text:
    Myers, Appellant, v. McCarthy, Respondent.
    Where a defendant, on the trial of a cause, called the plaintiff as a witness, under the 349th section of the Code, and in reply to a question put to him by the court, the plaintiff testified to new matter, going beyond the point to which he was examined by his adversary : Held, that the defendant was entitled to offer himself as a witness for the purpose of answering the new matter.
    March 10, 1849.
    This was an appeal from a judgment of the assistant justices’ court. McCarthy sued Myers in the court below, for wages due for the work and labor of his son. The pleadings were a complaint, answer and reply. The plaintiff proved the amount of labor performed, and the value thereof, and rested his case. The defence was, that the demand in suit had been settled by the giving of Myers’ note for the amount, at ninety days, and the acceptance thereof by McCarthy, the plaintiff. For this purpose, Henry D. Sharrat was examined as a witness, who testified that in June, 1848, he was a clerk for a lawyer of the name of Van Hovenburgh, whom McCarthy employed to collect the demand in question ;• that a letter was written to Myers on the subject of the claim; and he called at Van Hovenburgh’s office; that he said he could not pay McCarthy’s claim, but would give his note for the amount at ninety days ; that the witness said he would consult McCarthy ; that McCarthy soon after came into the office, and being told what Myers proposed, said he did not want a note; that the witness told him that the best thing he could do, would be to take the note ; to which he replied, “ Very well,” That the witness then drew the note; and it was signed by Myers, and read by McCarthy; that Myers then left the office, and the witness gave the note to his principal, Van Hovenburgh; that the note was given as a settlement in full for the amount due from Myers to McCarthy, for the wages which are the subject of this suit; that the witness acted throughout as Van Hovenburgh’s clerk, and that McCarthy was privy and a party to the whole transaction of taking the note ; and that subsequently, he had heard McCarthy demand the note from Van Hovenburgh. McCarthy then called Daniel B. McCarthy, who testified generally as to McCarthy, the respondent’s, demand of his papers from the witness Sharrat, &c. After which Myers called McCarthy himself as a witness, who, in reply to a question by Myers, said he had never applied to Van Hovenburgh for the note ; and then further, in reply to some questions put to him by his own counsel and by the court, he testified that he had never given any authority to Van Hovenburgh to act as his attorney, as aforesaid. Myers then offered himself as a witness, to rebut the testimony of McCarthy not responsive to Myer’s inquiries. This evidence was objected to by McCarthy, and was rejected by the justice. The court thereupon gave a judgment for McCarthy for #42 38; and Myers appealed.

      C. N. Potter, for the appellant.

      D. A. Kane, for the respondent,
   By the Court. Vanderpoel, J.

The 349th section of the Code of Procedure provides, that A party examined by an adverse party may be examined on his own behalf in respect to any matter pertinent to the issue. But if he testifies to any new matter, not responsive to the inquiries put to him by the adverse party, such adverse party may offer himself as a witness in his own behalf.”

In this case, the question whether Van Hovenburgh, or his clerk, was authorized to take the note of the defendant below, was a material one. The defendant, under the above section of the code, called the plaintiff below, and asked him whether he ever went back to Van Hovenburgh’s office to ask him for the note, after it had been taken by Sharrat. To this, he answered in the negative, and then, in reply to an interrogatory propounded to him by the court, he further stated, that he never consented to take the note in question. This answer, not called forth by the defendant, went to a vital point in this cause. In making it, the plaintiff below went beyond the point to which he was examined by his adversary, and it was therefore emphatically a case where such adversary might offer himself as a witness on his own behalf, in respect to the new matter. It was no answer to the defendants request to be sworn in respect to the new matter, that it was called forth by a question of the court. It was nevertheless evidence in the cause, and such as the defendant below should have had the privilege of answering by his own testimony, if he could. The justice was clearly wrong in rejecting the defendant; but as the plaintiff below had no agency in inducing the error, and it was the act of the justice alone, we do not think the plaintiff ought to be mulcted in costs. The judgment must therefore be reversed, without costs.

We forbear to express any opinion upon the point whether the plaintiff below did, in point of fact, authorize the note to be taken. We reverse the judgment exclusively on the ground that the justice erred in refusing to let the defendant testify in respect to matter which the justice himself improperly called forth.

Judgment reversed.


source: Caselaw Access Project

author: By the Court. Sandford, J.

license: Public Domain

text:
    M'Guire v. Gallagher.
    A judgment is an express contract of record.
    Assistant justices and justices of the peace, have jurisdiction of suits upon judgments. They are actions arising on contract.

    A justice’s judgment, recovered before the code of procedure took effect, is not within the provision of the code prohibiting suits upon such judgments within two years after their rendition.

      Semble, an assistant justice’s conrt, is a court of a justice of. the peace, within the meaning of the section of the code which regulates actions on judgments.
    March 10th;
    March 31st, 1849.
    'Phis was an appeal from one of the assistant justice’s courts, rvhere M'Guire, in October, 1848, sued Gallagher, upon a judgment, for $33 25, recovered by him before an assistant justice, on the 6th day of November, 1846.
    Gallagher demurred to the complaint, for the following causes:
    1st. That under the code, a justice of the peace has no jurisdiction of an action upon a judgment, rendered by a justice of the peace ; but that the suit upon such judgment, when properly maintainable, must be brought in a court of record. (§ 46 and 47.)
    2nd. That an action cannot be maintained in any court, upon a judgment rendered by an assistant justice of the peace, without leave of the court, for good cause shown, on notice to the adverse party. That the exception given by § 64, to justice’s judgments in this respect, does not extend to judgments of assistant justices in the city of New York.
    3rd. That even in an action upon a justice’s judgment, brought in a court of record, or in any court of competent jurisdiction, such action cannot be commenced, within two years after its rendition, without alleging and proving one of the exceptions specified in section 64.
    The court below overruled the demurrer, upon which the defendant answered, and the cause was tried and judgment rendered for the plaintiff, M'Guire. Gallagher appealed^ on the grounds taken in his demurrer.

      Henry and Townsend, for the appellant.

      J. B. Sheys, for the respondent.
   By the Court. Sandford, J.

The appellant supposes that the assistant justices courts have no jurisdiction of an action of debt on a judgment, under the code of procedure.

The jurisdiction of these courts is prescribed in sections 46 and 47, to which section 59 refers, and among other matters, they have cognizance of actions arising on contract for the recovery of money only, if the sum do not exceed one hundred dollars. We regard a judgment as being a contract of the highest character. It is a contract in law, as distinguished from contracts in fact, but we have no doubt that it constitutes a contract within the meaning of this provision of the code.

It is scarcely necessary to cite authorities on the nature of a judgment in this respect. Blackstone says, the highest kind of express contracts, are those of record, as judgments, recognizances, &c. (2 Bl. Comm. 465, and see 6 Reports, 455; 1 Powell on Cont. 423.)

We do not understand section 64 of the code as evidencing a design to prohibit actions on judgments from being brought in justices’ courts. It is express to the contrary, so far as to permit suits upon justices’ judgments in the cases specified ; which, in most instances,would of necessity be brought in justices’ courts.

The appellant’s two remaining points, we will consider together. He insists that assistant justices’ courts, are not courts of justices of the peace, within the meaning of the exception in section 64, and no leave of the court to sue the judgment in question Was obtained; and 2d, that the suit was commenced within two years after the recovery of the judgment, without showing either of the causes for an earlier suit, which are permitted in that section.

As to the first point, were it necessary, we think we should hold that the court of an assistant justice is a court of a justice of the peace, within the meaning of this section of the code. There is another answer to both points, upon which we prefer to rest our decision.

When the code of procedure became an operatic law, the plaintiff below had a valid and perfect right of action upon his judgment secured to him by existing laws. No statute is to be construed to affect vested rights, or to operate retrospectively, unless its terms imperatively require such a construction. The code guards against such an exposition of its provisions, by enacting in section 388, that “ all rights of action given or secured by existing laws, may be prosecuted in the manner provided by this act.” That is, the right of action is unaffected by the code, but the remedy is to be obtained, by the forms of action, pleadings and proceedings thereby established. The sixty-fourth section, if applied to this judgment, would suspend the plaintiff’s right of action for two years, which is plainly contrary to the provision in section 388. We therefore think the plaintiff was entitled to maintain his suit, and there was no error in the judgment of the court below.

Judgment affirmed.


text:
    Watson v. Bonney and Others.
    A woman, in contemplation of marriage, by deed dated previous to the act for the more effectual protection of the property of married women, conveyed her estate, real and personal, to a trustee, in fee and absolutely, reserving to herself only the entire control of the income for her separate use for life, the direction of the investment and re-investment of the capital by the trustee, the poVVer to dispose of the whole by au instrument in the nature tif a will, and the full restoration of the property if she survived her intended husband. And the trust-deed provided, that in case of the decease of the grantor without making any appointment, the trustee should pay over and transfer the trust estate “ to suck person or persons as would be her legal representatives by the statute, for the distribution of intestates estates.” Held, that a complaint by the grantor, subsequent to the marriage, and during the life of her husband, brought for the purpose of having the marriage settlement set aside, and the capital of the estate given to her as she held and owned it previous to the date of the conveyance, could not be sustained, the infant children of the plaintiff having a contingent future estate in the property, which the court could not divest.

      Held also, that if the property had been limited over to the “ legal representatives" of the grantor, simply, the husband would, at his wife’s death, have taken the property either beneficially, or officially, as her personal representative j but that the addition of the words “ by the statute of distributions,” changed the devolution totally, and carried it to the next of kin, to the exclusion of the husband.

