thereupon rested, and tbe counsel for tbe defendants called James B. Barney, who testified: I am one of tbe appraisers mentioned in tbe submission. I did not agree to select Eobert White, either as umpire or arbitrator in this case; be was appointed by us under tbe submission, to assist in tbe valuation, as we could not agree ourselves.

      Ques. In what manner did you contemplate tbat be was to assist you?
    Question objected to, ruled out, and exception taken by defendants’ counsel.
    Tbe counsel for tbe defendants thereupon offered to make tbe following proofs:
    1st. Tbat wben tbe award was made, Mr. Barney was not notified to attend and consult witb tbe other two.
    2d. Tbe defendants were not notified of tbe time and place of meeting of tbe arbitrators at any time.
    8d. Tbat tbe arbitrators were not sworn.
    4th. Tbat White was not appointed by writing.
    Tbe counsel for tbe plaintiffs objected to tbe evidence.. Tbe court sustained tbe objection, and excluded tbe evidence under each offer severally, on tbe ground tbat no sucb defence bad-been set up in tbe defendants’ answer. Tbe counsel for the defendants excepted to each of sucb rulings and decisions.
    Tbe counsel for tbe defendants thereupon rested, and a verdict was taken for tbe plaintiffs for tbe amount awarded, witb interest from tbe commencement of tbe suit, tbe same to be subject to tbe opinion of tbe court upon a case, to be beard at tbe General Term in tbe first instance, and judgment to be suspended until tbe decision of tbe court, either party to have liberty to turn tbe case into a bill of exceptions.

      A. J. Willard, for the plaintiffs,
    now moved for judgment upon tbe verdict, and insisted tbat none of tbe exceptions taken on tbe trial could be legally sustained, and tbat tbe alleged variance between tbe submission and award, as pleaded, and those proved on tbe trial, ought, under tbe provisions of. tbe Code, to be wholly disregarded. (Code, §§ 170-171; be cited Elmendorf v. Harris, 5 Wend. 516, S. C. 28 Wend. 628; Emmett v. Hoyt, 17 Wend. 413; Browning v. Wheelen, 24 id. 258; Howard v. Sexton, 4 Comst. 158.)

      E. W. Stoughton, for tbe defendants,
    insisted tbat tbe verdict ought to be set aside, and tbe complaint dismissed, or a new trial be granted. Tbat tbe variance between tbe proof and tbe complaint could not be disregarded. It was material and fatal. Tbat White, tbe third person selected by tbe arbitrators, so far from having any power given to him to act alone as an umpire, was not even an arbitrator. He was merely an assistant and assessor. Tbat at all events, tbe supposed award was' a nullity. As tbe submission was at common law, tbe award, to be valid, ought to have been signed by all tbe arbitrators. Tbe submission gave no power to a majority. {Cape v. Gilbert, 4 D. and E. 847; Green v. Miller, 6 John. 39, 1 Selden, 482, 485.) Tbe learned counsel argued fully in support of all tbe other exceptions taken on tbe trial, but as these were passed over in tbe decision of tbe court, tbe reasons and authorities on which be relied are omitted.

      Willard in reply.
   By the Court.

Duer, J.

There is a wide difference between tbe powers and authority of a person acting with others as an arbitrator, and tbe powers and authority of an umpire, and these differences are such tbat in actions like tbe present they must necessarily affect tbe nature of tbe proofs to be given on tbe trial, both on tbe part of tbe plaintiff and of tbe defendant. Whether tbe instrument in writing on which tbe action is founded is an umpirage, or an award, in tbe usual and strict sense of tbe term, can rarely, if ever, be an immaterial question. Tbat which as tbe act of a single person may be valid as an umpirage, if requiring tbe concurrence of two or more, as an award, may be wholly void. It seems to follow tbat in all cases where tbe action is founded on an award, its true character, as tbe act of an umpire, or of arbitrators, must be set forth in the complaint, in order that a defence adapted to its true character may be set up in the answer. These remarks, however, are probably too general, and to justify our decision, it may be expedient to state more distinctly the difference between the powers and duties of an umpire and those of an arbitrator, to which we have referred. Where an umpire has been duly appointed and, in consequence of a disagreement of the arbitrators, has entered on the performance of his duties, the authority to make a final decision on all the matters embraced in the submission is vested exclusively in him; the original powers of the arbitrators have ceased to exist. They are fundi officio. He is not bound to meet or consult with them at all, and although he may permit them, or one of them, to sign his award, it is only as his act and his decision that it has, or can have, any validity. If the arbitrators join in the award, they do so, not in the exercise of any remaining power, but as mere strangers, whose signatures, although they may not vitiate the award, are superfluous and unmeaning. (3 Burr, 1,474, 4 Taunt. 252, 9 Bar. and Cress. 407, 2 John. Ch. R. 339,1 Hill, 489,1 Barb. 333.)

But when two arbitrators, unable to agree, exercise a power given by the submission, by appointing a third, the authority to make an award is vested in them jointly; and even when an award made only by two of them is good, it must be shown to be the result of their joint deliberations. Due notice, therefore, of the time and place of every joint meeting must be given to each, and although the refusal to attend of one may not vitiate an award, yet an award made by two, without due notice to the third, is certainly void. (3 Ad. and Ellis, 245; 5 Gran. and Man. 374; Jordan v. Hyatt, 3 Barb. 275; Ackley v. Finch, 7 Cow. 290; Crofort v. Allen, 2 Wend. 494.) And even when the award is made by all, whether two or three, who have authority to make it, yet, as its execution is in the nature of a judicial act, implying and requiring deliberation, the better opinion seems to be that it must be executed by all at the same time and place, or, at least, that all must be present at its execution by each. (Stalworth v. Inns, 13 Mees. and Wels. 465; vide also, 8 East. 319, 2 East. 244, 3 Term. R. 38.)

Without pursuing the subject, these observations are sufficient to sbow tbat tbe defence to an action upon an award, purporting to have been- made by arbitrators, whether by all or by a majority of them, may be wholly different from any that would have been competent to the defendant, had the action been founded upon an award made by an umpire. They are also sufficient to show that when a complaint sets forth an award, as made by an umpire, and claims its performance, or damages for its breach, an allegation, in the answer, or facts tending to prove that the award, treating it as in fact made by arbitrators, was wholly void, might be justly censured as vicious pleading. Such allegations, as raising no issue pertinent to the complaint, would either be striken out as irrelevant, or would render the answer bad upon demurrer. It remains to apply the observations that have been made to the case before us.

We find it impossible to say that the action is not solely founded upon an award made by an umpire. The language of the complaint is, in our judgment, so clear and explicit as not to be susceptible of any other interpretation. The complaint avers that the arbitrators named in the submission were.authorized, if they should be unable to agree, to select a third person as umpire, and that the defendants agreed to be bound by the valuation that the umpire so selected should make. That the arbitrators were unable to agree, and accordingly selected White as umpire, and that he as umpire valued thé property at the sum for the recovery of which the action was brought and judgment demanded. It is true, the complaint also avers that the same valuation, in other words, the same award, was made by a majority of the persons, so selected and appointed; but this cannot mean that a separate award, corresponding in its amount with that of the umpire, was made by the two arbitrators named in the submission; for, upon this supposition, there would have been no disagreement, and the selection of the umpire would have been void, and his award a nullity. The meaning of the averment undoubtedly is, that one of the arbitrators united with the umpire in making the award upon which the action is founded, and thus interpreted, the averment must be disregarded as immaterial and irrelevant, as unnecessary to-be proved, and therefore unnecessary to be made. It has already been shown that where an arbitrator, whose powers as such are exhausted, joins an umpire in making an award, the character of tbe award, as tbe decision of tbe umpire alone, is in no degree varied or affected. As sucb an arbitrator has no authority to sign tbe award, bis signing it is tbe nugatory act of a stranger, not, it is true, vitiating tbe award — but giving it, it is just as certain, no additional force. Hence tbe award set forth in the complaint, notwithstanding tbe averment that one of tbe arbitrators united in making it, is an award made by tbe umpire alone by virtue of bis own powers and authority as such; and it is upon sucb an award that tbe plaintiff’s right of action, as set forth in bis complaint, is exclusively founded.

