author: By the Court. Slosson, J.

text:
    Rebecca Freeman, by her next friend, v. John Orser, sheriff.
    Before the acts of 1848 and 1849, “For the better protection of the property of married women," a married woman, even when her property was settled to her separate use, could not carry on any trade or business separately from her husband, and hold the earnings of it, secure from the claims of his creditors, unless by his assent and agreement, given either before marriage, and in consideration of it, or, subsequently, upon a new and valuable consideration.
    Although the acts of 1848-9 have dispensed with the necessity of trustees to protect the wife’s separate property, whether owned by her at the time of the marriage, or subsequently acquired, against the claims of her husband’s creditors, they have not given to her any right to deal with such property in the way of trade, as a feme sole, without the agreement or assent of her husband.
    The acts in question do not contemplate the ease of a married woman carrying on trade in her own name and right as a feme sole. Had the legislature intended to confer this right, language expressing that intention would have been used.
    Such an intention cannot be implied, unless the implication be necessary, since the statutes are an alteration of the common law, in derogation of the marital rights of the husband. That the implication is not necessary is certain, since, without it, full effect may be given to every word that the statutes contain.
    It is a necessary conclusion, that a married woman having separate property, has no right to invest it in a trade carried on by her in her own name, so as to hold the accretions and profits resulting from the business protected from the claims and interference of the creditors of the husband.
    To enable her to do this, the assent of the husband, founded on a valuable consideration, is just as indispensable as before the acts of 1848 and 1849 were passed.
    The time, services, talents, and industry of the wife belong to the husband, and are valuable in themselves. He has, therefore, as against his creditors, no more right to part with them, without a valuable consideration, than to make a voluntary settlement of any other property belonging to him in fraud of his creditors.
    There being no evidence, in the case before the court, of any valid assent by the husband, to a milinery trade carried on by the wife, and it appearing that the earnings and profits, as well as her separate capital, were invested in the stock on hand, and there being no means by which they could be descriminated,

      Held, that the whole was rightfully levied on, under an execution against the property of the husband.
    Judgment for defendant, with costs.
    (Before Duer, Bosworth and Slosson, J.J.) ■
    March, 1856.
    This was an action against the defendant as sheriff, for the delivery of a stock of millinery, consisting of hats, bonnets, ribbons, &c., which the complaint alleged was the separate property of the plaintiff, and that the defendant had wrongfully seized and carried away.
    The defence was, that the goods were rightfully levied and seized under an execution against the property of Samuel J. Freeman, the husband of the plaintiff, and that they were in fact his property.
    The cause was tried before Oakley, Chief Justice, and a jury in November, 1855, and a verdict rendered for the plaintiff, subject to the opinion of the court at General Term, upon the questions of law reserved and exceptions taken, on the trial, and with liberty to the court to dismiss the complaint, order a new trial, or a judgment to be entered for the defendant. The cause came before the court upon a case containing the proceedings and evidence upon the trial.
    All the facts that were deemed material, and upon which the questions of law to be determined arose, are fully stated in the opinion of the court.

      H. Morrison, in moving for judgment for the plaintiff,
    relied upon the provisions of the acts relative to the rights and property of married women, as showing conclusively, that the goods seized by the defendant were the separate property of the plaintiff, and therefore not subject to the claims of the creditors of her husband. (Laws of 1848, ch. 200; Laws of 1849, ch. 375.)

      A. J. Vanderpoel, for the defendants,
    contended that the statutes relied on, had not conferred upon a married woman the power to carry on trade and merchandise as a feme sole, nor had they deprived the husband of his common law right to the proceeds of the skill and labor of the wife. He cited 20 Penn. R. 308; 3 Law Reg. 229 ; 2 Oar. & Pay. 38; 6 Howard, Pr. R. 105; 10 id. 109, and claimed judgment for the defendant.
   By the Court. Slosson, J.

I shall first state what we deem to be the material facts of the case, and proceed to the questions of law to which they have given rise. The plaintiff, a married woman, brings this action, to recover certain millinery ware, which the sheriff, on the 23d of November, 1854, levied upon, in a store in Division street, under an execution, upon.a judgment against her husband, and which she claims to be her own separate property, “ being the proceeds of her own separate, and individual funds and money.”

The judgment against the husband was docketed, 11th February, 1854, for $263.04.

The defendant insists that the goods levied upon were the property of the husband, or that .he had a leviable interest therein. The plaintiff was married in February, 1853. The principal witness for the plaintiff was her own mother.

On the 1st of May, 1854, the mother let the store to her daugh- ■ ter, the plaintiff, for one year, at a rent of $500, “ to be occupied as a millinery store for her own family.” After taking the store, she fitted it up as a milliner’s shop. She expended, in the purchase of stock, the moneys which belonged to her before the marriage, somé $395 in amount. Of this amount, $50 had been given to her, by her mother, in 1852, and deposited to her credit in bank before her marriage: the balance of the moneys consisted of her earnings, in her mother’s employment, at five dollars per week, until her marriage, and was deposited in the bank, to her credit, Hovember, 1853.

On the 24th of March, 1854, she drew out $200, and the entire balance in April following, for the purpose of purchasing her stock. The business of the store was carried on in her own name.

The mother says, -that “ the goods in the store, up to the time of the execution, were the proceeds of her own money, and the success of her business.” She employed five or six hands. The value of the property levied on was $483.50.

On the 24th of May, 1854, she effected an insurance on her stock, in her own name, for $1,000, under which policy a small loss was paid, in 1855, to her husband, who receipted for it in her name.

The husband had been in the clothing business, but had failed, before his marriage with the plaintiff.

He sometimes assisted in the store, and made sales to a small extent. He also made purchases, at times, of goods for the store, but not to any great extent, and he attended the store when' his wife was absent or sick. The plaintiff and her husband lived in the house in which the business was carried on.

The plaintiff relies on the provisions of the act of 1848-9, “ for the more effectual protection of the property of married women.”

Upon these facts, the main question is, whether a married woman, having, at the time of her marriage, moneys of her own, which, by the operation of the acts of 1848-9, are, without the intervention of trustees, secured' to her own separate use, free from liability for the debts of her husband, may, by virtue of those acts, invest her moneys in trade, carry it on in her own name, and hold the stock, with its accumulations, and the earnings and profits of the business, exempt from the claims of her husband’s creditors?

The right and ability of a married woman to carry on a trade, separate from her husband, and to hold the earnings of it, secure from the claims of his creditors, always depended upon his assent and agreement, either given before marriage, and in consideration of it, or given subsequently to it, and upon a new and valuable consideration.

Where it was given before the marriage, it was given through the medium of an ante-nuptial contract, with trustees, to hold the legal title to the property or fund. The marriage constituted a valuable consideration, for the husband’s agreement. The trust was good in equity, and the title of the trustees good at law. The wife acted, in carrying on the trade, on the theory of being an agent of the trustees, who were entitled to the property, and the profits of the business, but, in trust, for her use.

If the agreement was entered into after marriage, it required a new and valuable consideration to support it, and trustees were also necessary.

In equity, in which court the husband would be considered as trustee for the wife, a more liberal rule prevailed, and an ante-nuptial agreement in writing, by which the wife was permitted to carry on a trade on her separate account, was good without the intervention of trustees, and so after marriage, his mere permission or consent was enough to authorize her to carry on the trade, but in the latter case, unless such permission was founded upon a valuable consideration, his creditors would be let in to assert their claims to the stock in trade. (Story’s Eq. Juris. 8, 1385, 6, 7; Roper on Husband and Wife, ch. 18, § 4; Id. ch. 8, § 2; Jarman v. Worlston, 3 T. R. 618; Harelington v. Gill, 3 T. R. 620, note; Fonblanque’s Eq. 1 ch. 2, § 6, n. a.)

But the wife, whether trading in pursuance of an ante-nuptial agreement, or of an agreement entered into with the husband after marriage, could not, in law, bind herself by obligations created in her own name. Such obligations would be void, and if she received securities in her own name, as for example, a promissory note, payable to her own order, such security became at once the husband’s property, and she could not, by endorsement, divest him of the title, so as to enable the endorsee to maintain an action on it. (Roper, ch. 18, § 4, p. 171, 2; Barlow v. Bishop, 1 East. 432.)

In equity, the rule would probably be different, as that court, acting on the principle of her power to act as a feme sole in respect to her separate property, would establish the debt against herself in respect to her separate estate. (Roper, ch. 18, § 4, p. 172.)

Thus it will be seen, that the right of the wife to trade on her own account, required absolutely the assent of the husband; his marital rights in her time, company, and services could not be impaired without his agreement or acquiescence, and so far as he was himself concerned, such agreement or assent though partly voluntary, would be binding, but as against his creditors, a valuable consideration to support the assent, was necessary, and at law, the intervention of trustees to hold the legal title, and this whether the assent was given in an ante-nuptial contract, or an agreement after marriage.

Such was the law before the statutes in question were passed, (1848-9,) and such, apart from those statutes, is undoubtedly still the law.

Have these statutes created any difference or change, or introduced any new rule in relation to this subject ?