      Held, further, that the rights and interests of the parties, under the trust-deed, were not in any wise affected by the provisions of the act of 1848, “ for the more effectual protection of the property of married women.” And that the rule would be the same, even upon the assumption that the children of the plaintiff had no rights, under the settlement.
    The object of that act was not to enable married women to destroy their marriage settlement, by which tbeir property had already been effectually protected for the benefit of themselves and their children.
    The statute does not profess to interfere with existing contracts, and the court cannot give it a retrospective action by intendment. If it had, in terms, been made applicable to executed settlements, and had divested the estates of the trustees, it would have been utterly nugatory and unconstitutional. Per Sandford, J.
    March 22, 31, 1849.
    This was an action commenced since the adoption of the code, to vacate and annul a trust-deed, executed by the plaintiff, in and by which she had, prior to her marriage, conveyed and transferred all her estate, real and personal, to the defendant, Bonney, as trustee. The facts, as they appeared in the complaint, are briefly these. ■ On the 19th of May, 1846, an instrument in writing, in the nature of a trust-deed, was made and executed between the plaintiff, then a widow, of the first part, Benjamin W. Bonney of the second part, and Alexander T. Watson of the third part, by which the plaintiff, in contemplation of marriage with Watson, transferred all her real and personal estate to Bonney, as trustee, under certain trusts and provisions therein contained. By the deed, the plaintiff reserved to herself the entire control of the income for her separate use during life.; also, the direction of the investment and re--investment of the capital by the trustee, in case of a sale or exchange of any part of the estate, the power of disposing of the estate by an instrument in the nature of a will,- and the full restoration of the property in case she survived her husband. Subject to these trusts, the conveyance was in fee and absolute. So long as the coverture continued, the settlement gave her no interest in the capital; and she possessed no power to dispose of the estates,, by any conveyance,- which could take effect during her life. It was also provided in the trust-deed, that in case of the decease of the plaintiff, without making a disposition of the property, then; that the trustee should pay over and transfer the legal estate to such persons as would be the legal representatives of the plaintiff, by the statute for the distribution of in-testates estates. Alexander T. Watson assented to the provisions of the trust-deed, and covenanted not to interfere with the trust-estate, otherwise than in conformity to the provisions of the same. The instrument was executed and acknowledged in due form, and delivered and recorded in the office of the register of the city and county of New York. The marriage between -the plaintiff and Watson took place May 00th, 1846. The trustee immediately took possession of the trust estate, and has ever since continued in possession, receiving and collecting the income of the same, and paying it over to the plaintiff. The plaintiff sought to vacate the trust-deed, on the ground that, by the act entitled, 16 an act for the more effectual protection of the property of married Women,” passed April 7, 1848, she may now take and hold the estate, without the intervention of a trustee, in her own name and-right,- and not subject to the disposal of her husband. The complaint prayed that the trustee under the deed, might account, pay over, and transfer to the plaintiff, all the trust estate which had come to his hands, and the income thereof not previously paid over, and that she might hold the same in her .own name and right, as if she were a single female.
    The trustee and the three infants, children of the plaintiff, were made parties defendant, as having, or claiming to have, some interest in the estate, Watson was not made a party. The defendant, Bonney, demurred to the complaint, on the grounds, that the plaintiff had no legal capacity to sue, and that the complaint did not state facts sufficient to constitute a cause of action.
    The three infant defendants appeared, by Orsamus Bushnell, their guardian ad litem, and answered that they were infants under the age of 14 years, and submitting their interests in the matter in controversy, to the protection of the court.

      C. S. Roe, for the plaintiff.
    I. The complaint in this cause is properly filed by the plaintiff in her own name, without the intervention of a next friend. The action coneerns her own separate property, and she may sue alone. (Code of Procedure, sec. 94. Laws of 1848, page 515.)
    II. Under the act entitled “ An Act for the more effectual protection of the rights of married women,” passed April 7, 1848, the separate property of the plaintiff is effectually protected from any interference or control of her husband, and from liability for his debts. She may now safely hold, control, and manage the same in her own name, and it is her right so to hold and manage it. (Laws of 1848, page 307.)
    III. The object, purpose, and effect of the deed, dated May 19, 1846, was to vest in the party of the second part, as trustee, the legal title to the property thereby conveyed, so as to secure to the party of the .first part (the plaintiff) the sale and entire use and benefit of such property, and to give to her the absolute control and disposition thereof, and at the same time to protect it against the debts and acts of her husband. This is manifest from the terms of the deed; the result of which is to give to the plaintiff the entire control of the estate. Consequently, since the passing of the act of April 7, 1848, she may and is entitled to take, hold, and manage it in her own name.

      B. W. Bonney, in person.
    I. The interest, object and effect of the trust deed was, (in contemplation of the marriage of the plaintiff,) to vest the title to her separate property from and after the solemnization of the intended marriage, in a third person upon certain trusts.
    The effect of the deed was to give to the plaintiff the right to control and direct the investment of the trust property ; to take to her own use all the income during her life, and, upon the decease of her husband, leaving her surviving, to take to herself again the whole property. Also, in case of her death before the decease of her husband, to dispose of the whole property by will; but if she shall fail to exercise such power of disposal, the property, upon her decease during the life time of her husband, is secured to her personal representatives, such personal representatives may be her children, (if then surviving,) or other persons. And they have an interest, contingent to be sure, and uncertain, but still an interest, which maybe defeated by a present transfer to the plaintiff. If the property be now transferred to the plaintiff, it will be at her absolute disposal, and may be spent or lost, and then, in case of her death before the decease of her husband, and without having exercised the power of disposition given by the trust deed, nothing will remain to her legal representatives. In that event, they might hold the trustee responsible.
    II. By the 4th section of the act of April 7, 1848, (Laws of 1848, p. 307,) it is enacted, that “ AU contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.” The trust deed in question is such a contract, and is protected by that section. It is not permitted to the court to annul it.
    III. The trustee has no personal interest in retaining the property, nor any wish to retain it, if he can safely part with it. But no present judgment of the court can protect him against contingent liability to third persons now unknown, who may become entitled to the property under the trust deed. Even the infants who are made parties defendant, would not be precluded by the judgment in this suit, should it be hereafter held that they, under the trust deed, had an interest, however remote or contingent, in the trust property which was not divested or cut off according to the provisions of the deed.
    IY. The trustee cannot safely part with the trust property; and no judgment of the court can protect him against the contingency of future liability. The complaint should therefore be dismissed. In any event, as the trustee has acted in good faith, and solely with a view to protect himself and the estate, the costs should be paid out of the trust estate, or by the plaintiff.

      W. Bliss, for the infant defendants.
    I. The infants have an interest in the question to be decided by the court. They have been made parties by the act of the plaintiff, and have a right to state any valid legal objections to any action of the court, which either will be, or in any event may be, prejudicial to their interests.
    II. In case of the decease of the plaintiff after the marriage, and during the life time of the intended husband, and in default of her making any appointment, then the trust is, that the trustee, after the decease of the plaintiff, shall pay over and transfer the trust estate to such person or persons as would be the legal representatives of the plaintiff by the statute for the distribution of intestate’s estates. In case of the decease of the husband during the life time of the plaintiff, the trust is to pay over and transfer the trust estate to her. These are alternative provisions. The persons who would be the legal representatives of the. plaintiff by the statute for the distribution of intestate’s estates, are the children. They are intended, (2 R. S., part 2, eh. VI., article 3, title. Ibid. p. 96, sec. 75, subd. 4. See also, 1 R. S. 751, sec. 1;) at least primarily. They presumptively are the next of kin, upon the decease of the plaintiff The main object of the clause in question must have been to provide for the children of the marriage. In further illustration of this point we say,
    (1.) That the words u legal representatives” may mean chib dren. (See Horspool v. Watson, 3 Ves. 383 ; Bridge v. Abbott, 3 Brown Ch. R. 226, 227; and the use of the words in 2 R. S. 96, sec. 75.) In the statute of distribution, they mean children, or in default of them, other lineal descendants. At other times, the words mean descendants, (Styth v. Monro, 6 Simons, 49,) or next of kin. (Bridge v. Abbott, 3 Brown’s Ch. R. 224; Jenning v. Gallimore, 3 Ves. 146; Long v. Blackull, 3 Ves. 486; Robinson v. Smith, 6 Simons, 47; Walter v. Makin, 6 Simons, 148.)
    (2.) The husband is not intended. He is not next of kin ; (Ward on Legacies, 112;) nor entitled under the statute of distribution ; (2 R. S., part 2, ch. 6, art. 3.)' The representation intended is not of office, but of right. The word is “ representatives” in the plural number ; not representative. If the husband had been intended, a simple form of expression would also have been used. The words are not strong enough to divest the infants of their inheritance.
    (3.) What may be the precise interest of the children, and how far vested or contingent, is submitted to the court. If contingent, they are still necessary parties, and entitled to be heard in vindication of their rights. (Calvert on Parties, 189, et seq.)

    III. If the “ persons who would be the legal representatives” of the plaintiff cannot be ascertained until her death, the court ought not, without any apparent necessity, to decide upon the rights of such parties in their absence. They would probably not be bound. Should the plaintiff survive her husband, this provision would never take effect or require decision. And the trustee for want of proper parties, might not be protected by the decree. (Calvert, supra.)

