text:
    Robert L. Noyes v. John Anderson.
    The defendant was the owner in fee of premises at the foot of Barclay street, in the city of New York, in which was an office known as “The Troy Day Boat Office,” and which had then been standing there for the period of twenty years.” On the 1st of May, 1850, he leased the office to one Ross, for one year, for $500, payable monthly in advance. Ross went into possession and occupied until the 1st of September, 1850, when the plaintiff was accepted by the defendant as his tenant, from that date to the 16th of November then next, on condition of his punctually paying rent as stipulated to be paid by Ross. On the 3d of September, 1850, the plaintiff, as such substituted tenant, paid to, and the defendant received, $41 62, in full of the rent for the month of September, in advance. On the morning of the 7th of September, 1860, the office was torn down by the Street Inspector of the city, under the authority claimed to be derived from 2 R. L. p. 434, § 220, and p. 434 id. §,227, and a corporation ordinance, found at page 288, § 1, of the edition of 1845. The plaintiff brought this action, claiming to receive so much of the rent paid in advance, as would be payable for the part of the month of which he had been deprived of the occupation, and also the value of his bargain, or the difference between the value of the lease and the'rent stipulated to be paid. The lease contained no covenant, and there was no fraud or misrepresentation on the part of the defendant. It was held, that if the destruction of the office was unauthorized by law, that act was a trespass, and would not exonerate the plaintiff from his liability to pay the stipulated rent. If authorized by law, the existence of the authority, and the probability of its being exercised, were presumptively as well known to the one as the other.
    That the recovery must be limited to so much of the advance rent as was proportioned to the part of the month, during which the plaintiff was deprived of the use and occupation of the office. The recovery of this much was allowed on the principle that to this extent there had been a failure of consideration, the lease having been given and taken in the mutual expectation that the plaintiff would not be disturbed in the enjoyment of the premises by any action of the corporation during the term.
    (Before Oakley, Ch. J, Paine and Bosworth, J.J)
    Argued November 8:
    December 11, 1852.
    That in the case of an eviction from demised premises, where there was no fraud or misrepresentation of the lessee inducing the taking of the lease, the measure of damages, if rent has been paid in advance, is so much of the advanced moneys as would be payable at the stipulated rate, for the unexpired part of the lease, with interest, and that if no rent had been paid in advance, no damages could be recovered by the lessee. His liability to pay rent would cease from the time of the eviction.
    Upon an executory contract to give a lease, and a failure or refusal to give one, the rule of damages is the same, if the inability or refusal is without any fault or fraud on the part of the party promising to execute it.
    Where the refusal to give a lease results from the fraudulent conduct of the defendant, consequent special damages, on proper allegations being embodied in the complaint, may be recovered.
    Tecs was an action to recover damages for the eviction of the plaintiff, hy a paramount title, from certain premises leased "to him by the defendant. The cause was tried before Ch. J. Oakley, and a jury, on the 9th of May, 1852. A verdict was rendered for the sum of $159 51, the damages claimed hy plaintiff, subject to the opinion of the court at general term.
    The following are the material facts as they appeared in evidence on the trial:—
    The defendant, Anderson, on May 1st, 1850, rented “The Troy Day Boat Office ” (a tenement standing on the pier below the foot of Barclay street) to John J. Boss, for one year, at the rent of $500. Boss entered and occupied, till about September first, paying rent. On the third September, Boss assigned lease and premises to plaintiff, Boyes, till Bovember ■ 15th, over two months. Defendant, Anderson," then received plaintiff, Boyes, in place of Boss, for said period, and plaintiff paid him $41 66 in full of the first month, in advance. Plaintiff, Boyes, then sub-let the office to Weldon, for the period of his lease, to the 15th Bovember, for $20 a-week, payable weekly in advance. On the 7th day of said September the superintendent of streets, having caused the proper notice to be put up on the building, tore it down and carted it to the public yard, evicting Weldon.

      L. Marsh, for the plaintiff,
    relied upon the following points and authorities:—■
    I. The tenement thus rented by the defendant to the plaintiff, was on the pier, in violation of law; it had no right there, and the defendant rented the building wrongfully.
    Laws of 1813, 2d vol. p. 434, section' 227, enacts, “ That no building of any kind or description whatsoever, other than the said piers and bridges, shall at any time hereafter be erected upon the said streets or wharves, or between them respectively and the river to which they respectively shall front and adjoin.”
    The streets in the above section referred to are West and South streets.— Vide p. 432, sec. 220.
    Sess. L., 1815, p. 157. Vide laws relating to city of Hew York, p. 249. The only modification of this law, which has since been made, is in permitting the erection of ferry houses on the wharves or streets.
    This Troy Day Boat office was on the pier below Barclay street, between West street and the Horth Biver, and it was not a ferry house.
    It was there, therefore, contrary, to the statute.
    H. The city of Hew York caused this office to be removed, according to law.
    Corporation Ordinances, revised edition of 1845, p. 288, sec. 1.—The Street Commissioner, &c., may order anything whatsoever, which may encumber or obstruct any street, wharf, or pier, to be removed. If not removed within twenty-four hours after notice to remove, he may order it to be carted or removed to the yard of the Superintendent of Buildings, or other suitable place.
    P. 289, sec. 6, gives same power to other officers.
    These ordinances were complied with in the removal of this office.
    HL It was contended on the trial, that there is, by statute, no implied covenant for quiet enjoyment. We answer :—
    I. We did not bring our action on any such implied covenant ; and, therefore, to deny the existence of such covenant, is to deny nothing material.
    2. The statute relied on is, “ Ho covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.”—2 R. S., 3d ed., p. 221, sec. 140.
    This is under the title of “ Alienation by Deed.”
    The memorandum signed by defendant, agreeing to take plaintiff for two months, in lieu of Ross, was no “ alienation by deedno “ conveyance;” nor is it, in any sense, within the meaning of said 140th section.
    The subject of the action is not real estate within the meaning of said section.
    This term, real estate, as here used, is subsequently defined:
    “ The term, ‘ real estate,’ as used in this chapter, shall be construed as co-extensive in meaning with ‘ lands, tenements, and hereditaments,’ and as embracing all chattels real, except leases for a term not exceeding three years.”—2 R. S., 3d ed., p. 46, sec. 42.
    Of course, a lease for a term not exceeding three years, is not “ real estate.”
    This lease, then, for two months, is not “ real estatenor is the lease a “ conveyance.”
    So, also, the term “ conveyance” is defined, and “leases for a term not exceeding three years ” are expressly excluded from the definition.—2 R. S., 3d ed., p. 47, sec. 44.
    TV". It was contended on the trial, that Ross, in his memorandum of lease, had agreed to do whatever repairs he might want, at his own cost and expense.
    If this applied to the plaintiff, Hoyes, it would not bind him to rebuild.
    To repair is not to reconstruct. To do what repairs he may want, does not impose on him the obligation to put up a new building, in violation of law.
    Y. That the defendant was the owner of the pier, does not change the case. The statute applies as well to owners as to lessees, or other occupants.
    YT. It was said, the plaintiff should have known the law, as well as the defendant.
    The defendant, Anderson, knew whether he had violated the law or not.- The plaintiff, Hoyes, could not know it. He could not know whether the building was erected before the law, or whether defendant had obtained permission from the city.

      Indeed, if both contracted in ignorance of the law, the defendant is liable for the consequences of his contract. He pretended to have a right to lease the office, when no such right existed.
    VII. It may be urged that defendant had acquired the right by the long standing of his building, a sort of adverse possession.
    Presumptions from long acquiescence arise between individuals, but not against a statute. This is not an acknowledged way of repealing a law. This building was put up contrary to the statute, it stayed there contrary to statute, and it'was pulled down according to statute.
    The argument is, that a man may violate the law so long that he claims to have a right to do so. That is, the defendant claims under a legal prescription to disregard the law.
    VHI. The damages were correctly estimated by the jury. They were:—
    1. The amount actually paid defendant by plaintiff; and
    2. The difference between what plaintiff had agreed to pay defendant, and what plaintiff had rented it to Weldon for. This was no fancied benefit. It was the actual worth of the contract.
    But the defendant contended we were entitled to only nominal damages.
    Such might be the rule in a technical action, on a covenant for quiet enjoyment, where no purchase money had been paid. But here $41 66 had been paid, and this action was not on the implied covenant.
    This was an action corresponding with the old action of trespass on the case.
    14 Wendell, 41, Kinney v. Watts.—Sutherland, J. “The appropriate.actionfor the injury complained of by the plaintiff, would have been a special action on the case, in which the question of "damages is entirely at large, embracing all the loss and injury, which is the necessary result of the. illegal acts complained of, if the declaration is properly framed.”
    17 Wend. 71, Driggs v. Dwight.—Action on agreement to lease. Defendant .contended that the plaintiff was only entitled to recover the difference between the actual value of the rent, and the sum he had agreed to pay as rent.

      The judge charged: Plaintiff is entitled to the damages necessarily resulting from breach of contract, and expenses of removing family, &c., was a proper item.
    Cowen, J., says : “ The Jury might look to the actual value of the bargain the plaintiff had made.”
    But the concession of the defendant in the case cited, would justify the recovery in the case at bar;, for the actual value of the rent was what Weldon had agreed to give.
    4 Barb. Sup. Ct. R. 261, Giles v. O’Toole.—“ In an action by a lessee against a lessor, to recover damages for a refusal to give possession of the demised premises, the plaintiff may recover the damages" arising from the expenses incurred in preparing to remove and occupy the premises, together with the difference between the real value of the rent and the sum agreed to be paid.”
    All we recovered here was the money we actually paid defendant, and, in addition, the difference between the real value of the rent (which was what Weldon agreed to pay us) and the sum plaintiff agreed to pay defendant.