They have undoubtedly dispensed with the necessity of trustees to protect the wife’s property from the husband and his creditors, whether owned by her at the time of her marriage, or subsequently acquired by her by inheritance, gift, grant, devise, or bequest, from any person other than her husband’s, but this of itself gives her no right to deal with such property in the way of trade, as a feme sole, without the husband’s assent. There is nothing in the language of the statute, from which such a right can be inferred. The statute equally protects the “ rents, issues, ■ and profits” of the property, as the property or fund itself out of which they spring, yet this language does not certainly imply profits to be made in a trade; the statute refers in these words to such profits and issues only as naturally flow from the fund, such as rents, interest, and probably the savings from both, which were always protected where the wife had separate property, independently of any statute. (Clancy, ch. 8.)

A critical examination of the language of the statute will show, that the great object to be secured by it, was the protection of the property of the wife, without the intervention of trustees, from the marital rights of the husband, and through him of his creditors, and also to give to her the freedom and capacity of a feme sole, for the purpose of alienating and devising the same, neither of which was she legally competent to do before the statute, but that beyond this, the statute never intended to go, nor designed further to interfere with the common law rights of the husband in the personal property of the wife, than to suspend in her favor the operation of the rule which made such property his of right, and deprived her at law of any separate ownership in it, or power of disposition over it. The statute seems never to have contemplated the case of a wife trading in her own right and name as a single woman upon the property it secured to her, and is wholly silent on the subject. Had the legislature intended to confer such a right, other, or additional language, clearly expressing such intention, would undoubtedly have been used in the statute.

Another serious difficulty exists in the way of giving such a construction to these statutes, and that is her incapacity in law to make contracts in her own name, which would be binding on herself. It has already been noticed, that even where she carried on such a business under an ante-nuptial or post-nuptial agreement, she acted in it as the agent of her trustees, and was incapable, at law, of making contracts in her own name which would bind her. The statutes in question, have certainly not in terms given her any additional power or authority in this respect. Have they done it by implication ? It is impossible to say this. Every requirement of the statute is fully answered without giving to the wife the slightest power to create obligations binding -on herself personally.

In Switzer v. Valentine, (10 Howard’s Rep. 109,) a case arising in this court, a strong doubt was expressed by the court, though the case did not call for a decision on the point, whether these statutes authorized a married woman, having separate property, to become a general trader, and make valid contracts in respect to such trade.

In the case of Avery & Moody v. Doane, (reported in 3 Am. Law Reg. p. 229,) which arose in Wisconsin, and was tried in the United States District Court for that district, the effect of a law existing in that state, and identical, in all respects, with our own, from which it was copied, was fully discussed, and the court held, that the protection of the statute extended only to the separate property itself, and that she acquired, under it, no independent authority to deal, in trade, on her own account, and that she was still incapable of binding herself by contract, and could not sue or be sued, in her own name, in transactions of .trade.

But, if it should be granted that the statute did confer this power on married women, it, certainly, could not be contended that it intended to extend its protection, beyond the identical property which constituted the separate estate of the wife, thus embarked in business, and the accretions, or profits, strictly resulting or flowing from it. If, therefore, the capital invested should be more in amount than that of her own private funds, how is the identity of the two funds, or of the subsequent profits or accretions, to be determined ?

The present case, is an instance of this difficulty. The original stock, undoubtedly, exceeded the amount of the separate moneys invested in it, as we find that, in May, she effected an insurance on it to the amount of $1,000, which must be assumed to have been, at least, its value. It is impossible to say what particular portion of this stock was purchased with any particular moneys, and equally impossible to say whether any portion of the stock actually levied upon, six months afterwards, was, in fact, purchased with any part of the moneys originally invested, by her, in the business, or the profits of those moneys.

In Gamber v. Gamber, (18 Penn. R. 363,) the court held, that a married woman, claiming property, as her own, against an insolvent husband’s creditors, under the marriage act existing in that state, must make out her title clearly. She must show that she purchased it—when the purchase was after the marriage—with funds not furnished by her husband.

A law, substantially like our own, was enacted in Pennsylvania, in 1848.

In the case of Keeney v. Gord, (21 Penn. Rep. 349,) arising under that act, the court held, that the fact, that the property was purchased by the wife, amounted to nothing, unless accompanied by clear and full proof that she paid for it with her own separate funds.

We are clearly of opinion, that these statutes do not confer upon a married woman, having separate property, the right to deal with it in the way of trade, to be conducted in her own name, so as to hold it, and its accretions and profits;' made in the course of the business, protected from the claims and interference of the creditors of the husband.

I regard the legal condition of the wife, in regard to her separate property, under these statutes, as precisely what it was at law under an ante-nuptial settlement with trustees. It is not better protected, and is clothed with no higher rights; and if, under such a settlement, a wife could not have become a sole trader, without a provision to that effect in the deed of settlement, neither can she now, by the mere operation of the statute.

To enable a married woman to carry on a trade, in her own name, in respect to her separate property, so as to protect it, and the earnings of her business, from the claims of her husband’s creditors, requires, now, as it did formerly, the assent of the husband, founded on a valuable consideration.

The reason, why a valuable consideration is necessary, is, that the services,- time, talents, and industry of the wife, are, in themselves, valuable, and the husband, as against his creditors, has no more right to part with them, voluntarily, than he has to make a voluntary settlement of property on his wife, in fraud of his creditors.

In the present case, there is no pretence of any ante-nuptial assent, founded on the consideration of the marriage, that the wife should carry on a separate trade, on her own moneys. Her right to do this, if it exists at all, must depend upon the assent of the husband after the marriage; but, though this may be assumed to have been fully proved, by his acts and acquiescences, it lacks, as against his creditors, the vital requisite of a valuable consideration to support it: the husband has gained nothing, and the wife has lost nothing, by reason of this acquiescence.

There is another circumstance, in the present case, which makes ’ it still clearer against the plaintiff’s right of recovery. Both husband and wife were living together, in the house in which the business was carried on, and apparently out of the business itself. He sometimes assisted in carrying it on, and occasionally made purchases and sales, and attended to the store in his wife’s absence. Under such circumstances, and in the absence of any evidence of valuable consideration, for his assent to her trading in her own right, she can be regarded in no other light than as his agent, in conducting the business.

He would be liable on her contracts, and the merchandise purchased would be deemed, in law, his own.

Judgment must be for the defendant, with costs.

       How reported in 4 Duer, 66.


source: Caselaw Access Project

license: Public Domain

text:
    Cornelius V. Anderson and another v. Richard Busteed.
    An endorser of negotiable paper is not an assignor within the meaning of the Code. His examination as a witness does not render the party against whom he is examined a competent witness under § 399 of the Code. But where the adverse party has been examined as a witness, and is nevertheless defeated on the trial, the objection that he was improperly admitted, cannot he raised by the prevailing party, although made on the trial, on the argument of a motion for a new trial, as an answer to such motion.
    Having been admitted as a witness, although improperly, if it appear that any material question put to him, that ought to have been allowed, was overruled, a new trial must be granted, since the court cannot say, that had the evidence thus excluded been received, the same verdict or judgment would have been rendered.
    An endorsee of a dishonored check, who has knowledge of the fact, takes it subject to every defence legal or equitable that could have been made against his endorser.
    (Before Duer, Bosworth and Slosson, J. J.)
    March, 1856.
    This was an action by the plaintiffs as endorsees of a bank check, payment of which had been refused, against the defendant, as drawer. The check, as set forth in the complaint, was dated on the 26th of February, 1855, drawn on the Bull’s Head Bank, for the sum of $131, payable to P. McAleer or order, and endorsed by him to the plaintiffs.
    The answer admitted the making of the check, but denied that it was given for value, and denied the title of the plaintiffs, and set up as a counter claim, that the payee, McAleer, was indebted to the defendant for professional services in a larger sum than the amount of the check, and averred, that the plaintiffs took the check with knowledge of this fact, and a month after its date. The cause was referred to R. E. Mount, Jr., as sole referee, who reported that the plaintiffs were entitled to recover $138.69, besides costs. Judgment for this sum with costs was accordingly entered, from which the defendant appealed, and the cause was heard upon a case settled by the referee, and containing the proceedings upon the trial before him.
    It is not deemed necessary to state any other of the proceedings upon the trial than those, which have an immediate bearing upon the questions decided by the court.
    It was proved that the check was given by the defendant to McAleer, the payee, on the 28th of February, for the amount that McAleer alleged was then due to him, and that at the time it was given, the defendant insisted that McAleer was indebted to him in the sum of $80 for professional service as attorney and counsel. That the defendant stopped the payment of the check immediately after he gave it, and that the bank accordingly refused to pay it when presented. That McAleer, about a week thereafter, endorsed and delivered the check to Anderson, one of the plaintiffs, and told him that payment had been stopped and refused. The check was endorsed to the plaintiffs on account of a debt of $200 then owing to them by McAleer.
    McAleer was examined as a witness on behalf of the plaintiffs, and stated what had passed between him and the defendant when the check was given, and the defendant then offered himself as a witness on his own behalf to the same matters. The counsel for the plaintiffs objected to his admission. The objection was overruled and the counsel excepted.
    The defendant then, being sworn, testified, among other matters, that, on the morning that he gave the check, McAleer wished him to deduct the amount of his bill against him for professional services, and that this amount was $80. He was then asked “ whether that bill had not been previously adjusted between McAleer and himself?” The counsel for the plaintiff objected to the question. The referee sustained the objection, and the counsel for the defendant excepted to the decision. Other questions, substantially of the same import, and tending to prove the set-off claimed by the defendant, were afterwards put to him, which, in like manner, were overruled by the referee, and exceptions taken to his decisions.

