author: By the Court. Emmet, J.

text:
    George F. Nesbit v. Jas. Stringer and Wm. A. Townsend.
    (Before Campbell, J., Bosworth and Emmet, J.J.)
    December 13, 1852;
    February 26, 1853.
    When a sum of money paid to an agent is credited by the principal, the credit . so given is sufficient proof of the authority of the agent, so as to entitle the person making the payment to prove under what circumstances, and upon what account it was made.
    When the liability of a defendant is sought to be proved by his verbal declaration or admissions to a witness, all the conversations between him and the ' witness, bearing upon the subject of the controversy, must be submitted to the consideration of the jury.
    Motion for a new trial upon a bill of exceptions ordered to be heard at general term.
    The action was for the recovery of a printer’s bill, and was tried before Mr. Justice Paine and a jury, in April, 1852, and a verdict rendered for the plaintiff for $152.80.
    The case upon the pleadings and evidence is as follows:—
    In April, 1850, F. H. Upton wrote a pamphlet in relation to the trial of Professor Webster, of Boston, and employed the plaintiff to print 2,000 copies of it. After they were printed he applied to the defendants, publishers in this city, to make publication and sale of it. They agreed to do so for the usual, compensation, but declined to take any risk of its publication, or assume any liability in respect to the expense incurred for printing it. Mr. Upton reserved four or live hundred copies for himself, and the remainder were sent to the defendants for sale.
    The pamphlet sold well, and when nearly the whole number of copies sent to the defendants had been disposed of, Mr. Upton had a second interview with Mr. Stringer, one of the defendants, at their store, in which Mr. Stringer informed him that this first edition, or the greater part of it, had been sold, and that the defendants had orders for further copies, and requested him, Mr. Upton, to order a second edition of 3,000 copies. Mr. Upton told him he would give the order for the second edition in the morning. Mr. Stringer desired him not to delay it till then, but to give the order on that afternoon, lest they might take down the form from which the first edition was struck off. Mr. Upton thereupon went to the plaintiff’s office, and gave the order for printing 3,000 additional copies.
    On the following morning a third interview took place between Mr. Upton and Mr. Stringer. Mr. Stringer called upon Mr. Upton and asked his permission to have printed on the cover of the second edition an advertisement of Stringer and Townsend, the defendants. Mr. Upton made no objection, but referred Mr. Stringer to the plaintiff, stating that the printer had more to do with it than he had.
    The plaintiff printed the second edition, and it was delivered to the defendants in May, 1850, without their advertisement on the cover.
    About this time Dr. Webster’s confession came out, which put an end to all speculation as to his guilt, or public interest as to the fairness of his trial, or legality of his conviction. The consequence was that a remnant of the first edition, and the whole of the second, remained from that time in the hands of the defendants unsold.
    On the 15th Oct. 1850, Mr. Upton gave a written order upon the defendants in the following words :— ■
    “ Messrs. Stringer & Townsend,
    “Please account and make settlement with Mr. William Taylor of the proceeds of sale of the pamphlet, called £ Statement of Reasons, &c.,’ in relation to Prof. Webster’s trial, and oblige yours,
    “ Fras. H. Upton.”
    And on the 1st February, 1851, Hr. Upton added the following to that order:
    “ The foregoing order, in favor of William Taylor, was given to enable Hr. Taylor to make settlement with Hessrs. Stringer & Townsend, not for his own benefit. He not having done so., the same is cancelled in favor of George F. Nesbit, Esq., in conformity with the order heretofore given to him for bill of printing the pamphlet alluded to.”
    On the 10th of April, 1851, a person in the plaintiff’s employ presented to the defendants an account or bill for the printing of the pamphlet, and applied to them for the settlement of it. Hr. Stringer looked at it, and utterly refused 'to recognize it, but said he would account for the books sold, and paid him $92 69 on account of the pamphlet.
    Neither the account presented on that occasion, nor the receipt given for the $92 69, were produced on the trial. The complaint in this action (which was commenced in May, 1851) claimed from defendants $172 71 as the balance due for the printing, &c., of both editions, after crediting defendants with $92 69, paid on the 11th April, 1851; but the plaintiff on the trial withdrew all claim against the defendants for the printing, &c., of the first edition. The allegation in the complaint, in regard to the second edition, is that the defendants requested the plaintiff to print and furnish to them an edition of 3,000 additional copies on their own account, and promised to pay plaintiff for the same; and it appears, from the account or bill of particulars annexed to the complaint, that the plaintiff’s bill for printing the second edition amounted to $152 80, the correctness of which was not disputed.
    The defendants on the- trial offered to prove by their bookkeeper—
    1st. That the person who called on them on behalf of the plaintiff, on the 10th April, 1851, received the $92 69 in full of all claim against the defendants for or by reason of the pamphlet in question, up to that date.
    2d. That a statement of the accounts of the defendants, in connexion with this pamphlet, was exhibited to such person, and that it was on that basis that the $92 69 were paid to and received by him, and a receipt given.
    The court excluded the evidence mentioned in both those offers, on the ground that no authority was shown to such person to give a receipt in full.
    3d. That such person was notified and told to inform the plaintiff that there remained 3,117 copies of the pamphlet in the hands of the defendants, and that they were subject" to the plaintiff’s order, and that defendants made no claim to them whatever.
    The court also excluded this, and the defendants’ counsel excepted to the decision, as to these three offers.
    The judge charged the jury, that the question for them to decide was whether the defendants undertook the printing and publication of the second edition on their own account, and ordered the printing on their own account.
    That the meaning of Stringer, in what he said' in giving Mr. Upton the order for the printing, or Mr. Upton’s understanding of it, were hot to be their sole guides in deciding what that order was. That the true rule was, what would a person reasonably have understood from what he said; or in other words, what, under the circumstances of the transaction and of the parties to it, was the fair construction of what the defendants said. And by the circumstances of the transaction, and of the parties, he meant all that had taken place by or between the parties, as proved in the case in relation to the printing and publication of the pamphlet, from Upton’s first seeing Stringer and Townsend, until the second interview, at which it was alleged the printing of the second edition was ordered.
    The defendants’ counsel requested the court to charge the jury, among other things, that the jury were to construe the language of Mr. Stringer, in the second conversation, with reference to what was said in the first interview, and that all the conversations were to be taken together for the purpose of determining the legal effect of what was stated in the .second interview.
    The judge refused to charge the jury as thus requested, otherwise than as contained in the charge above given, to which defendants’ counsel excepted, and the jury found a verdict for the plaintiff for $152 80, the amount claimed.

      J. Graham, for defendants.

      F. H. Upton, for plaintiff.
   By the Court. Emmet, J.

The first question to be examined relates to the exclusion of the evidence offered.

The order given by Mr. Upton on the 15th October, 1850, and its subsequent modification on the 1st February, 1851, taken together as they necessarily must be, mean simply a direction by Mr. Upton to the defendants to account and make settlement with the plaintiff for the proceeds of the sale of the pamphlet to this end that his bill for printing should be therewith paid; and,as the order was given long after the printing and delivery to the defendants of the second edition, it related to -the proceeds of sale of both editions. It admits of no other construction : and without stopping to consider how an order on the defendants for the proceeds of sale of the second edition can be reconciled with the claim that several months before, the defendants had ordered that edition on their own account and as their own property, and for their own benefit, let us examine what the effect of that order was as to the transaction between the defendants and the plaintiff’s agent on the 10th April, 1851, and as to the propriety of excluding the evidence offered by the defendants of what took place on that occasion.