    IV. The provision for the children is reasonable ; and there is no equitable ground upon which a court of equity should lend its aid to disturb it. (2 Kent’s Com. 174; Lowry v. Tiernan, 2 Harr. & Gill. 34.)
    Y. The marriage settlement relates to both real and personal estate. So far as the trust estate consists of real estate, the interests of the trustee and of the wife are respectively inalienable. (1 R. S. 730, sec. 60, 63, 65 ; Coster v. Lorillard, 14 Wend. 265 ; see pages 303, 304, 331, 333; Hawley v. James, 16 Wend. 118, 120, 121, 164, 165.) The trust estate of that species cannot therefore be destroyed by the concurrent act of all the parties to the deed uniting in a conveyance. (See American Law Mag. for July, 1844, p. 297.) Consent is immaterial. The plaintiff asks the court to decree that the trustee shall do precisely what he is prohibited from doing by statute. If the plaintiff could alien or release her own interest, and thus, so far as respects herself, destroy the trust, she could not affect the interest, vested or contingent, which is limited upon her decease in the life time of her husband. The power to alienate, conferred by the trust deed, is for investment only.
    VI. The 4th section of the act of 7th April, 1848, (Session Laws of 1848, p. 307,) expressly enacts that “All contracts made between persons in contemplation of marriage, shall remain in full force after the marriage takes place.” This, in the first place, has the effect of an exception of such contracts from the operation of the act. But, secondly, it is a substantive enactment that all valid contracts, past or future, of that sort, shall remain or continue in full force, from the time of the marriage, when that has once taken place. This accords with the general intent of the act, which was designed “'for the more effectual protection of the property of married women.” The plaintiff asks the court to decree that this contract, “ made in contemplation of marriage,” shall not remain in force, after the marriage has taken place. Past contracts in contemplation of marriage, are within the principle of protection intended by this section, by equal and even higher reason than future contracts. “ Takes place” is present, and as applicable to the past as the future. The intent is to declare ante-nuptial contracts inviolate only where the contract is followed by marriage.
    VII. The second section of the statute should be so construed as not to affect existing marriage settlements.
    (1.) Because the constitution of the United States prohibits a state from passing “ a law impairing the obligation of contracts.” (Const., art. 1, sec. 10, sub. 1.)
    (2.) Because the final clause of that section, to wit: “ Except so far as the same may be liable for the debts of her husband heretofore contracted,” shows that the section relates to property that may be thus liable.
    (3.) Because the language of the section is, “ The real and. personal property, and the rents, issue and profits thereof, of any female now married.” And under the revised statutes, a cestui que trust takes in lands “ no estate or interest,” but only “ may enforce the performance of the trust in equity.” (2 R. S. 729, sec. 60.) The language of the section is not appropriate to trust property.
    (4.) The reason of the enactment does not exist in the case of poperty secured by marriage settlement, as the protection of the statute is unnecessary, when there is a marriage settlement. The case is not within the supposed mischief.
    (5.) The section being in derogation of the common law, should be construed strictly. It should be held not to affect the poperty or rights of a trustee or third person.
    The act does not retrospect to the marriage. If not confined to property acquired after the passage of the act, (Dash v. Van Kleeck, 7 Johns. 497,) the language should be restrained to such as is within the supposed mischief, and to such as without the protection of the act, would be at the disposal of the husband, and liable for his debts.
    X. If not to be so construed, the section is unconstitutional. (Const. of U. S. ubi supra ; Dartmouth College v. Woodward, 4 Wheat. 518, 695, 696, 7, 8; Fletcher v. Peck, 6 Cranch, 136.)
    X. The section is also unconstitutional, because where there is no marriage settlement it affects the rights of property vested in the husband by the marriage.
    (1.) Those rights are a part of the contract of marriage. The law of the matrimonial domicil, or law under which the marriage took place, which must be presumed to have been the law of this state, the present residence of the parties, or at least to have been the common law, being part of the contract. (Story on Conflict of Laws, last ed., ch. 6, secs. 158, 159.)
    (2.) Those rights are vested rights. By the marriage, the husband acquires a freehold interest, during the joint lives of himself and wife, in all such freehold property of inheritance as she was seised of at the time, or may become seised of during coverture. Upon the birth of issue, capable of inheriting, he becomes tenant by the curtesy initiate, and on the death of his wife, tenant by the curtesy consummate. (1 Roper on Husband and Wife, 3, 5.) Marriage is an absolute gift to the husband of all personal property of the wife, in possession, belonging to her at or during marriage ; (1 Roper on Husband and Wife, 169;) and a qualified gift, that is, subject to survivorship, of her chattels real, possessed by her during marriage; (Ibid. 173;) and of her choses in action, belonging to her at marriage, or acquired during coverture., (Ibid. 203, 224, 225.) He may alien the former, and assign, release, or collect the latter. “ The legal assignment of a marriage,” says Lord Meadowbank, M operates without regard to creditors the world over.” (Royal Bank of Scotland v. Smith, 1 Rose Cas. Bank. Appendix, 491.) These vested rights cannot be taken away by statute. The legislature can take away private property for public uses only, and upon making suitable compensation. (State Const. of 1846, art. 1, sec. 1; Ibid. sec. 7; Taylor v. Porter, 4 Hill, 140, and cases cited ; Fletcher v. Peck, 6 Cranch, 135; Terrett v. Taylor, 9 Cranch, 50.)
    XI. As neither the settlement, nor the property embraced in it, are affected by the act of April 7, 1848, except to preserve and perpetuate, the whole ground and object of the complaint must fail.
    XII. The infant defendants are entitled to their costs, and a reasonable counsel fee, out of the estate.
   By the Court. Sandford, J.

In May, 1846, the plaintiff, then a widow, conveyed and transferred all the property in question to a trustee, in fee, and absolutely. The only rights she reserved were, the entire control of the income for her separate use during her life, the direction of the investment and re-investments of the capital by the trustee, the power to dispose of the whole by an instrument in the nature of a will, and the full restoration of the property, if she survived her intended husband. So long as the coverture continued, the settlement gave her no interest in the capital, and she had no power of disposal which could take effect during her life.

The intended husband joined in the conveyance, and covenanted not to interfere with the trust estate otherwise than in conformity to the provisions of the settlement. He is not at liberty, therefore, by assent or acquiescence, to* defeat or impair the designs of the trust.

In the event of the plaintiff's death,, leaving her husband surviving, and without having made any appointment, the trustee is required to pay over and transfer the trust estate “ to sack person or persons as would be the legal representatives" of the plaintiff, ‘* by the statute for the distribution of intestate's estates."

The first question argued arises upon this clause of the settlement. It is claimed, on the one hand, that if the plaintiff die, leaving her husband and children surviving, the husband will take the trust estate • and on the other hand, that it will all devolve upon the children.

Conceding for the argument, that if there be both husband and children living at the death of the plaintiff, the former would be entitled to the capital of the trust estate, in default of an appointment r the nature of the respective interests in the property, at this time, are as follows:

The whole estate is in the trustee. The plaintiff has a trust interest in possession, in the income of the property, for life, with a future absolute interest in trust, which is contingent upon her surviving her husband; and a power to' dispose of the whole by will. The husband has a future trust interest in the capital, contingent upon his surviving the plaintiff, and • which, if it ever vest in him, in possession, will also be an absolute estate. The children have no interest in the property. They have merely probable advantage in the continuance of the trust, so that they may become appointees under the power. This is putting the case in its strongest possible aspect for the plaintiff, and what is the result ?

First.—As to the real estate, neither the plaintiff nor her husband have any estate or interest in the property itself. They have only a right in equity to have the trust executed. (1 R. S. 729, § 60.) The plaintiff's right to receive the income is inalienable. (Ibid. 730, §.63.)

Next.—As to the personal property, the settlement restricts the disposal of the income, and prohibits the consumption of the capital. It is a contract, which the plaintiff, at least before the act of 1848, had no capacity to alter, and the husband is prevented by his covenant from interfering in the matter. However, in respect of the whole fund, both real and personal, the trustee is forbidden by law, to do any act in contravention of the trust. And the husband’s trust interest in the personalty, being both future and contingent, it is subjected to all the fetters upon alienation provided in the statute of uses and trusts. (L R. S. 730, § 65 ; 773, § 2.)

Such being the state of the rights and interests of these parties, at the passage of the act of L848, entitled “ An act for the more effectual protection of the property of married women.” (Laws of 1848, ch. 200, page 307,) are they in any wise affected by its provisions?

The second section, on which the plaintiff relies, enacts that “ the real and personal property, and the rents, issues and profits thereof of any female now married, shall not be subject to the disposal of her husband, but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted.” The object of the statute, as expressed by its title, assuredly, was not to enable married women to destroy their marriage settlements, by which their property had already been “ effectually protected,” for the benefit of themselves and their children. All experience demonstrates, that vesting the wife with unlimited control of her property, will place it in far greater jeopardy than limiting it by a judicious settlement.

To apply the act to this estate. What was the real and personal property and its income, belonging to the plaintiff, which by the act were to be her sole and separate property, as if she were a single female ? Not the property which she owned before her marriage, and as it existed when the settlement was executed. She had parted with that, irrevocably, to the trustee. All the property she had, at the passage of the act, was her interest, present and future, in the trusts created by her conveyance to the trustee, to be exercised over and upon the property transferred to him. Such right and interest as she had, was her sole and separate property at the passage of the act, as effectually as it was possible to be in the nature of things. If she were a single female, she could not alter her executed conveyance to the trustee. The statute, therefore, did not affect it, for the plain reason, that she had already all the control that the statute aimed to give.

The effort and the argument, on the part of the plaintiff, is not to have a more enlarged control of her property, as she held it under the marriage settlement; but to set aside the settlement and give to her the capital of the estate, as she held and owned it before her conveyance to the trustee.

The statute does not profess to interfere with existing grants and contracts, and if there were no other obstacle, we cannot give it a retrospective action by intendment If, however, it had, in terms, been made applicable to executed settlements, and had divested the estates of the trustees, it would have been utterly nugatory. The plaintiff’s grant to the trustee is a contract, and even the possibilities created by it, are perfect rights of property, held under an executed contract. A statute impairing this grant would be void, by the provision in the constitution of the United States, against enactments by the states impairing the obligation of contracts.

The result is, that assuming the children have no rights in the settlement, the statute of 1848 does not affect it, and the parties in interest are precluded by the statute of trusts, from revoking the conveyance to the trustee.