      M. M. Ely, for the defendant,
    insisted that the report of the referee was contrary to law and evidence, and ought to be set aside, and the judgment thereon reversed; and that especially the referee had erred in overruling the questions put to the defendant, the answers to which would have shown that he was clearly entitled to the set-off that he claimed.

      Pomeroy, for the plaintiff,
    argued at length that the report of the referee was sustained by the evidence, and unobjectionable in law. He contended that the questions put to the defendant were properly overruled; that the referee had erred in admitting the defendant to testify at all, and that his whole testimony ought, therefore, to be stricken from the case. He cited Hicks v. Worth, 10 How. Pr. R. 555, and Watson v. Bailey, 2 Duer, 509.
   By the Court. Slosson, J.

The defendant was improperly admitted as a witness, as McAleer was not an assignor, within the meaning of section 399 of the Code; but of this the plaintiff cannot now complain. If the plaintiff’s objection had prevailed on the trial the defendant might have supplied, by other evidence, what he has now established by his own; besides, the plaintiff has obtained a judgment.

The defendant being a witness, however, the question put to him, whether the bill between himself and McAleer had been previously adjusted, was improperly overruled on plaintiff’s objection. It related substantially to the same matter to which McAleer had been examined, and went directly to establish the amount of his set-off or claim against McAleer, which the evidence had left somewhat doubtful. Had he established this, it would, under the evidence, have been good as a set-off, (not counter claim) against the plaintiffs, who took the check some time after it was drawn, and with knowledge of its dishonor.

We cannot say that had this evidence not been excluded the set-off claimed'would not have been allowed by the referee.

There must be a new trial, costs to abide the event, and the order of reference must be discharged.


author: By the Court. Hoffman, J.

text:
    Jasper W. Hughes, Charles Wood and Stephen Traprie v. Isaac Alexander.
    A debtor, in failing circumstances, obtained from his creditors a discharge in a composition deed, upon paying twenty-five per cent of the claims, in endorsed promissory notes. The plaintiffs made it a condition that they should be ultimately paid the remaining seventy-five per cent. A bill of goods was subsequently purchased by the defendant, of the plaintiffs, and for the aggregate amount of such bill, and the balance of the old debt, two notes were given. Each note included part of such old balance. One, however, at 90 days, was for the price of the goods, and $21.60 of such balance; the other was exclusively for it.
    An action was brought upon the 90-day note, and judgment taken for want of an answer. The complaint there was simply upon the note in the usual form. Held, that supposing the defence would have been available in the former action, yet the judgment there does not preclude the defendant from setting it up here.

      Held, that the condition attached to the agreement for the composition, was against the policy of the law, and void.
    (Before Hoffman, Siosson and Woodbuff, J.J.)
    April, 1856.
    Case made upon a verdict for the plaintiff, taken subject to the opinion of the court at General Term, the cause to be heard there in the first instance, and judgment in the mean time to be suspended. The facts of the case, and the course upon the trial, are stated in the opinion of the court.
    ■-- Bradley, for the plaintiffs.
    -Matthews, for the defendant.
   By the Court. Hoffman, J.

The complaint is simply upon a promissory note, dated the 13th of March, 1851, at sixty days, given by the defendant to the firm of Wood & Hughes, for $109.50, and alleged to be owned and held by the plaintiffs. They demand judgment for the amount, with interest from the 15th of May, 1851, and costs of the action.

The defence is, that, in the month of July, 1850, the defendant became insolvent, and effected a compromise with his creditors, including said Wood & Hughes, by their receiving twenty-five per cent upon their claims, in full discharge thereof. Such amount was adjusted by a note of the defendant, endorsed by Beruheimer & Swartzs, which was paid at maturity; that the said Wood & Hughes refused to accept such accord, and satisfaction, and to execute such compromise agreement, until the defendant promised to pay the remaining seventy-five per cent of their claim. That to induce Wood & Hughes to sign, with the other creditors, such promise was made. The compromise note for the twenty-five per cent was given, and afterwards paid, and that such promise was made secretly, and without the knowledge of the other creditors who signed the compromise instrument. That in March, 1851, he bought of the plaintiffs a bill of goods, amounting to §94, on a credit of ninety days. That Wood & Hughes then insisted on payment of the old balance, and accordingly he made his two promissory notes for §109.50 each, the one for said purchase of §94, and $15, part of the old balance and interest thereon, payable at ninety days from said March 13th, 1851; and the other for the remainder of the old balance and interest thereon, and for no other consideration, payable at sixty days, both to the order of said Wood & Hughes, and delivered both of such notes to them.

It is proven that the note of ninety days, due in June, was sued upon in August, 1851; that judgment was recovered upon it for want of an answer, and the amount was subsequently paid by the defendant. The note now in question, at sixty days, was not sued upon until January, 1855. •

The record of the judgment in the Supreme Court, in favor of the plaintiffs Hughes & Wood, was read in evidence.

The complaint is in the usual form upon a promissory note, dated the 13th of March, 1851, for §109.50 payable in ninety days, with the averment of ownership and indebtedness, and demand for judgment.

Upon the usual affidavit of personal service of the summons and complaint, and no answer being received, a judgment was entered, and filed, the 4th of September, 1851.

The composition deed was signed by twenty-five different creditors, in various amounts, and states the acceptance of twenty-five per cent, payable in defendant’s note, at three months, with a good endorser, in full satisfaction and discharge of all claims.

It was proven that when the composition deed was tendered to Wood & Hughes, for their signature, both being present, they refused to sign it, -unless the defendant would agree to pay the balancé. The defendant then agreed to pay it, and one of the firm signed the instrument.

The jury, upon the question being submitted to them, have found, that the plaintiffs, at the time of signing the compromise agreement, exacted the promise to pay as a condition of signing the same.

In relation to the manner of making up of the two notes, each for $109.50, the one at sixty and the other at ninety days, and the consideration which entered into them, the evidence is this:— The extracts from the plaintiff’s books, produced by the defendant, show that the original debt (upon a note) was $164.20. These entries may be thus presented:—

1851.

March 13th. Balance of note July 16th, 1850, after deducting 25 per cent compromise, ......... $123 07

“ “ Interest to date,...... 8 03

-- $131 10

* “ Bill of goods of October, 150, . . 21 54

“ “ Do. of March, 1851,..... 66 36

- 87 90

$219 00

“ “ By notes at 60 days,.....$109 50

“ “ “ “ 90 “ ..... 109 50

- $219 00

131 10—109 50=$21 60 -

A witness in the employ of the defendant, in March, 1851, identifies the bill of parcels of the silver cups, and recollects the purchase, and when the two notes were given. He states that the ninety-day note was given for silver cups in the bill; the sixty-day note was given for the old balance.

After the testimony was closed, the defendant renewed a motion to dismiss the complaint, which was refused. The Judge then remarked, that there was but a single question disputed, and, upon that being answered, the case would be better disposed of, as matter of law, at the General Term.

He, therefore, submitted to the jury the question whether the plaintiffs, at the time of signing the compromise agreement, exacted the promise to pay as a condition of signing the same ? The jury were directed to say “Yes” or “No,” and answered “Yes.” The Judge, thereupon, directed a verdict for the plaintiffs, for $140.64 to be entered, subject to the opinion of the court at General Term, upon a case to be made; the cause to be heard there in the first instance, and judgment suspended; to which direction the counsel for the defendant excepted, and requested the Judge to direct a verdict for the defendant, which was refused, and the refusal excepted to. Whereupon the case was made, with liberty to turn the same into a special verdict or bill of exceptions.

I. The first question is, as to the effect of the judgment in the Supreme Court by default, upon the note at ninety days. It is insisted that as the defendant could have defeated a recovery upon that note, upon the same grounds as that on which he defends the present action, he is precluded from now setting it up.

A rule which bears upon this question is found in the cases of Birlchead v. Brown, in this court, (5 Sandf. S. Ct. Rep. 145; Davis v. Talcott, 14 Barbour S. Ct. Rep. 619; Campbell v. Butts, 3 Comstock, 173; and Doty v. Brown, 4 Comstock, 71.) In the former Mr. Justice Duer, after examining the authorities, says:—

“ As between parties and privies the rule is, that a judgment is conclusive as to every question upon which the right of the plaintiff to recover, or the validity of a defence in another suit, is found to depend, and upon the determination of which, it appears from the record, or is shown by extrinsic proof, that the judgment was, in reality, founded.”

In Davis v. Talcott, Justice Taggart states several leading cases, and remarks:—

“ In the present case the record only shows, that the same matters in controversy might have been litigated. Neither the defendants answer, nor the record of the former action, shows that the same matters were litigated. The most they show is, that they might have been. If so, the burthen lay upon the defendants to show the contrary. This they failed to do; it was, therefore, unnecessaiy for the plaintiffs to prove what they have proved, .viz.: that the matters in controversy were not litigated, but were withdrawn from the consideration of the referee, and did not pass into judgment.”