      W. W. Niles, contra,
    insisted on the following points:—
    I. There is no warranty of title or covenant for quiet enjoyment or to repair—then the plaintiff must show affirmatively that the Corporation of New York, and not the defendant, were owners, or entitled to the privileges claimed by them.
    II. Notwithstanding the statute and ordinance relied on by the plaintiff, twenty years’ peaceable possession is pri/md facie evidence of permission from the City to build the “ Steam Boat Office,” and it being admitted that the defendant owned the fee of the premises, the right to occupy for a steamboat office became vested and absolute.
    At least the plaintiff must show affirmatively that the defendant had no right and no permission.
    III. Ross was as much bound as Anderson to know the public law, if this is considered ohe, under which the Corporation claimed—and to know the extent of their claim. If so, he took subject to it, there being no covenant in the lease—in which case it is submitted a party only lets his interest. (Lyons v. Richmond, 2 John Ch. 51, 60.)
    IV. “The court cannot judicially notice the ordinances of a Municipal Corporation.” If the plaintiff claims that the city acted under one, it should appear, or be referred to in the case. He must aver and prove his title paramount, and that he was evicted under it. (Kelly v. Dutch Church, &c., 2 Hill, p. 111. Webb & Wife v. Alexander, 7 Wend. p. 281.)
    V. There is no pretence but that the plaintiff was permitted to occupy the premises, he merely alleges damage by,the destruction of the improvements. It was not in any event a total eviction.
    VI. An eviction, if proved, only discharged the rent.
    Vn. Only particular words such as “ demise” or “ grant,” imply a covenant for quiet enjoyment. (Frost v. Raymond, 2 Caius, 188. Platt on Covenants, Law Library, vol. iii. p. 40.)
    VIH. If the plaintiff" can recover at all, the measure of damages is the consideration money paid and interest, or, in the present case, the rent paid in advance less the proportion from 1st to 7th September, the time plaintiff was in possession. (Kinney v. Watts, 14 Wend. p. 38., Dimmick v. Lockwood & Or., 10 Wend. p. 142. Kelly v. Dutch Church, &c., 2 Hill, p. 105. N. Y. & H. R. R. Co. v. Story, 6 Barb. 419, Peters v. McKeon, 4 Denio, 546.)
    IX. In any event the verdict as recorded is excessive. The plaintiff has a verdict for the whole amount Weldon promised to pay—then for one particular week which he refused to pay, and then for the whole amount he had paid defendant, although he occupied from 1st to 7th Septembér, nearly one fourth of the whole time.
   By the Court. Bosworth, J.

On the 1st of May, 1850, the defendant rented to Ross the office at the foot of Barclay street, for one year from that date, for $500, payable monthly in advance. The office is known as “ The Troy Day-Boat Office.” The instrument in writing, or lease, signed by the defendant, contained no promise on his part of any kind whatever. He “ owned the property (leased) in fee simple.”

Boss went into possession, and occupied until the 1st of September, when Hoyes went into possession. On the 3d of September, Hoyes paid to the defendant $41 66, for one month’s rent of the office in advance, from the 1st of September to the 1st of October. Anderson signed a written agreement, dated September 3,1851, and delivered it to Hoyes, whereby, as stated therein, in consideration of the punctual and prompt payment of the rent as stipulated to be paid by Eoss, he consented to receive Hoyes as a tenant in the place of Eoss, from the 1st of September to the 15th of Hovember following.”

The office was torn down on the morning of the 7th of Septemoer by the street inspector.

The appeal presents substantially but two questions:

First, Is the plaintiff entitled, upon all the facts and circumstances of this case, to recover anything ?.

Second, If entitled to recover, what is the rule by which the damages are to be ascertained?

If an action .will lie on the facts of this case, it must be for the reason that the plaintiff has paid money upon a consideration which has failed, and which in equity should be refunded. There is no attempt to prove any fraudulent misrepresentation, or concealment of any material fact. It is conceded that the defendant owned the fee of the premises on which the office stood. He had therefore all the right to grant the lease in question which any owner in fee of such property possessés.

It was unlawful, or so the plaintiff insists, to erect and continue this office on the pier on which it stood. 2 B. L. p. 432, § 220, and p. 434, 227, are cited as legislative prohibitions against such erections.

Assuming that this act divested the owner of the pier of all right to erect or continue such a structure on the pier, this fact was presumptively as well known to Hoyes as to the defendant. If is declared to be a public act (id. p. 660, § 315), and every citizen is presumed to know the law. There is nothing in the case to show that its existence and particular provisions were not as fully known to the one party as to the other. If the effect of this statute be such as the plaintiff’s "counsel contends, then it was in the power of the city to tear down the building, if not removed within twenty-four hours after a notice to remove it had been given by the street commissioner. (Cor. Ord. edition of 1845, p. 288, § 1.)

The destruction or removal of the building, as both parties must be presumed to have known, when Hoyes became a tenant of the defendant, and paid one month’s rent in advance, was liable to occur at any time on twenty-four hours’ notice. It appears, however, to have been standing, and to have been used for the period of twenty years. To this, so far as the evidence shows, no objection had been made by the municipal officers of the city.

We think it a just conclusion, that both parties contracted, the one to rent, and the other to hire and pay monthly in advance, on the mutual understanding and expectation that the plaintiff would not be disturbed in the enjoyment of the premises by any action of the city corporation. That this was the understanding and expectation of the defendant and Boss, is shown by the fact that the former leased and the latter hired the premises for a year, which did not expire until the first of May subsequent to the time of pulling down the office. The consideration of the payment by the plaintiff on the third of September of $41 66 was the enjoyment to be had of the premises for the whole of that month. This consideration failed as to twenty-four days of the time for which it was paid, without the fault of either party,, and contrary to the understanding ■ of both. And we think it just and equitable that the plaintiff should at all events recover back the rent for so much of the month as he was deprived of the enjoyment of the premises.

There is nothing tending to show that the tenant, on hiring the office, and paying a month’s rent in advance, was understood by both parties to take the risk of the office being permitted to remain during the term. Unless this was so, there has been a partial failure of the consideration for which the rent was paid and received.

To the amount of such failure the recovery must be limited.

If the lease had contained covenants of seizin and for quiet enjoyment, and the plaintiff had been evicted by a paramount title, the whole amount which he could have recovered back, in an action upon any of the covenants, would be the moneys paid in advance, deducting therefrom rent at the, stipulated rate for such portion of time, for which- the advance payment was made, as the lessee had enjoyed the premises, with interest on such balance.

It is regarded as settled law in this state that the ultimate extent of a grantor’s responsibility, under any or all of the usual covenants in his deed, is the purchase money with interest. (4 Kent Com. 476, 477; 5 J. R. 49; 12 id. 126; 10 Wend. 142.)

In Kelly v. Dutch Church of Schenectady (2 Hill, 116), the same rule was applied to an eviction from demised premises. The court said: “ Following that analogy, the rents reserved in a lease, where no other consideration is paid, must be regarded as a just equivalent for the use of the demised premises. The parties have agreed to so consider it. In case of eviction, the rent ceases, and the lessee is relieved from a burden which must be deemed equal to the benefit he would have derived from the continued enjoyment of the property. Having lost nothing, he can recover no damages.” (14 Wend. 41, Kinney v. Watts.)

In this case, there is no covenant or promise for the quiet enjoyment of the premises by the lessee. There is no fraud on the part of the lessee, and the plaintiff has not been disturbed in his possession by any wrongful act of the lessor. On such a state of facts, it is not perceived on what principle the liability of the defendant is any greater than it would have been if he had expressly covenanted that the plaintiff should not be disturbed during the period of his stipulated tenancy.

He accepted the plaintiff as his tenant fpr two months and a half. Each party knew at the time, or is presumed to have known, that the office might lawfully be destroyed by public authority at any time after twenty-four hours’ notice. It was so destroyed during the plaintiff’s tenancy. At least, this assumption is the only one on which his right rests to recover anything. For if the destruction of the office was not authorized by law, but was the a.ct of a trespasser, the plaintiff has not only no right of action, but is liable to pay rent for the residue of his term. The plaintiff’s counsel contended that the plaintiff was entitled to recover the value of his bargain, and also to recover back the rent for the period of the month which he had paid in advance, and during which he was deprived of the possession. The case of Driggs v. Dwight, 17 Wend. 71, and Giles v. O'Toole, were cited in support of this proposition. The former case was an action upon an executory contract to give a lease. Kinney v. Watts, does not appear to have been cited by counsel on the argument, nor to have been adverted to by the court in its opinion. On the trial, the defendant’s counsel conceded that the plaintiff was entitled to recover the difference between the actual value of the rent, and the sum he had agreed to pay as rent (p. 73). The plaintiff was also allowed to recover the expenses of removing from his residence to the demised premises, although no such damage was alleged in his declaration. There are several cases which recognise the right of a person who has contracted for a lease to recover such damages when they are averred in the declaration, and the refusal of the defendant to give a lease does not result from his inability, without fault on his- part, but from his fraudulent or perverse refusal. There was no other ground for the refusal in Driggs v. Dwight. Giles v. O’Toole, 4 Barb. S. C. R. 261, and Lawrence v. Wardwell, 6 id. 423, were actions to recover damages in consequence of the refusal of the defendants, the lessors, to give possession of the demised premises, according to the terms of the lease.. It was in their power to have given the possession, and.their refusal to do'so was without any excuse which the court could approve.