The plaintiff had no interest in the proceeds of the sales of the pamphlet, except as a fund to be applied to the payment of his bill for printing, &c. Mr. Upton’s order shows this distinctly on its face.

The authority therefore which he obtained by the order was to demand from the defendants an account and settlement of the proceeds in order that they might be so applied ; and his agent made application to the defendants, not as an ordinary collector of a hill against them, hut as a person deputed by him to exercise the authority he had been vested with by Mr. Upton, that is to say, to get an account of the proceeds, and make a settlement as to whatever amount might on such accounting appear to be in their hands. The plaintiff by his own act has shown that he so considered it. If the $92.69 were received an account of the bill for printing the second edition only, for which he alleges the defendants contracted with him, he was bound to have credited that payment exclusively to the expense of printing the second edition, but the bill of particulars annexed to his complaint shows that this credit was given upon the whole account, for printing both editions, and that it was received therefore as proceeds accounted for, towards the plaintiff’s whole bill, and not as a payment on account of the bill for the second edition, or of any recognized or specific demand, which the plaintiff then claimed to have against the defendants. With these facts already in the case, the defendants had a right to show that a statement of their accounts in connexion with the pamphlet, was exhibited to the agent; that the money was received by him on that basis, in full of all claims against the defendants by reason of the pamphlet to that date; and that the defendants notified the plaintiff" through such agent that the unsold copies in them hands were subject to his order, without any claim to them on their part; and the evidence offered by the defendants for that purpose was improperly excluded.

Second, as to the judge’s charge. The evidence of Mr. Upton shows that he had three interviews with the defendants, or one of them, Mr. Stringer. That at the .last of these interviews, which was on the morning after the order for printing the second edition had been given, Mr. Stringer asked permission to have an advertisement of Stringer and Townsend printed on the cover of the second edition, and that Mr. Upton made no objection, or in other words, consented, so far as he was concerned. Mow the asking of this permission only one day after the alleged order, and the character of Mr. Upton’s answer to it, are pretty strong “ circumstances of the transaction and of the parties to it” in the language of the judge, to guide the jury in deciding not only what was Mr. Stringer’s meaning and Mr. Upton’s understanding of what Mr. Stringer said to him when he requested him to order the second edition, but also what was the fair construction of that request. For assuredly if the defendants had ordered the second edition on their own account, at their own risk, and for their own, benefit, they required no permission from Mr. Upton or any one else, to have what they pleased printed on the cover; and the fair presumption is, that Mr. Upton would have told them as much, if he then considered that they had given such an order.

This third interview was the most important part of the res gestae upon which the jury were to make up their verdict (except indeed the subsequent order given by Mr. Upton to the plaintiff on the defendants for the proceeds of sales), and instead of being excluded from the consideration of the jury it should have been directly brought to their notice.

It is no answer to this, to say that this conversation was after-the order was given, and that the plaintiff was not present at it. Neither was. he present at the second interview. Mr. Upton was the medium through which the order was given, if Mr. Stringer gave it; Mr. Upton was the witness called to prove it;, and Mr. Upton must necessarily by his acts and language be the interpreter of it. The law is not so imperfect in its administration of justice as to give the plaintiff the chances of yesterday’s uncertainty, and deprive the defendants of the benefit of to-day’s explanation; and where the attempt is to fasten - a contract on a party for a losing undertaking, by inference from circumstances and conversations, he has a right to ask at least, that all the circumstances and all the conversations relating to the matter should be taken into consideration.

The .defendants’ counsel expressly requested the court to charge the jury that all the conversations should be taken together for the purpose of determining the legal effect of what was stated in the second interview, but the judge instructed them that they were to be guided in this respect by all the circumstances that had taken place in relation to the printing and publication of the pamphlet from Upton’s first seeing the defendants until the second interview at which it was alleged the printing of the second edition was ordered.

He therefore excluded from their consideration the conversation which, took place between Mr. Upton and Mr. Stringer at their third interview; and upon that ground, the charge having been excepted to, as well as for the exclusion of evidence before referred to, the verdict should be set aside and a new trial granted.


source: Caselaw Access Project

author: Campbell, J. Bosworth, J.

license: Public Domain

text:
    Henry L. Pierson & Samuel Hopkins v. Robert H. Boyd, impleaded with Robert Davis.
    (Before Campbell, Bosworth, & Emmet, J.J.)
    December 15th, 1852.
    February 26th, 1853.
    R. D. for a good consideration made his promissory note to C., and B. endorsed the same for his accommodation. C. before the note attained maturity, endorsed and transferred it for value to the plaintiff, who brought the action against R D. as maker, and B. as endorser.

      Reid, that whether C. was or was not liable to B. as first endorser, the latter was clearly liable as endorser to the plaintiffs, the facts that the note was transferred to them by C., and that they knew B. to be an accommodation endorser, constituting no defence.
    The sworn answer of the defendant B. admitted that he had received notice of the protest of the note, but alleged “ the want of sufficient knowledge to form a belief whether or not he received due notice of said protest.”

      Reid, that considering the answer as an affidavit, it was not such an affidavit as the statute requires in order to exclude the certificate of the Notary from being read in evidence.
    It was proved that a notice in proper form was served on the right day at B.’s place of business by placing it under the door, but the witness did not state at what hour the service was made, nor whether the room was open or closed.

      Reid, that although this proof, if standing alone, would have been unsatisfactory, yet that connecting it with the admissions in the defendant’s answer it was, as evidence of a due service, at least primd facie sufficient.
    Motion for a new trial on behalf of the defendant, Boyd.
    This action was brought against him and Davis, upon a note dated September 25th, 1850, at nine months, for $1,259, made by Davis, payable to the order of John Crum, and endorsed by Boyd first, and subsequently by Crum. The jury, under the direction of the Court, found a verdict for the plaintiffs, and assessed the damages at $1,396ta®t, with liberty to defendants to make a ease to be heard in the first instance at the General Term. The defendant Boyd now moves on a case made. From that it appears, that the complaint avers the making of the note by Davis, describing it, “ and that said defendant, Boyd, then and there endorsed the said note in writing. And that said defendant, Davis, then and there delivered the note with said endorsement thereon as aforesaid, to said John Crum, who afterwards, and before said note became due and payable, duly endorsed same in writing to plaintiffs.” It avers presentment at maturity, demand of payment, protest for non-payment, “ of all which said defendant, Boyd, had due notice.”
    The answer of Boyd controverts the allegations in the complaint, except that it admits he endorsed a note made by Davis, September 25th, 1850, and that he “ received notice of protest of such note, but denies having any knowledge or information sufficient to form a belief whether or not he received due notice of said protest, and he therefore controverts the allegation in that behalf.”
    It alleged an agreement made between Crum and Davis on the 5th of November, 1851, to give Davis six months’ time to pay the note, that Crum was authorized to so agree, and that thereby Boyd was discharged.
    It also sets up a failure of the consideration of the note, and that the plaintiffs held it as agents of Crum, and were collecting it for his benefit.
    The new matter of the answer was put at issue by a reply.
    The issues made by the answer of Davis need not be stated. The action was tried on the 26th of Hay, 1852.
    On the trial, the plaintiffs (the handwriting of Boyd being admitted, and that of Crum proved) read in evidence a note, and the endorsement thereon, as follows, viz.:—
    “ $1,250.” “ New York, September 25th, 1850.
    “ Nine months after date I promise to pay to the order of John Crum, twelve hundred and fifty dollars at the Ocean Bank, with interest, value received.
    (Signed) “ Robert Davis.”
    (Indorsed) “ Robt. H. Boyd,
    John Crum,
    Pierson & Co.”