There is a class of cases in which, as the declaration embraced the cause of action subsequently sought to be enforced, an omission to claim upon it has been held an answer to a subsequent suit. Yet to this rule there are several exceptions and qualifications. Thus a plaintiff declared upon a promissory note and goods sold; but upon executing the writ of inquiry, being unprepared with evidence, he took damages upon the note only. A second suit for the goods was sustained, (Leddon v. Tutop, 6 T. R. 608; Phillips v. Berwick, 16 John. Rep. 136,) was similar in principle, adopting the rule, that a former recovery, 'apparently for the same cause, is only prima facie evidence that the demand had been tried, but is not conclusive. The work and labor before recovered for was not the same, nor did it grow out of the same contract. -The claim was not indivisible, as in Smith v. Jones, (15 John. Rep. 229.)

The subject was carefully examined in Bendernagle v. Cocks, (19 Wend. 207.) The point decided was, that where an action of covenant was brought, assigning breaches of some of the covenants, a subsequent action could not be supported upon the same instrument, for breaches of other covenants therein. A distinction was allowed where there were breaches of other several covenants in the same contract, and one suit has been brought before the subsequent breaches were committed. Dealings between the parties in an account current, make up but one indivisible cause of action, and the items may not be separated, and several suits brought upon one set. Separate demands, growing out of one general contract, must be combined in one suit. See also the important case of Bowden v. Hoare, (7 Bingham, 716,) distinguishing between the effect of a nolle proseguí and a retraxit, as to several causes of action (a note and goods sold,) in the same suit upon a subsequent suit.

(Carter v. James, 13 Meeson & Welsby, 137, Exchequer.) Action on covenant for £600. Plea, that in 1841, the defendant was impleaded by plaintiff in the Queen’s Bench, for the same covenant; that defendant there plead usury. Replication denying the bond was given in pursuance of the usurious contract alleged. Issue upon this replication, and verdict for defendant; settling, therefore, that the bond was given in pursuance of the usurious agreement stated in the plea.

The fact whether the agreement was in truth usurious was not decided by that judgment. The plaintiff in the present suit was therefore at liberty to contest that point. The admission in the replication was only that for the purpose of the pleading in that suit, that there was usury in the agreement stated in the pleas.

We do not find a case which makes a former suit a bar, where it has been expressly limited to one or two distinct contracts, like promissory notes, although such notes have arisen from the same transaction, and where the claim upon the note subsequently sued upon, was not the subject of litigation.

When the record of that action is examined, nothing appears but a promissory note stated as the cause of action, and no actual litigation of any point whatever.

It is true, that to an action upon a judgment, no plea will be allowed of any matter, although new, which could have been plead in the original suit. (Bank of Australia v. Nias, 4 Eng. L. & Eq. R. 252.) But that applies, where the defence would have defeated that action in that identical cause, and the judgment has concluded the parties entirely as to such cause. The present distinct contract, or cause of action, was never in suit before. ‘

II. The next question relates to the alleged illegality in the note sued upon.

We think that it must be regarded as established on this record, that the consideration of this note was exclusively a part of the amount of the old debt exacted and agreed to be paid, upon signing the compromise agreement. A part of such consideration, viz.: about $21.60 was comprised in the note at ninety days, the subject of the former action. The whole of this note was for such consideration.

It is needless to refer to any other cases than that of Break v. Cole, (Sandf. S. C. Rep. 80,) and those cited therein.

The rule is fully established, that every composition deed is, in truth, an agreement between the creditors themselves, as well as between them and the debtor. An additional security or agreement for debt given secretly to a particular creditor is illegal and void; and whether it be given by the debtor himself, or by another on his behalf.

Judgment for the defendant upon the verdict, with costs.


text:
    Fowler M. Ray v. Frederick A. Ayers, and another.
    A landlord, in whom the reversion in fee is vested, may bring an action against the tenant during the term, for an injury committed by the tenant to the freehold. Judgment, overruling demurrer, affirmed, with costs.
    (Before Hoffman, Slosson and Woodkvff, J.J.)
    April, 1856.
    Appeal from a judgment at Special Term, overruling a demurrer to the 5th subdivision of the complaint.
    The action was brought by the plaintiff, as landlord and owner in fee, of certain premises in the city of New York, leased by him to the defendants, chiefly, for the recovery of arrears of rent alleged to be due. The 5th subdivision of the complaint, however, set forth a distinct cause of action, in the following words:
    “Fifth. The plaintiff further shows that whilst defendants occupied said plaintiff’s premises aforesaid, they broke from the windows of said premises nineteen lights of glass, and that said glass was worth the price, or sum, of eight cents per light.”
    To this subdivision the defendants demurred, as not containing facts sufficient to constitute a cause of action.

      J. Darlington, for defendants, appellants.

      Hearne & Warren, for plaintiff, respondent.
   By the Court. Slosson, J.

The order at Special Term, overruling the demurrer, must be affirmed, with costs.

It has long been settled law that the reversioner may maintain an action on the case, for an injury to the freehold, committed by the tenant, and that the action may be brought before the expiration of the term. (14 East. 489.)

The count, or subdivision, demurred to, is inartiflcially drawn, but, taken in connection with other averments in the complaint, contains, in substance, a good cause of action.

Order affirmed, with costs.


author: By the Court. Woodruff, J.

text:
    David Congreve, by his guardian, respondent, v. Andrew W. Morgan, and another, appellants.
    When the owner of a house and lot constructs a vault within the limits of the street in front thereof, and covers the same with flagging so as to form the sidewalk, he acts at his peril. He is responsible for all injuries resulting from its want of entire safety, for all the purposes for which the public have a right to use such sidewalk.
    It is no defence to an action, for an injury sustained by the breaking and falling in of the covering of such vault, that the owner was not guilty of negligence in the manner of its construction.
    Nor can the owner defend on the ground that the work was actually done by a third person, with whom he had contracted for its performance, although the terms of the contract required the contractor to use stones, for such covering, in all respects sufficient.
    Nor is the owner protected, by showing that the covering had answered the purpose for which it was intended for a year after the completion of the work, and that he had no knowledge that the covering was insufficient.
    One who excavates the highway does so at his peril, and if the safety of passers by, or travellers, is impaired, and injury to them results, he is liable; the question of negligence or no negligence, on the part of the owner, in such case, does not arise.
    How far, in the city of New York, an authority from the corporation would affect, in such cases, the liability of the owner, guere ? 0

    Were such an authority shown, the liability of the owner might depend upon the question of negligence in the performance of the work.
    Judgment for plaintiff, with costs.
    (Before Hoffman, Siosson and Woodruff,- J.J.)
    April, 1856.
    The action was brought to recover damages against the defendants, as the landlords and owners in fee of a certain lot of land and dwelling house, and its appurtenances, in the city of New York, for a personal injury alleged to have been sustained by the plaintiff, from the negligence of the defendants, as such landlords and owners, in the erection or construction of a flag stone on the sidewalk of the premises.

      The answer denied the negligence charged.
    The cause was tried before the Chief Justice and a jury, in October, 1855, and the jury rendered a verdict for the plaintiff for $650.
    The defendants appealed from the judgment entered upon this verdict, and the cause was before the court upon a case containing the proceedings had, and the evidence given on the trial.
    The facts established by the evidence, and the questions of law arising thereon, are fully stated in the opinion of the court.

      Jas. T. Brady, for the defendants, appellants.

      H. Morrison, for the plaintiff, respondent.
   By the Court. Woodruff, J.

It appears, by the admissions in the pleadings herein—by the defendants’ admission, on the trial, and by the written contract, given in evidence on behalf of the defendants—that the defendants are owners of the house and lot situated on the north-east corner of Thirty-first street and the Sixth avenue, in the city of New York; that they purchased the same when the house was in progress of erection, and proceeded to finish it, and, for that purpose, entered into a contract with W. B. & R. Barton, for the performance of the work, requisite to its completion, according to plans referred to in, and specifications annexed to, the contract. Without the line of the lot, and within the lines of Thirty-first street, on the southerly side of the house, an excavation was made for the construction of a vault, or covered area to be used as a vault, under the sidewalk, near the wall of the house, the covering of which, of a uniform surface with the rest of the sidewalk, formed a part of the walk along the southerly side of the house. The defendants’ contract with the Bartons provided for the flagging of the sidewalk, and described the flags, to be laid over the area, or vault, referred to; and it may be assumed, for the purposes of the present appeal, that the flags, provided for in the contract, were sufficient and proper for such a purpose, and, had they been used, would have protected all persons passing over them, or standing thereon, from falling into the area or vault beneath.

The plaintiff, an infant, residing with his father, in one of the apartments in the said house, on the 7th day of July, 1853, more than a year after its completion, was standing, or ran, upon the sidewalk, over this area or vault, when the flag-stone, which formed the covering thereof at that place, gave way, and the plaintiff, with the broken stone, fell into the area or vault beneath. His leg was so broken that amputation became necessary. This action is brought to recover damages for the injury thus sustained.