Sucb being tbe frame and substance of tbe complaint, what is tbe answer of tbe defendants? It is an answer that meets and controverts all the material allegations in tbe complaint; and, as it seems to us, tbe only answer that to sucb a complaint could properly be made. It avers that tbe arbitrators bad no power to select an umpire, that White was not selected, and made no award as sucb, and that no award had been made by those to whom alone the power of making one bad been delegated; and that these allegations, if true, were a full defence to tbe cause of action as set forth in tbe complaint, cannot, it seems to us, be reasonably doubted. If they were true, no other defence was necessary or proper to be made. It would have been worse than needless to have added that, although White bad not been selected as an umpire, be had been selected as an arbitrator, and, as sucb, bad joined with another arbitrator-in making an award which, by reason of the facts, setting them forth, that were offered to be proved upon the trial, was wholly void. Upon a motion to strike out sucb averments as irrelevant, we think tbe court would not have hesitated to say that a complaint founded on an award, made by an umpire, ws not answered by showing that a bad award bad been made by arbitrators; that it was a valid award made by an umpire, that tbe plaintiffs, bv tbe terms of their complaint bad undertaken and would be bound to prove, and that a denial of tbe existence of sucb an award was, therefore, tbe only defence that tbe action required.

It was upon the pleadings that we have stated that tbe parties went to trial, and the proceedings upon the trial next claim our attention. A submission in writing signed by the parties was produced and read in evidence, which, as we construe it, for reasons tbat will hereafter be given, gave an authority to the arbitrators named, in the event of their disagreement, to select, not an umpire having a sole authority to act and decide, but a third person to act with themselves in making the- required appraisement — that is, a third arbitrator. It was then -proved that the arbitrators were unable -to agree, and, in pursuance of the submission, had selected-a third-person, (White,) who, in conjunction with one of the arbitrators, (Wright,) had made an award, valuing the property to be appraised at the sum mentioned in the complaint. To the whole of this evidence, as not merely not sustaining but disproving the material allegations of the complaint that the arbitrators had power to select an umpire, -and that as such, "White had "been selected and had made his award, the counsel for the defendants distinctly objected, and the -objection was overruled^ the evidence received, and the plaintiffs permitted to obtain a verdict.' The important question, therefore, is, whether the objection to this evidence ought to have been overruled, or whether it ought not to have been allowed, and, as a necessary consequence, the complaint to have been dismissed.

There are, it seems to us, only two grounds- upon which 'the objection to the evidence could properly have been overruled:— First, that "White was in truth an umpire, and as such, made his award; or, Second, that the variance between'the proof and the complaint was one that the Judge,'under the provisions of the Code, was bound to disregard.' The first ground, which depends entirely upon the construction to be given to the submission of the parties, was not much pressed by the-counsel for the plaintiffs upon the argument before us, and is plainly untenable. ' The law is settled that the power to appoint an umpire, must bé given by express words, and that' when the power given to two arbitrators, in'the event of their disagreement' to select a third' person, is exprésséd in' general words, the person so' appointed ⅛ a joint arbitrator, and not a sole umpire. (Hughes v. Garnett, in the Exchequer; Watson on Arbitra. 86; Reade v. Dutton, 2 Mees. and Welsb. 69; In re Wich. 8 Taunt. 694; Batting v. Button, 13 John. 189.) The present case is in reality much stronger than any’ of those to which I have referred, for here the terms of the submission plainly show that the third person to be selected was to have the powers of a joint arbitrator, and none other. The only doubt that can be raised is, wbetber it was intended tbat be should have tbe full powers of an arbitrator, He was to be appointed “to assist tbe arbitrators in making tbe appraisement.” They consequently were to continue to act, since otherwise they would not have been assisted but superseded, and tbe utmost tbat can be said as to bis authority is, tbat be was not merely to aid them by bis opinion and advice, but was to act with them in valuing tbe property, tbat is, in making a final award. It is not denied tbat upon this construction of tbe submission there was a manifest variance between tbe proof and tbe complaint, and wbetber tbe variance was justly disregarded as immaterial is tbe question next to be determined. Section 169 of tbe Code declares tbat no such variance shall be deemed material, unless it has actually misled tbe adverse party to bis prejudice in maintaining bis action or defence, and tbat when it is alleged tbat be was so misled, tbe fact must be proved to tbe satisfaction of tbe court; but in construing this section, it would be an error to bold tbat tbe fact tbat tbe adverse party was misled and prejudiced must, in all cases, be established to tbe satisfaction of tbe court by extrinsic proof. Tbe fact, and consequently tbe materiality of tbe variance, may be apparent on tbe face of tbe pleadings, and, in such cases, it must be tbe duty of tbe court either to exclude tbe evidence creating tbe variance, or so to amend tbe pleading as to admit its introduction, and in this last case tbe amendment can only be made upon terms, tbat, in tbe words of tbe section, “shall be just.” Hence, if by tbe proofs on tbe trial, tbe case of tbe plaintiff is so far varied from tbat stated in bis complaint as to render tbe defence in tbe answer no longer appbcable, and at tbe same time to exclude a defence suited to tbe case as varied by tbe proofs, so manifest is tbe prejudice resulting to tbe defendant, tbat tbe court is bound to say tbat the 'variance is material, and consequently, tbat tbe complaint, if not amended, must be dismissed. And such, exactly, is tbe case before us. We axe not prepared, nor is it necessary to say, tbat in all such cases tbe cause of action as alleged in tbe complaint must be regarded as “unproved in its entire scope and meaning,” so as to present a case, not of variance, but of an entire “failure of proof.” (Code, § 191.) But we cannot doubt tbat tbe variance, if not necessarily fatal, must be deemed so far material, tbat tbe objection which it creátes can only be removed by a positive amendment, and tbat not an amendment of course, but one tbat can only be made upon a proper application, and upon just terms.

Tbe course of tbe trial in tbe present case affords a striking illustration of tbe truth of tbe observations we bave made, for wben we look at tbe proceedings, it is manifest, that we should violate tbe plainest rules of justice by permitting tbe plaintiffs to enter a judgment upon tbe verdict they obtained. When, instead of an award made by an umpire, tbe plaintiffs were allowed to give in evidence, in support of their action, an award made by arbitrators, tbe defendants offered to prove tbat tbe arbitrator who bad not signed tbe award bad not received any notice to attend and consult with tbe two by whom it was signed; and tbat tbe defendants bad not been notified, at any time, of tbe time and place of meeting of tbe arbitrators; and that proof of these facts, if appraisers are arbitrators and an appraisement an arbi-bitration, in tbe full sense of tbe terms, as seems to bave been decided, (Van Cortlandt v. Underhill, 17 John. 405; Butler v. Mayor, &c., of New York, 1 Barb. S. C. R. 325, S. C. 7 Hill, 326.) would bave shown tbat tbe award, on which tbe plaintiff relied was ineffectual and void, cannot be doubted. Tbe proof, however, thus offered to be made was rejected, not, indeed, upon tbe ground tbat tbe facts, if proved, would not bave constituted a defence, but for tbe sole reason tbat no such defence bad been set up in answer. Tbat under tbe answer, as framed, tbe evidence could not with propriety bave been admitted must be allowed; but tbe very necessity of its rejection is conclusive to show tbat.tbe plaintiffs ought not to bave been permitted to maintain their action by tbe production of an award different from tbat alleged in their complaint, and tbe validity of which tbe defendants in their answer not only were not bound, but bad no right to contest. We cannot allow tbe plaintiffs to recover without any opportunity of a defence being given to tbe defendants upon a cause of action, tbe existence of which tbe complaint, so far from averring, by a necessary implication, denies.

We are, therefore, all of opinion, and very clearly so, tbat tbe verdict tbat has been rendered must be set aside, and tbe only question is, whether we shall order a new trial or at once dismiss tbe complaint. A new trial, unless tbe complaint be so amended as to conform its allegations to tbe facts as tbej bare been shown to exist, would be a waste of tune and expense, since tbe same dismission of tbe complaint, that may now be ordered, would be its necessary result. No application, however, for such an amendment of tbe complaint has been made, and were it made, it would only be granted upon tbe terms of charging tbe plaintiffs with all tbe costs that have accrued since tbe commencement of tbe action, and between an amendment upon these terms and a present dismissal of tbe complaint with costs, there is little, if any thing, to choose.

Our decision, therefore, is, that tbe verdict be set aside, and a judgment for tbe defendants dismissing tbe complaint, with costs, be now entered. We make tbe decision, however, without prejudice to tbe right of tbe plaintiffs to commence a new action, in such form as they may be advised, and without expressing or intimating an opinion that, upon a complaint properly framed, they may not be entitled to recover tbe whole sum at which their property sold to tbe defendants has been valued.


source: Caselaw Access Project

author: Slosson, J.

license: Public Domain

text:
    Smith Dunning, and another, v. John Pratt, and another.
    Upon the trial of this action, -which was brought to recover the amount of four dishonored checks drawn by the defendants, it was offered to be proved on the part of the defendants, that the checks in suit had been delivered by them to S. G. & W. Lansing, in exchange for checks of that firm for the same amount, upon an agreement that all the checks so exchanged should be deposited in bank, and that those of the defendants should not be paid unless those of S. G-. & W. L. should be paid, which had not been paid; and that the plaintiffs had received the checks in suit with a full knowledge of the facts. The evidence was rejected by the court, and the plaintiffs obtained a verdict.