It was decided in the supreme court of this state, in 1829, that a Iona fide vendor, who covenants to sell and convey land believing he has a good title, but who on discovering before any part of the consideration money has been paid that he has no title, is not liable to any damages for refusing to convey (Baldwin v. Munn, 2 Wend. 399).

The same court, in 1847, in Peters v. McKeon, 4 Denio 546, re-adjudged the sainé point, and also held that in such a case, the plaintiff could not recover for his expenses of removing upon the premises, nor for any improvements which he had made upon them.

The measure of damages in such a case was held to be substantially the same as it is in the case of an eviction, after entering into possession under an executed sale.

Both of these cases recognise the rule, that where a party contracting to give a lease, or to convey, has the power to perform his contract, but perversely refuses, his refusal becomes fraudulent, and the other party may recover the value of his bargain, and any special damage actually resulting from the violation of the contract.

Retner v. Braugh, 11 Penn. R. 127, holds the same doctrine, and distinguishes between the. cases where the conduct of the lessor or grantor is iond fide, and those in which it is fraudulent.

Where it is fraudulent, the defrauded party, in an action on the case founded on fraud, may recover the value of his bargain, and any special damage, which in judgment of law has resulted from the fraud.

In this case, there is'no fraud on the part of the defendant, nor any express promise that the plaintiff should have quiet enjoyment of the premises to the 15th of November.

I do not think there is anything in the terms of the paper or lease given to Boss, or in that given to the plaintiff, from which such a promise of the defendant can be implied by law. But if there was an express promise for quiet enjoyment, as the case is free from fraud, the plaintiff could only recover back so much of the rent advanced as was paid for the twenty-four days in September, during which he was deprived of the possession, and interest from the 7th of that month.

The rent for twenty-four days, at $41 66 for the month, is $33 33.

The verdict must be set aside, and a judgment entered in favor of the plaintiff for $33 33, and interest from September 7,1850.


source: Caselaw Access Project

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

license: Public Domain

text:
    Lewis Fatman and others v. William Lobach and another.
    (Before Oakley, Ch. J., and Bosworth, J.)
    Nov. 10th:
    Dec. 11th, 1851.
    A person who in good faith advances money to the holder of a certificate of stock to which a power of attorney is annexed, which is expressed to be for value received, and on its face is irrevocable, although the power is in blank as to the name of the attorney, acquires by the delivery to him as collateral security of the certificate and power, a valid title against the person by whom the power was executed, and in whose name the stock is standing.
    The lender in such a case has the right to believe that the holder of the certificate and power is the owner of the stock, and has an absblute right to hypothecate as well as to sell it.
    He is therefore not bound to surrender the certificate and power to the -original owner of the stock, unless upon the repayment with interest of his whole advance, although such owner may have satisfied the debt for which he had himself pledged the stock.

      'Held, upon these grounds, .that the defendants were entitled to judgment.
    This was an action to compel the return and delivery to the plaintiff of certain certificates of stock, or in default thereof, the payment by the defendants, as the value of the stock, of $15 25, with interest.
    The cause was tried before Mr. Justice Campbell, and a jury, on the 21st of June, 1852. In order that the application of the evidence given on the trial may be properly understood, it will be necessary to state the substance of the pleadings.
    The complaint stated that the plaintiffs were partners under the name and firm of S. Fatman & Co., and on or about the 16th of August, 1851, were the owners of ten shares of the capital stock of the Columbia Insurance Company, a corporation under the laws of Pennsylvania, worth the sum of $400 ; of twenty-five shares of th'e Astor Insurance Company, á corporation under the laws of Hew York, worth the sum of $625, and of scrip of the Atlantic Insurance Company, also a Hew York Corporation, for and worth the sum of $500, for the first two of which stocks they held a certificate in their own names; for the third a certificate in the name of Joseph Fatman, trustee. That on the day above-named, they borrowed, of one F. Esenwein, the sum of $3000, and as a security for the repayment of the loan with interest, transferred to him a promissory note of R. ■ H. Arkenburgh, dated the 12th of May, 1851, payable four months after date, for $l,620T„ff, another promissory note of C. R. Donaldson, dated May 10th, 1851, payable four months after .date, for $686x\\, and also delivered to him, the said Esenwein, the certificates of stock above-mentioned, with power of attorney to transfer the same, such power being in blank as to the names of the attorney and of the’ transferee; that the said Esenwein, without notice to the plaintiffs, and without demanding of them repayment of the said loan, on or about the same day, handed over the said certificates, power of attorney, and promissory notes to the defendants, partners, under the firm of Lobach & Schepeler, as security, it was alleged, for a loan made by them to the said Esenwein.
    The complaint further alleged, that as soon as the plaintiffs heard of the transaction between Esenwein and the defendants, they tendered to the latter the sum of $3000, and demanded from them a return of the said notes, certificates, and powers, with which demand the defendants refused to comply.
    The complaint further stated, that the said promissory notes had been duly paid at their maturity, and said that after such payment, the plaintiff duly tendered to the defendants the sum of BílS^/g-, being the balance with interest, due from them, on their loan of $3000, b.ut that the defendants had refused to accept the tender and deliver up the certificates. The plaintiffs therefore demanded judgment—that the defendants, on the payment to them of $715t'/7, should be adjudged to return to the plaintiffs the said certificates, and to deliver up the said powers of attorney to be cancelled, or in default thereof, to pay to the plaintiffs the value of the certificates, being the sum of $1,525, with interest.
    The defence set up in the answer was, that the defendants, on or about the 15th of August, 1851, lent and advanced to Esenwein the sum of $5000, upon the pledge and hypothecation by him of the shares of stock mentioned in the complaint, and upon the further security of the following promissory notes, one paid by R. H. Arkenburgh, due 15th September, 1851, for $1620TYX; another made by one Charles ■ R. Donaldson, due 13th September, 1851, for $686TW, both of which were endorsed by plaintiffs, and a third, made by one Henry C. Stevenson, due 12th December, 1851, for $1,661tul. That in consideration of such loan, and to secure its repayment, the said F. Esenwein, by his duly authorized attorney, Charles Esenwein, simultaneously therewith, executed and delivered to the defendants the following promissory note, commonly called a stock note.
    $5,000. Hew York, August 16,1851.
    On demand, I promise to pay to Messrs. William Lobach & Schepeler or order five thousand dollars for value received, with interest at the rate of 7 per cent, per annum, having deposited with them as collateral security (with authority to sell the same on the performance of this promise) $1525 in three insurance stocks and 3968.28 3 notes.
    Feedeeick Esenwein,
    per Chas. Esenwein.
    And at the same time delivered to the defendants the certificates of stock mentioned in the complaint, and also separate powers of attorney to transfer the same, two of which were duly executed by the plaintiffs, and the third by Joseph Fatman, trustee. The answer set forth the powers, each of which was in the following form:
    Know all men by these presents, that we, the undersigned, for value recei/oed, do hereby irrevocably constitute and appoint to be our true and lawful attorney, for and in our name and behalf, to sell, assign, and transfer unto or any other persons or persons, twenty-five shares in the capital stock of the Astor Fire Insurance Company. And further, one or more persons under us to substitute with like power.

    In witness whereof, we have hereunto set our hand and seal, this 14th day of August, 1851.
    Lewis Fatman & Co.
    Sealed and delivered in the ) presence of f
    The answer then alleged that these powers had been filled up with the names of the defendants, as attorneys and transferees, and transfers demanded on the books of the said companies before any tender was made to them by the plaintiff. It then proceeded, as follows
    “ And the said defendants further show, that such stock assignments or powers to transfer stocks, are and were at the time hereinbefore mentioned, by usage and custom within this state, negotiable instruments, vesting the bearer or holder thereof for the time being with the title and ownership of the stocks and scrip which they represent, and authorizing such bearers or holders thereof to fill up the blanks therein with the names of such transferees of the said stocks, and of scrip, and of such attorney to transfer the same as they might elect, that the said defendants advanced the said sum of five thousand dollars upon the pledge and hypothecation of the said stocks and scrip in good faith, in the ordinary course of business, and without any notice that the said Frederick Esenwein was not the full and absolute owner thereof, for a valuable consideration.
    “ And the said defendants further say, that the whole amount of the said loan so made by them to the said Frederick Esenwein still remains, and is due and unpaid, with the exception of the amounts of the said two promissory notes of R. H. Arkenburgh and Charles R. Donaldson, which have been paid, leaving due and unpaid to the said defendants a balance of the said loan, amounting to the sum of twenty-six hundred and ninety-two TW dollars, besides interest, for which amount and interest the said defendants are advised and respectively insist that they have a lien upon the said stocks and scrips, and a right to sell and transfer the same, and apply the proceeds to the payment of the balance due on the said loan, with interest and charges.” »
    The reply took issue upon the material allegations in the answer.
    Upon the trial the following facts were admitted by the respective parties:—
    “That on the sixteenth day of August, one thousand eight hundred and fifty-one, the plaintiffs borrowed of one F. Esenwein the sum of three thousand dollars, and as collateral seenrity therefor, delivered to Esenwein the certificates of stock and the scrip, with the blank powers of attorney, and note of E. A. Arkenburgh, for one thousand six hundred and twenty dollars and twenty-four cents, and of C. E. Donaldson for six hundred and eighty-six dollars and eighty-eight cents, all described in the complaint; and that, on the same day, Esenwein, adding to these securities the note of Stephenson, described in the pleadings, borrowed from the defendants the sum of five thousand dollars, for which he gave them his own note for five thousand dollars, as mentioned in the pleadings, and as collateral thereto, handed over said securities and note to the defendants, with the stock certificates, and scrip, and powers of attorney for the transfer of said stock and scrip, the same being still in blank. It was also admitted by defendants’ counsel that the Stephenson note was not paid. It was also admitted by said counsel that the said stock and scrip were not transferred by the companies to Esenwein, and also, that .the blank powers were not filled up to him, but that said blank powers were filled up by the defendants with their own names as the transferees and attorneys to transfer, after the first demand had been made wpon them by Joseph Eatman, and the said powers presented, to the said companies with the certificate and scrip, and transfers demanded in pursuance thereof, which the companies refused, such transfers having been forbidden by the plaintiffs.”
    The value of the stock was admitted to be $1,525, subject to, adjustment. It was also admitted that F. Esenwein was insolvent to a large amount. Several witnesses were then examined on the part of the defendants to prove the usage set up in the answer. Their testimony was objected to by the counsel for the plaintiffs, and as it was disregarded in the opinion of the court, it is unnecessary to be stated.
    The evidence was then' closed, and, under a charge of the court, the jury found a xerdñct for the jplaintiffs for the full amount claimed and interest, subject, however, to the opinion of the court at general term, on a case to be made, with liberty to turn same into a bill of exceptions, and subject to adjustment as to amount, with liberty to the court to order a nonsuit or judgment for defendants, the case to be heard in the first instance at a general term.