If, perchance, we have taken too restricted a view of the effect of the settlement, and the capacity of the parties to reconsider and annul it, since the act of 1848, there can be no doubt that the trust is irrevocable by this court, as well as by the parties, provided the children are to take in default of an appointment, on the death of the plaintiff in her husband’s lifetime. In the event of such default the property is to devolve upon those who are the plaintiff’s legal representatives, by the statute of distributions.

The term “ legal representatives” is not used in this instrument in its ordinary sense. It clearly does not mean executors or administrators. It is those legal representatives who are designated by the statute of distributions of intestate’s estates. Now the husband, at no period of the law, has taken the wife’s personal property at her death, “ by the statute of distributions,.” He is entitled to it by the rules of the common law and would take it if the whole statute law were silent on the subject. The only reason for mentioning the husband’s right in the statutes relative to administration and distribution, is in the one case to regulate the claim to administer, and in the other, from abundant caution, to exclude any possible mis-application of the section governing the distribution of intestate’s personal effects. (See 2 R. S. 75, § 39, 30; Ibid. 96, 97, § 75, 79 ; 1 Rev, Laws, 313, 314.)

The husband would, at her death, be the plaintiff’s legal representative, (in the sense in which the words are used in this instrument,) by the rules of the common law; her children and their issue, would be her legal representatives by the statute of distributions. If the language had been simply, her “ legal representatives,” the question would have been between the husband and the administrator; and as our statute grants administration to the husband, he would have taken the property either beneficially, or officially, as such representative. But we think the addition of the words “ by the statute of distributions,” cha ges the devolution totally, and carries it to the next of kin, to the exclusion of the husband.

We find no parallel case in the reports, though there are several, either analogous in principle, or in favor of excluding the executors and administrators ; among which are Walter v. Makin, (6 Simons, 148;) Cotton v. Cotton, (2 Beavan, 67;) Booth v. Vicars, (1 Collyer’s Ch. C. 6 ;) and the cases collected in 2 Jarman on Wills, 39, &c.

In this construction of the trust deed, the infant children of the plaintiff have a contingent future estáte, which the court cannot divest, and which the statute of 1848 would have failed to affect, if it had attempted it in. terms. And further,, all the future issue of the marriage- will have similar estates, which any decree in this suit could not affect or impair.

The complaint cannot be sustained, and there must be judgment for the defendants.

         Holmes v. Holmes, (4 Barb. Sup. Court Rep. 295;) White v. White, (5 Id. 474.)


author: By the Court. Oakley, Ch. J.

text:
    Herring v. Willard.
    A sale and delivery of property on condition that the title shall not pass to the purchaser until the purchase money is paid, and reserving to the vendor the right to take possession, of the property, in case of non-payment, is a valid contract ; and. until, the- purchase money is paid, the vendor’s title will not be divested.
    Such an arrangement is, in effect, a letting of the property to the purchaser, to be reclaimed if the price fined upon is not paid; and is not like the case of property placed in, the hands of one who keeps similar articles for sale.
    The general principle is, that the title of the real owner must prevail in such cases.
    March 29;
    April 7, 1849.
    This was an action brought by the plaintiff, to recover from the defendant the possession of an iron safe, alleged to be the property of the plaintiff, or the value of the same, which was claimed to be. the sum of one hundred and sixty dollars.
    The pleadings consisted of a complaint and an answer. It was alleged in the complaint, that the safe, for the recovery of which the action was brought, was delivered by the plaintiff to the firm of Young & Co., in the city of New York, under an agreement in writing, which provided that the title should stiff remain in the plaintiff, and that the sale should be considered a conditional one. At the time of the execution of the agreement, Young & Co. gave their promissory note for the value of the safe, payable in six months. It was provided in the agreement, that in default of the payment of the note, the plaintiff should be at liberty to enter the premises of Young &> Co., and take possession of the safe. The complaint alleged that the defendant had taken possession of the safe, and that the plaintiff had demanded the same, which was refused.
    The defendant in his answer, denied all knowledge as to the main facts alleged in the complaint, but set up, that if any such agreement was made, it was never filed, so as to make it valid as a mortgage. The answer also alleged, that subsequent to the delivery of the safe by the plaintiff to Young & Co., the defendant rented certain premises to them, and that, to secure the payment of the "rent, he took a mortgage of the safe from Young & Co.; that the mortgage was duly filed, and default being made in the payment of rent, he had taken possession of the safe.
    No reply was put in, and consequently the new matter alleged in the answer, was admitted. The cause came on for trial before Chief Justice Oakley, on the 8th day of January, 1849. Upon the trial, the plaintiff read in evidence a receipt given fey the firm of Young & Co., at the time of the delivery of the safe to them, and the giving of the promissory note, which receipt was in these words:
    “Received, New York, February 12fh, 1848, of S. C. Herring, one Wilder’s, Patent Salamander Safe, No. 2335, delivered to us under a bargain for the sale thereof, and for which we have given said Herring our note, payable in six months from this date, for one hundred and sixty dollars, it is expressly understood, that said Herring neither parts with, nor do we acquire any title to said safe until said note is fully paid. And in case of default of payment thereof at maturity, said Herring is hereby authorized to enter our premises, and take and remove said safe, and we agree to pay said Herring for use of said safe, and all reasonable charges.
    (Signed,) “Young & Co.”
    It also appeared in evidence, that the promissory note mentioned in the agreement, was due and unpaid.
    The plaintiff thereupon rested his case, and the defendant moved for a nonsuit. The motion was denied, and a verdict rendered by consent for the plaintiff, for $164 47, reserving the questions of law for the court.

      S. P. Nash, for the plaintiff.

      R. M. Tysen, for the defendant.
   By the Court. Oakley, Ch. J.

The question in this case is, who has the better title to the salamander safe, Herring or Willard? .

It is ■ contended on the part of the latter, that by Herring’s parting with' the possession of the property, and leaving it with Young & Co., as the apparent owners, Willard, on receiving a mortgage of the safe from Young & Co. for rent payable to him, became a bona fide purchaser of the same, and is entitled to retain it.

We have considered the matter, and think Herring has the better title. It is plain that he never parted with the title; and there is a fatal defect in the outset of Willard’s claim as a bona fide purchaser, in this, that it is not alleged in his answer, and it no where appears, that when he took his mortgage, he was ignorant of the arrangement between Herring and Young & Co., by which the safe was put into their possession; or that he received the mortgage without notice of Herring’s rights.

Independent of this point, we have no doubt, under the circumstances, that Herring is entitled to the property. There was not only a conditional sale of it to Young & Co., but a conditional . delivery also. In effect, the arrangement was only a letting of the safe to Young & Co., to be reclaimed if they did not pay the price fixed upon; and in that event, they were to pay rent for its use.

It is exactly the case of leasing personal property, such as the furniture of a house, for permanent use ; with the addition of an agreement to sell it at a future time, on receiving a stipulated price.

It is not like the case of property placed in the hands of one who keeps similar articles for sale ; as goods deposited with a merchant or trader. The general principle is, that the title of the real owner must prevail; and there are no circumstances here to warrant an exception to the rule on any recognized ground. The case of Strong v. Taylor, (2 Hill, 326,) and several in the Massachusetts reports, are authorities in favor of the plaintiff. Among the latter, are Barnett v. Pritchard, (2 Pick. 512;) Fairbanks v. Phelps, (22 Ibid. 535;) and The Dresser Manufacturing Company v. Waterston, (3 Metc. 9.)

Judgment'for the plaintiff.