      Held, that the evidence so rejected, as tending to prove that the checks in suit had been misapplied, and that there was a failure of the consideration upon which they were given, ought to have been received.
    New trial. Costs to abide event.
    (Before Oakley, Oh. J., Dues and Slosson, J.J.)
    Feb. 12;
    March 2, 1855.
    This action was brought to recover from tbe defendant tbe amount of four checks payable to bearer, drawn by themselves and. dishonored by the bank on wbicb they were drawn. The aggregate amount of the checks was $800.
    The cause was tried before Slosson, J., and a jury, on the 6th of December, 1854.
    A verdict was rendered for the plaintiffs for the sum of $826.38, subject to the opinion of the court at General Term, upon exceptions taken to the ruling of the Judge, in excluding certain evidence offered to be given on the part of the defendants.
    The circumstances of the trial, and the nature of the evidence so offered and rejected, are sufficiently stated in the opinion of the court.

      Fancher, for the plaintiffs,
    moved for judgment on the verdict.

      O. Tracy, for the defendants,
    insisted that the Judge had erred in excluding the evidence offered, and that there ought to be a new trial. He cited Smith v. Wychoff, 3 Sand. Ch. R. 93; Seneca Go. Bank v. Neass, 3 Comst. 442; Dour v. Schult, 2 Denio, 621; Bice v. Mather, 3 Wend. 6; Eaves v. Henderson, p. 90.
   By the Couht.

Slosson, J.

The verdict in this case was taken subject to the opinion of the court.

The suit is upon four checks of the defendant, amounting to $800, which had been exchanged with William Lansing, of the firm of S. G. & W. Lansing for the checks of that firm of same amount.

The defendants offered to show, that .at the time of the exchange it was verbally agreed between William Lansing and the defendants, that the defendants’ checks (in suit) were not to be paid, or required to be paid, unless the checks of S. G. & W. Lansing were paid, and that these latter. checks were not paid, and that the plaintiffs received the defendants’ checks with fall knowledge of this agreement.

The defendants also offered to show that checks had been exchanged in this way between defendants and S. G. & W. Lansing for about a month previous to the giving of the notes in suit upon the same agreement of which the plaintiffs had full knowledge. That such previous checks of defendants had been taken during tbat period by S. G-. & W. Lansing to the plaintiffs, wbo gaye tbeir own checks in exchange therefor, upon a like agreement between them and S. Gr. & W. Lansing. That at first the exchange between the plaintiffs and S. Gr. & W. Lansing, was of the checks of that firm, but that the plaintiffs shortly before the checks in suit were given, had requested S. Gr. & W. Lansing to procure defendants’ checks, which was done, and the checks so procured were exchanged (in lieu of those of S. Gr. & W. Lansing) with the plaintiffs, and that the checks in suit were procured in accordance with that request.

The substance of the offer is to show that the plaintiffs had exchanged their checks with S. Gr. & W. Lansing, for the checks of Pratt & Lansing, the defendants, procured by S. Gr. & W. Lansing, at the request of the plaintiffs, and for which checks of the defendants, S. Gr. & W. Lansing had given their own checks to the defendants, and that all this was done on a verbal agreement between S. Gr. & W. Lansing and the defendants, of which the plaintiffs had knowledge that the defendants’ checks were not to be paid, unless S. Gr. & W. Lansing’s checks were paid.

The defendants’ counsel, in connection with this, offered to show that this system of exchanging checks, was a contrivance between the plaintiffs and S. Gr. & W. Lansing for keeping up a fictitious bank credit, and that at the various times the respective checks were drawn, neither party had any funds in the bank.

The understanding between defendants and S. Gr. & W. Lansing was, that their checks were to be deposited in the bank, one against the other, but the defendants were not to be paid, unless those of the Lansings were paid.

The Judge at the trial excluded this evidence, in so far as it went to eondradict the legal effect of the checks, but allowed it for any other purpose. The defendants then declined going into the evidence, but for the purposes of this decision the facts offered to be shown, may be considered as having been all excluded.

Was the Judge right in excluding this evidence?

The defendants contend — first, that their checks never had a legal inception, as binding contracts in the hands of the payees, S. Gr. & W. Lansing, because the event on which they were to be binding, to wit, the payment of the checks of S. Gr. & W. Lansing never took place, and which defence, if good, is equally so against tbe plaintiffs, as against tbe payees; tbe former baying •taken them with notice, and that tbe evidence offered does not therefore infringe upon tbe rule excluding parol evidence to contradict tbe terms of a contract, which rule is applicable only to subsisting contracts — and, secondly, that tbe evidence offered would have shown a total failure of tbe consideration of tbe defendants’ checks.

1. A check creates a contract on tbe. part of tbe drawer, that tbe bank shall pay tbe money expressed on its face. (Cringle v. Armstrong, 3 J. Cas. 5.) As contracts they are subject to tbe same rules of evidence as other written obligations.

It is said, that, admitting this rule to be true, tbe defendants’ checks never bad an inception, tbe event upon which they were to become payable, never having happened.

Tbe difficulty in this position is, that tbe checks were debvered —they were passed to the plaintiffs, and were beyond tbe defendants’ control — and though tbe defendants may have a defence to them on other grounds, they cannot say that they are not evidences of debt. Prima fade they are good contracts.

Tbe plaintiffs may fail to recover, on tbe ground that tbe contracts in their bands are not available, but not on tbe ground that they are nullities.

Tbe first question then is, can evidence be admitted to contradict tbe face of tbe instrument, when offered against a party who received it with full knowledge of tbe fact offered to be proved ?

If S. Gr. & "W. Lansing bad sued upon tbe checks, could tbe defendants have shown what is offered to be shown here — that they were payable, not absolutely as expressed on their face, but conditionally upon an uncertain event ?

In Campbell v. Hodgson, (1 Glow's Rep. 74,) which was an action by payee against tbe acceptor of a bill of exchange, evidence bad been admitted of a verbal understanding between tbe parties, that payment was not to be demanded, if tbe plaintiff could procure tbe debt for which tbe acceptance was given, out of another iund. Tbe court (Dallas, J.) said that this evidence bad been received only on tbe ground that something like payment might have been proved. In respect to tbe evidence as affecting tbe contract, be says, “There is no condition apparent on tbe face of tbe bill, and no rule of law is better established than that a party shall not be permitted to add a yerbal or oral condition in order to control the legal effect of a written instrument. In an action on a bill or note, the defendant is not allowed to give evidence that the bill or note should be renewed, or that payment should not be demanded when the instrument becomes due, for there would be no use in reducing an agreement into writing, if it is thus to be varied by a parol understanding.”

In this case it is true there was a consideration for the acceptance, but that had no effect upon the question of the application of the rule of evidence, as affecting the legal import of the paper treated as a written contract.

The suit was between the original parties, and though the admission of the evidence on the trial was excused by the court, on the ground that it might show payment, the case is a clear authority against its admission, even between the original parties, when offered to show that the contract was different from that expressed.

The rule excluding the evidence, rests upon other and different grounds than the actual equities between the parties; it is a rule of policy, and is enforced often against the justice of the case in the particular instance.

An agreement made cotemporaneously with the bill to renew it, cannot be shown, even as between the parties to the transaction. (Hoare v. Graham, 3 Camp. Rep. 57.)

Such an attempt was made by the defendant, in the case cited, who offered to show that it was expressly agreed between himself and the plaintiff that the note in suit, (made by the defendant,) and which, on its face, was payable on demand, was not in fact, to be paid, until the plaintiff had done certain things. The evidence was admitted, and on a motion for a new trial, the court held, (Tenterden, Ch. J.,) that upon principle, as well as authority, the evidence was inadmissible.

So in Eaves v. Henderson, (17 Wend. Rep. 190,) the defendant, one of the makers of the note sued upon, had given evidence on the trial that an agreement had been made cotemporaneously with the giving of the note, with the plaintiff, the payee, that the latter would allow that a certain account which the defendant held against him should go in payment of the note — -but the court held it to have been improperly admitted as a contradiction of the note.

So in Thompson v. Ketchum, (8 J. R. 189,) the court held that evidence of a parol agreement that the note (not expressing time of payment, and therefore payable immediately) was not to be paid until a future event, was inadmissible.

All these were cases between the original parties. Indeed the general rule cannot be denied. (Chitty on Bills, 162.)

The offer here is to show that the checks were not to be paid, except on the occurrence of an uncertain event. If such evidence were admissible, it would totally avoid the checks as contracts, and render them nullities. (3 Kent, 7th ed. 89.)