The complaint, in substance, denies that the defendants had any right, or lawful authority, to construct such vault, and cover the same; and, also, avers that, whether the same was done with, or without lawful authority, it was the duty of the defendants to put and construct, over and above such excavation, a safe and sufficient covering, of stone, or other proper material, to render the same safe and secure, to the public and persons lawfully travelling upon the said sidewalk, and upon and over the said excavation.

On the trial, after proof of the circumstances attending the injury, and its consequences, the description of the place where it occurred, the breaking of the stone, &c., evidence was given tending to show, not only that the stone used as a covering was not such, nor so good, as was required by the contract, but that the stone was an insufficient, unsuitable, defective and improper stone to be used for such a purpose; and also that it was not properly supported at the ends, and that it was negligence to cover the area, or vault, with such a stone, set in the manner in which this stone was placed.

On these points, there was a conflict of evidence, and the Judge, at the trial, stated to the jury, that the great weight of the testimony was, that there was no objection to the manner of placing the stone, and left to the jury the question, whether the stone was such as a prudent and discreet mechanic would use.

The questions raised, upon the defendants’ motion for a nonsuit, and by his objections to evidence, are sufficiently embraced in the question created by exception to the charge of the. Judge, and need not be separately considered, for, if no error was committed in the charge, of which the defendants can complain, the other objections are either groundless, or have no application to the facts, upon which the rights and liability of the parties depend.

The defendants insisted, that, having made a contract with the Bartons—skilful and competent architects and mechanics—which called for the best materials, to be applied in a good and workmanlike manner, they were not responsible for the contractors’ negligence, or for defects in the construction, but that the liability, if any, rested upon the builders, and not upon the owners. Upon the doctrine of Blake v. Ferris, (1 Selden, 48,) Peck v. The Mayor, &c., (4 Selden, 222,) and see Peasley v. Rowland, et al., (16 Eng. L. & Eq. R. 442,) and cases cited, and in note, (p. 444.)

Also that, at most, the evidence showed only an error in judgment, in respect to the sufficiency of the stone, and the mode of setting it, which would not make the defendants, nor even the contractors, liable in this action.

The Judge charged the jury, among other things, that the defendants, having made a contract for the construction of the house, and the covering of this area, are responsible for the Bartons—the ■contractors—or any one, employed by them, and they were bound to use the skill and judgment of prudent and discreet men, and that the question seems to be narrowed down to this—whether this stone was such as a prudent and discreet mechanic would use.

We are of opinion, that there was nothing, in this instruction, of which the defendants can complain.

The cases, to which we are referred, wherein it js held, that where one, in the exercise of his lawful rights, and for the doing of that which he has full right and authority to do, contracts with another, exercising an independent employment, to perform the work, he is not responsible for the negligence of the servants of the latter in the manner of its performance, such as Blake v. Ferris, and other cases, we think do not apply to the present case.

Here, the vault or area was constructed in a public street and highway, and no warrant, or authority therefor whatever, is shown. It was kept and maintained, by the defendants, for their private gain and advantage. Whether done through the instrumentality of a contractor, or by the defendants’ own hands, it was done by them, and they had no right, or authority, as owners of the contiguous house and lot, to make any use of the street, in front, or of any part of it, inconsistent with the safe and convenient use of it by the public, or so as to hazard the safety of individuals passing and repassing along the same. If, under such circumstances, they undertake to construct and maintain a vault, under the sidewalk, it is a very light measure of responsibility, which charges them with the consequences of negligence, in the manner of doing it. Where the act done is not lawful, whether it is done by the defendant, directly, or by Ms servant, or by a person employed by Mm in any other form, it is Ms act, and he is responsible—even though, himself, ignorant of the precise manner of its performance. (Rex v. Medley, 6 Carr & Payne, 292.) And clearly so, if, the work being unlawful, it is negligently done, and damages are caused by the negligence. In Ellis v. The Sheffield Gas Consuming Company, (22 Eng. L. & Eq. R. 198; 2 Ellis & Blackburn, 767,) the defendants were sued for digging a trench in a public street, and heaping up stones and earth so as to obstruct it, whereby the plaintiff, lawfully passing, &c., fell and broke her arm. The work having been done by persons contracting with the defendants, the latter insisted upon the doctrine, above alluded to, that a man is not responsible for the acts of the servants of their contractors, and relied upon the English cases to that effect; but the court held, that the defendants had no right to break up the streets at all, and if they employed the persons, who did it, to break up the streets, and, in so doing, to heap up earth, &c., they were liable—and this, notwithstanding it might be, that, if the workmen employed had been careful, in the way in which they heaped up the earth and stones, the injury would not have been sustained. The unqualified duty of one, who makes an area abutting upon a public road, to fence it so as to protect passers by, is adverted to in Barnes v. Ward, (2 Carr & Kir. 661, at nisi prius, and 9 Com. Bench R. 392,) at bar, and the defendant, in that case, was held liable, though the excavation was no part of it within the limits of the road: and in Stone and wife v. Jackson, (32 Eng. L. & Eq. R. 349,) that case is approved.

But, in the case of Dygert v. Schenck, in our own state, (23 Wend. 446,) the principle established seems to us to go even further than is required, in this case, to show that the defendant is not prejudiced by the charge. In that case, the defendant, for his own private use, had dug a race way across a highway, the fee in which was vested entirely in himself, subject only to the public uses, and had covered the race way by a bridge which, after ten years, became out of repair, and the plaintiff’s horse fell through and was- injured. The right of the public to require that he should keep the road as good as it was before he dug Ms ditch, is made the ground of holding the defendant liable. The court say, “Any act of an individual, done to a highway, though performed on his own soil, if it detract from the safety of travellers, is a nuisance. A ditch dug in a high way was specifically pronounced a nuisance. Special damage arising from it, therefore, furnishes ground for a private action, without regard to the question of negligence in him who did it. The utmost care to prevent mischief will not protect him, if the injury happen without gross carelessness on the side of the sufferer.” (See the cases there cited.)

We apprehend that it would not have been erroneous, had the Judge, upon the authority of the cases above cited, gone even further, and charged that the defendants could not (without showing some authority for that purpose) construct and leave such an excavation under the sidewalk, in the public street, except at the peril of being held responsible for all injuries resulting from its want of entire safety, and sufficiency for all the purposes for which the public have a right to use such sidewalk, and that they were bound to keep and maintain the covering in a secure and safe condition, at their peril. And such rule does not involve the inquiry in whom is the fee in the land forming the street, (though it is not claimed here that the fee is in the defendant.)

If this be so, then surely the defendant cannot complain of being held responsible, when the rule was so far relaxed as to make their liability arise only when it was found that there was negligence in the construction or covering of the excavation, done by their express contract, and maintained by them for their own profit.

We do not intend to deny the power of the corporation of the city of Hew York, over the subject of the excavation and construction of vaults, areas, &e., within the lines of the public streets, nor to say that an authority, procured by the defendants, from them, to construct the vault in question, might not have changed the whole question of liability into one of negligence only. In which case, whether they would have been liable for the insufficiency .of the stone in question, placed there without any knowledge, by them, of its insufficiency, or any means of knowledge, we do not intend to say. Ho such authority was shown, and no ordinances of the corporation, general or special, were given in evidence.

One of my brethren suggests that the defendants are liable, upon a ground stated by Mr. Justice Bronson, in The Mayor &c., of Al bany v. Cudliff, (2 Comstock, 174.) That the contractors having done their work, and delivered over the house, with its appurtenances, many months before this injury to the plaintiff occurred, the defendants are liable for the negligence in the construction of an insufficient covering for the vault. That the owners are liable to third persons for the sufficiency of the work, whether the builders be or be not liable, in turn, to him, for the negligence in the construction, which caused the injury. That had an injury to the plaintiff happened from the negligence of the contractors, while engaged in the work, they would have been liable, and the owners not, in accordance with Blalce v. Ferris, and other cases above referred to; but after the work is completed, and the owners have been for months in possession, third persons may look to them for damages, if injured by reason of negligence, even in the construction, and the owners must seek their indemnity from their' contractors.

We think that the judgment should be entered for the plaintiff upon the verdict, with costs.


text:
    John Livor v. John Orser, sheriff.
    Goods, exempt by law from an execution, were seized by the sheriff, under a At that time, they were covered by a mortgage, payable on demand, and containing a clause, that until default in the payment, the mortgager should remain in possession of the property. In an action against the sheriff, he set up, that the title was out of the plaintiff, and in the mortgagee.

      Held, that until demand and failure, at least, if not until possession, the mortgager had a leviable interest, the subject of execution and sale.

      Held, that, as between the mortgager and sheriff, the property must be taken at its full value, without regard to the amount of the mortgage.