text:
    Hawkins and Logan v. Appleby and Moore.
    Where the plaintiffs, upon a sale of goods to the defendants, were induced to take the note of a third party in payment, upon the representation of one of the defendants that it was good, when, in fact, the defendants knew the makers were insolvent, and the note worthless.. Held, that the defendants were liable to the plaintiffs, either in an action of assumpsit to recover the value of the goods sold, or in an action on the case to recover damages for the deceit practised upon them.
    A member of a co-partnership firm is liable either in assumpsit or in an action on the case, for the consequences of frauds practised by his co-partner, in the transaction of the partnership business, although he was entirely ignorant of such frauds, and derived no benefit therefrom.
    Where goods are obtained for the use of a firm, by means of the fraud of one of its members, the other partner, by receiving and participating in the use of the goods, will be held to have adopted the fraudulent act of the one who obtained them, and will be placed in the same situation, in reference to the rights of the vendors of the goods, as if he had directed his partner to procure the property, or had concurred with him in the transaction.
    And where a partner, on being notified of a fraud committed by his co-partner, and that the firm wilt be held liable therefor, omits to repudiate or disaffirm what has been done by his co-partner, he will be held to have adopted and ratified the fraud, and will, from thenceforth, be deemed a joint wrong-doer. ,
    Where, in an action on the case for deceit, in falsely representing the note of a third person, turned out by the defendants in payment for goods purchased, to be good, it appears that the plaintiffs, on discovering the insolvency of the makers, disavowed Ihe ownership of the note, and notified the defendants that they were held liable for the price of the goods, who insisted on retaining the goods, and omitted to pay the price and receive back the note, it seems this will be deemed a waiver of any formal tender of the note before suit brought.
    Under such circumstances, it is sufficient for the plaintiffs to tender the note upon the argument.
    Where it was averred in a declaration, that the defendants represented a note to be “ a good note, and that it would pass in South-street,” and the proof was that they said “ the note was good, and that there were people in South-street who would take it.” Held, there was no substantial variance.
    March 8th;
    April 7, 1849.
    This was an action of trespass on the case. The declaration set forth that, in the month of March, 1847, the defendants applied to the plaintiffs to purchase from them a quantity of tobacco, and offered in payment a promissory note of Barstow Emanuel, & Co., dated New York, January 15, 1847, for the sum of $274 80, payable in six months; that the defendants represented the note to be good, and the makers in good credit, and that the plaintiffs relying upon the representations so made, sold and delivered to the defendants a quantity of tobacco, and took the note in payment. In the second count of their declaration, the plaintiffs averred that the defendants represented the note to be a good note, and that “ it would pass in South-street? The declaration further alleged that, Barstow Emanuel <fc Co., at the time of the transfer of the note to the plaintiffs, were wholly insolvent, and that the defendants, knowing such to be the fact, fraudulently made the purchase as set forth. The defendants pleaded the general issue.
    The cause came on for trial on the 18th day of April, 1848, before Chief Justice Oakley, without a jury. Upon the trial, it appeared in evidence on the part of the plaintiffs, that about the 17th of March, 1847, Appleby, one of the defendants, applied to the plaintiffs to purchase a quantity of tobacco from them, offering in payment a note of Barstow Emanuel & Co., for $274, dated January 15, 1847, at 6 months. Appleby said the note was good, and there were people in South-street who would take it. The plaintiffs had never dealt with Barstow Emanuel & Co., but upon the representations of Appleby, took the note, and delivered the tobacco. The bookkeeper of Bars-tow Emanuel & Co. testified that Appleby called at their store about the 13th or 15th of March, 1847, in reference to the delivery of a quantity of cigars which had been ordered by Mr. Emanuel, and which were to be sold on credit; that he, the bookkeeper, declined receiving them, assigning as a reasoú that Mr. Emanuel had gone to New Orleans, and was embarrassed in his business; that, on the 13th of March, his notes had been protested; that he distinctly informed Appleby that Mr. Emanuel was in difficulty, and much embarrassed.
    Barstow Emanuel, one of the makers of the note, testified, that at the time of the transfer of the note in question, the firm was insolvent; that they stopped payment on the 13th of March, 1847, and that on an investigation of their affairs, they found they could only pay 33 per cent. The plaintiffs then offered in evidence a letter written by them on the 30th of March to the defendants, and produced by the defendants in conformity with a notice, in which letter the plaintiffs stated that they had that day, for the first time, ascertained the insolvency of Barstow Emanuel & Co., and that they should hold the defendants liable for the tobacco sold. The plaintiffs also read in evidence two records of judgments against Barstow Emanuel & Co., upon which executions had been issued, one September 9, and the other October 9, 1847, both of which were returned unsatisfied; also a protest and certificate of a notary public, by which it appeared that the before mentioned note was protested for non-payment, July 19th, 1847.
    The plaintiffs then rested, and the defendant’s counsel moved for a nonsuit, on the ground that the plaintiffs should have shown a tender of the note to defendants before suit brought.
    The court refused the motion, and reserved the question.
    The defendant’s counsel then moved that the defendant Moore be discharged, in order to his admission as a witness. But the court refused, to which decision the defendant’s counsel excepted.
    A witness for the defendants testified, that about the 1st of March, 1847, he heard Hawkins, one of the plaintiffs, say, that he had offered to give tobacco to the defendants for Emanuel & Co.’s note, and that after the trade was made, Hawkins informed the witness he had made inquiries, and thought the note was good.
    The testimony was then closed, and by consent, a verdict was taken in favor of the plaintiffs for $289 94, subject to the opinion of the court, on a case to be made, and subject to such modificaton. or adjustment of the verdict as the court might deem proper, with leave to the defendants to move for a nonsuit.

      A. P. Man, for the plaintiffs.
    I. The plaintiffs have fully proved their case as set forth in the first and second counts ; and it is a clear case of deceit, viz.: a false affirmation with intent to defraud, and resulting in damage to the plaintiffs. (Pasley v. Freeman, 3 T. R. 51; S. C. in 2 Smith’s Leading Cases, 55, with notes; Allen v. Addington, 7 Wend. 1; and S. C. in error, 11 Wend. 374; 1 Chit. Pl. 157; Read v. Autchinson, 3 Camp. 352 ; 2 Kent’s Comm. 482, 484; Story on Part. § 108; Longman v. Pole, 1 M. & M. 223.)
    II. The concealment by defendants of the fact that Emanuel had failed, (of which fact they had peculiar means of knowledge,) and suffering the plaintiffs to act in ignorance of it, would alone have sustained this action. (Same authorities; also, Weeks v. Burton, 7 Verm. Rep. 67. Story on Promissory Notes, § 118, and note; Story on Bills, §s 111 note, and 225.)
    HI. The plaintiffs are also entitled to recover in this form of action upon the footing of an express warranty. (See 2 East, 451; Peake’s Ev. 229, [279;] 1 Chit. Pl. 157; 3 T. R. 51; 2 Caines’ R. 56 ; 10 Wend. 413 ; 13 Wend. 277 ; 2 Cowen, 438.)
    IT. In this form of action, it was not necessary to prove an offer to return the note. (Sedgwick on Dam. 296 ; also, pages 290, 296, 531, 538 to 540; 2 Kent’s Com. 480, and note a; 4 Bibb, 91; 1 Smith’s Leading Cases, Am. Ed. of 1844, p. 157; also, see pages 153, 155; Stephen’s N. P. 1296, 1297, 1301; Nellis v. Bradley, 1 Sandf. 560.)
    Y. The measure of damages is the difference in value between this worthless note, and a good one. In the present case, the damages are the full value of the property obtained by the deceit, that being prima facie (as well as by the proof in the case) the amount of the plaintiff’s loss. The defendants, who are chargeable with deceit, have no right to complain of this rule of damages. (See authorities.under preceding point; also, 7 Wend. 10,15, 26 ; Monell v. Colton, 13 Johns. 403.)
    The note will belong to the defendants after payment of the plaintiff’s damages. And to enable the court to see that no injustice is done to the defendants, we bring the note here, and offer to' surrender it, or to bold it subject to the order of the court.

      E. W. Stoughton, for the defendants.
    I. There is a fatal variance between the case stated in the declaration, and that found.
    • (1.) The second count alleges, that the defendants represented the note to be “ A good note, and that it would pass in South street.” The proof is, that Appleby said, “ The note was good-, and that there were people in South street would take it.” This is a material variance, and between the proof and first count, it is still greater. (See 1 Chitty on Pl. 310, et seq.; 2 Saund. Pl. & Ev. 913, et seq.)

    (2.) The declaration alleges, that the defendants made the representation. The proof is, that it was made by Appleby. There is not the slightest evidence to show that Moore knew of or sanctioned the misrepresentation, or that he was aware of the failure or insolvency of Barstow Emanuel & Co. This also is a fatal variance, for which the plaintiffs must be nonsuited. (See Weall v. King, 12 East, 452; Sherwood v. Marwick, 5 Greenleaf, 295.)
    II. The language used by Appleby, as alleged by the witness, was not a misrepresentation. He was not questioned by the plaintiffs as to the solvency of Barstow Emanuel & Co., nor did he make any representation concerning such solvency. Courts never presume a warranty or fraud upon the sale of a personal chattel or chose in action. Either, if alleged, must be clearly proved. The statement made, that the note was a good note, did not, by fair interpretation, import that the makers were solvent. Could the defendant, on proof of this representation, and that the makers were insolvent, be indicted for obtaining -the tobacco by false pretences ? The defendant Appleby, further stated there were persons in South street would take the note. What legal meaning can be attached to this representation 1 It may have been strictly true, but whether there are persons in South street who take notes of insolvents, or whether good paper alone will pass there, the court cannot judicially know. Nor did Appleby know the makers were insolvent when he parted with the note. This appears from the testimony of the witnesses, Jessup and Emanuel.
    III. There is no proof that Moore knew of, or sanctioned, the representation alleged to have been made by Appleby; nor was he really interested in the note : this was known to Hawkins. A fraudulent representation by one partner, will not bind or affect the other, in this action. (Pierce v. Jackson, 6 Miss. R. 242; Sherwood v. Marwick, 5 Greenleaf R. 295.)
    If the suit was directly upon the contract of warranty made by one of the partners, the rule would be otherwise. So also, the plaintiffs could have brought trover or replevin for the tobacco, at least after demand madé therefor; as, in such case, retaining possession would be deemed the fraud of both defendants.
    IV. The plaintiffs were not induced to take the note, or dispose of the tobacco, by the alleged representation of Appleby.
    (1.) If it be contended, that this suit is brought upon a warranty, the answer is, that the representation was not intended or understood by either party as a warranty. It is essential that the affirmation made at the time of sale be intended as such; and this must appear by the evidence. If not, the affirmation is considered mere matter of judgment and opinion. (Swett v. Colgate, 20 Johns. 196; 2 Caines’ R. 56; 3 Term Rep. 57.)
    (2.) The plaintiffs were not defrauded by the representation. It must appear, in order to sustain the action, that the representation was made with intent to induce the plaintiffs to part with the tobacco, and that they, relying upon such representation, were so induced, and were thus defrauded. (Story Eq. Jur. 204, 5 ; 2 Kent’s Com. 485, et seq.)