TT- The question then remains, whether the evidence is admissible to show a failure of consideration as respects the defendants, for any other purpose than to contradict the checks themselves.

The case must be treated as though the plaintiffs stood in the shoes of the Lansings, since they had full knowledge of the entire agreement between them and the defendants.

It was a part of this agreement that the checks should be mutually deposited in bank, to offset each other, yet the Lansings took defendants’ checks, and without depositing them in bank transferred them to plaintiffs.

This, then, was a perversion of the cheeks from the uses for which they were given, and the plaintiffs received them with knowledge of the misappropriation.

But whether this be so or not, the checks are now mutually in the hands of the parties who originally exchanged them, that is, defendants hold the checks of Lansings, and the Lansings (or plaintiffs, who stand in their place,) hold the checks of defendants. The checks are mutually dishonored.

If Lansings had not transferred the defendants’ checks to plaintiffs, but presented them at their bank for deposit, and defendants had done the same with Lansings’ checks, and the banks had refused to receive either on deposit, the entire consideration would have failed on both sides, as neither would have received the credit which the checks were intended to create.

Whether they were refused deposit or not, does not appear. If they were deposited, they were returned dishonored to the bank where deposited, and the credit of course cancelled. It follows, that the purpose for which the checks were made and exchanged haying been thus defeated, neither party has now a right to enforce them against the other, and consequently that there has been an entire failure .of the original consideration upon which they were respectively founded.

We are of opinion that the evidence which was offered and rejected upon the trial to establish these facts, as it would have shown both a misapplication of the checks in suit and a failure of the consideration upon which they were given, ought to have been received. There must, therefore, be a new trial, with costs to abide the event.


author: Oakley, Ch. J.

text:
    Charles Devlin v. The Mayor, &c., of the City of New York.
    The plaintiff, hy a contract in writing between him and the defendants, agreed “ to furnish at his own proper expense and cost all the necessary materials for and to excavate and build a good, firm, and substantial sewer in 21th street,” Ac., and by subsequent clauses in the contract the prices to be paid to him “ for all the excavation whether hard pan, quicksand, caves, or otherwise,” and “for the blasting and removing of rock” are distinctly specified. It appeared upon the trial that the sewer in question had been built, and it was admitted that the plaintiff had been paid by the defendants all that he was entitled to receive by the terms of the contract, but his counsel insisted that the plaintiff was entitled to demand and recover an extra compensation for excavating a material of unusual hardness, which had never been found before, and was neither common excavation nor rock, and which was not in fact contemplated by the parties when the contract was made, and he offered evidence to establish the facts so alleged. The court excluded the evidence and dismissed the complaint.

      Meld, that the plaintiff was bound by the terms of his contract, and that the evidence offered, being plainly inconsistent with its necessary construction, was properly excluded.
    Judgment for defendants, dismissing complaint, with costs.
    (Before Oakley, Ch. J.; Duer and Slosson, J.J.)
    February 15; February 24, 1855.
    Appeal by tbe plaintiffs from a judgment dismissing tbe complaint, with costs.
    Tbe complaint was for work and labor performed, and materials furnished by tbe plaintiff, at tbe request of tbe defendants, in tbe excavation and completion of a common sewer in tbe city of New York, and averred that tbe same were reasonably worth. $10,000, for which sum judgment was demanded. The defence' was, a payment in foil. The canse was tried on the 10th of October, 1855, before Oakley, Ch. J., and a jury.
    The counsel for the plaintiff, in opening the cause to the jury, stated, that the action was brought to recover the value of blasting and-excavating certain material, commonly known as bastard granite, encountered in the construction of a sewer in Twenty-seventh street, in the city of New York, built by the plaintiff, in pursuance of and under a contract with the defendants; that the substance encountered was of a kind not contemplated by the parties to the contract, at the time of the execution thereof, and therefore not embraced in it, and that the plaintiff would claim the value of the labor incurred in such excavation over and above the price specified in the contract, which contract price for rock excavation, and for building sewer, and furnishing materials therefor, had been paid to the plaintiff.
    The contract to which the counsel referred was then produced, and read in evidence.. It was dated on the 15th of June, 1850, and was executed by the plaintiff, and by the Croton Aqueduct Department, on behalf, and in the .name, of the defendants. By the terms of the contract, the plaintiff agreed “ to furnish at his own proper cost and expense, all the necessary materials for, and to excavate and build, a good, firm and substantial sewer, in Twenty-seventh street;” describing particularly its length and other dimensions, and, in subsequent clauses, the prices to be paid to him for “all the excavation, whether hard pan, quicksand, caves, or otherwise,” and “for the blasting and removing of rocks,” are expressly stipulated. The other provisions in the contract, which are very specific and minute as to the mode of performing the work, and the nature and the quality of the materials to be furnished, are omitted, as having no bearing upon the questions raised and decided.
    The counsel for the defendants then moved to dismiss the complaint, on the ground, that it appeared by the opening of the plaintiff’s counsel, that the plaintiff had received the full price stipulated by the contract, to be paid to him for constructing the sewer, and that the terms of the contract covered and included all excavations, of whatever substance, at the price fixed in said contract.

      The counsel for the plaintiff then offered to prove that the plaintiff had done the work and furnished the materials in the complaint mentioned, and that they were worth the sum therein mentioned.
    The court excluded the evidence, and the counsel for the plain-' tiff excepted. ■
    The counsel for the plaintiff thereupon offered to prove, that in the course of the work, the plaintiff excavated a large amount of material of extraordinary hardness, which was not rock, but a foreign substance deposited in a bed of rock, and neither common excavation nor rock. Also, that this material had never been found upon this island, and existed at the place in question in large quantities. Also, that the Croton Aqueduct Department fixed the price of two dollars for rock excavation, in reference exclusively to the expectation, that only the ordinary rock of the island, a substance entirely different from the substance in question, would be found in the excavation. Also, that the substance in question, was not, in point of fact, contemplated by the parties at the time of making the contract, and the counsel for the plaintiff claimed to recover an extra compensation for the unexpected labor in excavating a material of unusual hardness.
    The court excluded the evidence, and ordered the complaint to be dismissed.

      A. J. Willard, for the plaintiff,
    now moved for a reversal of the order, and a new trial.

      B. J. Dillon, counsel for the corporation, contra.

   By the Court.

Oakley, Ch. J.

It is very possible that the plaintiff may not have received a full compensation for the work that he performed, and that his contract with the corporation was, in the result, a losing bargain, but if so, he should have applied for relief to the equitable discretion of the Common Council. To afford him relief upon the evidence before us, is beyond the power of a court of justice, whether of law or equity. He performed the work, for the value of which this action is brought, in excavating a sewer which he had bound himself to excavate and build under a special contract. It is by the terms of that contract, therefore,, that his right to the compensation which, he. now seeks.must be determined; and that he has received.the whole-sum that by the terms of this contract was agreed to-be paid to . him for the work it required him to perform, was, upon the trial, expressly admitted. The. defence of payment was therefore established, unless it can be shown that the work for which an additional sum is now demanded, was not embraced within the terms of the contract; in other words,- was no -part of the work that the contract bound him, to perform — and this has not been shown, and we find it impossible to say.

The words of the contract are free from a shade of obscurity or doubt; broader and plainer could not have been, used, and hence there is no pretext for saying that parol evidence could be introduced to vary and restrict the meaning which they directly and necessarily suggest. The plaintiff was to- excavate the sewer, and for a stipulated price bound himself to perform “ all the excavation,” with the addition of words, that could only have been inserted for the purpose of removing any possible doubt as to the extent of his obligation — the words “ whether of hard pan, quicksand, caves, or otherwise:” the words “or otherwise” being plainly equivalent to “or any other substance whatever.” He therefore took upon himself the risk of meeting with unknown substances of “unusual hardness,” and he undertook, not by implication, but by express words, to excavate — that is, dig them out and remove them. He has performed the work, and has been paid for its performance, and we are now asked, without a suggestion of fraud or mistake, to reheve him from his contract, so as to enable him to recover a larger sum than that which he agreed to receive. Our short reply is, we have no such power; the law has not given it to us, and we shall not usurp it.