      Plaintiff’s counsel then offered in evidence the notary’s certificate of the protest of the note and of service of notice on Boyd as endorser. To this Boyd’s counsel objected “ on the ground that such certificate was not evidence of the facts contained therein, the defendant Boyd having denied, under oath by his answer, receiving due notice of non-payment of said note. The objection was overruled by the Judge, and defendant’s counsel excepted thereto, and plaintiff’s' counsel read said certificate in evidence. The certificate showed the due presentment and protest of the note on the 28th of June, 1851, service of notice on Crum, and stated, “ that notice of protest was duly served on Robert H. Boyd, by leaving the same with a man attending at his place of business, on the next morning (30th June).” The counsel for plaintiff here rested, and the defendant’s counsel moved for a non-suit on the following grounds:—
    1st. That the plaintiffs having received the note from Crum, a prior endorser, could not recover from the defendant, Boyd, who is a subsequent endorser.
    2d. That if the plaintiffs could recover, they were bound to prove a consideration passing between them and said Crum, before they could recover against defendant Boyd, inasmuch as the receipt of the note by plaintiffs from the prior endorser was in itself notice that the defendant Boyd was not liable to the prior endorser.
    3d. That there was no evidence that defendants had received due notice of the non-payment of said note, or that the payment thereof had been duly demanded.
    The motion for non-suit was reserved for further consideration and argument at a general term.

      John Crum, being called as a witness on the part of the defendants, testified that he transferred the note to the plaintiffs in February, 1851, who paid for 'it in cash, the amount of it less the legal discount for the time it had to run. That the plaintiffs knew at the time all the facts in relation to the consideration of the note. That they were at the time owing him about $5,000, but when to become due was not stated.
    Being cross-examined by plaintiffs, testified as follows:— Since I parted with the note I have not had control of it; I received it from Davis and Evans; I had got no a machine for making files; Evans and Davis purchased from me two-thirds of that machine; about two or three months after that bargain was concluded, Davis came to me and said he had taken in a partner, and wished to know if I would sell my one-third for $7,500 ; I agreed to do so, and appointed a day for settlement; they agreed to give $5,000 in cash and balance in two notes, one for $1,250 made by Davis, endorsed by Boyd, and the other for like amount made by Evans and endorsed by Levi Brown; I conveyed to them the one-third and received $5,000 cash and the two notes, one of which, that endorsed by Boyd, is the note now sued on; I had not at that time a patent for said machine.
    The defendants then proved that an agreement, dated Nov. 5th, 1851, was entered into between Crum of one part, and Davis and Evans of the other, which recited that Crum had obtained letters patent, dated July 1st, 1851, and had assigned the same to Davis and Evans pursuant to the original agreement" between them, and by it they mortgaged to Crum the letters patent to secure the consideration of the sale and transfer to them. The mortgage was conditioned to be void, on payment, within six months from its date, of all moneys and notes then due, and on payment of all moneys not then due, as they should become due, agreed to be paid, and given, in satisfaction of their purchase. Crum testified that, at the date of the mortgage, he held “ notes of Davis and Evans for $4,500, and the note in suit. I can’t say that all or any of them were due at date of mortgage. I did not tell Davis that I had control of note in suit. Boyd’s name was on the note when I received it from Davis. It was for debt of Evans and Davis. Plaintiffs are still in my debt.” * * * “Inever had any authority to extend the time of payment of this note. I never extended the time of payment of this note.”
    The note is not mentioned, or referred to, in the mortgage by any terms which describe it.

      Robert Davis testified that, “ the note in suit was one of the notes referred to in said mortgage, as being past due, and is embraced by it.”
    The defendants having rested, the plaintiffs proved by ¥m. H. Tyler, that he was in. the employ of John D. Campbell, the notary who protested the note, and that he “ served the notice of protest of this note upon Bobert H. Boyd, on the 30th of June last (1851), by putting the same under the door of his place of business, Ho. 38, Courtlandt street,” and also stated the contents of the notice.
    The evidence being closed, a verdict was ordered for the plaintiffs as already stated.-

      B. D. Silliman, for defendant,
    Boyd, on the motion for a new trial, made the following points.
    I. Assuming that Boyd was an endorser, there was no proof, on the trial, of due demand and notice. 1. There was no proof of demand. The only testimony on the subject of demand was the certificate of the notary. That certificate was inadmissible, because the defendant Boyd had “ annexed to his plea an affidavit denying the fact of having received notice.” (2d Rev. Stat. (3d Ed.) p. 382. Garvey v. Fowler, 4 Sand. 665.) 2. If, under the circumstances, a notarial certificate had been admissible, the notary could only certify acts done by himself, or of which he had knowledge. He does not profess to have served the notice, and the testimony of plaintiff’s witness, Tyler, shows that he did not, and that the service was not made in the manner stated in the certificate. The certificate, therefore, does not prove notice. (Ketchum v. Barber, 4 Hill’s R., at p. 236.) 3. The witness, Tyler, shows what was the actual service. He shows that he (Tyler) served the notice, “ by putting it under the door of Boyd’s place of business.” This was not sufficient without also showing that it was so served within usual business hours. If left, out of those hours, such service would not be sufficient, unless some person in the employment of defendant were found there to receive it. (Story on Prom. Notes, § 315 and note.)
    II. Boyd must be regarded as second endorser. Crum, who was payee, and first endorser, had no right of action against Boyd on the note. Plaintiff received the note from Crum. The presumption of law therefore was, that Boyd was not liable—and plaintiff’s receiving the note, with notice, could not derive from Crum any title as against Boyd, which they knew that Crum had not. (Bishop v. Hayward, 4 Term, 470. Herrick v. Carman, 10 J. R. 224, 12 J. B. 159. Tillman v. Wheeler, 17 J. R. 326. Bradford v. Marten, 3 Sand. 647. Ellis v. Brown, 6 Barb. S. C. R. 282.) In addition to this legal presumption, plaintiff had actual knowledge of the facts.— (Crum’s testimony.)
    III. Plaintiffs not having received the note in the usual course of business, and without notice, it is open to all equities. There was no consideration. Crum received the note for a patent which he professed to own, whereas he had no such, patent —nor did he obtain such until July, 1851, a month after the maturity of the note.
    IV. The plaintiffs owe Crum $5,000. Their claim on this note has, therefore, been in effect satisfied. Under no circumstances can it be claimed that Boyd did more than promise to pay in case of Crum’s default. Instead of Cram’s being in default, he is the creditor of the plaintiffs.
    V. The verdict should be set aside, and judgment be given for the defendants.

      E. S. Van, Winkle, for plaintiffs,
    made the following points.
    I. Boyd was liable on the note as an endorser. (Seabury v. Hungerfield, 2 Hill. 80. Hall v. Newcomb, 3 Hill. 233.) And no particular form is requisite under the code, which requires merely a statement of the facts.
    II. The plaintiffs, having taken the note in good faith, for value, before maturity, are entitled to recover against Boyd. (Swift v. Tyson, 16 Peters, 1. Bailey on Bills, 550. Meckerson v. Howard, 19 John. 113. Braman v. Hess, 13 J. R. 52.)
    III. The writing of the guarantee on the back of the note after maturity, and under the circumstances detailed, did not invalidate the note, the words having been again erased before the action was brought. (Josselyn v. Ames, 3 Mass. R. 274. Nevins v. De Grand, 15 Mass. R. 436. Nevies v. Bird, 11 Mass. 436. Waring v. Smyth, 2 Barb. Ch. 119.)