    It' appears, that several days before this representation was made, Hawkins had offered to take the note, and give the defendant, Appleby, tobacco for it. He was then satisfied as to the solvency of Barstow Emanuel & Co., and willing to part with the tobacco without the aid of this representation. Appleby knowing this, could not have intended, by making it, to obtain the tobacco, and the plaintiffs being before anxious to make the trade, could not have made it on the faith of the representation. Indeed, it is clear from the whole case, that the bargain was completed before the representation was used; and that, if made at all, it was uttered without intent by Appleby, and was heard unheeded by the plaintiffs.
    Y. The plaintiffs elected to rescind the contract of sale, and should have tendered the note to the defendants before suit brought. Not having done this, they must be nonsuited. (Baker v. Robbins, 2 Denio, 136; Massow v. Bovet, 1 Ibid. 69 ; Chitty on Contracts, 741; Pierce v. Drake, 15 Johns. 475 ; Thornton v. Wynn, 12 Wheat. 189.)
    (1.) It is conceded, that where there is a warranty upon the sale of a chattel, a suit may be brought upon it, either in case or assumpsit, without a return of the property; and that damages may be recovered for the breach of the contract; but in every such case, the warranty is set forth in the declaration as the ground of the action, and .the contract of sale thus affirmed. Usually, assumpsit is brought, and when case or deceit is adopted, the contract and warranty must be set out in the declaration, with the same damages as in assumpsit. (2 Chit. Pl., 6th ed., 279, 480 ; 3 Chitty’s Cr. Law, 306 ; Mills v. Dell, 3 Stark. Rep. 23 ; Rex v. Gill, 2 B. & Ald. 204; Towers v. Barrett, 1 Term Rep. 133; Fielder v. Starkie, 1 Hen. Bl. 17; Buchanan v.-----, 2 Term Rep. 745 ; 1 Comyns’ Dig., action on the case for deceit, 350, et seq.)

    (2.) If then there had been a warranty in this case, it cannot avail the plaintiffs; for where a party intends to rely upon a warranty, he must expressly state it in his declaration. (Sysney v. Sebby, 2 Ld. Raymond.)
    (3.) Not only do the two first counts charge fraud, and not contract, as the sole ground of action, thereby disaffirming the contract of sale, but the third and last count is in trover for converting the tobacco, alleging it to be the property of the plaintiffs; thereby expressly disaffirming the sale, and electing to rescind the contract.
    (4.) Independent of the form of action adopted by the plain-' 1 tiffs, they have elected to disaffirm and rescind the contract of sale.
    (1.) By sending the note to the defendants, stating that they should hold them liable for the tobacco. And,
    (2.) By their refusal to compromise with Barstow Emanuel & Co., on the ground, as they declared, that Appleby owned the note. Having thus elected to rescind, they are bound by the election. (Smith v. Field, 5 Term Rep. 402; Green v. Russell, 5 Hill, 183.)
   By the Court. Sandford, J.

The evidence suffices to establish, that the plaintiffs were induced to take Emanuel’s note in exchange for their tobacco, by Appleby’s representation that the note was good; when in fact it was not good, and Appleby knew it.

The declaration states this representation substantially as it was proved. Saying that there were people in South street who would take the note, is not essentially variant from saying that it would pass in South street.

The other alleged variance depends upon the principal question in the cause, the liability of Moore in respect of the fraud of his partner Appleby.

It has long been established, that a partner is liable in assumpsit for the consequences of frauds practised by his copartner, in the transaction of their business, of which he was entirely ignorant, and although he derived no benefit from the fraud. (Gollyer on Part 240 ; Story on Part. § 108.) ' This is upon the ground, that by forming the connexion, partners publish to the world their confidence in each other’s integrity and good faith, and impliedly agree to be responsible for what they shall respectively do within the scope of their partnership business ; and if by the wrongful act of one, a loss must fall upon a stranger, or upon the other partner who is equally innocent, the latter having been the cause or occasion of the confidence .reposed in his delinquent associate, must suffer the loss.

Several striking applications of this principle, are to be found among the adjudged cases; of which we will refer to Rapp v. Latham, 1 Barn. & Ald. 795; Stone v. Marsh, 6 B. & Cr. 551; Hume v. Bolland Ryan & M. 371; and Boardman v. Gore, 15 Mass. 331.)

• It is perfectly clear, that if the plaintiffs had wholly disaffirmed the sale, and sued Appleby and Moore in assumpsit for the price of the tobacco, they would have been entitled to recover. Is the rule different in an action to recover damages for the deceit practiced upon them ? The difference in theory is, that in assumpsit the innocent partner is charged with the purchase of goods; while in the action of tort, he is accused of a fraud of which he personally is innocent. In practical effect, the only difference is, that in the one case the plaintiff alleges a sale and proves a fraud; in the other, he both alleges and proves the fraudulent transaction. In both forms of action, the innocent partner is subjected to liability, on the principle that he has held out his associate to be worthy of confidence, in their copartnership dealings. The difference in the ulterior remedy, after judgment, cannot have any effect upon the propriety of the form of action.

It is laid down in a respectable treatise on the subject of parties to actions at law, that where one takes property for the use of another, the latter may adopt the act; and he is thereby placed in the situation of one who had previously commanded the taking, and becomes a trespasser if the act were unlawful. (Hammond on Part. 84.) Now in this case, Appleby obtained the tobacco for the use of himself and Moore. Moore adopted the act by receiving and participating in the use of the property. He was thus placed in the same situation, in reference to the rights of the plaintiffs, as if he had directed Appleby to procure the property, or had concurred with him in the transaction ; and on the authority cited, he become a wrong doer. There is the additional circumstance in this case, that the plaintiffs immediately on discovering the fraud, and within a fortnight after the exchange, notified the defendants in writing, that they had ascertained the note to be bad, and that they should hold the defendants liable for the tobacco.

The omission of Moore to repudiate or disaffirm, on this occasion, what his partner had done, must be regarded as a distinct adoption and ratification of the act $ and we think he ought to be deemed from thenceforth a joint wrong doer with Appleby.

Another objection to the recovery, is the omission of the plaintiffs to tender the note to the defendants, before suit brought. The testimony elicited by the defendants showed that the plaintiffs disclaimed owning the note, and referred the maker to the defendants as the parties to collect or compromise it. And the defendants, when notified that they were held liable for the price of the tobacco, were reasonably informed that the plaintiffs disavowed the note ; and could have obtained it at any time on paying such price. Their insisting on retaining the fruit of their fraud, and their omission to pay the price and receive the note, perhaps should be deemed a waiver of any forma:! tender of the latter.

Be this as it may, there is no ground for saying that the defendants have been prejudiced by the failure to tender the note. They have never conceded the right to look to them for the price, and would not have accepted the note if a formal tender had been made. We will therefore adopt the practice sanctioned in Nellis v. Bradley, (1 Sandf. R. 560,) and consider the tender of the note at the argument, a sufficient compliance with the form insisted upon, without expressing any opinion as to the necessity of a tender in any stage of the transaction.

Judgment for the plaintiffs for the amount of the note, which is to be deposited with the clerk, for the defendants benefit on payment of the amount.


text:
    The Merchants Bank v. C. M'Intyre & Co.
    Money paid under a mutual mistake of facts, may be recovered back.
    Where a draft on a bank was presented for payment by a remote indorsee, to whom it was paid, both parties being ignorant of the fact, that the first indorsee to whom it was specially indorsed, had never indorsed the draft, but that a fictitious signature resembling his was placed on the draft; it was held, that on discovering the fraud, the bank could recover the amount from the party to whom it was paid.
    Where an agent collects a negotiable draft as indorsee, without disclosing his agency to the drawer, he will be liable to refund the money to the drawer, on its appearing that it was paid on a fictitious indorsement, although the agent has, in the meantime, remitted the proceeds to his principal.
    March 29th;
    April 7, 1849.
    This was a case agreed upon between the parties for submission, without action, pursuant to the code of procedure.
    On the 13th day of February, 1847, the bank of Mobile, at Mobile, in the state of Alabama, by T. M. English, cashier, on receiving $250 from George G. Henry, delivered to him a draft or check upon the Merchants’ Bank in the city of New York, addressed to their cashier, bearing the above date, and substantially as follows:
    “ $250.

      “ At sight pay this my first check, second unpaid, to the order of G. G. Henry, No. 5612, two hundred and fifty dollars.”
    Signed by the cashier of the bank of Mobile, and the sum written across the face, and signed by the teller of the same bank.
    This check was by G. G. Henry endorsed as follows: —“ Pay to the order of Henry Harlan, Esq.—George G. Henryand was enclosed by him in a letter, addressed to Henry Harlan, Danville, Kentucky, and deposited in the post-office at Mobile.
    The check was never received by, nor came to the use or knowledge of, Harlan.
    In March, 1847, Charles M'Intyre & Co., the defendants, copartners in business in New York, received through the post-office in New York the draft or check, with a further indorsement thereon, as follows Pay to the order of Charles M‘Intyre &■ Co.—Henry Harlan.” The draft was inclosed in a letter addressed to them, containing instructions to fill an order for merchandize with the proceeds of such draft, after deducting their commissions. The defendants thereupon indorsed the draft as follows :—“ Charles M'Intyre & Co.,” and handed the same to their clerk, by whom it was immediately afterwards presented to 'the paying teller of the Merchants’ Bank, in their banking-house, for payment. On such presentment the teller inquired of the clerk whether he was one of the firm of Charles M'Intyre & Co., to which the clerk answered “ no.” The teller then said, “ we are not acquainted with that firm. You must get some person known to the bank to identify their signature, &c.” The clerk then asked the teller whether he knew C. and E. W. Thwing. The teller answered “ Yes, that will do.” The clerk then left the bank with the draft, and went to the office of Edmund Charles & Son, one of whom wrote under the indorsement of Charles M‘Intyre & Co., the following words : “ Attested.—Edmund Charles & Son, 35 Wall-street.” The clerk afterwards took the draft to C. & E. W. Thwing, one of whom wrote thereon, under the signature of Charles M‘Intyre & Co., the words, “ Correct.—C. & E. W. Thwing.”
    The clerk then returned to the Merchants’ Bank, and prer sented the draft, with all these indorsements thereon, to the paying-teller, who thereupon received it, and paid the amount thereof ($250,) to such clerk of Charles M‘Intyre & Co., on the 13th day of March, 1847; and they, with the money so received, after deducting their commission, filled the order for merchandize above mentioned.
    The draft or check never having been received or heard of by Henry Harlan, George G. Henry, on the 15th day of February, 1848, at Mobile, enclosed in a letter to said Harlan, at Dan-ville, Kentucky, the second of duplicate of such check by him obtained from the bank of Mobile for the sum of $250, signed by the cashier, and countersigned by the teller, in these words :

      “ #250. “ Bank of Mobile, Mobile, Feb. 13th, 1847.
    “ At sight, pay this my second check, first unpaid, to the order of G. G. Henry, No. 5612. Two hundred and fifty dollars,
    T. M. English, Cashier.
    “To the Cashier of the Merchants’ Bank, New York.” (Endorsed,)
    “ Pay to the order of Henry Harlan, Esq. .
    “ Geo. G. Henry.”
    This second check was received by Harlan, and was by him indorsed and delivered to the cashier of the Bank of Danville for collection, by whom it was indorsed, and sent to the cashier of the Bank of America in New York, Who received it and presented it to the Merchants’ Bank for payment. This presentment of the second check called the attention of the Merchants’ Bank to the first check, and being satisfied upon inquiry, that the second check was regularly received and indorsed by Harlan, to whom both of the checks were indorsed by said Henry, and that the first check had never come to the possession or use, or knowledge of Harlan, but had been by some other person indorsed as above set forth, and sent to Charles M‘Intyre <fe Co., as above stated ; the Merchants’ Bank paid the amount of the second check to the Bank of America.
    The Mercnants’ Bank then, on the 10th of March, 1848, called upon Charles M‘Intyre & Co. to repay to them the amount of the first check, who refused to make such payment. Both checks were produced and exhibited to the court upon the argument.