      E. S. Van Winkle, for plaintiffs,
    insisted that they were entitled to judgment upon the verdict, upon the following grounds:
    I. The delivery of the powets in blank to Esenwein, can only be held to be an implied authority to him to fill up the blanks therein, when it was rightful and proper for him to do so—that is, upon the plaintiffs’ failure to repay their loan; but that exigency never having arisen, Esenwein never had any rightful authority, express or implied, to fill the blank. (Ex parte Decker, 6 Cowen, 60.)
    II. But whatever implied authority rested in Esenwein to fill in the blanks in the executed powers, none such was ever vested in the defendants.
    HI. The certificates were not negotiable, and did not pass by delivery; and there was no power ever given, even to Esenwein, to pledge or hypothecate the stocks, but merely to sell, assign, and transfer them. (2 Kent’s Commentaries, 579; 4 Kent’s Commentaries, 138; Allen v. Dykers, 7 Hill’s Rep. 501; Daley on Agency, 213, 218; De Bouchout v. Goldsmid, 5 Ves. p. 211.)
    IY. The courts will not complete a defective security, except to carry out the purposes of the instrument.
    Y. Ho usage or custom can control a rule of law. (Thompson v. Ashton, 14 Johns. Rep. 316; Hinton v. Locke, 5 Hill, 437; Allen v. Dykers, 3 Hill, 593, affd. 7 Hill, 497.)
    YI. Judgment should be for the plaintiffs according to the prayer of the éomplaint, either that the defendants return the securities and cancel the powers, or pay plaintiffs the value thereof as fixed by the verdict.

      J. Larocque, contra.
    The powers to transfer in this case are powers coupled with an interest. They, express a valuable consideration on their face. A valuable consideration was in fact given for them. They are irrevocable by their express terms, and contain the fullest possible power of substitution. Independently, therefore, of any consideration of custom or usage, in regard to the mode of transferring and passing the title to stocks, the defendants acquired a good title by the pledge of the securities and transfer of the certificates and powers of attorney to them, to the full extent of the $5,000 advanced upon such pledge and interest. 1. The words “ value received,” in the powers to transfer, by fair construction, mean that the plaintiffs had received full value for the stocks from the person to whom the certificates and powers were originally given, and that inference the defendants were justified in drawing from the language used. 2. The powers to transfer being irrevocable on their face, and containing an unlimited power of substitution, vested in Esenwein an absolute control over the stocks, and would entitle the defendants, in any event, to hold the stocks as the substituted attorneys of the plaintiffs, under the power of substitution, and as security for the repayment of their value, the receipt of which by the plaintiffs from the original agent, the power acknowledged on its face, and which the defendants were accordingly justified in repaying to the agent on being substituted. (Story on Agency, § 476-7: Hunt v. Rousmaniere, 2 Mason, 244; Hancock v. Byrne, 5 Dana, 514; Angell and Ames on Corporations, 2d ed. p. 445; Gilbert v. The Manchester Iron Manufacturing Co., 11 Wend. 627.) The rule of law, that where one of two innocent parties is to suffer by the act of an agent, he who appointed the agent, and put.it in his power to defraud, should be the loser, applies in the full force, in this case, against the plaintiffs and in favor of the defendants. (North River Bank v. Aymar, 3 Hill, 268, and cases cited.) The testimony as to custom and usage, in the transfer of stocks, offered by the defendants, was properly admitted, stands entirely uncontradicted, and is conclusive upon the rights of the parties in this case. (Commercial Bank of Buffalo v. Kortright, in Court of Errors, 22 Wend. 348; same case m Supreme Court, 20 Wend. 91.) This being not an- action of trover, but the plaintiffs having chosen to appeal to the equitable powers of the court to compel the return of the certificates to them, and the cancellation of the powers to transfer, the rule that he who seeks equity must do equity, is fairly applicable ; and the rule of equity in this case is, the repayment of the whole balance of the five thousand dollar loan and interest. There should, therefore, be judgment for the defendants with costs.
   By the Court. Oakley, Ch. J.

The question is, whether the defendants, having advanced their money in good faith to Esenwein, upon the pledge of the stocks, are entitled to retain them, until the balance still due to them shall be satisfied, and we are clearly of opinion that they are so entitled, both in law and in equity. ' «

As each certificate was accompanied by a power of attorney which was expressed to be given for value received, and, on its face, was irrevocable, the defendants were fully justified in believing that Esenwein was the equitable owner of the shares, and had a perfect right to make an absolute or conditional transfer, to sell, or hypothecate them. Such a certificate annexed to or accompanying a blank power of attorney, we cannot doubt, not only according to the understanding of men in business, but upon well settled principles of law, passes by delivery an equitable title to a bond, fide purchaser; nor can such purchaser be justly prevented from converting his equitable into a legal title, by filling up and exercising the power, whenever he is entitled to do so by the nature or terms of the contract under which the certificates were delivered to him. Where the stock is sold absolutely, his. right thus to perfect his title is immediate ; where it is hypothecated, the right accrues when the debt meant to be secured becomes due and remains unpaid. Whether in the present case the powers of attorney were filled up before the plaintiffs made their tender, and demanded a return of the certificates, is, in our judgment, wholly immaterial. Fo tender short of the whole debt due to the defendants, could deprive them of their right to use the powers for the purpose for which they received them.

It was admitted by the counsel for the plaintiffs, that had the stocks been sold absolutely to the defendants, their title to retain them could not be questioned, but we cannot admit the distinction between a sale and a pledge which the counsel urged us to adopt. As the certificates and powers in the hands of Esenwein were presumptive evidence of his ownership, he had the same apparent right and authority to hypothecate the stocks, as to sell them.

There is no rule of law of which the equity is more manifest, or which is better sustained by reasons of public policy, than that which casts a loss, resulting from the fraud of a third person, upon the party who by employing and trusting such person enabled him to commit it (White v. Springfield Bank, 3 Sandford, 229, and eases there cited). And we doubt whether a case is to be found' in the books to which it is more evident that the rule ought to be applied. Had the plaintiffs placed their notes and certificates, with an ordinary power of transfer, in the hands of Esenwein merely as their agent, and broker, with instructions 'to procure upon them, in his own name, but upon their account; a loan of $5,000 ; and had Esenwein, after obtaining such a loan from the defendants, converted the whole sum to his own yse, it cannot for a moment be doubted, that a loss resulting from his subsequent flight or insolvency, must have been borne wholly by the plaintiffs. It will not be pretended that in such a case they could have claimed a return of the stocks, upon any other terms than the full payment of tire debt for which they were pledged.- The case before us not only rests upon the same principle, but is far stronger in its circumstances. Here Esenwein was not a mere agent, but a holder for value. The papers placed in his hands were evidence, not only of his authority, but of his ownership, and the plaintiffs have received from him $3,000 of the $5,000 which the defendants "advanced. It is with far less reason therefore that the plaintiffs can apply to a court of justice, to be relieved, at the expense of the defendants, from the consequences of the fraud, which, by their misplaced confidence, they enabled Esenwein to commit.

As we do not found our decision at all upon the usage that was proved upon the trial, it is unnecessary to say whether in our opinion the evidence was properly admitted. It may be considered as stricken fromthe case.

The verdict for the plaintiff must be set aside, and a verdict and judgment thereon, with costs, be entered fort the defendants.


author: By the Court. Bosworth, J.

text:
    Lawrence v. Kemp.
    (Before Oakley, Ch. J., Paine and Bosworth, J. J.)
    Nov. 11;
    Dec. 11, 1852.
    Gas fixtures and sitting stools, when placed by a tenant in a shop or store, although fastened to the building, are not fixtures, as between the tenant and landlord.
    They are the property of the tenant and may be removed by him not only during the term but after its expiration. He may pass a title to them by a chattel mortgage, and they may be levied on under an execution against him as his personal property.
    When a subsequent tenant in possession of a store containing such articles, the property of a former tenant, is sued by the landlord for not delivering them to him at the expiration of his term, he may defend himself by showing that they had been mortgaged by the first tenant, and that the mortgagee had entered and removed them.
    Even when such subsequent tenant had bound himself by an agreement in writing to deliver the articles to the landlord at the expiration of his term, he is liable only for nominal damages, when he proves a paramount title in the mortgagee by whom they were removed.