      IV. The defendant, Boyd, not having denied receipt of notice of protest in his answer, the certificate of the notary was sufficient evidence of presentment and notice. (2 Revised St. 212 (2d Edition); Laws of 1833, Ch. 271, § 8.) At all events the evidence of Tyler is conclusive.
    V. If defects in testimony on plaintiffs’ part are supplied, even after a motion for non-suit, the court will not disturb the ease. (Jackson v. Leggett, 7 Wend. 377. Colvin v. Burnet, 2 Hill. 620.)
    VI. There must be judgment in favor of the plaintiffs for the amount of the verdict, interest and costs.
   Campbell, J.

Boyd was liable on the note as endorser. The cases cited by the defendant’s counsel are those where the action is brought by the payee or first endorser, against a subsequent endorser, or when suit is confessedly for the benefit of payee or the endorser.

We do not think there is anything in this case tending to show that the plaintiffs are not bona fide holders for full value, and they appear to have relied on the endorsement of the defendant Boyd when they discounted the note.

The certificate of the notary we think was sufficient. Laws of 1833, § 8, chapter 271, make such certificate presumptive evidence of the facts contained in it, unless the defendant shall annex to his plea an affidavit denying the fact of having received notice. Here the defendant expressly admits in his answer that he received notice, but denies that he has sufficient knowledge or information to form a belief whether he received due notice. If we concede that the mere answer may stand in place of the affidavit required by the statute, we do not think it meets the requirements of the law. The answer does not deny, but expressly admits the receipt of notice. The certificate states that notice was duly served, and it was presumptive evidence of that fact.

It was not necessary in this view for the plaintiff to have called the witness Tyler.

The fact that the plaintiffs are indebted to Crum, the payee and first endorser, we do not think material. It nowhere appears how that indebtedness arose or whether .the money is due. For aught that appears it may be a mortgage debt, not due.

Bosworth, J.

The plaintiffs are entitled to judgment on the verdict.

As to certain points there can be no controversy. Boyd endorsed the note at the request of Davis, that it might be delivered to Crum. It was so delivered: no fraud was practised by Crum on Davis, nor did he make any warranty which has been broken. Davis knew when he gave the note, that a patent had not then been obtained. One was subsequently obtained by Crum, and assigned by him to Davis and Evans, which assignment they accepted as performance by Crum of his promise to them. As between Davis and Crum the note was made on a good consideration; and Boyd, in the most favorable aspect of the case for him, was an endorser for the general accommodation of Davis, the maker: his endorsement has not been misapplied. The note was negotiated to the plaintiffs before maturity, for full value. They are therefore entitled to recover against Boyd, as endorser, if he has been properly charged as such.

The defendant Boyd, in his first point, erroneously states, as a ground for the inadmissibility of the notary’s certificate to prove demand of payment, that Boyd had “ annexed to his plea an affidavit denying the fact of having received notice.”

The answer admits expressly " receiving notice of protest of such note,” but alleges the want of sufficient knowledge to form a belief whether or not he received due notice of said protest.” The notary’s certificate was therefore competent evidence of any facts contained, and by law authorized to be stated, in it. It shows due presentment of the note, demand of payment, failure to pay it, and protest of it, for non-payment.

Next, as to the service of notice of "the .protest on Boyd. Tyler testifies to serving a notice in proper form, and on the right day, by leaving it at Boyd’s place of business. He served it by putting it under the door, and does not state whether it "was served in the morning before the store was opened, or at evening after it was closed, nor whether the store was open or closed at the time of the service. Such evidence, standing alone, would be unsatisfactory, and perhaps insufficient. But Boyd admits receipt of the notice, and does not deny that he received it on the day it was served. The testimony of Tyler and Boyd’s admission, together furnish sufficient prima facie evidence of due service of notice of protest on Boyd: and that he received on the day on which it might, legally, have been served.

Whether Boyd, as between Crum and himself, is to be regarded as first or second endorser, is of no consequence in this suit. He is an endorser who has been regularly charged as such, and the plaintiffs are holders for value. One who endorses for the general accommodation of the maker, or payee of a note, is liable to a holder for a value, taking it before maturity, though the holder knew when the note was transferred to him that the endorsement was an accommodation one.

The fact that the plaintiffs were indebted to Crum at the time they bought the note in the sum of $5,000, and that they were indebted to him when this action was tried, is neither a legal nor an equitable defence to Boyd. -It does not appear that such indebtedness was due when this action was commenced, so that it could have been set off by Crum, if he had been sued. And no such defence is set up in Boyd’s answer. The nearest approach to such a defence is found in the allegations that the note was never negotiated to the plaintiffs, that they paid Crum no consideration for it, that Crum delivered it to them, to be collected by them for him as his agents. These allegations are disproved by uncontradicted testimony, given by a witness called by Boyd.

If, as between Boyd and Crum, the former is to be treated as last endorser, and therefore entitled, on paying the note, to maintain an action against Crum, there is no allegation of his being unable to pay it, or of there being the slightest risk of Boyd’s ability to collect it from him.

All questions as to the effect of writing the guaranty on the note, over the name of Boyd, having been expressly waived by him on the argument, it is unnecessary to consider them. The motion by Boyd, for a new trial, should be denied.

Emmet, J., concurred. Motion for a new trial denied. Judgment for plaintiff, with costs.


author: Bosworth, J.

text:
    William C. Rising v. Nehemiah Dodge.
    (Before Duer and Bosworth, J.J.)
    February 16;
    February 26, 1853.

    Ho action, can be maintained by a father to recover damages for the removal of his infant child so as to prevent the production of the body of the child upon a habeas corpus, when it appears the father had not an absolute right to the custody of the child, and that the child was incapable of rendering any services of value.
    If the conduct of the defendant, in the removal of the child, amounted to a violation of the provisions of the B. Stat. (2 R. S., p. 57 2) he is liable to be prosecuted for a misdemeanor, but is not liable to a civil action unless special damage is shown. Ho such action is given by the statute.
    Upon these grounds judgment for the defendants.
    This action was brought by the plaintiff, as father of Wm. C. Rising, Jr., a minor, between 7 and 8 years of age, to recover of the defendant damages alleged to have been sustained, being the costs and expenses of proceedings by Habeas Corpus to obtain possession of the child, and also the value of the services of the child, whom, as the complaint alleged, the defendant removed from the state to prevent his being brought up on the Habeas Corpus, and delivered to his father, the plaintiff.
    The plaintiff married a daughter of defendant. About three years before this action was commenced the plaintiff and his wife separated. She continued, with her two children, from that time to live in the city of New York, with her father, the. defendant. The plaintiff went south, and was residing in Charleston, S. C., when this action was brought. He came to this state, and demanded of defendant the boy. The boy’s mother being then in Connecticut, the defendant sent the boy to her. The plaintiff procured a Habeas Corpus to be served on the defendant, requiring him to produce the body of the boy. The defendant made return that the boy was ngt in his custody, nor under his control, and' the writ was dismissed. The plaintiff then brought this action to recover moneys fruitlessly expended in and about prosecuting the writ of Habeas