      B. W. Bonney for the plaintiffs.
    I. Money paid under a mistake of facts, may be recovered back in an action for money h ad and received. (Bowyer v. Pack, 2 Denio, 107; Mowatt v. Wright, 1 Wendell, 355; Wait v. Leggett, 8 Cowen, 195; Bank of Orleans v. Smith, 3 Hill, 560.)
    II. The check in question, upon which the #250 now sought to be recovered back, was paid by the plaintiffs to the defendants, was a genuine check, drawn by the Bank of Mobile on the plaintiffs, and duly endorsed by the payee to Henry Harlan,

      III. The plaintiff’s teller paid the -money in question, in the belief that the defendants were lawful holders of the check by indorsement of the first indorsee. This was a mistake as to the fact, and the plaintiffs may recover back the money so paid. (Canal Bank v. Bank of Albany, 1 Hill, 287; Coggill v. The American Exchange Bank, 1 Comstock, 113; Talbot v. Bank of Rochester, 1 Hill, 295.)
    IY. By presenting the check and demanding payment, and when their right to receive the money was questioned, procuring certificates to obtain it, the defendants affirmed themselves to be the lawful holders of the check, and entitled to receive payment thereof. Upon this affirmation, and believing it to be true, the plaintiffs paid the money, which they may now recover back, it being conceded that defendants had no title to the ■check.
    Y. The plaintiffs- have been guilty of no laches. As soon as informed that the indorsement of the check was a forgery, they gave notice to the defendants, and demanded back the money paid.
    VI. The defendants will not suffer loss from being compelled to repay the money. They will be entitled to recover the same amount from their correspondent, from whom they received the check, and whom, it is to be presumed, they know. (Canal Bank v. Bank of Albany, 1 Hill, 287.)
    VII, The plaintiffs are entitled to judgment for the money paid, ($250,) with interest, from March 13, 1847.

      C. C. Egan, for the defendants.
    The plaintiffs must bear the loss occasioned by their negligence. They paid the check, although not negotiated; the name of the first indorsee not being on the check at all.
    If they have any right of action, it is not against the defendants, who acted merely as agents, in entire good faith, and who have paid over the money to their principals. Both parties had equal knowledge of the facts. (Potter v. Evans, 2 Hall, 252 ; Mowatt v. Wright, 1 Wend. 355; 3 Wend. 72; 4 Cow. 454.)

      Bonney, in reply.
    The plaintiffs knew nothing of the agency. If there were a'

      mutual mistake, we are entitled to recover; if the defendants were acquainted with the state of the case, it was a fraud. The defendants presenting the draft for payment, may be regarded as an averment that it was payable to Henry Harden. The name written on the first check would readily be read as Harlan. >
   By the Court. Oakley, Ch. J.

The indorsement on the first draft, is certainly in a name different from that of the first indorsee, Harlan; and the inquiry is, were the defendants under the circumstances bound to refund the money which they received from the plaintiffs. They rely on two grounds to defeat a recovery.

First. They say they acted as agents merely in the transac-. tion, and transmitted the proceeds of the draft to their correspondent, in ignorance of the fact that the draft was not properly indorsed, and before they were called upon to refund.

How the law would be in this respect, if the fact of their agency had been known to the Merchants Bank when they paid the draft, we need not say. But their agency was not known. The defendants did not communicate it to the plaintiffs, and they not being apprised of any agency, dealt with the defendants as the owners of the draft, and may now treat them accordingly.

Second. It is contended that there was palpable negligence in the acceptance and payment of the draft by the bank, because it was manifest on inspection, that the indorsement was fictitious.

It is a general principle, undoubtedly, that where the drawee of a bill pays it negligently, and without proper precaution, he is remediless, if it turn out that the signature of the drawer, or of any indorsee, be forged. The drawee is bound to use reasonable diligence, or the consequences will fall upon him. The peculiar feature of this case is, that the defendants first acted on the faith of the genuineness of this indorsement, and gave the sanction of their own signature to the genuineness of all the indorsements previous to their own. It is contrary to reason and principle, that they who with better opportunity to know the true state of the case, and who presented the draft for payment as being the rightful holders and authorized to receive it, should after its payment by the drawees, set up that the latter, because they paid under a defective authority, must lose the amount. The defendants either knew of the defect, and are thus responsible for the fraud; or they were at least equally negligent with the plaintiffs. If we assume the latter ground, it is the ordinary case of mutual ignorance of an important fact, which if it had been known to either of the parties, would have prevented the negotiation from going into effect. In such a case, either party may rescind, and thus the plaintiffs are entitled to recover.

This is in accordance with our decision in several cases recently. We hold it to be a principle of universal application, that where one presents a draft or check to a bank for payment, it is a representation of the genuineness of the signatures appearing upon it. And except where the drawer’s signature is forged, or there is some other peculiar reason for taking the case out of the rule, the party so presenting the draft will be held responsible to the drawee for the authenticity of such signatures.

Judgment for the plaintiffs.


text:
    Bevins v. Reed.
    In an action to recover of a stakeholder money staked with him by the plaintiff, on a wager upon the event of a horse race, the defendant Cannot set off the amount of a deposit made by him with the plaintiff, upon another wager of a - similar character.
    The statute having declared wagers unlawful, and every contract respecting them void, the sole remedy of a party depositing money upon a wager is by a suit, under the Statute, to recover back the money deposited. He cannot recover it without suing for it, by way of a defence or set off in a suit brought against him.
    There is no indebtedness, in such a case, from the stakeholder to the depositor.
    There is merely a right, on the part of the latter, to sue the former, in accordance With a strict statutory grant df relief where no other remedy exists.

      Aside from the language of the statute, giving to a party depositing money upon a wager a remedy by suit against the stakeholder, his right to recover back the arnpilnt of his deposit is not a demand which can be set off; it not being a demand arising upon judgment, or upon contract, express or implied.
    March 29;
    April 7, 1849.
    This was an action brought under the statute, to recover the sum of $250, being the amount of a bet made by the plaintiff with one Darragh, in the month of December, 1847, the money being deposited with the defendant, as stakeholder.
    The declaration contained the common counts, and a special count under the statute. The plea was the general issue, with a plea and notice of set off, to the effect, that in December, 1847, the defendant had also deposited with the plaintiff, as stakeholder, the sum of $250, being the amount of a bet made by the defendant with one Riley. The cause was tried before Justice Sandford and a jury, on the 4th day of January, 1849.
    Upon the trial, it appeared in evidence that in the month of December, 1847, the plaintiff and one John Darragh entered into a bet of $500, upon the result of a race between Lady Suffolk and Lady Sutton, two trotting mares. By the terms of the bet, $250 were to be put up as a forfeit on each side, and these sums were accordingly deposited with the defendant, but subsequently the bet was withdrawn; The plaintiff proved that he had demanded from the defendant the amount of his deposit, which the defendant refused to pay.
    The plaintiff rested his case, and the defendant thereupon offered to prove the facts contained in his plea and notice of set off, to which testimony the plaintiff objected, on the ground that it was not a matter of set off, but was merely a penalty, and could only be recovered in the manner prescribed by statute. The court refused to admit the testimony, and the defendant excepted. The defendant then proposed to prove payment, under the first plea and notice; and for this purpose, he called Charles Riley, who testified that in December, 1847, the defendant had made a bet with him, that he, the defendant, had some time previous, obtained a certain horse named Betsey Baker to trot a race with Grey Harry, and that the money was deposited by both parties with the plaintiff. This witness testified that the bet was decided in his, the witness’ favor, and that the plaintiff had paid him the money. As to this point, however, there was some conflict in the testimony. There was some further testimony on the part of the defence, but not material to be mentioned.
    • The court charged the jury, that the defendant could not offset the $250, deposited by him with the plaintiff on his bet with Riley, and that the only question for them to pass upon, was whether the $250 deposited by the plaintiff with the defendant, had been repaid or not; that the wager itself was illegal, and in addition, the match on which it was staked, had been withdrawn. The court further charged, that if the jury found that the precise and identical money which the plaintiff lodged with the defendant, had been staked by the defendant in the plaintiff’s hands, it would be a good payment; that in such a case, the law would refer the defendant’s act in staking the money with the plaintiff, to an intent to restore the plaintiff’s deposit, rather than to an intent to commit a further illegal act; but as to this, the testimony was very slight. The jury found a verdict for the plaintiff.

