author: Duer, J.

text:
    Dodge & Phillips v. Wilbur & Scott.
    G. & Co., commission merchants in London, employed H. D., one of the plaintiffs, as their agent in Florida, to procure for them consignments of cotton, and to enable him to make the necessary advances to shippers, they authorized him to draw either upon themselves or upon the defendants, merchants in Hew York, and they, at the same time, wrote to the defendants, requesting them to accept and pay such bills as might be drawn upon them by H. D., in conformity to his instructions, and promising due honor to such sterling bills as the defendants, for their own reimbursement, should draw upon them, G. & Co.

      Held, that there was no privity between the shippers of cotton, to whom advances were made by bills upon the defendants, and the defendants, so as to entitle the latter to an equitable lien upon the proceeds of the cotton, in the event of the dishonor of the sterling bills drawn by them, for their own reimbursement, upon G. & Co.

      Held, that the defendants, in accepting and paying the bills of H. D., acted neither as his agents nor as those of the shippers, but solely as the disbursing agents of G. & Co., the consignees by whom, through the defendants, the required advances were made.

      Held, that the contract of the shippers was exclusively with the consignees, and that when the latter, as they were entitled to do, retained a sufficient sum from the proceeds of sales to cover advances and charges, the surplus belonged absolutely to the former.

      Held, that if the defendants acquired any lien upon the .ground that the bills which they paid were drawn against the cotton shipped, and were paid upon the laith of the shipment, their lien was confined to that portion of the proceeds which the consignees were entitled to retain to cover advances and charges, and could not reach the surplus belonging to the shippers.
    Upon these grounds, held, that the fund in controversy, which was a surplus arising from the sales of cotton shipped by the plaintiffs, the advances upon which had been made through bills accepted and paid by the defendants, could not be applied to reimburse, pro tanto, the defendants, whose sterling bills upon the consignees, G. & Co., owing to the insolvency of the latter, had been dishonored.
    Decreed, that the fund which, by consent of the parties, had been deposited with the New York Life Insurance and Trust Co., should be paid over to the plaintiffs ; costs, the suit being in a measure amicable, equally divided.
    (Before Oaklet, Ch. J., Sandford <fc Duer, J. J.)
    Nov. 24, 25, 26, 1851;
    Feb. 28th, 1852.
    This was a bill filed by the plaintiffs, in the supreme court, in equity, to reach the proceeds of cotton, consigned by them to the house of A. A. Gower, Nephews & Co., of London. The case was subsequently removed to this court. The facts,-as they appear from the pleadings and evidence, are as follows :
    The firm of A. A. Gower, Nephews & Co., were merchants in London, in the year 1847,. and for many years previous, and in the course of their business, were in the habit of receiving consignments,for sale, on commission, of cotton from the United States, on which they made advances, and they had correspondents and employed agents in the United States in their business. The firm of Masters, Markoe & Co., of New York, till dissolved, Nov. 21,1844, by the death of Mr. Masters, and afterwards their successors, the firm of Markoe, Wilbur & Scott, until the year 1847, were correspondents and agents of the firm of A. A. Gower, Nephews & Co., in the business of such consignments of cotton and advances thereon. The defendants, Jeremiah Wilbur and Thomas Scott, were the survivors of Markoe, Wilbur & Scott. The plaintiff, Daniel K. Dodge, was, in the cotton season of 1846-7, and during several seasons before had been, an agent of A. A. Gower, Nephews & Co., at Apalachicola, to procure consignments of cotton to them, with authority to make advances to the shippers by drafts against such consignments. On the 14th of August, 1846, Messrs. Grower, Nephews & Co., merchants of London, made an agreement with Mr. Dodge, then in London, relative to advances to be made by them, through him as their agent, on cotton to be shipped to them from Apalachicola, the ensuing season, for sale. This agreement was contained in their letter of that date, delivered to him in London, as follows :
    “ London, 14th August, 1846.
    “Me. D. K. Dodge, of Apalachicola,
    “ London:
    “ Sie.—We now commit to writing for your guidance, the substance of the conference we had with you this forenoon, respecting operations during the approaching season ; begging, you will consider the following to be the terms on which we are willing to receive consignments of cotton from Apalachicola or Mobile, through your instrumentality, subject to such modifications as circumstances may render essential; while, for the present, we base our instructions and estimates on the supposition of the crop 1846-41, being two millions and a quarter of the usual sized bales, say, 2,250,000 bales crop.
    “ 1. Desirous alike, of extending our relations to such an extent as may yield a remuneration to you, and of avoiding too heavy a business when that which we do with the Mississippi is taken into the account, we think we should not be desirous of going beyond ten to twelve thousand bales the ensuing season from Apalachicola.
    “ 2. - Considering it probable, under ordinary circumstances, that middling Orleans cotton, Liverpool classification, may be worth about 141 per lb., we authorize you to make advances, with the following securities on our account, on a quality of cotton equal to that specified above, of five cents per lb. (5 cents per lb.,) to shippers on speculation, and of five and one half cents per lb., (51 per lb.) to safe responsible planters. Should you, to the best of your judgment, find it necessary, in order to secure consignments from desirable parties, to give the latter additional- advance ; in either case, timely notice to be given to us to have the same covered by insurance; and your drafts to be accompanied by invoices and bills lading granted by the masters of the vessels which are to bring. the cotton to Great Britain. No advance being authorized by us, while as yet the cotton is in any stage of transition from the interior.