Although we .deem it needless to sustain our opinion by a reference to authorities, there is a decision of the Court of Appeals, to which, as not merely applicable, but controlling,- it seems proper that I should advert. The case, that of Sherman v. The Mayor, &c., of New York, (1 Comst. 316,) in all its material circumstances, except that the words of the contract were less explicit and full, is not to be distinguished from the present. The plaintiff contracted with the corporation to furnish all the materials and labor necessary to complete the excavation and refilling of a trench of specified dimensions, for water-pipes, and the corporation-agreed to pay him for “executing the digging and refilling” seven cents per cubic yard. A large portion of the work was through hard pan, which was proved before the referees who heard the case, to be worth seventy-five cents per cubic yard; another portion was through rock, and was proved to be worth $1 per cubic yard; and it was also proved that seven cents was the lowest price for excavating common earth. The court, nevertheless, held that the plaintiff could recover nothing beyond the contract price, and in delivering its judgment, Jewett, J., said that “the contract under the head ‘excavation’ called-for the opening of a trench of the prescribed dimensions, through whatever substances should be-met with, on the line agreed upon, and that full compensation for this work was agreed upon, under the terms ‘for executing the digging, seven cents per cubic yard,’ ” — and he added, “that as the price of the work was thus fixed by the written contract, the -referees had erred in admitting parol evidence to show its value.”

According to this decision, the plaintiff in the case before us, would have been limited to the price he agreed to receive, had he bound himself by the contract to do no more than “excavate the sewer:” even upon this supposition his claim for an extra compensation must have been denied. Here, that which the word “excavating” implies, is in terms expressed.

My brethren, therefore, entirely agree with me, that as the object of all the additional proof that was offered on the trial, on the part of the plaintiff, was to give to the contract of the parties a different meaning from that which its terms plainly and necessarily import, it was all properly rejected.

It may be true as the-learned counsel for the plaintiff endeavored to convince-us, that, by'the rules of the civil law, his client, under the circumstances that were offered to be proved, would be entitled to the extra compensation that he claims, but we conceive that this is not a case in which the rules of the civil law can, with any propriety, be invoked- to aid our decision. The doctrine of the common law, that binds men to the faithful performance of their contract, according to their manifest and undeniable import, which, when there is no room for the imputation of fraud or mistake, is too firmly established to be now superseded or shaken by the equity, more apparent than real, of a foreign jurisprudence. When it is uncertain whether a contract fairly made, will end in a profit or loss, the parties take upon themselves the risk of the result, and neither has any title to be relieved at law or in equity upon the mere ground that his expectations were disappointed. There can be no injustice in holding that he who would have retained all the profits, however largely they exceeded his calculations and hopes, must be content to bear a loss that he failed to anticipate.

The defendants are entitled to a judgment dismissing the complaint, with costs. ' .


author: Duer, J.