      Corpus, alleging that the defendant, with intent to elude the service of said writ, and to avoid the effect thereof, transferred the custody of the child, and removed him out of the state. Plaintiff also sought to recover for loss of the service of his child.
    Mr. Justice Campbell, before whom the action was tried, “ decided that the plaintiff could not recover under that part of his complaint which related to a deprivation of the Habeas Corpus and his expenses thereon, but only on that part relating to the abduction of the child and the loss of services; to which decision the plaintiff’s counsel excepted. The defendant excepted to any action upon the complaint after the judge had decided that the statute'gave no cause of action on the Habeas Corpus, unless the complaint was amended, which exception was noted.
    “ The defendant called as a witness,
    “ Lucy Leadbeater, who being duly sworn, says: I am the daughter of the defendant; plaintiff is my brother-in-law; the plaintiff and his wife separated about three yearn since, and she, with her children, has lived with my father since, and the plaintiff and his wife since the separation have had no intercourse together.
    “The judge charged the jury that the plaintiff could not recover for any expenses incurred by him in obtaining a Habeas Corpus, &c., that if the defendant did not obey the writ as claimed the statute gave a remedy by indictment, and that the plaintiff could not recover in this action damages from the defendant for such disobeying, even if proved guilty.
    “ To which portion of the charge the counsel for the plaintiff excepted. The judge further charged, that if the plaintiff was entitled to recover at all, it would be only for the services of the child. And that it appeared that up to the time of the demand made, the child and its mother had lived at the defendant’s house, the child being in the custody of its mother; and that the defendant, on the demand being made of him, had at once placed it again in the mother’s custody, from whom he had received it; the plaintiff had not proved the value of any services, nor shown that the child was capable of rendering any services of value; still, if the child was capable of rendering any services, the plaintiff may be entitled to recover for such services intermediate the demand and the restitution of the child to its mother. The judge declined giving any further instructions to the jury as to whether they should find only nominal damages, or whether they might find exemplary damages. To all which the counsel for the plaintiff excepted. And the jury found a verdict for the defendant; and in pursuance of provisions of § 265 of the code, the judge ordered this case to be first heard at a general term.”
    Mr. A. Dyett, for plaintiff,
    insisted—
    I. The judge erred in deciding at the trial, and charging the jury subsequently, that the plaintiff could not recover damages for the wrongful acts of the defendant, whereby he had been deprived of the benefit of the Habeas Corpus issued for the purpose of getting the custody of his child, nor for his expenses thereon, and in searching for the child. 1. The plaintiff, the father of the child, by the law of nature and of man, is the legal custodian, and has a paramount right to the custody of his child. (1 Black Com. 478-9; id. 408, 418, 420, 422, 424, 425.) 2. The mother’s right is only that of affection and duty from the child; and is subordinate to that of the father. (1 Black Com. 453, 478-9, 408, 418; Barry v. Mercein, 3d Hill, 407; People v. Pillow, 1 Sandf. R. 672.) 3. The father-had no right to delegate his right or his child’s custody to another; and if he had, the instant he demanded that custody be revoked that authority, and had, eo instanti, an absolute right to the custody of the child against all the world. (Barry v. Mercein, supra, 5th East, 221; 10 Vesey, jun., 58-9.) 4. The mother, if ever she have the right to the custody, cannot delegate that right to another, semble People v. Mercein, 3d Hill, 410, 411; much less can a right received from the wife be set up in hostility to the father’s right by a stranger. 5. It was therefore the duty of the defendant, on demand, to deliver the child to the father, (a subsequent delivery to the mother is no excuse); and the refusal to do so subjects him to a special action for all the consequences.thereof. 6. The defendant having parted with the custody of the child, and taken the child to Connecticut, as alleged, the act was wrongful at common law; and the defendant having by that wrongful act deprived the plaintiff of a legal right, to wit, the right to the writ of Habeas Corpus, is answerable for the expenses of the Habeas Corpus, and the expenses of endeavoring to regain its custody; which are claimed as special damages in' the complaint. 7. Although a man is not always liable to another for the consequences of his acts, it is only so when the act producing the injury was not wrongfulyw se, but it was the exercise of a right by the defendant; in such case only is it damnum absque imyvr ria. (Radcliffe Ex. v. Mayor, &c., 4 Comstock, 200.) Nor is it necessary that malice should exist; it is sufficient if there be a wrong and an injury. (Foster v. Charles, 4th M. & P. 615, 741; 6 Bing. 396; 7 Bing. 105; Pasley v. Freeman, 3 T. R. 51; Comyn’s Dig., “ Action upon the Case,” A., p. 278; Rol. 109, 1, 15.) 8. The action is hot brought upon the statute, the act of the, defendant was a wrong, even if the statute had not made it an offence, and even if it were not a wrong without the statute; the rule that an offence, mabum prohibitum, is confined in its punishment to the statute creating it, does not forbid an action for the consequences of the illegal act, where actual damage is proved; it only forbids an action for damages in cases where a penalty is given eo norrwne by the statute to the party aggrieved, in which cases the penalty alone can be recovered. (See cases cited under 7th and 9th subd., Sadmore v. Smith, 13 John. R. 322, and cases there cited show this to be the rule. 1 Kent Comm., 7th ed., 517, et in notis ; 2 R. S. 562, § 76; Cook v. Dorby, 4 Munf. 444.) The act of the defendant was pleaded according to the wording of the statute, only to show that in addition to the wrong itself at common law, it was also made an offence by statute. Enough is stated in the complaint without the statute; it is alleged that he took, &c., the child out of the state, &c., which is entirely dehors the statute. (Even at common law it is a misdemeanor to take a child from its father’s possession; Andrews, 312.) We had a perfect right of action, had the statute never been passed. (Sedgwick on Damages, 20 to 34; Chamberlaine v. Chester R. Co., 1 Exch. K. 870; Kaine’s Prin. Eq. 181-2, 6 Hill, 466; Hallet v. Novion, 4 Johns R. 290.) 10. The expenses of the Habeas Corpus, and other expenses searching for the child, were recoverable as special damages, consequent upon the abduction of the plaintiff’s child, in addition to the loss of his services and companionship, and the matter in the complaint on this latter subject was necessarily set out to show this special damage. (Wœrt v. Jenkins, 14 Johns. R. 352; Ford v. Monroe, 20 Wend. 210; Whitney v. Hitchcock, 4 Denio, 63; Cowden v. Wright, 24 Wend. 429.) In the two last cases no special damages were proved, and the act was a tresspass for which the child could recover, which is not the case here.
    II. The judge erred in all that part of the charge after the word “guilty.” The charge was calculated to deprive the jury of any guide whatever" in assessing the damages. 1. Ho proof was necessary of any acts of service, or the child’s capacity, nor their value. The slightest acts of service were sufficient, of which the child could legally be presumed to be capable; the law does not measure the value of cheerful services, which are prompted by affection, in the same scale as those which are sullenly doled out; proportioned to the expected compensation; as examples of this, are the familiar cases of seduction and criminal conversation, in the latter of which the loss of the consortium alone is sufficient; and we expressly aver we lost the “society” of the child. The principle is the same in all the cases; the act of the defendant was a wilful violation of the plaintiff’s rights, and justly entitled the plaintiff to exemplary damages. (21 Wend. 79. 4 Comstock, 75. Sedgwick on Damages, 20 to 34, 38, 47, 65, 79, 81; cases in note to p. 90 ; 453 to 467, 563, et seq. Bennett v. Lockwood, 20 Wend. 223. Martinez v. Grueber, 3 Scott N. R. 386.) 2. As before shown, the delivery-to the mother was no excuse, and plaintiff was entitled to damages up to the time of trial, if not till the child’s majority. See cases, supra.