      James Green, for the plaintiff.
    1. The judge was correct in refusing to allow the defendant to prove his second plea, because it was not a matter of set off.
    2. The bet between the defendant and Riley was void, and could not be recovered from the plaintiff, except in the manner prescribed by statute. (McKeon v. Caherty,. 1 Hall Rep. 300.)

      J. Howe, for the defendant.
    1. The set off should have been allowed. It was a debt without action, and a proper subject of set off. (2 R. S. 351, secs. 1 and 2.) The statute authorizes a party to sue for such a debt. (1 R. S. 662, sec. 9.) It prescribes no particular form of action; and to avoid multiplicity of suits, a party may recover by set off as well as by bringing an original action. Furthermore, the bet of the defendant was as an event that had happened, not a contingent or future event within the prohibition of the statute.

      2. The judge erred in charging, that the jury must find that the identical money was returned. It was sufficient that the plaintiff received the same amount.
   By the Court. Sandford, J.

The only point presented by the case, is on the rejection of the defendants proposed set off. The issue made by the plea of set off, is upon the plaintiff’s indebtedness to the defendant, in respect of the money Staked by the latter in his hands.

It was said the defendant’s bet was not upon any future or contingent event, and was therefore legal. This conclusion is, however, wholly erroneous. The statute against betting and gaming, forbids wagers on any unknown event, and the subject matter of this wager was of that description. By the statute, all such bets are unlawful, and all contracts for or on account of the money or thing bet or staked, are void. (1 R. S. 662, sec. 8.)

Thus, there was no contract, express or implied, touching the money deposited with the plaintiff, and independent of the section of the statute next mentioned, the defendant had no redress against the plaintiff to recover it back, whether it were lost or won. The ninth section provides, that any person who shall pay or deliver any money, &c., on the event of any wager prohibited by the act, may sue for and recover the same of the winner and of the stakeholder.

On this it is claimed that the defendant had a debt or demand against the plaintiff, for which he was at liberty to bring assumpsit, and which he could therefore set off.

We think this position is not sustained. It is not important to consider whether or not assumpsit could have been brought under the statute. But we are entirely clear, that there was no debt due from the plaintiff to the defendant, when this suit was brought. The statute having declared that the wager was unlawful, and every contract respecting it void, the defendant’s sole remedy was by a suit to recover back the money depositedj and this remedy existing only by force of the statute, could be obtained only in the manner which it prescribed. The defendant might sue for it, but there is nothing in the law which will enable him to recover it without suing for it, by way of a defence or set off in a suit against him.

In McKeon v. Caherty, (1 Hall, 300,) this court decided; under the revised laws of 1813, that assumpsit could not be maintained to recover back money staked on a wager, because the act gave a remedy by an action of debt, and there was no common law remedy to recover the money. The revised statutes make no change in the law in this respect, except that they are silent as to the form of the action. The case cited is therefore an authority in support of our conclusion that there was no indebtedness from the plaintiff to the defendant. There was merely a right to sue the plaintiff, in accordance with a strict statutory grant of relief, where no other remedy existed.

It is equally clear, aside from the language of the act, giving merely a suit, that this right was not a demand which could be set off. It was not a demand arising upon judgment, or upon contract express or implied ; (2 R. S. 354, sec. 18 ;) which is an essential requisite to authorize a set off.

Motion for new trial denied.

The motion for a new trial on the ground of surprise, and newly discovered evidence, is also denied.


text:
    Gassner v. Sandford.

      Nul tiel record, pleaded in an action of debt on judgment, is a plea of the general issue, within the provision of the statute authorizing notice of special matter to be given whenever the general issue is pleaded.
    The statute authorizing a defendant to give notice of his defence, instead of pleading it, is a remedial act, and should be construed liberally.
    In an action of debt upon a judgment, brought after a great lapse entry of the judgment, it is competent for the defendant to show that an execution was issued upon the judgment soon after its recovery ; that the defendant had property which could be reached by the process; that the officer having charge of the same is dead, and his papers missing; and that the execution has not been returned to the proper office. These facts unexplained, will warrant a, jury in finding for the defendant.
    March 29;
    April 7, 1849.

      This was an action of debt, brought to recover the amount of a judgment recovered in the court of common pleas for the city of New York, in the year 1828, for the sum of $222 30. The declaration set forth the judgment, to which the defendant pleaded nul tiel record. Annexed to this plea, was a notice of special matter, viz.: that on the first day of July, 1828, the defendant fully paid and satisfied the sum claimed in the declaration. The cause was tried before Chief Justice Oakley and a jury, on the 5th day of January, 1850.
    Upon the trial, the plaintiff introduced in evidence a record of a judgment recovered in the court of common pleas, by the plaintiff against the defendant in the May term of the court in the year 1828, for $222 30. The interest upon the said judgment was admitted to be $318 93. The plaintiff thereupon rested.
    It appeared in evidence on the part of the defendant, by the testimony of Andrew Warner, who had been for eighteen years a clerk in the office of the clerk of the city and county of New York, that from an entry in the precipe book in July Term, 1828, a fieri facias for $222 30, was issued against the defendant at the suit of the plaintiff, and that no entry was made in the precipe book of its return. That whenever writs were returned, an entry of such return was always made.
    The plaintiff’s counsel objected to any evidence of the issuing of the execution, which objection was overruled, and the plaintiff excepted.
    It further appeared by the testimony of Henry Tysen, who had been an assistant in the office of the sheriff for sixteen or eighteen years, that the sheriff was in charge of the defendant’s property, consisting of his household furniture, library, and the wardrobe, scenery, printing office, and other movables of the Lafayette Theatre, and the horses, wardrobe and scenery, of the Mount Pitt Circus. That Mr. Platt was the deputy, and p'aced the witness in charge of the property in October, 1848; that he remained there about one hundred days, until the property was sold. The sales were made at different times. That some time after the sale, Mr. Platt died very suddenly, and his papers could never be found.

      There was some further testimony as to the sale of the defendant’s property.
    William Lowerre, the attorney who recovered the original judgment, testified to his having issued an execution on the day of its rendition, and that there was no entry in his register of its return. Being cross-examined, he said he had never learned from the sheriff whether a levy had been made; and that he had never received the money, and never learned that it had been collected.
    The defendant rested, and the plaintiff’s counsel called the defendant, who testified, that in the winter and spring of 1829, all his real and personal property had been sold by the sheriff; that he did not know what the proceeds of the sale were ; nor whether the sheriff had ever received the amount of the execution upon the judgment in this cause ; nor whether there were proceeds sufficient to pay it. In answer to a question by the judge, the witness testified that his property, if sold at a fair value, would have been sufficient to pay all his debts.
    The judge charged the jury, that under the circumstances of the case, although twenty years had not elapsed, they had a right to infer payment, and if they did, they must find for defendant ; otherwise, for plaintiff. The jury rendered a verdict for the defendant.

      Slosson and Schell, for the plaintiff.

      B. L. Billings, for the defendant.
   By the Court. Sandford, J.

The defendant is permitted to give notice of any matters which if pleaded, would be a bar to the action, whenever he shall plead the general issue, in any action in which such issue may be pleaded, (2 R. S. 352, § 10;) and the principal point presented by the case, is whether nul tiel record pleaded in an action of debt on a judgment, is such a general issue.

The subsequent provision in the same section, extending the privilege of giving a notice to nil debet, pleaded to debt on judgment, and to non est factum in covenant; does not aid the plaintiff, nor does it assist us much in pur inquiry. It is only to foreign judgments, and domestic judgments recovered in courts not of record, that nil debet can be pleaded. The revised statutes extended the notice of defence to this class of cases, without intending to extend the plea of nil debet to cases in which it was not previously a proper plea. (White v. Converse, 20 Wend. 266.) And as the legislature was aiming to enlarge the privilege of giving notice, and expressly conferred it in the action upon judgments in which nul tiel record is not pleadable, it is perhaps a fair inference, that they deemed the latter plea to be a generaloissue in actions on domestic judgments of record.

Previous to the revised statutes, nul tiel record was not a general issue. (Bullis v. Giddens, 8 Johns. 82; Raymond v. Smith, 13 Ibid. 329 ) The reason was, that it was triable by the court at bar, and not by a jury. By the revised statutes, this is changed, and the existence of the record, when denied, is to be tried by a jury as an issue of fact. (2 R. S. 409, § 4 ; Trotter v. Mills, 6 Wend. 512.)

The reason of the former rule no longer exists, and we cannot perceive why the rule itself should continue. The record of the judgment declared on, is the whole basis of the plaintiff’s action. The denial of the existence of the record, puts his whole claim in issue. This, it seems to us, fully answers the description of a general issue.

The courts have repeatedly declared, that the statute authorizing notice of the defence to be given, instead of pleading it, is a remedial act, and should be construed liberally. In Mervin v. Kumbel, (23 Wend. 301,) where this was said by Bronson, J. he added, “ I think the statute meant to, turn the plea of nul tiel record into a general issue upon the original cause of action.” He was, it is true, speaking of the plea when put in by a joint debtor, not served with process in the original suit; but if it were a general issue to the original cause of action, it surely could be no less to the action properly founded upon, and supported by the judgment.

In Wilmarth v. Babcock, 2 Hill, 195,) the court said a partial defence might be given in evidence on the trial upon the issue of nul tiel record ; which could not be so unless that plea was the general issue. This plea is ranked as a general issue in the books of practice, since the revised statutes. (Graham’s Pr. 196, 198 ; Burrill’s Pr. 164.)

Our conclusion is, that the notice of special matter was properly appended to the plea of nul tiel record, and that the evidence in support of it was correctly admitted on the trial.

We have no doubt that the proof was competent under the notice, and sufficient to establish the defence. (Miller v. Smith, 16 Wend. 425.)

Motion for new trial denied.