text:
    John Townshend, v. David Wesson and Edward Ives.
    The plaintiff, who in an action for the recovery of land, claims title under a sheriff’s deed, must prove the existence of the judgment recited in the deed by the production of a judgment roll duly filed, and must also show that the judgment, evidenced by the roll, was regularly docketed.
    A judgment roll can only be constituted by the attaching of the papers, which, for that purpose, are described in the Code.
    Hence, to give to a paper, containing neither process nor pleadings, the name and effect of a judgment roll, would not only be an abuse of language, but a direct violation of the provisions of the Code. The docketing of a judgment, when no judgment roll has been made and filed, is an unauthorized and illegal act, and creates no lien on the lands of the debtor,
    dm order to make a title under a sheriff’s deed, proof of the judgment referred' to - in the execution under which the sheriff sold, is just as indispensable as that of the execution itself, and this proof can only be made by the production of the judgment-roll or an exemplification.
    -The-plaintiff having failed to give this necessary proof, held, that he was properly nonsuited, and the defendants were entitled to a judgment dismissing the complaint, with costs.
    (Before Oakley, Ch. J., Doer, and Slosson, J.J.)
    February 24, 1855.
    This was an action, to recover tbe possession of a lot of ground, and of tbe building tbereon, known as No. 109 in' Washington street, in tbe city of New York.
    Tbe cause was tried on tbe issues made by tbe pleadings before Slosson, J., and a jury, 26tb and 27tb of October, 1854.
    Tbe plaintiff, to maintain tbe issue on bis part, produced and read in evidence—
    1. A certified copy of tbe record of a deed from R. H. Grillet, Solicitor of tbe Treasury of tbe United States, to J. W. Niles. Tbe deed covered tbe lot in question. Tbe date was tbe 18tb of December, 1847, and tbe consideration $525. 2. A deed dated tbe 13tb of January, 1851, from George W. Niles, conveying tbe same premises in fee to David Wesson, one of tbe defendants. Tbe deed contained tbe usual covenants, and tbe consideration was $3,000.
    3. A paper on tbe file in tbe clerk’s office of tbe Supreme Court, endorsed, “ New York Superior Court, George W. Niles against S. A. Suydam,” and an order for judgment filed April 14tb, 1849. These papers were received, and read subject to tbe objections of tbe counsel for tbe defendant, and are in tbe words and figures following:
    “ New York Superior Court. George W. Niles against Samuel A. Suydam, city and county of New York, ss. Joseph G. Hoffman, clerk, &c., being duly sworn, deposetb and saitb, that, on or about tbe 28th day of February last, be served a copy of tbe order made in this cause, of which a copy is set forth below, marked A, on tbe plaintiff, who appears in person, by delivering tbe same to a clerk in bis office, corner of Broadway and John street, in tbe city of New York. And this deponent frirther saitb, that more than ten days have elapsed since the service of a copy of tbe said order, and that no amended complaint has been received at tbe office of tbe attorney for tbe defendant, to bis knowledge, information, or belief. Joseph G. Hoffinan. Sworn before me, April 14th, 1849, Natb’l B. Hoxie, Commissioner of Deeds. ‘A.’ New York Superior Court. George W. Niles against Samuel A. Suydam, February 27th, 1849, D. W. C. Graham, Attorney. Tbe issue of law joined in this action, having been brought to trial after bearing Mr. Niles, plaintiff, in person, and Mr. John Graham, counsel for tbe defendant, ordered judgment for tbe defendant on tbe demurrer, with hberty to the plaintiff to amend bis complaint within ten days after notice of this decision, upon payment of twelve dollars costs, together with one dollar for disbursements. A copy. D. R. Floyd Jones, clerk. New York Superior Court. George W. Niles against Samuel A. Suydam. City and County of New York, ss. De Witt C a - bam, attorney for tbe defendant, being duly sworn- íteposom saitb, that no amended complaint in this cause-has been served on or received by him, or served or received at bis office, to tbe best of bis knowledge, information, or belief; and that no offer has been made on tbe part of tbe plaintiff to pay tbe costs required by tbe order, of wbieb a copy is aboye set forth. De Witt C. Graham. Sworn before me, April 14th, 1849. Nath’l B. Hoxie, Commissioner of Deeds. New York Snpérior Court. George W. Niles against Samuel A. Suydam: in open court, April 14th, 1849. On reading and filing the affidavit of Joseph G. Hoffman, showing due service of a copy of the order made in this cause, on the 28th day'of February last, and also showing, in.connection with the affidavit of D. W. C. Graham, attorney .for the defendant, that no amended complaint has been served on or received by the defendant’s attorney, as limited by the said order, and that more than ten days have elapsed since the service of a copy thereof, on motion of Mr. D. W. C. Graham, counsel for the defendant, ordered judgment absolute for the defendant on the demurrer in this cause, and that the plaintiff take nothing by his complaint, and that the defendant have judgment for the costs of the suit, viz.: twenty-four dollars, and $8.25 disbursements. (Signed,) D. R. Floyd Jones, clerk. (In margin,) Enter order, L. H. S. April 14th.” The plaintiff produced the judgment book from the office.of.the clerk of this court, and read therefrom, subject to like objection, an entry, in the words and figures following: “ George W. Niles against Samuel A. Suydam, D. W. C. Graham, attorney. April 14th, 1849. Judgment in favor of the defendant against the plaintiff, for $24, and $3.25 disbursement, in all making $27.25. (Signed,) D. R. Floyd Jones, clerk.”
    The plaintiff then offered in evidence a paper, purporting to be a judgment roll, filed in the office of the Clerk of the Court of Common Pleas, of the city and county of New York, June 6th, 1851, in an action in that court in favor of S. A. Suydam, against G. W. Niles, and another, for the sum of $1,016.96, to the admission of which, the defendant’s counsel objected, and the court sustained the objection, and the plaintiff excepted.
    . The plaintiff then called as a witness, John Graham, who testified .that he.was of counsel for S. A. Suydam, in 1849; he pxo- ~ ¿Lc:4 at the plaintiff’s request, a paper purporting to be a certified copy, oí .¿-n order of this court, dated February, 1849, identical with the copy of an order of that date, set forth in, and constituting part of, Exhibit A; and then further testified, in reply to a question of the plaintiff: I have not the. pleadings in the case of Niles v. Suydam.. I searched, at the plaintiff’s request, and could find no other paper except draft papers, and the papers "which I have produced. I argued the demurrer in the case, before Chief Justice" Oakley, at Chambers, February 27th, 1849. I have no doubt I left the complaint and demurrer with the clerk, on the 27th February, 1849; the rule was actually entered on the 28th. I know directions were given to have the judgment entered; no copies of papers were made for plaintiff. The paper, Exhibit A, was shown to witness, and in reply to an inquiry by the plaintiff, if he knew of any other paper in the case, he said: I do not. Being cross-examined, he said he was not the attorney in the case; did not file the papers; had no personal knowledge of it, except as it was a matter in the law office with which he was connected; the testimony of the witness was taken, subject to the objection of the defendant’s counsel. Plaintiff also produced and read a certified transcript of the docket of a judgment in this court, for $27.25, in favor of Samuel A. Suydam, against said Niles, docketed in the city and county of New York, on the 14th April, 1849, marked Exhibit C, and in the words and figures following: “ Against whom — George W. Niles. In whose favor • — Samuel A. Suydam. Where perfected — Superior Court, N. Y. When perfected — 1849, April 14th, H. M., 1 40. Transcript filed — 1849, April 14th, H. M., 1 40. Amount, costs, $27.25. Attorney — D. W. C. Graham.”
    Plaintiff also produced and read, from the files of the Clerk’s Office of the city and county of New York, a sheriff’s certificate of sale in these words: “I, Thomas Carnley, late sheriff of-the city and county of New York, do hereby certify, that by virtue of two certain executions issued out of the Court of Common Pleas, and out of the Superior Court, in and for the city and county of New York, in which Samuel A. Suydam is plaintiff, and George W. Niles is defendant, to me directed and delivered, I did this day in the manner provided by statute, sell at public vendue, unto John Townshend, of the said city, for the sum of five hundred and ten dollars, he being the highest bidder, and that being the highest price bidden, and the whole consideration for the same, all the right, title, and interest of the said defendant, George W. Niles, of which he was seized or possessed, on the 14th day of April, one thousand eight hundred and forty-nine, or at any time afterwards, of, in and to, all that certain piece of land, with erections thereon, in tRe First Ward of tRe city of Hew York, known as being Ho. 109 WasRington street, in said city. Also, all tRose two pieces of ground in tRe TwelftR Ward of tRe city of Hew York, bounded as follows: northerly by a Rne drawn parallel to 108tR street, on tRe northerly side thereof, at the distance of fifty 'feet five inches therefrom; easterly by the Third avenue; southerly by 108th street; and westerly by a line drawn parallel to Third avenue on the westerly side thereof, at the distance of 100 feet therefrom. Also, all that piece of land on the nineteenth Ward of said city, commencing at a point on the east side of Tenth avenue, distance ninetyfive feet southerly from the southeast corner of 74th street and Tenth avenue;thence easterly, parallel to 74th street, one hundred feet; thence southerly, parallel to the Tenth avenue, twentynine feet six inches; thence northwesterly thirtyfive feet five inches; thence parallel to 74th street, sixtyfive feet three inches, to the east side of Tenth avenue; thence northerly along the east side of Tenth avenue, twentythree feet six inches, to the point of beginning. Also, all those two lots in the nineteenth Ward of the city of Hew York, commencing at a point on the south side of 62d street, distant one hundred and fifty feet from the west side of the Eighth avenue; thence southerly, parallel to Eighth avenue, one hundred feet (100); thence westerly, parallel to 62d street, fifty feet; thence northerly parallel to Eighth avenue, one hundred feet; thence along the south side of 62d street, westerly, fifty feet to the place of beginning, be the said dimensions more or less; together with all and singular, the appurtenances thereunto belonging, or in anywise appertaining. And I do further certify that the purchasemoney, so bidden as aforesaid, has been paid to me, and that the said sale will become absolute, and the said purchaser or his assigns, will be entitled to a conveyance for the said premises at the expiration of fifteen calendar months from this day, (to wit,) on the 29th day of April, one thousand eight hundred and fiftyfour, pursuant to law, unless the same shall be sooner redeemed. Given under my hand, this 28th day of January, one thousand eight hundred and fifty-three. Thomas Carnley, Sheriff. W. S. Wood. (Endorsed,) Filed 3d February, 1853.”
    Plaintiff next called William S. Wood, who testified that Thomas Carnley was sheriff of the city and county of New York in the year 1852; that witness was one of his deputies, and was attesting witness to the certificate lastly produced 5 that it was executed by said Carnley in presence of the witness. Witness also produced two executions, which were in these words: “To Thomas Carnley, Esquire, Sheriff of the city and county of New York. Whereas, by a judgment of the Superior Court of the city of New York, entered on the 14th day of April, 1849, in a certain action in the said court, wherein Samuel A. Suydam is plaintiff, and George W. Niles is defendant, the said plaintiff re-cowered against the said defendant, the sum of twenty-seven dollars and twenty-five cents, the judgment roll in which said action is filed in the city and county of New York, with the Clerk of the said court, and the said judgment was docketed in the said ciiy and county on the 14th day of April, 1849, and there is actually due on the said judgment the sum of twenty-seven dollars and twenty-five cents, and interest thereon from the said 14th day of April, 1849. Now, you are hereby required to satisfy the said judgment out of the personal property of the defendant, in your, county, and if sufficient personal property cannot be found, then out of the real property belonging to the defendant on the said 14th day of April, 1849, or at any time thereafter, and to return this execution with what you shall have done thereupon, to the Clerk of the city and county of New York within sixty days after the receipt hereof by you. Dated, the day of November, 1853. ‘ John Townshend, Plaintiff’s Attorney, 196 West 31st street, New York city. (Endorsed,) Satisfied by sale, John Townshend, Attorney for Plaintiff.” “To Thomas Carnley, Esquire, Sheriff of the city and county of New York. Whereas, by a judgment of .the Court of Common Pleas, in and for the city and county of New York, entered on the 6th day of June, 1851, in a certain action in the said court, wherein Samuel A. Suydam.is plaintiff, and G. W. Niles is defendant, the said plaintiff recovered against the said defendant the sum of one thousand and sixteen dollars and ninety-six cents, the judgment roll in which said action is filed in the city and county of New York, with the Clerk of the said court, and the said judgment was docketed in the said city and county on the said sixth day of June, 1851, and there is actually due on the said judgment, the sum of one thousand and- sixteen dollars and ninety-six cents, and interest thereon from the said 6th day of June, 1851.- How, you are hereby required to satisfy the said judgment out of the personal property of the defendant, in your county, and if sufficient personal property cannot be found, then out of the real property belonging to the defendant on the said 6th day of June, 1851, or at any time thereafter, and to return this execution with what you shall hare done thereupon, to the clerk of the city and county of Hew York, Within sixty days after the receipt hereof by you. Dated this 12th day of Hovem-ber, 1852. John Townshend, Plaintiff’s Attorney, 196 West 31st street, Hew York city. (Endorsed,) Made on the within execution by sale, four hundred and twenty-one ⅞- dollars ($421.76). John Townshend, Attorney for Plaintiff.”
    . Under these executions, I advertised the right, title, and interest, of said Hiles, in ■ lot Ho. 109 Washington street, and five other lots, for sale on the 28th of January, 1853. On day of sale,I first offered the lot Ho. 109 Washington street. There was no bidder. ■ I then offered the other lots separately; there was no ¡bidder. I then offered all the property advertised in one lot, and the plaintiff bid $510; there were other bidders; the plaintiff was the highest bidder, and I struck off the whole to plaintiff for $510. I gave him a certificate signed by the sheriff, and filed the duplicate in County Clerk’s office, which has been produced and read. On his cross-examination, by the defendants, the witness farther testified, plaintiff was. the attorney who issued the executions, directed me to levy on the property sold, and to ad-yertise and sell; the sale was on both executions; one was endorsed satisfied, and the other partly satisfied; plaintiff paid me the costs and expenses of the sale, nothing more. The plaintiff directed the sale; he was present when I put up the lots separately, and had no bidders. He never, to my-knowledge, paid any thing for said property, except the sheriff’s fees;, nothing was ever paid to the sheriff or to me; these executions have never been returned. The executions' have always been in my hands; were never returned to the sheriff’s office until within the last week, and have never been returned to the clerk’s office. They are now produced from my possession. The sheriff’s commission expired, as did mine, January 1st, 1853.