    III. It is no objection to this case that it is one of the first impression ; if it can be sustained on well established principles, it is sufficient. (Ashby v. White, 1 Bro. Cases Parl. 62. Aldridge v. Stuyvesant, 1 Hall R., p. 215. Dyett v. Pendleton, 8 Cow. 277. Chapman v. Peckergill, 2 Wills. 146. Winsmore v. Greenough, Willes. 577. Pasley v. Freeman, 3 T. R. 51. Southword v. Van Pelt, 3 Barb. S. C. R. 347.
      Drew v. Coulton, 1 East, 563 a. Milward v. Sargent, 1 East 577 n.)
    IV. The verdict was against evidence, and wrong in any event; the plaintiff was entitled to nominal damages at any rate.

      A. J. Vanderpoel, for "defendant,
    made and argued the following points.
    I. The court was correct in rejecting the demands connected with the Habeas Carpus. 1. The statute [2 R. S. 572, orig. paging, § 76] gave a remedy by indictment, and there was no action at common law for eluding a writ of habeas corpus, although one for false return exists. 2. § 76 controls (if any), because writ was served 10th Sept., while child left respondent 9th Sept. 3. Where no remedy existed at common law, the statute remedy is alone to bé pursued. (Dwarris on Statutes, 678, 679. Almy v. Harris, 5 John. 175. Stafford v. Ingersoll, 3 Hill. 38.) 4. Whenever an action has been allowed, concurrent with the pursuit of the statute remedy, it was permitted upon the principle that the statute gave an incomplete remedy. But in this case, the portion of the action allowed by the court per quod amisit sernitiram, was complete in its. remedy.
    II. Assuming that there exists an accumulative remedy upon the Habeas Corpus, the writ was void. Application for the writ was made to a justice of the Common Pleas of this county, 'when prisoner was detained, if at all, in Newtown, Queens Co.; and this fact appellant knew before applying for the writ. The officer to whom application is made must have jurisdiction of a prisoner in his county excepting, &c., &c. (see 2 R. S. 564, orig. paging; Notes on Hab. Corp., 4 Hill. 652), and appellant’s writ was not within the statute exception.
    III. The court left to the jury to say whether the child was capable of rendering services, and if so, their value. The jury found the child was incapable of rendering services.
    IV. The charge that loss of service was the gist of the action, and that the services must be proven, is sustained by the reason of the law and the cases. (Reeves’ Domestic Relations, 291; 2 Kent, 195. Leading case of Hall v. Hollander, 4 B. & C. 660. Weedon v. Timbrel, 5 T. R. 357.)

       Vide The People v. Rose Parker, 1 Duer 709.

   Bosworth, J.

The jury found that the child was incapable of rendering service: So far as the right to maintain the action depends upon proof of special damage resulting from the loss of service of the child, the existence of the right is. disproved by the verdict of the jury.

The father has no property in the child, and no action has accrued from an unauthorized removal of his property.

Prima facie he has a rightto the legal custody of the child, and where no special reasons are shown to induce a court to act otherwise, it will award to him the custody and require the child to be restored to him. (18 Wend. 637. id. 17. 3d Hill 405.) But the court will not under all circumstances interfere, and take a child, though under fourteen years of age, from the possession of a third person, and deliver it over to the father against the will of the child. If the infant is competent to declare an election, the officer before whom it is brought on Habeas Corpus, will allow it to go with^that one of the parents with whom it prefers to reside. If the infant be too young to form a judgment, the court, in some cases, will exercise its judgment for the infant, so far at least as to refuse to make an order that it be delivered to the party seeking to obtain a change of custody. (2 Kent’s Com. 194; 4 J. Ch. R. 80.)

The Revised Statutes provide that when any husband and wife shall live in a state of separation without being ‘divorced, and shall have any minor child of the marriage, the wife, if an' inhabitant of this state, may apply to the Supreme Court for a Habeas Corpus, to have such minor child brought before it, and on the return of the writ, and on due consideration, may award the charge and custody of the child to the mother for such time, under such regulations and restrictions, and with such provisions and directions, as the case-may require. (2 R. S. 194, § 1, 2.)

An officer before whom such a child should be brought on Habeas Corpus, might properly refuse to make an order requiriug the mother to deliver it to the father, on a state of facts being shown which might induce the Supreme Court to take it from the father and award it to the charge and custody of the mother.

In this case the husband and wife had been living separate and undivorced for over three years prior to the issuing of the Habeas Corpus. His wife and her two children went to reside with her father, the defendant. The plaintiff went to South Carolina and continued to reside there. For aught that appears in the case, the support and maintenance of herself and children had been devolved upon the defendant and borne by him. The wife and children remained in this state. The defendant left it and remained out of it.

For aught that affirmatively appears, the father was a fit person to have charge of the child. And for aught that appears the mother was equally fitted for the trust, and had discharged its duties, with a wise regard to her son’s present and future happiness. Is it clear that on these facts, the child would have been taken from the mother and delivered to the father? Is there not some evidence of abandonment, not in the offensive sense of the term, but practically, of all care over and provision for him?

If the judge issuing the Habeas Corpus, might in the proper exercise of his discretion have refused to interfere, the plaintiff failed to show any strict right to the actual custody, which has been interfered with by the defendant.

The defendant was not bound to bring the child to the city on the demand of the plaintiff, nor to retain it in his custody. The most that could be required of him, under any circumstances, was non-interference. He made no claim to the custody, he merely permitted the child to be at his house.

The only act of which complaint can be made, is his taking of the child to Connecticut and leaving it with the child’s mother, with whom the plaintiff left it on quitting the state.

If such an act falls within the prohibition contained in either the 61st or 62nd section of 2 R. S. 572, it is enough to say, that the statute which creates the offence, prescribes the punishment. Ho civil action lies to recover the expenses incurred in issuing and attempting to execute the Habeas Corpus, where no special damage is shown to have resulted from the removal.

And as the jury found the child was incapable of rendering any service, the new trial should not be granted, in this particular case, for the reason that the facts appearing on the trial present a case, on which the judge issuing the Habeas Corjytis, might properly have refused to interfere, and change the custody of the child. The motion for a new trial must be denied, and a judgment entered for the •'defendant.


author: By the Court.

text:
    Harrison v. Wood.
    (Before Duer, Campbell, and Bosworth, J.J.)
    February, 18;
    February, 26.
    Judgment for the defendant upon a dismissal of the complaint, in an action at law, is no bar to a subsequent action by the plaintiff for the same cause.
    Appeal from a judgment at special term in favor of the plaintiff.
    The action was to recover damages for an assault and battery, and was tried before the Chief Justice and a jury in October, 1852.
    The answer, after denying the assault and battery, set up as a defence, that the plaintiff in May, 1850, had commenced an, action in the Supreme Court for the identical cause of action set. forth in the complaint; that an issue of fact was joined thereon, and the same was brought to trial, and a judgment .rendered against the plaintiff in favor of the defendant. The record of this judgment was produced upon the trial, and it appearing that the judgment was for the dismissal of -the complaint by default, the Chief Justice overruled the defence. Upon the testimony the jury found- a verdict in favor- of the plaintiff for $240. The counsel for the defendant having excepted to the ruling of the Chief Justice, the only question now was whether the exception was well taken.