      “ 3. These advances are in the usual manner to be made either by drafts directly on us at from 60 to 90 d. sight, containing a clause indicative of the shipment against which made, or by your drawing on New York, at as long advance as practicable, the acceptors and payers there of these drafts reimbursing themselves at maturity, by valuing on us in time for the sterling equivalent-at the customary sight, and specifying in these drafts the payments against which they are issued.

      “ 4. The rate of advance specified in the second clause of this letter, being based on the supposition of a crop of two and a quarter millions of bales, we have to make the following provision for any increase in the estimated quantity which may be very manifestly expected, namely : that you reduce the rate of your advance a quarter cent per every hundred thousand bales, which it may be pretty correctly ascertained will be gathered beyond the standard crop mentioned in these instructions.
    “ 5. All cotton on which we make advances, either by bills drawn on us direct or circuitously through New York, is to be insured by us. For your information, we may mention, that your own friends in New York, Messrs. Marlcoe, Wilbur & Scott, will be advised of this arrangement, and requested to cooperate in carrying it into execution.
    “6. We expect you will use your endeavors to procure us the consignment of vessels; to whose affairs, whether here or in Liverpool, we shall give every attention, and place to your credit one half of whatever we obtain for doing such business.
    “ 7- The rate of commission is to be three per cent, on sales to cover remuneration for selling, insuring and guaranteeing.
    “ From .this we may abate i per cent, if we find other principal houses in the trade perform the same services for two and one-half per cent. Of whatever we obtain from this source, we shall pay to you a sum equal to one-third part in full of your remuneration.
    “ 8. Should you obtain and execute orders for the purchase of cotton from respectable responsible parties, and find it necessary to reimburse yourself on us, we are to do the insurance by timely intimation, and you are to send us the shipping documents precisely as if it were a consignment under advance, with this specialty that you are to send us at same time, your own draft at 60 d. st. on the party who ordered and for whose account is the cotton, that we may secure your interest in case of need.
    “ For this service you are to give us a sum equal to i of your „ commission for buying and shipping.
    “You are to keep us fully informed of all your proceedings, and wishing you a safe and prosperous return to.your own country,
    “We remain, -
    “ Your very obt. servt’s,
    “ A. A. Gower, Nephews & Co.”
    The business was carried on by the Gowers, in the following manner. Dodge received the cotton at Apalachicola, and shipped it direct to Liverpool, to the consignment of the Gowers ; upon doing so, he forwarded to the New York house of the defendants, an invoice and bill of lading of the consignment, made out to the Gowers, and drew upon the defendants’ house in favor of the shipper, for the advance authorized by the Gowers. The defendants then compared the invoice and drafts with the limits and instructions of the Gowers, and if in conformity, accepted and paid the drafts; they thereupon transmitted the invoice and bills of lading to the Gowers, with orders for insurance, and reimbursed themselves by their own drafts on the Gowers, including in them their own commission of one per cent, for their services. These drafts were accepted and paid by the Gowers, and their amount was charged upon the cotton, and against the shippers, as the advance of the consignees.
    The following is the letter referred to in the opinion of the court, from plaintiff Dodge.