      Held, that the judge upon the trial erred in excluding such a defence, and a new trial therefore granted.
    Appeal by the defendant from a judgment at special term, on a bill of exceptions.
    The complaint alleged that the plaintiff, on or about the 7th of June. -1850, let to the defendant a certain store known as No. 379 Broadway, with the fixtures therein, until the 1st day of July following, and that the defendant agreed to deliver up said store with all the fixtures therein to the plaintiff, at the expiration of his term—th'at the defendant’s term had expired, and that "he had not complied with his agreement by delivering up the store with the fixtures, but, on the contrary, in violation of his agreement, had removed therefrom ¿ertain of said fixtures, to wit, -gas fixtures of the value of $200, and seventy stools of the value of $210, or $3 each. The plaintiff therefore claimed damages to the amount of $410, and demanded judgment for that sum, with interest, from the 5th of July, 1850.
    The defence set up in the answer was, that the articles mentioned in the complaint belonged, on the 25th of May, 1850, to George Stewart and James W. Patterson, and on that day, by a mortgage duly entered and filed, were mortgaged by them to one Harvey A. Newcomb, who before the first day of July took and received the said articles by virtue of his mortgage. It also averred that these articles were not fixtures within the true intent and meaning of the contract between the plaintiff and defendant. The reply took issue on all the material allegations in the answer, and averred that the defendant, by the terms of his agreement, was estopped from denying the plaintiff’s title.
    The cause was tried before Mr. Justice Paine and a jury on the 6th of April, 1852.
    Upon the trial the counsel for the plaintiff gave in evidence the following written agreement and receipt, the execution of which was admitted.
    “ Received, New York, June 7,1850, from R. C. Kemp, four hundred dollars, for the rent, till the 1st day of July, of the store lately occupied by George Stewart, at the corner of Broadway and White street, with the fixtures therein. It is understood that I am to have possession of the said store on my giving three days’ notice, at any time before .the said first day of July, 1850, in which I am to refund to the said Kemp so much of the above sum as may be equal to $11,Vo for every day that may be unexpired at the time of the delivery to me of possession on the first day of July, and that the store is to be delivered with all the fixtures which are now therein, unless taken out by process of law, of which Mr. Kemp agrees to give me timely notice, at 498 Broadway. It is also understood, that in case I should not require possession of the said store on or before the said first day of July, and the said Kemp should continue to occupy the same, he is to pay, in addition to the sum now paid, at the rate of $4,000 per annum, from the first day of July, until he delivers up possession thereof, which he & to do at any time on receiving three days’ notice.
    W. B. Lawrence.
    “I do hereby declare, that I enter into possession of the above described premises, by virtue of the agreement contained in the above receipt or memorandum, and hereby agree with the above-named W. B. Lawrence, that I will on my part perform the conditions thereof.
    “R. 0. Kemp.
    “ New York, June 7th, 1850.”
    It was then proved that the articles mentioned in the complaint were in the store when the defendant took possession under the above agreement, and had not been delivered up by him at the expiration of his term.
    The counsel for the defendant then offered to prove that the articles in question were put in the store by the former tenants, Stewart & Patterson; that they were duly mortgaged by them to Newcomb, and were removed by him in the exercise of his legal right as a mortgagee; they also offered to prove that, by the general understanding between landlords and tenants, the articles in question were not deemed to be fixtures.
    The learned judge decided that the articles in question were fixtures within the meaning of the agreement between the parties, and that unless the defendant could show that they had been removed by due process of law, he was precluded by the terms of his agreement from setting up a paramount title in any third person. He therefore overruled the whole defence as offered, and instructed the jury that the only question' for them to determine, was the amount of the damages to which the plaintiff was entitled. The jury found a verdict for the plaintiff, for
    The counsel for the defendant duly excepted to the ruling and charge of the judge, and upon these - exceptions the cause was now heard.

      D. P. Hall, and D. D. Field, for defendant.

      J. W. Gerard, for plaintiff.
   By the Court. Bosworth, J.

This action is brought to recover the value of certain “gas fixtures” and of “seventy stools.”

Such articles, when placed by a tenant in a demised building during his term, are his property. If not removed by him during the term, they do not, for that reason, cease to be his property. He may remove them after his term expires without subjecting himself to any damages for such removal, even though he be liable to an action of trespass for'an entry on the demised premises. He may mortgage them during his term by a personal mortgage, and they may be levied upon by an execution issued on a judgment, recovered against him. (Holmes v. Tremper, 20 J. R. 29; Reynolds v. Shuler, 5 Cowen, 323; Smith v. Jenks, 1 Coms. 96; Farrar v. Chauffette, 5 Denio, 527; 2 R. S. 24, § 6, sub. 4, 2d ed.)

The answer avers, and on the trial the defendant offered to prove, that on the 25th of May, 1850, these articles were owned by Stewart & Patterson, and that the plaintiff never owned them, ndr had any interest in them. That Stewart & Patterson, on the day last named, mortgaged them to Newcomb; that the mortgage was duly filed, and that Newcomb, as such mortgagee, took and removed them after the hiring of the store by the defendant.

We are of the opinion that these facts, if proved, assuming the mortgage to be valid, as we must do for all the purposes of this motion, would constitute a defence to the plaintiff’s. action.

If such were the facts, thp articles were taken from the defendant by paramount authority. They were taken by the true owner, in the exercise of his rights of absolute property. Such a taking discharges the defendant from his promise to return them to the plaintiff, who is thus shown to have had no interest in them, ’and to have no right to require the defendant to return them after they have been taken by one from whom neither the plaintiff nor the defendant has any right or power to reclaim them. (Edson v. Watson, 7 Cowen, 278.)

• If this could be regarded as a taking by process of law, within the meaning of those terms as used in the agreement or lease of June 7,1850, the damages to which the defendant would be liable for not having given notice of the taking, would be nominal only, if the facts were as the defendant alleges them in his answer.

The complaint doés not aver any breach of the contract arising from the defendant’s neglect to give the notice. The complaint seeks to charge the defendant with the yalue of the property, on the grounds that he has not returned it as he promised to do, hut that, on the contrary, he has removed it from the premises.

The defendant should have been permitted to prove that these articles were the property of Stewart & Patterson on the 25th of May, 1850, and that on that day they mortgaged them by a valid personal mortgage to Rewcomh.

If he gave such evidence of these facts as would justify a jury in' finding them in his favor, the only question that would remain in the case, as it is now presented to us, would he, were they taken away by the mortgagee in the exercise of his rights as mortgagee ? Or were they, in fact, removed by the defendant ?

If the removal was in substance and in fact made by the defendant, and the allegation of their having been removed by the mortgagee is a mere pretence, and what the mortgagee said and did was said and done at the instance of the defendant, and as a mere cover for his intended failure to perform his contract with the plaintiff, he would he liable for the value of the articles, if they were intended by the parties to he embraced in their agreement of the 7th of June.

If they were delivered by the plaintiff into the possession of the defendant under that contract, and accepted by the latter under it, we think the defendant would he bound to return them, unless he can justify his omission to do so by proving the facts alleged in his answer. (Demick v. Chapman, 11 J. R. 132; Cook v. Howard, 13 ed. 276; Hammer v. Wolsey, 17 Wend. 91.)

If the removal was in reality the act of the mortgagee, any mere assistance and aid rendered by the defendant, at his request, which any third person might justifiably and properly have rendered at the like request, and necessary to secure the removal of the goods, would not render him liable to the plaintiff, if, on and at such removal, the mortgagee reduced them to possession, and took the actual control of them as such mortgagee.

In an action of trespass for wrongfully taking personal property from the possession of the plaintiff, it has been held to be no defence to the action, that it belonged to a third person; and that in such a case the plaintiff is entitled to recover its full value. In Otis v. Jones, 21 Wend. 394, it was held that the defendant could not justify such tortious taking or mitigate damages, by showing that he subsequently caused it to be levied upon and sold upon an execution in his own famor against the plaintiff.

In 24 Wend. 379, Higgins v. Whitney, it was held that in such a case, the defendant might prove in mitigation of damages, that subsequent to the unlawful taking, it was seized on an execution in favor of a third person against the plaintiff. The same point was expressly decided in Perry v. Chandler, 2 Cush. 237; Squire v. Hollenbeck, 9 Pick. 551; and Kaley v. Shed, 10 Met. 317.

These cases were decided on the principle that the property had gone to the plaintiff’s benefit, as much as if they had been returned and accepted, and that such application, under such circumstances, operated to the same extent in mitigation of damages.

If such facts will exempt a trespasser, who has illegally taken goods from the true owner, from a liability to more than nomi. nal damages, it is difficult to perceive on what principle a party, who has taken goods from the possession of one who has no interest in them, and with his consent, though on an absolute promise to return them by a day named, may not excuse the non-performance of his promise to return them, by proof, that, in fact, they were owned by a third person, who, in the exercise of his rights of ownership, has taken them into his own possession, and put it out of the power of the defendant to restore them.