      E. Sandford, for the defendant,
    insisted that—
    The judgment for the defendant in the Supreme Court barred a subsequent action between the same parties for the same cause of action.
    The plaintiff had an opportunity to litigate his difficulty xwith the defendant in a tribunal of his own selection, and the judgment of that tribunal should be, and is, final and conclusive upon all matters that could have been litigated in that action. If the plaintiff chose another court in which to try his cause of action, he should have voluntarily withdrawn his action in the Supreme Court, and not suffered the judgment of the court to be rendered against him.
    The counsel cited Le Guen v. Gouverneur, 1 John Ca. 492. Ogsbury v. Lafarge, 2 Comst. 113. Brown v. Embury, 3 Comst. 511.

      J. Edgar, for the plaintiff,
    contended that—
    I. The disposal of the former suit was not such as to determine the rights-of the parties. 1. The dismissal of the complaint in that suit was by an order upon motion, which did not operate as a verdict and judgment to conclude the rights of the parties. (3 Code Reporter, 241 and 37. 5 Pr. Rep., p. 30.) 2. The judgment in the first case must be viewed in the same light with a judgment as in case of nonsuit. (6 Pr. Rep., p. 218.) 3. The determination of the first action was equivalent to a nonsuit; and the costs, in that case, were paid before a second action was commenced.
    II. To bar a recovery in a second action for the same cause, it must appear not only that the same questions were in issue in a former suit, but also that they were distinctly considered and passed upon in such suit. (Wood v. Jackson, 8 Wendell, p. 35. Lawrence v. Hunt, 10 Id. 84. Young v. Rummell, 2 Hill. 481. McKnight v. Dunlop, 4 Bar. Su. Rep. 36. Quackenbush v. Ehle, 5 Id. 469.)
    III. There is no evidence that the facts of the case had ever previously been passed upon, or in question before a court ' or jury.
    IV. The judgment should be affirmed, with costs.
   By the Court.

The dismissal of a complaint under the Code, in an action at law, we aré clearly of opinion has no other effect than that of a nonsuit under the former practice. There is a change of name, and nothing more. The Chief Justice was therefore correct in holding that the judgment in the former action which was relied on as- a defence, was no bar to the plaintiff’s recovery.

Whether an absolute bar may not be created by the dismissal of the complaint, when no other than equitable relief is sought, and the cause has been heard at special term, is a different question, upon which we are not to be understood as intimating any opinion.

The judgment must be affirmed, with costs.


text:
    Williams v. Storm impleaded with Austin and others.
    (Before Duer., Campbell, and Emmet, J.J.)
    February 18 ;
    February 26.
    Notes, having no previous inception, if discounted at more than I per cent, per annum, are void for usury. The accommodation endorsers of such paper are not liable, although the last endorser may have endorsed it, on the understanding that the proceeds should be used to take up acceptances which he had made for the makers, and which it was the duty of the latter to pay.
    The action was brought to recover against the defendant, Storm, as first endorser, the amount of five promissory notes, made by a corporation named the Empire Mills; dated December 10th, 1850, payable to the defendant or order six months after date, and amounting in the aggregate to $10,000. The second endorsers, the other .defendants, were the persons composing the mercantile firm of Austins & Spicer, and had suffered judgment to be taken against them by default.
    The defence set up by Storm, in his answer, waS; that the notes were endorsed both by himself, and Austins & Spicer, at the request of and for the accommodation of the makers, the Empire Mills, and when so endorsed were owned and possessed by and had not been put in circulation by the makers ; that when the notes so endorsed were first put in circulation,- they were negotiated and delivered by the Empire Mills to the mercantile firm, of Wright & Titus, who discounted the same at the rate of more than seven, and at the rate of 12 per cent, per annum. The answer therefore insisted that the notes and the endorsements thereon were usurious and void in their inception. The reply took issue upon the matters set forth in the defence.
    The issues were brought to a trial before Mr. Justice Sand-ford and a jury, on the 24th of May, 1852, when

      Edwin C. Hamilton, a witness for the defendant, Isaac T. Storm, testified as follows: In 1850 I transacted business in the city of New York, and was the Treasurer of the Empire Mills, which was a manufacturing corporation, located in the county of Oneida, in this State. The five notes in question in this action were made by the said Empire Mills. I filled up and signed them as such Treasurer. I called upon the defendant, Storm, and he endorsed the said five notes at my request, for and on account of the Empire Mills, and for their accommodation ; the notes remaining in my hands for the use of the corporation ; I knew the firm of Austins & Spicer ; that firm transacted an auction and commission business in the city of New York, in and prior to 1850, and consisted of the other defendants m this action; I called upon the said Austins & Spicer, and they also endorsed the said five notes with their said firm name, at my request, for and on account of the said Empire Mills, and for their accommodation; the notes remaining in my hands for the use of the corporation. Both of said endorsements were made in the city of New York, and the agreement both with Mr. Storm and with Austins & Spicer was, that if the said notes were used or put in circulation, the said Empire Mills should provide for and pay them at maturity.
    I then negotiated with Messrs. Wright & Titus, of Wall street, that they should buy from me a lot of negotiable promissory notes, amounting in the whole to fifty or seventy-five thousand dollars ; I do not just now remember which sum —at a rate agreed upon; they agreed to take the paper, deducting from the whole amount of the said paper interest, or discount, at the rate of 12 per cent, per annum, for the time the paper had to run before maturity, and also a quarter of one per cent, upon the whole amount, by way of a brokerage fee on the transaction, as if they had sold the paper for account of the Empire Mills ; they took the paper in- that way: I handed them the paper, amounting to fifty or seventy-five thousand dollars; they paid me about two-thirds of the money down, and within four or five days after, rendered me an account according to the agreement, deducting discount at the rate of twelve per cent, per annum on the amount for the time the paper had to run, and the quarter per cent, brokerage, and paid me the balance. The five notes in question were part of this lot of paper so disposed of to Wright & Titus; all the said paper was of the said character; it was all accommodation paper ; this transaction was for and on account of' the Empire Mills, and I applied to their use the money so received from Wright & Titus; this transaction with Wright & Titus took place early in December, 1850, soon after the date of the said five notes.
    On cross-examination, this witness testified as follows:—These five notes were procured by me on behalf of the Empire Mills; my duties as treasurer of the Empire Mills were defined by the by-laws; in procuring the endorsements, I negotiated with the parties personally; I also conducted the negotiations with Wright & Titus personally; in purchasing the paper, Wright & Titus did not state that they purchased for any other person.
    The witness, in answer to an enquiry of the court, why the notes in question were said on their face to be on account of wool, testified that, about twelve months previously, a large amount of wool had been consigned by the Empire Mills to Austins & Spicer, for which they had accepted; these notes were on that account; it was stated to Wright & Titus, at the time of the negotiation, that these notes were made to reimburse Austins & Spicer.
    The counsel for the defendant, Isaak T. Storms, further pursued the direct examination of this witness, and he testified as follows: The Empire Mills originally consigned to Austins & Spicer, for sale on their account, on commission, a large quantity of wool, amounting in value to $750,000; the Empire Mills drew upon. Austins & Spicer, who accepted their drafts for their accommodation, based upon and in anticipation of the proceeds of the sale of said wool; I received those accepted drafts, and negotiated them for the Empire Mills; in the course of about six months, Austins & Spicer had sold about two-thirds of the wool; they were then ordered to sell no more; they were ordered to charge the balance in account, as if upon a sale to the Empire Mills, and three other mills connected with them; Austins & Spicer, however, to keep the wool until required by the Mills for manufacturing purposes, and we, the Empire Mills, undertook to keep them in funds, so as to prevent their being obliged to pay out cash upon their outstanding acceptances; the wool never belonged to Austins & Spicer; Austins & Spicer rendered the account of this assumed sale of the wool and agreed to give us, the Empire Mills, their name in any way we required, as endorsers-or acceptors, we to keep them in funds, so that they should not be in advance for cash paid out; in pursuance of that arrangement, the Empire Mills took the wool out of the hands of Austins & Spicer, from time to time, as needed, during a period of about six months; also, as their paper matured, we took their name upon fresh paper, negotiated it in the market, and paid over the proceeds to them, as agreed, in time to keep them from being in advance ; we paid Austins & Spicer a commission of two and a half per cent, on the amount of all paper on which they so put their name; the paper varied in the length of time it had to run— from four to six months; in this way, the balance of the original acceptances, beyond what was realized by Austins & Spicer from the actual sale of the wool, was renewed several times; all the renewals prior to the transaction with Wright & Titus, were effected by paper, on which Austins & Spicer were acceptors, and the persons primarily liable and the proper persons to have the money to take up the paper when it fell due; this was the only .instance in which notes were made; this transaction with Wright & Titus was about ten days before the acceptances of Austins & Spicer, then outstanding, became due; the object was to obtain money to take up those acceptances about to mature—it was another renewal of that transaction, and was in no way connected with any other; most of the original set of acceptances were given by Austins'& Spicer before the wool actually came to their hands.
    The testimony was here closed, and the judge directed the jury to find a verdict for the plaintiff for the whole amount claimed, subject to the opinion of the court on a case to be made and heard at a General Term in the first instance, and judgment to be entered for the plaintiff, or the defendant Storm, accordingly—with leave to either party to except and make a bill of exceptions accordingly, after the decision of the court.
    The jury found for the plaintiff. Damages, $10,663.