      Apalachicola, April 'M.th, 1847.
    Messrs. Markoe, Wilbur & Scott :
    Dear Sirs :—I have received nothing from you by the last two mails, and consequently nothing to reply to. My last was on the 20th, inclosing bill lading of the three shipments, 810 bales cotton, to Liverpool.

      I have now to advise my draft on you, in addition to the three previous ones, amounting to $26,409, for $6987, at sixty days’ sight, in my own favor, against those three shipments, viz. 810 bales, per “ Cumberland, Sir Howard Douglass and Margaret,” being at the rate of 85 c. pr. lb. I should have drawn for an additional amount, and the parties may think me too stringent when the quality of the cotton is taken into view.
    The parties don’t wish these cottons sold, until the maturity of the drafts against it, and under the expectation that my drafts on you can be negotiated, if need be, to meet the bills for the purchase, there will be ample time for the Liverpool market to reach its maximum before it would be placed in the market to meet the bill of yours. Should they entertain different views, I will communicate them. But, in the event of any difficulty in N. Y., whereby paper should become difficult to negotiate, arising from causes now apprehended by some, you are at liberty to cash my drafts, and reimburse yourself at once in London.
    Yours truly,
    D. K. Dodge.
    In April 1847, the plaintiffs shipped, through Dodge, at Apalachicola, the above mentioned 810 bales of cotton to the Gowers, and Dodge drew upon the defendants’ firm for the usual advance, forwarding to them the invoices and bills of lading of the consignment. The defendants’ firm accepted and paid the drafts, and reimbursed themselves by drafts upon the Gowers, who accepted all the drafts, and paid the first maturing, but failed before the maturity of others, which remained unpaid by them, and were taken up by the defendants. The controversy arose out of the unpaid drafts upon this last consignment. Notice of their dishonor was given to the plaintiffs by the defendants.
    The Gowers’failure occurred on the 11th of September, 1847 ; and at that time a part of their last consignment of cotton remained unsold in their hands. After sales were completed, the net proceeds of these cottons, above the amount of all the acceptances of the Gowers (representing their advances upon them), amounted to ¿£1,265 3s. and lid., and were in the hands of Gowers, Nephews & Co.
    The unpaid acceptances of the Gowers, taken up by the defendants, exceeded-this sum, and they claimed in London, that this surplus of sales, over advances, should be paid to' them towards the dishonored acceptances they had been obliged to pay. The plaintiffs claimed it as their fund, being the proceeds of their cotton, over and above the charges and advances received by them.
    By agreement, the fund and controversy were transferred from London to New York. The sum of $6,267 09, the equivalent of the above amount sterling, was deposited with the defendants, the New York Life and Trust Company, subject to the respective claims of the parties, to determine which, the action was brought.

      W. M. Evarts, for the plaintiffs, argued the following points:
    I. The plaintiffs are manifestly entitled to this fund as the proceeds of their cottons consigned to Gowers, remaining after satisfying all the liens and charges of the consignees.
    II. The defendants claim that the drafts of Dodge on them, on account of this consignment paid by them, were not so paid by them as agents of Gowers, the consignees, nor as the advances of the latter on such consignment, but for account and accommodation of Dodge—that Gowers having failed to reimburse them, Dodge, the drawer, or Dodge and Phillips, the owners of the cotton, are indebted to them in the amount of such accommodation acceptances—that they have, therefore, a lien or title to subject this fund, part proceeds of the cotton, to the payment of such debt to them.
    III. Conceding the debt as claimed by the defendants, they never had any lien on the cotton, and have none on the proceeds, for its satisfaction. The cotton never was in their possession, actual or constructive, nor did they ever hold the relation to Dodge, or to Dodge and Phillips, of factors or consignees. The debt claimed can be none other than a personal demand for money paid to the use of the drawer of the drafts, or of the owners of the cotton. (3 Corns. 243.)
    IV. But the drafts on the defendants accepted, and paid by them, were so accepted and paid by them as agents of A. A. Gowers, Nephews & Co., and as the advances of the latter to the consignors upon the cottons consigned to 'them for sale. (1.) It is of the essence of the contract of consignment upon advances, that the advances should come from the consignee ■—thus becoming, pro tanto, a payment for the property consigned, and leaving at risk only the surplus or margin. (2.) The effect of the defendants’ view of the relations between the parties is, that the owner trusts his whole property with the consignee, and borrows money from another party—thus receiving no payment on account, and placing the whole value of the consignment at risk. (3.) The whole course of trade, and all the objects of the parties, are at variance with such a view; and the unequivocal result of the testimony is, that the consignor to Gowers had his option to take his advances from them, either by drafts on them at London, or on Markoe, Wilbur & Scott, in New York. The latter acted in the acceptance and payment of the drafts, as the mere disbursing agents or bankers of Gowers. Upon the payment of the drafts by them, the advances of Gowers to the consignor were completed, and the sums became matters of account between them and Gowers.
    Y. That Dodge had a part interest in this consignment, can make no difference in the nature or effect of the defendants’ acceptances and payments of his drafts drawn upon the same. (1.) The shipping documents showed Dodge to be the party interested, and the acceptance of the drafts by defendants was made upon inspection of such documents. (2.) Previous transactions, in which Dodge was interested, solely or jointly with others in the consignments, had been carried on between the parties in the same manner, as where the consignments were the property of strangers.
    YI. The plaintiffs should have a decree for the payment to them by the defendants, the New York Life Insurance and Trust Company, of the amount on deposit, with all accumulations of interest, and for their costs to be paid by the defendants, Wilbur & Scott.