      Held, that the case does not differ in principle, from that where the mortgager is allowed to retain possession until a debt, payable at a definite time, becomes due.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    April, 1856.
    Motion for judgment upon a verdict taken, reserving the question of law for the consideration of the General Term, with liberty to enter judgment dismissing the complaint, or for the defendant, and with liberty to turn the same into a bill of exceptions.
    Every fact is stated in a case made and signed by the respective attorneys, which is as follows:—
    This cause was tried before Hon. Thomas J. Oakley and a jury, May 18th, 1855. The action was for taking the goods and chattels of the plaintiff out of his possession, alleged by the complaint to have been taken on the 20th day of January, 1855, the plaintiff claiming them as exempt from execution. It was admitted by both parties, that the goods for which this action was brought, had been taken by the defendant as sheriff of the city and county of Hew York, under, and by virtue of an execution upon a judgment of this court against the property of this plaintiff, in favor of Julius Helmuth and Louis Shurith, and which execution was delivered on the 4th day of February, 1855.
    The defendant here objected to any evidence being given, showing this property was exempt from levy and sale under execution, on the ground that there was no averment in the complaint claim- • ing and alleging it was exempt, but the said complaint was in the ordinary form of a complaint in trover and conversion.
    The court overruled the objection, and decided that such averment was unnecessary in the complaint, to which ruling and decision the defendant excepted.
    The plaintiff gave evidence tending to show, that he was a householder,-having a family for which he provided, and that the articles set forth in the complaint were necessary, and therefore exempt from levy and sale under execution, under and by virtue of the provisions of the act of the legislature of the state of Hew York, for the exempting of household furniture from distress for rent and from execution, and other acts exempting household fur niture from levy and sale under execution against householders, and persons providing for families.
    The deputy sent his assistant on the 7th day of January, 1855, with the said execution to the defendant, who demanded payment thereof, and made a list of the goods in the house and returned the same to the deputy sheriff, the deputy sheriff not being with said assistant at the time.
    The deputy sheriff, on the 20th day of January, 1855, in person, proceeded to the premises of the plaintiff and removed the goods.

      The defendant gave in evidence a chattel mortgage made by the plaintiff to James Mitchell, dated the 8th day of January, 1855, on the furniture of the plaintiff, including the goods in questioh, for the payment of the sum of two hundred dollars. The mortgage was payable on demand, and provided, that until default in the payment, the mortgager should remain in the possession of the goods.
    Either party may refer to the mortgage on the argument, and the same is considered as a part of this case.
    The defendant asked his Honor to dismiss the complaint upon the grounds that the giving of the mortgage divested the plaintiff of all title to, or interest in, the property, and vested the same in the mortgagee, and that therefore the plaintiff could not maintain this action.
    The court refused to dismiss the complaint, and reserved the question for consideration of the court at a General Term, to be heard in the first instance at the General Term, with liberty to court to enter judgment dismissing the complaint, or for the defendant, and with liberty to turn the same into a bill of exceptions, and submitted all questions of fact to the jury.
    The jury, under the charge of the court, rendered a verdict in favor of the plaintiff for twenty-five dollars damage.

      M. Pinney, for the plaintiff.

      A. J. Vcmderpoel, for the defendant.
   By the Court. Hoffman, J.

The case is briefly reduced to this:—An owner of personal property has mortgaged it to secure a sum payable on demand, with a stipulation, that until default in the payment, he, the mortgager shall remain in possession. Before any demand, and while in possession, a judgment is recovered against him. But the property was by law exempt from execution. The sheriff has seized it. The action is to recover the value of the articles thus taken. Can it be sustained ? The defence is, that the mortgage vested every right in the mortgagee, so that the plaintiff has not an interest which enables him to sustain a suit.

In the case of Hull v. Carnley, (2 Duer, 103,) the mortgage was dated the 14th of August, 1850, to secure $250. Of this sum, $100 was payable in six months: viz., on the 14th of February, 1851, and $130 in one year, viz., the 14th of August, 1851. The judgment and execution were in September, 1850. No part, therefore, of the mortgage-money was due, and the provision in the mortgage was like that in the present case, that the mortgager might remain in possession until a default in the payment.

The decision in this court involved these points, applicable to the present case:—That a chattel mortgage vests the whole title in the mortgagee, where, by its terms, he is entitled to the immediate possession. The property, in such case, cannot be levied upon'under an execution against the mortgager, even if he have remained in possession. He is but a baillee at sufferance. But if the mortgager be entitled to possession for a definite period, and is in possession, the weight of authority appears to be, that his possessory interest is the subject of a levy and sale.

This last proposition received in the Court of Appeals in the same case, an explicit sanction. Denio, J., treats it as established law, (1 Hernán, 505.)

The difference between this court and the Court of Appeals, consists -in the latter holding that the sheriff may sell in such case the whole interest, without recognising the lien of the mortgage. This difference is of no consequence upon the present question. That question is, whether there is any reasonable ground for a distinction between the case of a mortgage payable at a future day, and one payable on demand, where there is a possession retained and held by express stipulation ?

In the one case there is an allotted period fixed until the expiration of which, the right is entire, and the interest leviable. In the other, the period is to be limited by a future, not an existing, determination, of the mortgagee. It may be of a long or a very brief duration; but it is perfect until that decision, which terminates it, is made known. While that is in suspense, the actual right and enjoyment are as complete and absolute, as in the case of a definite period prescribed for payment.

Portions of the reasoning of the learned Judges, both in the Court of Appeals and in this court, appear to support this view. Judge Denio says:—“Assuming the chattel mortgage to have been a valid instrument, (and I see no reason to doubt but that it was such,) the sheriff had a right to sell the interest of the mortgager, and to deliver the property to the purchaser, and the purchaser was warranted in taking it into possession, and in using it until the day of payment; and he had, moreover, the right to pay the mortgage debt, and thus extinguish the lien.” Why is not such a right the proper subject of a private sale, and of a levy, when the possession and right are indeterminate, as when it is ascertained ?

Justice Duer, also, in delivering the opinion of this court, observes, that “the main object of a mortgagees distinguished from a pledge, is to enable the debtor to retain the possession and enjoyment of the property so long as he fulfils the conditions of the contract; and this is just as true of a mortgage of chattels as of lands.” Now, no one will deny that the interest of a mortgager of lands, whose debt was payable on demand, would be liable to a sale on an execution against him.

The levy then, would, in my opinion, have been perfectly justifiable, but for the question of exemption. It would have been legal as made upon the property of the plaintiff subject to an execution. But the moment we arrive at this conclusion, the defence fails, for this property of the plaintiff was exempted by the law from an execution.

It is necessary to examine carefully one of the points on the part of the defendant, which has raised some doubts in our consideration of the case.

It will have been noticed, that our conclusion is, that the mortgager in a case like this, is, until demand and refusal, in precisely the same position as if the debt was not payable until a fixed, future period. It is also to be noticed, that the Court of Appeals hold, that the purchaser under the execution against the mortgager, takes the goods subject to the mortgage. The mortgagee also could here have sustained replevin; at any rate, upon making his demand for payment.

In our opinion, a mortgagee who thus neglects his rights; who omits a demand; whose claim was not, from what here appears, known to the sheriff; and who may pursue the goods with his lien, cannot sustain an action for the taking of goods, which could be lawfully levied upon and sold. His marked negligence cannot entitle him to a privilege. He was not, in strictness, an owner until demand. In the analogous case of a pledge, it is well settled, that where the deposit is for an indefinite time, or where the debt is payable on demand, the pledgee cannot sell until he has called upon the pawner to redeem. (Garlick v. James, John. Rep. 150; Wilson v. Little, 1 Sand. S. C. Rep. 356.)

In the case of Hinman v. Judson, (13 Barbour’s Rep. 629,) some important and relevant points are recognized and decided. That the mortgagee of chattels, after forfeiture, the debt being due, is the absolute owner; that the mortgager had still a right to redeem, in equity, before the Code; that, in trover, the mortgagee could, however, have recovered the whole value of the goods taken: it would not be limited by the amount of his demand. But, since the Code, a defendant could avail himself of any equitable defence formerly available in chancery; and hence, where the defendant was a purchaser, under an execution, against a mortgager in possession before the day of payment had arrived, the mortgagee could only recover,-in damages, the'amount of this claim and interest. The interest of the mortgager was plainly vendible, under an execution.

It appears to us, therefore, clear, that, but for the statute of exemption, there would have been a vendible interest in the present case, and that the sheriff would have been fully justified in seizing and selling the property. The mortgagee would have been bound to protect his own interests. As between the sheriff and the plaintiff, the property must be treated at its full value.

The counsel have assimilated the case to that of a bailee; as if, for example, the debt had become due, arid the mortgagee^ right was consummated. In such a case, the bailee, I apprehend, would be a mere depositary; but, as such, he could maintain trover. ( Wateman v. Robinson, 5 Mass. 303; Story on Bailment, p. 110; Lyle v. Barker, 5 Binney, 457.) Mr. Parsons states the rule to be, that the bailee has a special property, and may maintain any action which requires such property in the plaintiff, against a third party, for an injury to the pledge, and a judgment in such action, brought by the" pledgee or the pledgor, would bar an action, for the same cause, by the other party. On Contracts, (vol. i., p. 592)—citing three cases from the Year Books, and Fleuellen v. Race, (1 Bulstrode, 68)—Justice Story (on Bailment, 94,) states that both bailor and bailee may sustain an action against a wrong doer, and that a recovery by one, will bar an action by the other—citing 2 Saunders, (47,) with other authorities.

But we do not deem it necessary to enter into a question of no little difficulty in its application. We treat this as a chattel-mortgage, similar, for the present question, to one where the right of possession is for a definite period.