      The plaintiff then produced, and read in evidence, a deed dated May 18th, 1854, from Thomas Carnley, sheriff, &c., to himself, which, after reciting the executions above proved, conveyed to the plaintiff in fee all the lots and pieces of land mentioned in the certificate of sale.
    It was then proved that Ives was in possession of the .premises in question, as the tenant of Wesson, the other defendant.
    The plaintiff then rested, and the counsel for the defendants, on the ground that the evidence had failed to show a title in the plaintiff, moved that the complaint should be dismissed. The court granted the motion, and the plaintiff excepted to the decision. ' \
    Leave to mate a case containing the evidence and exceptions, and to be heard in the first instance at the General Term, was given, and judgment in the mean time suspended.
    The plaintiff, in person, now argued in support of the exceptions, and contended that the order dismissing the complaint ought to be set aside,, and a new trial be granted. He insisted that sufficient proof of a judgment warranting the sale by the sheriff had been given, and that if the proof was imperfect, the plaintiff was not bound to prove a judgment; proof of an execution, of a sale, of the sheriff’s certificate and deed, and of the interest of the debtor, being all the law required; and this proof having been given, the burden of proof was on the defendants, to show that there was no judgment, which had certainly not been shown; that upon the production of the execution alone, the plaintiff as against the present defendants might have recovered the possession of the premises in a summary proceeding before a justice of the peace, and no reason could be given why the same evidence ought not to be held sufficient on the trial of an action. In support of these points were cited, 13 Wend. 29; 17 id. 474; 20 id. 22 ; 2 Barb. S. 0. R. 207. The plaintiff further insistéd that a sheriff, .acting under an execution regular on its face, is always protected, and that in all cases where he is protected, a sale made by him is valid, (8 Wend. 545; 12 id. 96; 2 Sand. 110; 2 Oomst. 577; 3 Selden, 199.) And that this was especially true when a judgment and execution are not void, but voidable only, as in this case, it is only .the - judgment debtor who can question the regularity of the proceedings, (1 Cow. 644 ; 5 Barb. 568 ; 8 id. 409; 2 Comst. 275.)

      A. Child, for the defendants,
    insisted that there was no proof that Uñes ever bad any title to the premises demanded. It was not shown that the United States had any title or was ever in possession, and that their quit claim deed therefore vested no title in Hiles; that there was never any valid judgment in favor of Suydam v. Hiles, so docketed as to constitute a lien on the premises. That assuming there was sueh a judgment, the execution on which the premises were'sold was not issued thereon, nor did the sheriff’s certificate show a sale thereon. That the plaintiff had himself proved that Hiles, by his deed dated January 18, 1855, had conveyed all his interest and title to the defendant Wesson, and, consequently, if there was no lien created by a judgment of a prior date, nothing passed by the sheriff’s sale. Proof, therefore, of the judgment in the Common Pleas was properly rejected. The only authorities to which the counsel referred were, Code, §§ 281, 282 ; 2 R. S. 4th ed. p. 360.
   By the COURT.

Duer, J.

All the objections that have been taken to the plaintiff’s recovery may not be well founded, but there are one or two that we cannot do otherwise than hold to be fatal, and to these we shall confine our remarks.

It may be conceded, for the purposes of this decision, that it is sufficiently proved that Hiles >vas at one time the owner in fee of the premises which the plaintiff seeks to recover. It is probable that the defendant, Wesson, having obtained the possession, for aught that appears, solely by virtue of a conveyance from Hiles, is estopped from denying his title.

The question then is, whether the estate of which Hiles was seized, on the 14th of April, 1849, or at any time thereafter, by force of the deed from the sheriff, became vested in the plaintiff?

The deed from the sheriff recites that he had levied on and sold the estate and interest of Hiles in the lot in question, as well as in other lots and pieces of land, by virtue of two executions, one issued out of the court of Common Pleas for the city and county, the other issued out of this court, each in a suit in which Samuel A. Suydam was plaintiff, and George W. Hiles defendant, and the executions tins referred to, as a necessary part of tie proof tiat tie plaintiff was bound to give, were produced and read upon tie trial. Tiey constituted tie sheriff’s autiority to sell, and if ie iad no suci 'autiority tie sale was void, and tie deed passed no title to tie plaintiff

Tie execution from tie Court of Common Pleas recites tiat Suydam iad recovered a judgment in tiat Court against Niles for $1,016.96, and tiat tie judgment roll was filed, and tie judgment properly docketed, on tie 6ti of June, 1851; and it commands tie sieriff, if sufficient personal property of tie defendant could not be found, to satisfy tie judgment out of tie real property belonging to tie defendant on tie said 6ti day of June, or at any time thereafter; and it is quite certain tiat iad tiere been no otier execution tian this, tie sale by tie sieriff of tie lot in question would iave been unauthorized and illegal, and iis deed, so far. as it embraces this lot, of no more value tian blank paper. Tie plaintiff himself proved tiat tie lot was not tie property of Niles on tie 6th of June, 1851, nor at any time thereafter, but tiat Niles iad conveyed it in fee to tie defendant Wesson, on tie 13th of January, in tie same year, by a deed of which tie validity is undisputed. This execution, therefore, was not applicable at all to tie lot in question, and even by its terms gave no autiority to tie sieriff to levy on and sell it. Hence tie offer of tie plaintiff to produce in evidence a judgment roll corresponding with tie recital in tie execution was very properly rejected. Tie evidence was plainly immaterial, since, although it would iave proved tiat tie execution was regularly issued — a fact not denied — it iad no tendency to prove tie legality of tie sale, tie fact which tie plaintiff was bound to establish.

This defect of autiority in tie sieriff to sell and .convey tie premises in question, under tie execution from tie Common Pleas, suggests an important question, which, as it was not raised upon tie argument, we shall not decide, but wbich is proper to be stated, in order to repel a false inference tiat might be drawn from our silence. Tie question is, whether this defect of autiority, even upon tie supposition tiat it was partial, and tiat tie sheriff iad a right to sell under tie execution from this court, was not alone sufficient to render void iis entire proceedings. We, of course, mean in their relation to tie lot in question. When a sheriff’s deed recites that the lands'which it purports to convey, were sold to him under two executions; ;and' it appears that the suin raised was not more than sufficient to' satisfy the first, we doubt not, that the recital of- the '•second -may be- disregarded as immaterial, since it is under the first that the sale- in reality was made/ But the case is widely different'when the sum raised not only satisfies the first execution, but leaves-a surplus, applicable in whole or in part, to the satisfaction of the' second, and which, it appears, was so applied. ' For it seems then to be certain, that the' sale was made under both, and,-consequently, that an authority derived from both is essential to its-validity.And this would seem to be especially true,'when'the sale, as in the case before us, is an entire proceeding, that is, when the lands which it embraces are sold in one body, and for a gross sum, so as to render it impossible to refer the sale or price of any one lot or piece, to either'execution in preference to the other. We' do not mean to decide, for the- reason already given, that, even in such a case, proof that the sale was lawfully made under both executions would be indispensable-to sustain the title of a purchaser; but we mean distinctly to intimate, that were there no- other question in this cause, we should have great diffictdty in' holding that the plaintiff is entitled to recover. Upon this supposition, we should order a second argument.

Assuming, however, that the complaint ought not to have been dismissed, if the plaintiff succeeded in proving that the sale by the sheriff of the lot in - question, was fully authorized by the execution issued from this court, although not justified by that from the Common Pleas, the next inquiry is, what are the terms of this execution? and what proof has been given that it was law-folly issued.

The execution recites, that in an action in this court, in which Suydam was the plaintiff, and Niles the defendant, the plaintiff had recovered a judgment against the defendant for the sum of $27.25, and that thé judgment roll had been duly filed, and the judgment docketed on the 14th of April, 1849. And if this recital is unsustained by proof, it is clear that the plaintiff cannot be entitled to recover, unless we are prepared to hold, as the plaintiff contended, that no such proof was necessary to be given. - ,

It is not pretended that the judgment mentioned in the recital had been obtained by Suydam in an action in which he was the plaintiff; on the contrary, it is admitted that he was the defendant in the action in which the judgment was rendered. And it was insisted by the counsel for the defendants, that had such a judgment been proved, the variance between the record and the execution would alone have been a bar to the plaintiff’s recovery. We consider this, however, a doubtful question, which it is unnecessary to decide. It is possible that the variance, as a mistake, amendable of course, might have been disregarded. (4 Wend. 462; 8 Wend. 676.)

Passing over the variance, has the existence of a judgment in favor of Suydam creating a lien on the real property, that belonged to Niles on the 14th April, 1849, and therefore war- , ranting the execution on which the sale was made, been established by the evidence, which the law requires? and assuredly it has not, if the production.of a judgment roll duly filed is the only evidence that the law permits to be received; the only evidence by which the existence of such a judgment could be established. It is 'by the provisions of the Code that this question must be determined,, and these, it seems to us, are so plain and imperative, as to exclude the possibility of doubt as to their construction and effect. It was by a stretch of courtesy that we listened to any argument on the subject.