      S. P. Staples, for the defendants.
    If Messrs. Gowers had applied the proceeds of the cotton to meet the bills drawn against it, they would all have been paid; and there would have been a surplus from such proceeds, over and above the drafts and the charges on the cotton, of ¿61265 3s. lid., which, in such case, would have belonged to the plaintiffs, the owners of the cotton. The account C, in the case, which is made up by Messrs. Gowers, shows how the account would have stood if all the bills had been paid. This amount of ¿61265 3s. lid. has been remitted to this country and deposited in the New York Life Insurance and Trust Company, under the stipulation found at page 22, amounting, in the currency of the United States, to $6267 09. By this stipulation the amount is to be paid to the party entitled thereto. The 810 bales of cotton in question did not belong to southern shippers or planters, but to the plaintiffs, which was not known to the defendants till after the failure of the Gowers. The Gowers would have applied these proceeds to pay the bills, if they had not been forbidden by Mr. Dodge. The statement on this subject in the bill is not proved. The foregoing facts are admitted or clearly proved, from which, among other things, it appears : That the sterling bills were drawn against the cotton. That the proceeds of the cotton were the only funds in the hands of Gower, Nephews & Co. for their payment. That Mr. Dodge agreed that said proceeds should be so applied, before the defendants accepted his drafts ; on the faith of which they did accept and pay them. That the cotton belonged to the plaintiffs. That the sterling bills were the property of the plaintiffs, drawn at their request, controlled by them, sold for their benefit, and the proceeds applied to their use. That the defendants accepted the plaintiffs’ drafts for their accommodation, without funds, other than the cotton and their right derived from Mr. Dodge to draw on it. That the defendants’ compensation, one per cent., allowed by the plaintiffs, was included in one of the dishonored sterling bills, and now remains unpaid. That the bills were accepted, and the funds in question, would have been applied towards them, had not Mr. Dodge prevented it. That the funds are not claimed by the creditors of Messrs. Gower, but belong either to the plaintiffs or defendants.
    ■ I. The cotton and its proceeds not having been, under these circumstances, appropriated to the payment of these bills, the defendants are legally and equitably entitled to have them so applied. (Mandeville v. Walsh, 5 Whea., p. 285; Satloch v. Harris, 3 Term Rep. 182; Brander, &c., v. Phillips, 16 Peters, 122; Thomas v. Da Costa, 8 Taun. R. 345; Harris v. Clark, 3 Comstock R. 115, 117, 118; Story on Bills, § 13; 1 Eq. Cas. Ab. p. 93, pl. 5; 11 Ves. p. 22, Wright v. Morley; Cross on Lien, p. 295, Law Library 18, U. S.; 9 Paige 435, Curtis v. Tyler.)