There must be judgment for the plaintiff, upon the verdict, with interest and costs.

         But Bee Howland v. Willet, (3 Sand. S. C. R. 60Í).


author: By the Court. Slosson, J. Hoffman, J.

text:
    Walter Keeler v. Oliver Davis, Smith Davis, and Hannah Davis, his wife.
    A lease contained a clause to the effect, that, if the yearly rent, or any part thereof, should remain unpaid, on any day of payment, for the space of fifteen days, or if default should be made, in the performance of any of the covenants contained therein, it should be lawful for the lessor to re-enter, and to remove all persons therefrom.

      Held, that an action to recover possession could be maintained, without giving the fifteen days’ notice, prescribed by the statute in certain cases.
    The receipt of rent, by a landlord, after the breach of a covenant in a lease, creating a forfeiture, does not operate as a waiver of the forfeiture, unless his knowledge of the breach, when he received the rent, is clearly proved; and, upon that question, a verdict of the jury in his favor, unless plainly against evidence, is conclusive.
    Judgment for plaintiff.
    (Before Hoffman, Slosson and Woodkuff, J.J.)
    April, 1856.
    Case upon a general verdict, rendered for the plaintiff, subject to the opinion of the court, on the questions of law reserved, to be argued, in the first instance, at the General Term, and judgment, in the mean time, to be suspended.
    The plaintiff, on the 1st of May, 1851, gave a lease to the defendant, Oliver Davis, of certain lots of ground, on the west side of avenue B, in the city of New York, for the period of ten years, from the said 1st of May, 1851, at an annual rent of four hundred dollars, payable quarterly, on the first days of May, August, November, and February, of each year.
    The lease contained a clause to the effect, that, if the yearly rent reserved, or any part thereof, shall be behind or unpaid on any day of payment, whereon the same ought to be paid, as provided for, in the space of fifteen days, or if default be made, in the performance of the covenants, or any of them, on the part of the lessee, to be performed, it should be lawful for the lessor to re-enter, and remove all persons therefrom.
    The lessee did not pay the rent, which fell due, respectively, on the 1st of February, May, August, and November, 1853, and the 1st of February, 1854.
    The lease contained, also, a covenant that the lessee would not assign the same to any person, without the written consent of the lessor. It was alleged that an assignment had been made, to Hannah Davis, without such consent.
    The action is, to recover possession of the premises, and the value of the rents and profits.
    The defence was, that the rent was not due, as stated; that the assignment had been made, with the knowledge and assent of the plaintiff; and that, even if the rent were not paid, the plaintiff could not recover, because he had not given fifteen days’ notice, under the statute. The cause was tried before the Chief Justice and a jury, in January, 1856.
    It was proven, at the trial, that an assignment was made to Hannah Davis, on the 20th of December, 1852, for the balance of the term.
    On the 17th of August, 1853, a receipt was given, by the plaintiff, for the rent due on the first of that month, and on the 1st of November, 1852, for the rent then due; both given to Oliver Davis. On the 1st of February, 1853, a receipt was given, of which the following is a copy:
    “Received, New York, February 1st, 1853, of Oliver Davis, by Mrs. Hannah Davis, one hundred dollars, for the amount of rent due the first of November last, for ground-rent of lots in avenue B, between Twelfth and Thirteenth streets. W. KEELER.”
    Some evidence was given, as to conversations with Keeler, the plaintiff, at the time of giving this receipt, as to his knowledge of the assignment and assent to it, which it is needless to state.
    The court charged, that the plaintiff relied upon two grounds of - forfeiture: 1st. The non-payment of rent; 2d. That the lease had been assigned without the plaintiff’s assent, as required by it. Whether the lease was forfeited, by the non-payment of rent, was a question of law thereafter.to be considered. As to the assignment, the court observed, that the receipt of February must have been for the rent then falling due, or that of 1st November, 1852, was in full to that date; and submitted to the jury the question: “ At the time of the payment of the rent, on the 1st of February, 1853, did, or did not, the plaintiff know that the lease in question had been assigned to Hannah Davis ?” The jury answered, “ that he did not know.”
    A general verdict, for the plaintiff, was then entered, as before stated.

      J. E. Burrill, for plaintiff.

      H. G. Wheaton, for defendants.
   By the Court. Slosson, J.

It seems to me that the finding of the jury, in favor of the plaintiff; upon the question, whether, at the time of the payment of the rent on the 1st of February, 1853, he knew that the lease had been assigned to Hannah Davis, must be conclusive. If the plaintiff did not know of the assignment when he received the rent, he certainly did not, by receiving it, waive his right to insist on the condition. But the defendant contends that, though it may be true, that he did not know of the assignment at the time he received the rent, yet it does not follow but that he consented, or had previously consented, to the assignment, and he insists that the evidence of what took place at the time of the payment of the February rent, shows that such assent had been previously given, or was given at that time. As to the latter supposition, it may be said, that if the evidence could be construed into proof of an assent then given, even if evidence of a past assent were admissible, it could not affect the plaintiff, except by way of estopping him from setting up the breach of the covenant; but as the defendant had already made the assignment, and, therefore, did not act upon such assent, the doctrine of estoppel does not apply. As to the evidence showing that an assent had been previously given, it is enough to say, on the same principle, that unless it prove such assent to have been given before the assignment was, in fact, made, and that the assignment was made in consequence of it, it would not operate as an estoppel.

The evidence, even if it shows a previous assent, (which can hardly be contended,) certainly does not go to the extent of showing that the assignment was made in consequence of it. The question", therefore, of an assent, as distinct from the plaintiff’s knowledge of the fact of the assignment at the time he received the February rent, was not put to the jury, and there was certainly. no evidence to go to the jury of a previous assent acted upon.

The court looked at the question as one of waiver merely, and, therefore put to the jury the simple inquiry as to plaintiff’s knowledge of the assignment at the time he received the rent, and we think this was the correct view to take of it. The finding of the jury, on this question, is conclusive on that of waiver, and we think it supported by the evidence. This disposes of the case, and it is unnecessary to consider the question of the forfeiture on the ground of the non-payment of the rent.

Plaintiff is entitled to judgment for the possession.

Hoffman, J.

The jury find that the plaintiff had no knowledge of the assignment to Hannah Davis on the 3d of February, the date of his receipt for rent. This may be treated as negativing any knowledge of, and any assent to, an assignment prior to that time.

If it cannot be so taken, yet the testimony to the fact is very feeble, and that is only to a parol consent. The plaintiff had guarded himself against parol evidence to a consent, by the stipulation that it should be in writing.

Subsequent acts, such as receipt of rent from Hannah Davis, with knowledge, might suffice. They might be a recognition of her title, and a waiver of the written consent.

There is no receipt of rent after the 1st of February, and what is deposed to as to the plaintiff’s language then, is not only very loose, but, as tending to prove a parol consent, is, in my opinion, inadmissible.

The main question is as to the notice of fifteen days. The statutory provisions bearing upon this point, are 2 R. S. 505, § 31, and the law of 1846, ch. 274. See, also, the case of The Mayor, &c, v. Campbell, (18 Wendell, 156).

The first section of the act of 1846 is, “ Distress for rent is hereby abolished.” This annuls the clause in the thirty-first section of the act of 1830, “ And no sufficient distress can be found on the premises to satisfy the rent due.” The statute will then be entirely applicable to the present case.

The second section of the act of 1846, relates to a reservation of the right to re-enter, in default of a sufficiency of goods and chattels to distrain. Where the lease itself contains that provision, the fifteen day’s notice entitles the landlord to re-enter, although there should be a sufficiency of goods on the premises. That is, although there is such a clause, on which the re-entry is made to depend, and although there is enough to distrain upon, the right to reenter is conferred, provided fifteen days’ notice is given.

In the present case, there is no such clause in the lease.

Judgment for plaintiff.


author: By the Court. Woodruff, J

text:
    James Salmon v. John Orser, sheriff.
    In an action, by a vendee of personal property, against the sheriff, who has taken the property under execution against the vendor, it is sufficient for the plaintiff to prove his purchase, the payment of the consideration, delivery to him, and his actual and continued possession down to the time of the levy. He is not bound to go further, and prove affirmatively that the sale was made in good faith, and without an intent to defraud creditors of the vendor.
    The defendant, in such case, if he defend on an allegation of a fraudulent sale, has the burden of proof.
    It is where the possession is not changed, or, if the vendee has taken possession, where the vendee’s possession has not been continued, that the statute casts upon him the burden of showing that the sale was in good faith, and without any intent to defraud, &c.
    Declarations of the vendor, made to his wife prior to the sale, and forming no part of the negotiations with the vendee, are not competent evidence to show, in favor of such vendee, that the intention of the vendor was not fraudulent.
    (Before Hofemau, Slosson, and Woodruff, J.J.)
    April, 1856.
    The action was brought to recover damages for the wrongful seizure, taking, and carrying away by the defendant of three coaches belonging to the plaintiff. Judgment was demanded for $1,350, besides costs.