It is tfue the defendant’s contract is broken. But in judgment of law the breach of it is no damage to the plaintiff". He had, in fact, no right to have the possession of the goods. The person having the right of property and the right of possession, has taken the goods from the defendant. This he had a right to do, and neither the defendant nor the plaintiff could lawfully prevent it. Such facts, if satisfactorily established, would constitute a defence. The verdict must be set aside, and a new trial granted, with costs to abide the event.


author: By the Court. Oakley, Ch. J

text:
    Purdy, Executor, &c., of E. Bolmer, deceased, v. Philips and others, Executors of J. H. White, deceased.
    (Before Oakley, Ch. J., Paine and Bosworth, J.J.)
    Nov. 15;
    Dec. 11, 1852.
    When a bond is conditioned for the payment of a sum certain and no time of payment is specified, the debt is due immediately without demand, and bears interest from the date of the bond.
    This action was founded on a hond given by the testator of the defendant to the testatrix of the plaintiff, and dated the 9th July, 1832. The complaint alleged that the whole principal sum mentioned in the condition of the bond was due with interest from the 1st of May, 1850. The bond was in the penalty of $1,400, and was conditioned to be void on the payment of $700; there was no mention of interest, but no day of payment was specified, and no demand required.
    The answer of the defendant denied that the bond carried interest, and averred that by successive annual payments the principal sum mentioned in .the condition had been folly satisfied.
    The 'cause was tried before Mr. Justice Paine and a jury in December term, 1851. Upon the trial the plaintiff admitted that various payments had been made by the obligor in his life-time, and some by the defendants since his death, which, on the 1st of May, 1850, amounted in the aggregate to a sum exceeding the principal debtthese payments were $60 annually in quarterly payments, from the date of the bond to the 1st of Feb. 1845, and $42 per annum in quarterly payments, from that time to the 1st of May, 1850, and small extra sums amounting.to $30. The counsel for the defendants insisted, that upon the facts thus admitted, they were entitled to a verdict, as the bond carried no interest, and the payments made were more than sufficient to satisfy the principal.
    The counsel for the plaintiffs insisted that in law the bond carried interest from its date, and that the payments made ought therefore to be first applied to the interest, and the surplus only to the principal,

      There was no proof of a demand of payment at any time prior to the commencement of the suit.
    The judge directed the jury to find a verdict for the plaintiffs for the penalty of the bond, subject to the opinion of the court at a general term, upon a case to be made.
    The cause was now heard upon the case thus directed.
    Hoxie, for the plaintiffs,
    cited 1 Dallas, 349; 3 Cowen, 436; 5 id. 587; 3 John. Cases 310; 9 John. R. 71; 6 John. Ch. R. 21; 1 McCord, Ch. Ca. 220; 9 Term. R. 124; Hurlston on Bonds. 40; 6 Howard, 156.

      C. W. Sandford, for defendants,
    cited 3 Caines R. 234: 7 Wend. 109.
   By the Court. Oakley, Ch. J

—The condition of the bond upon which this action is brought, is for the unconditional payment of a sum certain, without specifying any time of payment, whether on demand or on a future day; and the only question in the case is, whether the sum mentioned in the condition draws interest from the date and delivery of the. bond, or not at all?

The general rule as to interest is, that it is due on all liquidated and certain demands from the time that such demands are payable, and we think there can be no doubt that the sum named in the condition was due immediately on the delivery of the bond. The condition is the acknowledgment of a present existing debt.

The proposition that such a debt bears interest is not only in accordance with the general rule that has been stated, but has been expressly adjudged both in England and in the Hnited States. We refer to the cases of Farquhar v. Morris, 9 Term. R. 126, and Francis v. Castleman, 4 Bibb. 282.

There must be judgment for the plaintiff with costs, and it , must be referred to the clerk to compute the amount now due, making the proper application of the payments to interest and principal.


text:
    Charles St. John, and others, v. The American Mutual F. & M. Insurance Company.
    (Before Oakley, Ch. J., Paine and Bosworth, J.J.)
    Nov. 19;
    Dec. 11, 1852.
    When it is provided by the conditions annexed to a policy of insurance against fire, that the company shall not be liable “for any loss occasioned by the explosion of a steam boiler, or explosions arising from any other cause, unless specially specified in the policy,” although fire may be the proximate cause of the loss that is claimed, the company is not liable, when it appears that the fire was directly and wholly occasioned by an explosion.
    The exception meant to be created, if otherwise construed, would be senseless and nugatory, since the company, under the general words of the policy, could never be made responsible for a loss occasioned Wholly by an explosion, without any immediate action of fire upon the property insured.
    When “ fire ” is the only risk insured against, an insurance company can only be liable, when “fire” is the proximate cause of the loss, and the object of the conditions annexed to the policy is tp create exceptions from this liability.
    When a loss by fire is proved which ip pot excepted, it is no defence to the company that the fire was occasioned by the fault or neglect, without fraud, of the assured'ur his servants.
    Judgment for the plaintiffs reversed, and new trial granted.
    Appeal by the defendants from a judgment in favor of the plaintiffs for $2,280 82 damages and costs.
    The action was on a, policy of insurance against fire, and was tried before the Ohief Justice and a jury in June, 1851.
    It appeared by the policy produced on the trial, that the defendants -insured the plaintiffs to the amount of $2000, “ against loss or damage by fire, on their machinery and fixtures, including shafting and fixtures for communicating power contained in the brick building, Nos. 5 & 7 Hague street, city of New York, occupied for mechanical purposes, and also on lathes and tools for making machinery, contained in the said building.” The loss claimed was fop the destruction by fire of the property thus insured.
    The printed conditions annexed to the policy contained this provision: “If, after insurance effected, the risk shall be increased by any means whatever within the control of the assured, or if such building or premises shall be occupied in any way so as to render the risk more hazardous than at the time of insuring, such insurance shall be void and of no effect,” and also the following
    “ This company will be liable for losses on property burnt by lightning, but not for any loss or damage by fire happening by means of any invasion, insurrection, riot or civil commotion, or of any military or usurped power, nor for any loss occasioned by the explosion of a steam boiler, or explosions arising from any other cause, unless specially specified in the policy.”
    In an affidavit made by the plaintiffs, which formed a part of the preliminary proofs exhibited to the defendants, and as such was read upon the trial, the fire occasioning the loss was described as follows:—

      “ That said fire originated on the fourth day of February, 1850, and was immediately preceded by the explosion of a steam boiler upon the said premises, when the walls of the said building (Kos. 5 & 7 Hague street) were mostly thrown down, and the fire which was used in the furnace of the said boiler, and in stoves in various parts of the building, was communicated to the frame and woodwork of the building,- and the materials and machinery contained therein,” and this account of the origin and effects of the fire was proved to be correct by the testimony of witnesses examined in chief.
    On the part of the defendants several witnesses were examined to prove that the explosion of the boiler was imputable to gross negligence on the part of the plaintiffs. It was proved that the probable cause of the explosion was an undue pressure of steam upon the boiler, and that one of the plaintiffs, A. B. Taylor, had been warned by a person of skill and experience, that from the weight of steam under which he was working the engine there was great hazard of an explosion. It was insisted that the conduct of the plaintiffs amounted to an increase of the risk which rendered, void the insurance.
    It is deemed unnecessary to state in detail, the testimony of the witnesses on the trial, since the decision of the court upon the appeal turned exclusively upon the construction of the policy, and the conditions annexed, and upon the propriety of the charge of the judge upon the question of negligence. When the plaintiffs rested, the counsel for the defendants moved for a non suit, upon the ground that the loss proved was excepted from the policy. The motion was denied, and the counsel excepted.
    When the testimony was closed, the counsel for the defendants requested the judge to charge the jury as follows:—
    That if putting in the boiler in question, and putting on lOOlbs. of steam to the square inch, increased the risk after the insurance was effected, then the defendants were entitled to a verdict, whether the plaintiff, Taylor, was or was not negligent.
    That the building being destroyed by the explosion, and the insured property being affected as it was thereby, the defendants were not liable, because when the fire reached the property, the property was not in the building in which it was insured, and was not the property insured.
    That if the jury believed from the testimony that the boilers would not bear the pressure of 100 lbs. to the square inch, and that Taylor was so informed, and had notice, and had reason to believe, and notwithstanding ordered that amount of pressure put on the boilers, and the explosion and fire were caused thereby, it is such negligence as exonerates the defendants.
    The judge then charged the jury as follows:
    That the question whether the explosion was caused by an undue pressure of steam or by a deficiency of water, was one which the jury must determine upon the testimony before them. That ordinary negligence on the part of Taylor, would not constitute a defence in this action. But if the insured acted.', in bad faith, with a design to occasion the loss, or with such'/ ’ negligence as showed a willingness to have the loss occur, or a ¡ recklessness, or an indifference whether the course pursued by ; him should occasion the” fire or not, then the plaintiffs were not,,, entitled to recover, and this was matter of fact to be determined^ by the jury.
    The judge also charged, that any change by the insured in the condition of the building, or the mode of occupancy, so as to change the hazard to one of a higher class than that insured against, would constitute a defence, but that such change in the occupancy as did not increase the hazard to a higher class, or change the nature or character of the hazard materially, would not constitute a defence. He did not consider that aj greater or less amount of pressure upon the boiler, unless it amounted to evidence of the bad faith or indifference to conse-l quences already stated, would constitute a valid defence in law; a mere error of judgment on the part of the insured, as to the amount of stbaffi” the boiler was capable of carrying, did not take away his right to recover.
    The judge also changed, that the propeity insured, notwithstanding the destruction of the building by the same accident, -or at the same time with the occurrence of the fire, was protected by the policy; that nevertheless it continued to be the property insured, and covered by the policy in contemplation of law.
    The judge refused to charge the aforesaid propositions of the defendants’ counsel, or either of them, otherwise than as contained in the charge above set forth.
    The defendants’ counsel then and there excepted to such refusal, and each part of it; and he also excepted to the said charge, and to each part and portion of the same separately.
    The jury found a verdict for the plaintiffs, for the amount of their claim and interest.