    II. The letter of August 14,1846, from Gowers to Dodge, and the action of Mr. Dodge thereupon, were an agreement that the bills should be paid from this particular fund—the proceeds of the cotton—and the bills are to be treated as if they had expressed on their face that they were payable therefrom.
    III. The defendants were agents merely, and were paid by the plaintiffs. The plaintiffs were carrying on the general business of shipping cotton, on joint account and profit with Messrs. Gowers (sharing the commissions), and were also the owners of the 810 bales, the proceeds of which are now in question. The plaintiffs intrusted their property, the sale of it, and the custody of the proceeds, to Messrs. Gowers ; the defendants were in no wise responsible for the solvency or fidelity of Messrs. Gowers. The commission of one per cent, which the defendants received from the plaintiffs, was all their compensation ; and this was for accepting and paying the plaintiffs’ bills, and drawing and negotiating the sterling bills, and conducting such correspondence as was connected with it. The plaintiffs could have employed any other agents. As agents, and by virtue of said agreement, the defendants had a lien on these funds in the hands of Gower, Nephew & Co. They, as the factors of the plaintiffs, also had a lien, which, by their acceptance of said bills and by said agreement, inured to the benefit of the plaintiffs.
    IV. By the stipulation between the parties, if the defendants are entitled to have this balance applied on said protested bills, it is to be paid to them for that purpose.
   By the Coübt.

Duer, J.

It is admitted that the fund, now in controversy, has arisen from the sale, by the consignees, of cottons belonging to the plaintiffs, and that the sum retained by the consignees is sufficient to cover all the advances made to the plaintiffs, and' all necessary charges. The plaintiffs, therefore, as shippers and owners of the cottons, must be entitled to the surplus which they now claim, unless we shall be convinced that the whole proceeds of the cottons were so appropriated to the satisfaction of the sterling bills drawn by the defendants, which they have been compelled to pay, as to render it our duty to apply them, so far as we are enabled, to that purpose.

It is insisted, on the part of the defendants, that in giving their assistance to carry into execution the arrangement of the 14th of August, 1846, between Gower & Co. and the plaintiff, Dodge, they acted as the agents of Dodge, and through him, of the shippers to whom he made advances, and not as the agents of the consignees, Gower & Co.; that, consequently, the acceptance and payment of each bill drawn upon them by Dodge, in pursuance of the arrangement, ought to be considered as an advance made by them to the shippers of the cotton, against which the bill was drawn, upon the faith that the proceeds of the consignment should and would be applied to the satisfaction of the sterling bills, which they, the defendants, for their own reimbursement, were authorized to draw ; that they, therefore, acquired, in each case, an equitable lien upon the cotton shipped, and its proceeds in the hands of the consignees—a lien which, in the present case, has not been affected by the failure or the acts of the consignees, but which this court, so far as it has power, by awarding to them the payment of the fund, now under its control, is bound to enforce.

Those positions were rested, partly upon general principles of law, and partly upon the construction which the learned counsel for the defendants gave to the arrangement of the 14th of August, and to the subsequent acts and correspondence of Dodge.