The Code provides, that after the entry of a judgment, upon an issue of law or of fact, shall have been directed by a Judge, (§ 298,) and after thé clerk shall have entered the judgment so directed in the judgment book, (§ 280,) the clerk, unless the party or his attorney shall furnish a judgment roll, shall attach together and file certain papers which shall constitute the judgment roll, and among these papers are the summons and the pleadings in the cause, or copies thereof, (§ 281,) and it then provides, that on the filing of the roll, the judgment, if directing, in whole or in part, the payment, of money, may be docketed with the clerk of the county where it was rendered, and shall be a lien on the real property in the county, of the person against whom it was rendered, which he had at that time, or may thereafter acquire, (§ 282.)

Comparing these provisions, it is cértain, that notwithstanding a judgment absolute and final shall have been directed by a Judge, and the judgment so directed have been duly entered by the clerk, yet until the papers, which are to constitute the judgment roll, shall have been attached and filed, and the judgment, evidenced by the roll so filed, has been regularly docketed, there is no judgment, creating a lien on the lands of the debtor, and • when no lien has been created, it seems to us a necessary consequence, that an execution against the lands of the debtor cannot lawfully be issued, and that an execution thus illegal in its origin, although regular on its face, conveys no more authority to the sheriff to sell the lands which it describes, than he would have had if no judgment whatever had been rendered, and no suit been commenced. It is wholly void.

When we inquire whether it has been proved, in the case before us, that a.judgment roll has been duly made and filed, the necessary reply is, that no such proof has been given. It is impossible • for us to say, that the paper which was read in evidence upon the trial, as proving the existence of a judgment warranting the execution, is a judgment roll. It possesses none of the requisites of such a roll as defined by the Code. It proved that proceedings preparatory to the making and filing of a judgment roll, those which must precede the roll, but are wholly distinct from it, had taken place. It proved that a judgment in favor of Suydam against Niles, for the sum mentioned in the execution, had been rendered and duly entered, but it did not prove, nor tend to prove, that a judgment roll had been made and filed, containing the papers or any of them, which for the purpose of constituting the roll, the Code requires to be attached. . It did not even prove that a summons, complaint, answer, or demurrer, had at any time been filed, and to give to a paper containing neither process nor pleadings the name and effect- of a judgment roll, would be not merely an abuse of language, but a direct violation of the provisions of the Code.

It was indeed proved, in addition to the paper relied on, that a judgment corresponding with that entered in the judgment book had been docketed in the proper office, but as no roll had been previously filed, the docketing was an unauthorized and illegal act. It added nothing to the efficacy of the execution, but like that, and for the same reason, was itself wholly void. The words of the Code plainly require, that to create a lien tie filing of the judgment roll must precede the docketing of the judgment.

The conclusion is, that no evidence was given on the trial, of the truth of the recital in the execution, upon the truth of which, the right to issue the execution, and its validity, when issued, solely depended; and if this evidence was necessary to "be given, the plaintiff showed no title to recover, and his complaint was properly dismissed. '

It has, however, been earnestly and confidently insisted, that this evidence was not necessary to be given. That the only facts which the plaintiff was bound to prove were, the execution, the sale, the sheriffs certificate and deed, and that the property belonged to Niles when the judgment was docketed, and that these facts were fully proved. That the court was bound to presume that the recital in the execution of the filing of a judgment roll was true, and that the burden of proving its falsity, if such proof was admissible, rested on the defendants. The plaintiff, indeed, admitted that the general opinion of the profession, is and has been, that in order to make a title under a sheriff’s deed, the production of the judgment roll referred to in the execution on which the sheriff acted, is just as indispensable as that of the execution itself, nor did he deny that to require such proof had been the invariable practice; but he contended that the practice had obtained, without any inquiry into its necessity or propriety, and’ was, in reality, founded on no principle, and sustained by no authority.

These are certainly bold as well as novel positions, and we might well dismiss them by saying, that .a usage that has uniformly prevailed, and, we do not at all doubt, has prevailed in this state from the time that the real properly of debtors was first made liable to sale under execution, ought, in our judgment, to be regarded not merely as strong, but conclusive evidence of the existing law; but we add, that it would have been a matter of great surprise, had the sanction of our courts ever been given to a different practice. There is no rule of" evidence more reasonable in itself) and more imperative in its terms;, than that which, on the trial of a cause, casts the burden of proof upon the party who holds the affirmative, and it is upon this rule that the usage which has been followed is manifestly founded. As the right to sell lands under an execution is derived from, statute, it is only by showing that the provisions of the statute have been complied with that the existence of the right can be proved, and hence, it is this proof, which he who affirms the existence of the right is bound to give, and it can only be given by the production of the judgment roll or an exemplification. It would be contrary to principle to permit him to rest, on the presumption of a fact which if it exist, it is in his power to establish by the highest and most conclusive evidence.

We inclined upon the argument to agree with the plaintiff, that the usage requiring the production of the judgment roll had never been recognized or affirmed by an express decision, since we thought it very improbable that any question as to the existence of the usage, or the obligation to follow it, had ever been raised. We have found, however, upon examining the Reports, that we were mistaken, and that this is not the first time that the ■ question has been agitated, although we trust it will be the last.

In the case of Jackson v. Husband, (12 John. 214,) which was an action of ejectment, the plaintiff, who had purchased the premises at a sheriff’s sale, and claimed them under a deed from the sheriff, was permitted to recover upon the trial, upon proof of the execution and other material facts, without producing an exemplification of the judgment record, probably upon the ground that the defendant in possession was shown to be merely a tenant of the judgment debtor. The counsel for the defendant, contending that the proof so given was insufficient to warrant a recovery, moved for a new trial, which, without hesitation or any division of opinion, was granted by the court, upon the ground that against a third person “ the execution without the judgment showed no right to intermeddle with the property,” in other words, gave no authority to the sheriff to sell and convey it. About forty years have elapsed since this decision was made, and we do not believe that during this long period its propriety has ever been called in question. That it has been constantly followed in practice is certain.

Nor is this a solitary decision, for in a subsequent case, the Supreme Court went still further. In Barrie v. Dana, (20 John. 307,) it appeared that the defendant was in prison, under a Ca. Sa., and a motion was made for his discharge, by setting aside the execution, the ground of the motion being that no judgment roll had been filed when the execution was issued. In England, although the lands of a debtor cannot be extended under an ekgit until the record of the judgment has been filed, as well as signed, the signing is alone sufficient to warrant an execution against his goods or person; and the counsel for the plaintiff, in resisting the motion, relied upon the English authorities, which it was proved were directly applicable. The court, however, granted the motion, and Spencer, Ch. J., in delivering its judgment, said that it was unnecessary to take notice of the English authorities, since for more than thirty years it had been the established and invariable practice of the court, to require the judgment roll to be filed before the issuing of an execution.” The defendant was discharged, upon stipulating not to bring an action for false imprisonment — a stipulation plainly unnecessary, unless the execution was held to be void.

The decisions that have been cited were made many years prior to the adoption of the Revised Statutes, in which a clause, that will be stated, was first introduced, and introduced as the notes of the revisers show, for the express purpose of declaring the law in conformity to the decision in Barrie v. Dana. The clause is in these words: “ No judgment shall be deemed valid, so as to authorize any proceedings thereon until the record thereof shall have been signed and filed.” (2 R. S., p. 360, § 11, last clause.) There is certainly no ambiguity here. The proceeding which, until the judgment record shall have been signed and filed is forbidden, is an execution, and an execution, not authorized by a valid judgment, is clearly void.

It is true that this provision is not re-enacted in the Code, but as it is not expressly repealed, and, in its substance, is not inconsistent with the provisions of the Code, we see no reason to doubt that it is still in force. At any rate, the mere omission of a clause simply declaratory, cannot have operated as a repeal of the rule of law which it declared, and which, we must hold, that we are bound to follow. After the statement that has been made of the authorities, by which the practice of requiring the plaintiff in actions like the present, to produce the judgment roll upon the trial, as well as the execution, is so fully approved and confirmed, it is needless to protract the discussion; and of the cases that were cited and relied on by tbe plaintiff, it is sufficient to say, tbat in our opinion, tbey are wholly inapplicable, and tend in no degree to sanction a doctrine at all opposed to tbat which has been stated. It may be true, that in many cases, the sheriff is protected from liability as a trespasser, by an execution regular on its face, but assuredly it is not true, that in any case he can give a valid title to lands by a sale under an execution, valid on its face, but wholly unauthorized by a judgment corresponding with its terms, and creating a lien on the lands of the debtor.

The conclusion is, that the plaintiff was properly nonsuited, and that a judgment must be entered for the defendant, dismissing the complaint, with costs.