      C. P. Kirkland, for the defendants,
    in moving for a new-trial upon the exceptions, relied upon the following points and authorities:
    1. The conditions annexed to a policy form part and parcel of it, as much as if they were inserted in the body of the policy itself. (6 Wend. 494; 2 Den. 78; 2 Comst. 220; 12 Wend. 456.)
    H. The defendants are not -liable for the loss in this case. 1. By the conditions of the policy, the defendants are not to be liable for “ any loss occasioned by the explosion of a steam boiler.”
    All contracts are to be so construed, if possible, as to give effect and meaning to all the words used in them. How the subject insured against here is fire, and fire only, and to provide that the defendants should not be liable for loss occasioned by the breaking or marring of the property by the concussion arising from a steam boiler explosion,, would be supererogatory and unmeaning, for the plain reason that no such loss is insured against. These words can have effect and meaning only by holding them to mean that the defendants are not to be liable for a loss by fire directly or immediately caused by the “ explosion.” 2. The proof is clear and undisputed that the “ explosion” was the direct and immediate means of communicating the fire to the insured property, and that had there been no “ explosion,” there would have been no “ loss.” 3. The “ loss” therefore was “ occasioned” by the “ explosion,” and is therefore directly within the exception of the policy. 4. At any rate, the words are as comprehensive as language can make them—“ ahy loss”—and this necessarily includes the “ loss” in question, “ occasioned” as it confessedly was by the “ explosion.”
    III. The conditions provide, that if after an insurance the risk is increased by any means within the control of the insured, the insurance shall be void. There is evidence showing, or tending to show, that the putting in the boiler in question, and putting on to it the pressure of steam stated by some of the witnesses, increased the risk.
    The judge should therefore have charged as requested by the defendants.
    The remarks of the judge on this branch of the case did not meet- the case as proved, and did not present the point as the defendants were entitled to have it presented.
    IY. There is evidence showing, or tending to show, 1. That the boiler would not bear a pressure of 100 pounds to the square inch. 2. That Taylor had full notice and knowledge of this fact. 3. That nevertheless, he caused that amount of pressure to be put on. 4. That this excessive pressure caused the explosion. 5. That the explosion was the immediate and sole cause of fire doing injury to the insured property. The defendants were thus entitled to ask the judge to charge as stated; and the judge erred in charging generally, as he did, instead of specifically, as he was requested; and the charge was calculated to mislead.
    Though, as a general rule, the negligence of the insured is not a defence, yet the facts in this case, if the jury believed the defendants’ witnesses, constituted a defence.
    And as applicable to this case, the rule is too broadly stated by the judge. (1 Strobt. S. Car. R. 281.)

      A. L. Jordan and F. B. Cutting, for the plaintiffs,
    resisted the motion for a new trial, upon the following grounds—'
    I. The execution of the policy, and occurrence of the fire and loss, were duly proved, and the notice of the loss and other preliminary proofs, were produced in due form and read without objection.
    H. The judge properly refused to nonsuit the plaintiff on the motion of defendants’ counsel. 1. The question of fraud or negligence was not involved in that motion. 2. The question was simply whether the policy covered all losses immediately by fire, except in the excepted cases. 3. That it did is quite clear from the body of the policy. There is a plain distinction between a loss by fire, and a loss by means which may or does occasion fire: Lightning may strike the property into atoms and destroy it, so may the explosion of a steam hoiler. So lightning or the explosion of a boiler may occasion a fire which consumes the property, the loss by the violence is not covered by the insurance against loss by the fire. (Montgomery Mut. Ins. Co. v. Babcock, 6 Barbour Sup. Court Rep. 637, affirmed by Court of Appeals; Citizens’ Ins. Co. v. Glasgow, 9 Mo. Rep., cited in U. S. Dig. of 1848, p. 227, Com. Rep.) Mor would insurance against loss by the violence cover a loss by the fire. The contract looks to the proximate or immediate cause of the destruction, not the mediate or remote cause. In the case either of lightning or explosion, if the property survive the violence, which it may do unhurt, and then a fire comes on and consumes it, it makes no difference what occasioned the fire so it be not fraud, which vitiates every transaction. Suppose the condition of a fire policy should declare—“This company will not be responsible for loss by wind,” and the property should be destroyed by fire driven by wind from a neighboring conflagration ;. would that be a loss by wind, or a loss by fire ? Would - the loss by the remote or that by the proximate cause be intended by law to be that within the contemplation of the contracting parties. Insuring against wind is insuring against the ordinary effects of wind, blowing down,' or blowing away; against explosion, the ordinary effects of explosion, breaking, or crushing. Why then (it may be asked on the other side) if insuring against the fire, the proximate cause, was not insuring against the explosion, the remote cause, was the exception of. explosion introduced at all ? I answer, by way of caution, to prevent any cavil upon the point whether the fire which raised the steam, which exploded the boiler, which broke the .machinery, did not occasion the loss within the meaning of the policy: for points as absurd even as that sometimes present themselves to minds unacquainted with legal reason. It was a useless exception, in view of the legal principle, but was a harmless one; introducing it was the act of the defendants, and the plaintiffs are not called on to defend the propriety of it. It was in the nature of a declaratory contract, and neither a declaratory contract nor a declaratory statute does any harm or any good, except to make the law more plain, or bring it more, clearly within the comprehension of the parties.
    IH. Kegligence on the part of the plaintiffs or their servants is no defence to the action, unless of so gross and reckless a character as to afford evidence of bad faith or fraud, or indifference to consequences. The charge in that respect was right.
    TV". The question of such negligence was fairly submitted to the jury and negatived by the verdict; the evidence well warranted the finding, and will not be disturbed by the court.
    Y. Any change in the occupancy of the building which did not increase the hazard to a higher class, or change the nature or character of the hazard materially, such as the substituting one boiler for another,- or carrying a little more or less steam, did not constitute a defence. The charge therefore in this respect was right.
    YI. Although the building was thrown down by violence, the property, not having been removed, was still in the building and remained the property insured, within the true intent and meaning of the policy. The charge in this respect was also right.
    YU. The judge submitted it to the jury whether the 100 lbs. of steam put upon the boiler, in connexion with the other facts of the case, amounted to evidence of bad faith or indifference to consequences on the part of the plaintiff: but charged that mere error in judgment in that respect did not take away his right of recovery. This fairly and correctly covered the whole ground embraced in the last request of defendants’ counsel to the judge in charging, and was correct in point of law.
    VHI. The exception to the judge’s charge was too broad, and is of no force unless every portion of the charge was wrong. (Jones v. Osgood, Court of Appeals, March Term, 1852.)
   By the Court. Bosworth, J.

The defendant, by the policy of insurance on which this action is brought, agreed to make good unto the plaintiffs all such immediate loss or damage, as should happen by lire, on their machinery and fixtures in the brick building, situate Eos. 5 & 7 Hague street, in the city of Hew York.

The policy (in the body of it) provides that the company shall not be liable for any loss or damage by fire, which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military, or usurped power.

Certain conditions were annexed to and made part of the policy, by one of which it is provided and declared that, this company will be liable for losses on property burnt by lightning, but not for any loss or damage by fire happening by means of any invasion, insurrection, riot, or civil commotion, nor for any loss occasioned by the explosion of a steam boiler, or explosions arising from any other cause, unless specially specified in the policy.”

The preliminary proofs of the loss, signed and sworn to by ' the plaintiffs, state that a fire occurred in the building Hos. 5 & 7 Hague street, on the 4th of February, 1850. That the fire “ was immediately preceded by the explosion of a steam-boiler on said premises, whereby the walls of the said building were mostly thrown down, and the fire which was used in the furnace of the steam-boiler and in stoves in various parts of said building, was communicated to the frame and woodwork of said building, and the materials and machinery contained therein. That the foregoing is a correct statement of the manner in which the said fire originated, so far as the assured know or believe or have any information.”

William M. Tweed, a witness on the part of the plaintiffs, testified that he was assistant foreman of engine company Ho. 6, that he resided directly in rear of the premises, and that his bed-room window looked right into the building. That he was dressing, when he heard a report like a gun, and looking towards the building, he saw it sinking and a cloud of dust rising. Saw the flame break out before he left the house. The building was a large double one, and became a perfect wreck within a minute. The first fire he saw was near the extreme end; it was rising through the rubbish of the building, a rising flame coming up through the beams of the second story. The fire burned briskly from the time it broke out, being between 7 and 8 in the morning, until 4 p. m., and continued until 6 the next morning.

When the plaintiffs rested, the defendants’ counsel moved for a nonsuit, “ on the ground that it was manifest from the plaintiffs’ testimony, that the insured property was brought into contact with the fire solely by means of the explosion of the boiler, and that then the loss or injury, so far as the same was caused by fire, was occasioned directly by such explosion of the boiler, and that by the express conditions of the policy the defendants were not liable for a loss so occasioned.”

The motion for a nonsuit was overruled, and the decision was duly excepted to. The main question arising on the appeal involves the proper construction of the clause, in the conditions annexed to the policy, which declares that this company will not be liable “ for any loss- occasioned by the explosion of a steam-boiler.”

Was the loss in this ease occasioned by the explosion of a steam-boiler, according to the natural and obvious meaning of those words, as used in this policy?

Unless this clause will exempt the defendant from all loss or damage by fire which may be caused directly and immediately by the explosion of a steam-boiler, it is wholly nugatory.

All kinds of loss resulting from the explosion of a steam-boiler not producing fire, nor bringing the injured property and fire in contact, must necessarily have been borne by the plaintiffs, even if no part of this clause had been contained in the policy. The insurance is only against loss and damage by fire. If there had been no fire, and the insured property had been utterly destroyed by the explosion, no recovery could have been had against the company, even if this clause had been omitted, for the simple reason, that only loss or damage by fire was insured against.