We have examined, with attention, the numerous authorities, that were cited by the learned counsel for the defendants, but cannot perceive, that reasonably construed, they lend any countenance to the doctrine that they were alleged to establish. There is no case, in its material circumstances, resembling the present, in which a lien legal or equitable, has been held to exist: none in which an advance of moneys to the shipper of goods by a third person, not the consignee of the goods, nor having any power of disposition or control in relation to them, has been held to create a lien, or to operate as ah equitable assignment, in his favor, without the further proof that such was, in reality, the agreement or understanding of the parties. The mere fact, that the moneys would not have been advanced, had not the shipment been made, has never been deemed sufficient, and we are therefore of opinion, that the claim of the defendants to the fund in controversy, unless it can be rested upon a positive contract, must be rejected. The defendants were not the consignees of the cotton, nor in any sense the factors of the owners and shippers. ' The cotton was never in their actual or constructive possession. It is true that the invoices and bills of lading, were transmitted to them, and were sent through them to the consignees, Gower & Co.; but they were not transmitted for the purpose, nor with the effect, of giving to them any power of disposition or control, in relation to the cotton, or its proceeds, but merely as evidence that the proper shipment had in fact been made, and that the limits which Dodge, as the agent of the consignees, in making,advances,-was bound to observe, had not been exceeded. Without this evidence, it is true, the defendants would not have accepted the bills of Dodge, for the plain reason that, unless this evidence was furnished, they had no authority to draw for their own reimbursement, upon the consignees, Gower & Co. These circumstances, however, by no means justify the inference, that by the understanding of the parties, the cotton and its proceeds were appropriated to the payment of the sterling bills, drawn by the defendants, since they are entirely consistent with the supposition that their sole reliance for the payment of those bills, was upon the personal responsibility of Gower & Co. They agreed to accept and pay the bills of Dodge, properly drawn, upon the assurance of Gower & Co., that the sterling bills drawn by them for their reimbursement, would be duly honored. It was, indeed, agreed, between the shippers of cotton, and the consignees, that all advances made to the former, together with commissions and charges, should be deducted from future sales, but' there was no privity whatever, between the shippers and the defendants, unless in particular cases, it was created by an express agreement. No such privity was contemplated by, or resulted from the arrangement of the 14th of August, under which all the parties were acting. It may be, that the relation between the defendants and Gower & Co., was such as to make it the duty of the latter to apply the proceeds of the cotton to the satisfaction of the bills drawn upon them by the former; but if so, it only follows, that it is against the proceeds which remained in the hands of Gower. & Co., or their assignees, and which exceeded the amounts of the protested bills, and not against the surplus belonging to the shippers, that the defendants ought to have asserted their claim. The shippers. agreed that from the proceeds of the cotton, a sum sufficient to cover all the advances and charges for which they were liable to the consignees, should be retained by the latter, but they did not agree that the moneys so retained should be applied to the indemnity of the defendants, and that in the event of a misapplication, the surplus belonging to themselves, should be liable; yet', it is upon the supposition of a contract, of which there is no' evidence, and the existence of which we have no right to infer, that the claim' of the defendants, as now advanced, is mainly founded.

Nearly the whole argument, on the. part of the defendants, proceeded on the assumption that in accepting and paying the bills of Dodge, and in drawing for their reimbursement, they acted as the agents of the shippers of the cotton, and not of Gower & Co., the consignees. Even could we assent to this view of the relations of the parties, it is by no means a necessary consequence that the defendants acquired a lien which could give them a just claim to the surplus proceeds now in controversy, while, on the other hand, if this view is erroneous, the claim, unless it can be rested upon a positive contract, is manifestly groundless. It is manifestly groundless, if the defendants acted throughout merely as the disbursing agents of Gower & Co., under their instructions, for their accommodation, and looking to them alone for their compensation and indemnity; and that it was in this character they acted, and in this light alone, that their acts are to be viewed, we are entirely satisfied.

The circumstances that they were selected as agents by Dodge, and that their commissions, as such, were to be paid out of the property shipped, we regard as wholly immaterial. Although selected by Dodge, it was not by his instructions that they were governed, nor for his benefit that they acted. In accepting and paying his bills they acted at the request, and for the accommodation of Gower & Co., to enable them to make the necessary advances to shippers, and their authority to draw for their reimbursement was not derived from Dodge, but solely from his and their principals.

As to their commissions they were fixed by agreement between them and the Gowers, who alone were personally liable to them for their payment. That they should be a charge upon the property consigned was a part of the contract, not between them, but between the consignees, and the shippers.

Such are our views of the relations between the shippers of cotton, the consignees, and the defendants, as they grew out of the arrangements of the 14th of August, and we are of opinion that there are no special circumstances, that distinguish the case and rights of the plaintiffs, from those of other shippers. Their property is not subject to the claim which is now urged, unless that of other shippers would have been equally liable.

We do not consider the letter of Dodge, of the 24th of April, ’47, as designed to vary, in any respect, the rights and liabilities of the parties under the arrangement of the 14th of August. The terms of the letter are easy to be reconciled with that construction of the arrangement which we have adopted, and whether Dodge has rendered himself personally liable to the defendants for the whole or any portion of the protested bills, is a question which, in this suit, we have no right to determine, and must therefore refuse to consider. This liability, were it established, could not operate as an equitable assignment of the property of the plaintiffs.

The plaintiffs, in our judgment, are entitled, in respect to the fund, to the decree which they ask.

As the suit, however, is, in a measure, amicable, the fund-having been transferred to this country, with the consent of the parties, in order that their rights might be here determined, the aggregate costs must be equally divided, and if, upon the division, an excess shall be found due to the plaintiffs, their judgment against the defendants must be limited to that sum ; if the excess shall be in favor of the defendants, it must be deducted from, and paid to them out of the fund.