      • The answer denied the possession and ownership of the plaintiff, and justified the seizure under an execution against the goods of one Charles Hannan, who, it was alleged, was the true owner of the property.
    The cause was tried before Campbell, J., and a jury, in February, 1855.
    The plaintiff proved, and read in evidence,- a bill of sale, dated the 1st of October, 1858, by which Charles Hannan, in consideration of the sum of $2,000, bargained and sold to the plaintiff four coaches—three of which were those for which the action was brought-^-several wagons, sets of harness, and spans of horses. All this property was connected with a livery stable, which had been occupied and carried on by Hannan, and the lease of which it was also proved, was assigned to the plaintiff. Evidence was also given on the part of the plaintiff, tending to show the payment of the consideration mentioned in the bill of sale, and that the plaintiff had taken immediate possession of the stable and property sold; had from that time kept the stable in his own name, and was in the actual possession of the coaches in question when they were taken and carried away by the defendant.
    Among other witnesses, the wife of Hannan was examined on behalf of the plaintiff, to prove the good faith of the sale made by her husband, and the following, among other questions, was put to her:—
    “Did you hear any thing said before you heard the sale talked of?”
    The counsel for the defendant objected to the question; the objection was overruled, and the counsel excepted. The witness said, in answer to the question, that she heard her husband say, that he must sell out to her brother, (the plaintiff,) as he could not pay him the money that had been loaned to him.
    The witness had before testified that she was present when the plaintiff loaned to her husband $2,000 in gold.
    On the part of the defendant, the judgment and execution under which he justified, were proved, and the seizure under them, and evidence was given tending to show, that the sale to the plaintiff was colorable, and that the possession had, in fact, never been changed, but was retained by Hannan as owner.
    When the evidence was closed, and the counsel had summed up on the questions of fact—

      The Judge charged the jury, that the question for them to consider was, whether the plaintiff was a bond fide purchaser of the property levied upon by the sheriff, a,nd whether, at the time of such purchase, he went into possession, and continued in such possession as sole and exclusive owner. If he was such purchaser, and went into possession as sole owner, and such purchase was made in good faith, then the plaintiff is entitled to your verdict. If the purchase was not made in good faith—was a mere pretence, or if the plaintiff did not go into exclusive possession—if, in point of fact, his brother-in-law Hannan still remained in virtual possession—then defendant is entitled to your verdict. The counsel for the defendant requested the Judge to charge the jury—

      First. That they might infer from the relation of the parties and other facts proved, that Salmon had notice of the debt due to Rogers and Kilham, at the time of the alleged sale from Salmon to Hannan.
    The Judge refused so to charge, to which refusal the counsel for the defendant duly excepted, and then requested the Judge to charge—

      Second. That the sale in controversy was, in law, fraudulent and void as to existing creditors, without regard to the motives of the parties thereto in a moral sense, if such sale was not accompanied by an immediate delivery of the property sold to the vendee, and followed by an actual and continued change of possession of such property
    The Judge refused so to charge, except as he had already charged, and the counsel for the defendant thereupon duly excepted to such refusal, and then requested the Judge to charge—

      Third. That there was no evidence to go to the jury of an immediate delivery of the property sold by the vendor to the vendee.
    The Judge refused so to charge, and the counsel for the defendant duly excepted to such refusal, and requested-the Judge to charge—

      Fourth. That unless the jury find that the plaintiff has proved that the sale was made in good faith, and without an intent to defraud creditors, they must render a verdict for the defendant, even though there was an immediate delivery of the property sold to the vendee, followed by an actual and continued change of possession ; and that such sale and delivery would, in that event, be immaterial, except so far as they might affect the question of good faith and intent to defraud creditors.
    The Judge refused so to charge, except as he had already charged, to which refusal the counsel for the defendant duly excepted, and requested the Judge to charge the jury—•

      Fifth. That if the jury find that the possession from and after the sale of the property sold was joint between Hannan and Salmon, that will not avoid the presumption of fraud in law, and the sale will be void.
    The Judge charged, that such a joint possession would not be sufficient to satisfy the statute, but refused to charge as to the rest of the request, except as he had already charged, to which refusal the counsel for the defendant duly excepted.
    The jury found a verdict for the plaintiff, and the presiding justice directed that time be given the defendant to maize a case containing the testimony and exceptions, to be heard in the first instance at the General Term of this court.
    The cause was now heard upon the case made by the defendant.

      A. J. Vanderpoel, for the defendant,
    insisted that there ought to be a new trial.
    The question put to the wife of Hannan, which was objected to, ought not to have been allowed. The evidence it called for was no part of the res gesta, it was mere hearsay. The Judge, also, erred in refusing to charge, as requested, and particularly in refusing to- charge in conformity to the fifth request. He cited, on the first point, 14 John. 204; 1 Barb. Ch. 105; 4 Comst. 519; 7 Hill, 361; 1 Hill, 612; and upon the second, 4 Denio, 271; 4 Hill, 291; 3 Sand. S. C. R. 69; 3 Comst. 310.

      A. R. Dyett, for the plaintiff,
    contended that the declarations of Hannan, testified to by his wife, were part of the res gesta, as showing his motives in the transaction, and were, therefore, properly admitted in evidence, and he insisted that the charge of the Judge was, in all respects, correct, and covered all the points that could properly be submitted to the jury. He cited 1 Duer, 424; 1 Kern. 61; id,. 416; 3 Sand. 230; 3 Selden, 453; 5 Wend. 209.
   By the Court. Woodruff, J

1. The charge of the Judge on the trial is in substantial conformity with the requests made by the defendant’s counsel, except in one particular, viz., the fourth request. “ That unless the jury find that the plaintiff has proved that the sale was made in good faith and without an intent to defraud creditors, they must render a verdict for the defendant, even though there was an immediate delivery of the property, followed by an actual and continued change of possession.”

The Judge very properly refused so to charge. The counsel proposed to impose upon the plaintiff the same burden of proof where he purchased and took and retained actual and continued possession, as the statute casts upon him when the possession is not changed or when the change is not continued. The law does not warrant any such rule. The plaintiff, being shown an actual purchaser, a payment of the consideration, and a taking and a keeping of the possession of the property, the burden of proof is cast on the defendant if he seeks to impeach the title on the ground of fraud. He must show that the transaction is fraudulent and with intent to hinder, delay, or defraud creditors. The case of Randall v. Parker, (3 Sandf. 69,) does not, therefore, apply to this case. What is said there of the duty of the plaintiff to show the absence of an intent to defraud, is applied only to a case in which the possession is not changed, &c.

2. We think the questions of fact, which the Judge submitted to the jury, were properly submitted. There was evidence for their consideration.

3. As to all of the exceptions to the ruling of the Judge, admit ting or rejecting evidence, we find one only which we think was erroneous, or that furnishes any ground for setting aside the verdict. That is the question put to the wife of the judgment debtor (Hannan, the vendor of the property in question). She had testified that she knew of the plaintiff's lending her husband $2,000— which $2,000 was alleged to be the consideration of the subsequent sale. She had stated that she was not present at the sale, and did not know of it until they (plaintiff and her husband) told her. That she did not recollect when it was, but should think it was in the fall after the money was loaned. The plaintiff’s counsel then put the following question: “Did you hear any thing said before you heard the sale talked of?” This question was objected to by the defendant’s counsel. The objection was overruled, and the defendant excepted. If we had not before us the answer of the witness, which throws some light upon the object oí the question, and what the plaintiff’s counsel intended to elicit, we should feel surprise that so loose and general a call, for mere hearsay evidence, should have been even suggested by counsel. It is true that the question does not expressly call for what was said, but it was manifestly understood to embrace that, and the objection was pointed to that. The witness so understood it, and so answered it. The question does not limit the inquiry to what was said by the plaintiff, or Hannan (the husband) or by the defendant—but, for aught that the question discloses, may embrace all the neighborhood. Nor does it call only for what was said in the presence of the plaintiff. But the answer of the witness points the question—she replied, I heard my husband say that he must sell out to my brother, (the plaintiff,) because he could not pay him the money.”

The answer makes apparent that the object was that which the respondent’s counsel, on the argument, insists made it proper, viz.: to show the intent of her husband in making the sale.

The end to be gained was, no doubt, material, but the means were not admissible. The evidence was mere hearsay, on a subject which could, and ought to be, proved by the husband himself. He could not, by such declarations to third persons, make evidence for the plaintiff. His declarations, (forming no part of the res gesta; the act of sale,) were not evidence of the facts declared, and no more evidence of an intent than of any other fact. A witness may be impeached by proof of declarations, out of court, inconsistent with his testimony, and there are, perhaps, cases in which an impeached witness may be shown to have told the same story out of court, which he has narrated under oath.. But the declaration of a third party, out of court, not examined as a witness, is not evidence of the fact stated in such declaration. It is mere hearsay, whether stated to his wife, or any one else. We find no ground upon which we can sustain the admission of this evidence. We regret to disturb the verdict, upon this ground, for we think the verdict would have been the same had not this test timony been received. The evidence is quite sufficient to warrant such a verdict. But we cannot say that this testimony may not have influenced the jury. The ruling, by which it was permitted to be given, in effect, informed the jury that Hannan’s declaration was proper to be considered, in determining whether the sale was in good faith, and for value, and we cannot say that they did not place reliance upon it.

Upon this sole ground, then, we feel constrained to set aside the verdict, and order a new trial, costs to abide the event.