It cannot be supposed that the clause was introduced to. guard against a liability which- could not by any possibility arise, but to guard against one which might arise but for the existence of this provision. The only one which could arise from the explosion of a steam-boiler, would be for an im- - mediate loss or damage by fire occasioned or communicated by such explosion. '

The policy, after providing that the company will not be liable for any loss or damage by fire happening by means of any invasion, &c., adds that they will not be liable “ for any loss occasioned by the explosion of a steam-boiler.” The most comprehensive terms are here used. And if this loss was occasioned by the explosion, it would seem to be covered by the clause, whether the loss resulted from fire being directly communicated to the injured property, or from its being crushed into worthless fragments.

A loss of the former nature was the only one which the company had any occasion to guard against. We think they have done this by the clause in question.

The preliminary proofs and other evidence show that the explosion communicated the fire in the furnace and stoves directly and instantaneously to the insured property. So far as loss and damage by fire resulted from a burning of the insured, property, it was occasioned solely, immediately, and exclusively by the explosion. The explosion and setting on fire of the insured property were simultaneous, and the former caused the latter. It was the actual and immediate cause of the loss.

In Waters v. The Merchants' Louisville Insurance Company, 11 Pet. R. 213, 225, the court observed that, “ some suggestion was made at the bar, whether the explosion, as stated in the pleas, was a loss by fire, or by explosion merely. We are of the opinion, that as the explosion was caused by the fire, the latter was the proximate cause of the loss.”

The opinion there expressed was, that as the fire caused the explosion, the loss was caused by the fire. In this case the explosion threw the fire among the insured property, and immediately set it on fire. The loss produced by burning was therefore occasioned by the explosion. The burning of the property was a direct and inevitable result of the explosion, and not a remote consequence of it.

We are of the opinion, that the loss or damage resulting from a burning of the insured property was occasioned, in this case, “by the explosion of a steam-boiler,” according to the obvious and proper meaning of those words, as used in this policy, and that the plaintiffs ought tp have been nonsuited.

If this view of the case be "correct, it is unnecessary to express an opinion upon the exceptions taken to the charge at the trial, and to the refusal of the court to charge as requested by the defendants’ counsel.

We think, however, that they are not well taken. In the Columbia Insurance Company of Alexandria v. Lawrence, 10 Peters, 517, 518, the court, after discussing the question, expressed the opinion “ that a loss by fire occasioned by the mere fault and negligence of the assured, or his servants or agents, and without fraud or design, is a loss within the policy, upon the general ground that the fire is the proximate cause of the loss, and also upon the ground that the express exceptions in policies against fire, leave this within the scope of the general terms of such policies.”

We consider this the correct rule, and that the defendant has no cause to complain of the instructions of the court in relation to the branch of the case to which this rule was applicable.

The verdict must be set aside and a new trial granted on the grounds, that the plaintiff should have been nonsuited, and that the evidence subsequently given in relation to the cause of the loss, did not vary the case from that established by the proofs which had been made when the plaintiff rested.

Costs should abide the event. : "k


author: By the Court. Emmett, J.

text:
    Beman & Wife v. Green & Radford.
    (Before Oakley, Ch. J., Bosworth and Emmett, J.J.)
    Nov. 26;
    Dec. 11, 1852.
    The plaintiffs, on the 31st of February, 1851, agreed, for a valuable consideration, to transfer to the defendant Green, a lease, then held by them, of the store, No-1, Actor House, for the term of five years, from the 1st of May, 1849, and to sell to him the furniture, fixtures, and goods in the store, and the good will thereof. The agreement secured to S. Beman and his wife, and her representa, tives, free and uninterrupted access to the store, from its date, until the 1st of May following, in order to receive her customers; and for that purpose a counter in the store, described in the agreement, was assigned to her use. On the 10th of February, the price to be paid by Green having been settled by the parties at $2,703 44, Beman, in consideration of the payment of that sum by a bill of sale, duly executed, transferred, and conveyed to Green his lease of the store, and all the stock in trade, and fixtures therein; but in this instrument the reservation contained in the agreement was omitted. On the 11th of February Green surrendered the lease assigned to him, and took from the landlord a new lease in his own name, for the term of three years and three months, from the 1st of February, 1851.

      Held, that the plaintiff, under the agreement, had a legal right to continue in the occupation of the store in the manner and for the time therein expressed.

      Held, that this right was not divested by the bill of sale, which was meant pro tanto to carry the agreement into effect, and not to deprive the plaintiffs of any of the benefits it secured to them. The two instruments were to be construed together as one transaction.

      Held, also, that the rights of the plaintiffs were not affected by Green’s surrender of the lease assigned to him, and the terihs of the new lease which he then obtained.
    The judge, at the trial, having misdirected the jury upon these points, a new trial ordered.
    Appeal by tbe plaintiffs from a judgment in favor of tbe defendants.
    Tbe action was for an assault and battery on the person of tbe plaintiff, Elitha C. Beman, and for ejecting her by violence from her lawful occupation of tbe store, No. 1, Astor House.
    It was tided before Mr. Justice Sandford and a jury in-1851'; and under the direction of tbe judge, the jury found a verdict for the defendant. To this direction tbe counsel for tbe plaintiffs excepted. .
    The facts of the case', and tbe grounds upon which a new trial was granted, sufficiently appear in the opinion of the court.

      S. F. Clarkson, for plaintiffs.
    — Thayer, for defendants.
   By the Court. Emmett, J.

The plaintiff Beman being the owner of a lease of the store, Ho. 1, Astor House, for five years from 1st May, 1849, occupied by his wife for the sale of shirts, dressing-gowns, &c., made on the 3d of February, 1851, an agreement in writing with the defendant Green, signed by both of them, in consideration of the premises therein mentioned, to sell to Green the fixtures, furniture, goods, and good will, and his right to the lease of said store. In the agreement, it was in terms mutually understood and agreed, that Beman reserved to himself and wife, or her representatives, the free and uninterrupted access to the store from that date until the 1st of May following, to receive her own customers, or such persons as might come to the store for the purpose of giving her orders for morning-gowns, shirts, &c.; that he, Beman, should have the use and occupation of so much of the room of the store during business hours as might be reasonably necessary for the transaction of the business aforesaid, with as little inconvenience to Green as possible; and that, to prevent doubts or misunderstandings on that point, the irregular counter on the Y esey Street side was by both parties mutually assigned to Mrs. Be-man, with the use of the small show-case. Green, in consideration of the premises, agreed to pay Beman such sum of money as should be mutually agreed upon by them on a fair valuation, and in case of disagreement between them, the same should be left to appraisement, &c.

On the 10th February, the parties having settled that $2,703 44 was the sum to be paid by Green to Beman, a bill of sale, in consideration of that sum, was executed by Beman to Green, of all Ms right, title, and interest in the lease and good-will of the premises, Ho. 1, Astor House, and also to all the stock in trade and fixtures contained in said store (described in a schedule annexed), with a covenant of warranty of the property against all and every person and persons whomsoever, and Green paid Beman the above-named consideration.

On the 11th of February, Green had the lease to Beman can-celled, and took a new lease from Mr. Astor, the landlord, for 3 years and 3 months, from the 1st of February, 1851. Mrs." Be-man remained in the occupation of the part of the store which had been appropriated for her use until the 12th of April following, on which day Green ordered her to leave the store, and on her refusal brought the defendant Radford, a police officer, and directed him to put her out; Radford for that purpose laid his hands upon her and endeavored- to eject her, and after some resistance and struggling on her part, she left the store.

The action was .brought for this alleged wrong and violence.

The foregoing is a sufficient statement of the facts of the case for the consideration of the question whether a new trial should be granted for misdirection in the" law.

According to the printed case submitted to the court, the judge declined expressing any opinion to the jury as to the rights of the plaintiffs under the agreement of the 3d of Feby., 1851, regarding that agreement as a subject for a different suit, but immediately after did charge them that the plaintiffs, under that very agreement of the 3d of February, had only a license and nothing more, and that the defendant Green had a right to revoke the license at his pleasure, and at any time, on giving reasonable notice to the plaintiffs, and that after he had given such notice to the plaintiffs, and revoked that license, the plaintiffs had no right to occupy the store or any part of it, and that the only question for the jury to consider was whether the defendant Green gave reasonable notice to the plaintiffs to remove, and if so, and the defendants did not use more force than was necessary to remove the plaintiffs, then the defendants were entitled to their verdict.

If that statement of the charge be correct, the judge took no notice whatever of the bill of sale of the 10th of February, but held that the agreement of the 3d of February contained in itself nothing more than a license from the defendant Green, which he had a right to revoke at pleasure. It may be, however, that the judge was misunderstood, and that he intended to charge in effect that the agreement of the 3d of February was superseded and rendered inoperative by the subsequent bill of sale, and that the plaintiffs, after the execution of the latter, were in possession by the mere license of the defendant Green.

It is enough for the purposes of this motion, that the court does not assent to either of those views' of the law, and that the chárge of the judge, as contained in the case, is considered a sufficient ground for ordering a new trial, and the court is not less inclined to adopt this course, because the defendant Green resorted to no legal proceeding to turn the plaintiffs out of possession, but availed himself of the aid of a police officer, whose presence might have been proper enough to prevent a breach of the peace, but not, as a minister of the law, to turn a party out of possession by even the slightest exercise of force, blew trial ordered, costs to abide the event.