      T. Tucker, for the plaintiff,
    now moved for judgment upon the verdict, and insisted that the notes in question were drawn for good consideration under a valid and existing agreement, and were not in any sense accommodation paper. (Mottram v. Mills, 2 Sandf. S. C. 189; White & Sheffield v. Springfield Bank, 3 Sandf. 222.) And if considered accommodation paper they were used for the purpose for which they were designed, and the plaintiff paid value for them. The defendant cannot, therefore, inquire into the amount of consideration. (Montross v. Clark, 2 Sandford S. C.118; Brown v. Mott, 7 Johns. R. 361; Wardell v. Howell, 9 Wend. 170.)

      C. O'Conor, contra,
    argued that the notes were first put in circulation as operative instruments, when purchased or discounted by Wright & Titus, and that as such purchase or discount was at a rate exceeding 7 per ct. per an., they were, under the statute, clearly void (1 R. S., p. 773-5). He therefore claimed that the verdict should be set aside, and a verdict and judgment thereon be entered for the defendant.
   By the Court.

It is plain that the notes were endorsed by Austins & Spicer, and also by Isaac T. Storm, the»defendant, for the accommodation of the Empire Mills. The notes were never owned by, nor in the possession of either of the endorsers. They continued in the possession, and to be the property of the makers, until they were negotiated to Wright & Titus, at a discount, greater than at the rate of seven per cent, per annum. The discount, at such rates, of notes having no previous legal inception, or validity, renders them, usurious and void. (Aely v. Rapelye et al., 1 Hill, 9.) The fact that Austins & Spicer endorsed the notes, to enable the Empire Hills to raise money upon them, to take up acceptances by the former, which it was the duty of the latter to pay, does not alter the character of the notes in suit, nor can it have the effect to render them valid and recoverable against the first endorser, until after they have been negotiated to some one, for value, in some business transaction, not prohibited by the statute, in relation to usury. The verdict must be set aside, and judgment entered in favor of the defendant, Storm.


author: By the Court. Duer, J.

text:
    Bernard McGowan and others v. Ann McGowan and others.
    (Before Duer and Campbell, J.J.)
    February 21;
    February 26, 1853.
    B. McGowan, by his last will devised all his estate to his wife, “ for her own be-hoof, and the maintenance of his children, and upon his son John (the youngest child) becoming of age, the whole estate to be equally divided among his seven children (naming them), and that should death take either from the world, it should be equalty divided among the survivors.”

      Held, That the devise created no trust suspending the power of alienation, and that, at any rate, the suspense, if any was created, could not exceed a single life in being at the death of the testator.
    Judgment at special term affirmed with costs.
    Appeal from a judgment at special term, sustaining a demurrer to the complaint.
    The suit was for the partition of certain real estate in the city of New York, which had belonged to Bartholomew McGowan, deceased. The plaintiffs were two of the children of the deceased, who claimed to be entitled, as heirs at law, to two sevenths of the estate. The defendants were the widow and the remaining five children of the deceased. The complaint admitted that the deceased had made a will, duly executed and published, devising all his real estate, but insisted that the devise was absolutely void, as repugnant to the provisions of the Rev. Stat., respecting the creation of .estates in land. The devise; which was set forth in the complaint, and upon the validity of which the case turned, was in these words: “ Second. I give and bequeath to my wife Ann all my real and personal estate whatsoever; the real estate consisting of house and lot 38 Centre street, and houses and lot 17 Roosevelt street: the personal estate in the house now occupied by me, 17 Roosevelt street, for her own behoof and the maintenance of my children, her to keep economically as possible, after paying my just debts, to rear and educate my children, and give them trades, whereby they may help her; and at my son John becoming of age, the whole of my estate to be divided equally among my children, named Bernard, Alice, Bartholomew, Martin, Matthew, Mary, and John, seven in all; but should death take either from the world, it shall be equally among the survivors.”
    The defendants demurred to the complaint, upon the ground that it appeared upon its face that the plaintiff had no right to claim a partition, and judgment upon the demurrer was "rendered at special term in their favor.

      M. Hoffman, for the plaintiffs,
    insisted that the devise suspended the power of alienation for a greater period than two lives in being at the death of the testator: and also created a suspense for an absolute term of years, namely, the possible duration of John’s minority. It was therefore absolutely void, and the estate descended to the testator’s heirs at law. (He cited 2 R. S., 3 id., p. 10 and 15; 16 Wend. 61; 1 Sand. Ch. R. 359; 4 id., pp. 414, 515, 528.)

      C. Schaffer, contra.
   By the Court. Duer, J.

The widow in this case took the whole estate subject to the maintenance and education of the children, as a charge, which a court of equity might enforce (2 Hare, 607. 10 Simons, 293. 8 L. and Eq. R., p. 53), but which created no trust under the provisions of the R. S. She was not bound to apply the whole rents and profits to the use of the children, and hence the case is not covered by sub. 3, § 55 in the title of uses and trusts (1 R. S., p. 328), and it is only an express trust created under this subdivision, which suspends at all the power of alienation. Under the provisions of this will there is no suspense except such as may be occasioned by the minority of the children—there is none which is caused by any limitation or condition in the will (1 R. S. § 15, p. 23).

Even could we hold that the will creates an express trust suspending the power of alienation, the suspense is limited to a single minority, and is therefore valid. According to the settled construction of such a limitation, the suspense would terminate on the death of John the youngest child, and is therefore confined to a single life in being. We see nothing in the provisions of the will that should lead us to depart from the general rule. On the contrary, we believe that a single minority was selected for the very purpose of meeting and avoiding the objection that has been relied on. Should John die during his minority, the fee would vest immediately in the surviving children, and in the fee, the charge for their education and maintenance would necessarily be merged. The estate of the widow and the trust attached to it would then cease.

The principles of our decision in Lang v. Ropke (5 Sand. 368), will be found on examination to embrace this case.

The judgment at Special .Term is affirmed with costs.