Decree modified accordingly.


source: Caselaw Access Project

author: Bosworth, J.

license: Public Domain

text:
    John B. Staples v. Charles Gould.
    The plaintiff not owning any Canton Co. stock, employed defendant, a broker who owned none of it, to sell for him 200 shares, at $66 per share, deliverable at plaintiff's option, at any time within thirty days thereafter, and deposited with defendant $750, to protect him against loss, in the business of such agency. The broker contracted to so sell, and notified the plaintiff, and within the thirty days, but without consulting him, bought and delivered stock in execution of the contract. Held, that the contract, which the defendant was employed to make, and the one made, were prohibited by the statute in relation to stock jobbing. That the money deposited, was advanced to be used for an illegal purpose, and to induce the defendant to engage, on plaintiff’s account, in a business prohibited by law, and could not be recovered back, the agency not having been revoked, nor a return of the money demanded, within the thirty days. Such a deposit, is not a payment, or delivery of money, by way of premium, or difference, within the meaning of § 8, of the act. The fact that the defendant makes the contract to sell, in his own name, without disclosing his principal, does not affect the rights of the parties.
    (Before Dunn, Paine, and Bosworth, J. J.)
    (February 17, 28, 1852.)
    This action was tried before the Chief Justice, in December, 1851, and a verdict taken for the plaintiff, for $800, subject to opinion of the court, at a general term. The pleadings and evidence establish the following facts. The plaintiff, on the 15th of January, 1851, employed the defendant, a broker, to sell for him 200 shares of Canton Company stock, at the price of $66 per share, deliverable at the option of the plaintiff at any time within thirty days from that date, the stock to be paid for on delivery. In pursuance of such employment, the defendant, on the same day, as such broker and agent, and with the knowledge of the plaintiff, contracted to sell 100 shares, to Gilbert, Cobb & Johnson, and 100 shares to Wheelock & Brothers, at $66 per share, deliver.able at the option of the plaintiff, any time within thirty days thereafter. The contracts were made in the name of the defendant, without his disclosing to the purchasers, that the plaintiff was his principal. On the same day, the plaintiff deposited with the defendant, $750, in money, “ for the purpose of protecting the defendant against loss or damage in the business of such agency,” and with the agreement and understanding between them, “ tliat the defendant should have the right to retain so much of the moneys, as should be necessary fully to indemnify and save him harmless from loss or damage, by reason of such sales, so to be made by him, as the broker or agent of the plaintiff.” And the plaintiff agreed, in consideration of the acceptance of such agency, by the defendant, to indemnify and save him harmless from all loss and damage, by reason of such agency, and to fulfil and perform the contracts of sale, so made by the defendant, as his agent aiid broker.
    The plaintiff did not own any stock when he employed the defendant to make the contract of sale, nor at the times whenthe contracts were -made, nor at any time within thirty days thereafter. The defendant did not own any of the stock, at the time he made the contracts. On the 20th of January, 1850, 850 shares of stock, of this company, were transferred to the defendant, on the transfer books of the company. On the same day he transferred to each of the purchasers, the 100 shares of stock, contracted on the 15th, to be sold them respectively. This stock brought on the morning of the 20th, $80, and at the close of that day, $85, per share. Before and at the expiration of the thirty days, it was worth less than $66, per share. There was no evidence tending to show, that the plaintiff know of the delivery of the stock, on the 20th of January, to the purchasers, or that the defendant requested the plaintiff to furnish any stock, to be delivered in satisfaction of the contracts, or that the plaintiff offered to furnish the stock, to enable the defendant to perform Ms contracts, or as a satisfaction for the defendant’s stock, which had been delivered in execution of the contracts. There was no attempt to prove, that the plaintiff, during the thirty days next after the making of the contracts, demanded a return of the $750, from the defendant, or notified him not to perform the contracts.

      The Chief Justice “ reserved all the .questions in the case, and directed a verdict for the plaintiff, subject to the opinion of the court, upon a case to be made, either party to be at liberty to turn the case into a bill of exceptions, the case to be heard at general term, without an appeal, and with liberty, to the court, to order a nonsuit or judgment for the defendant.”
    The case made, shows the facts to be as before stated.

      C. P. Kirkland, for plaintiff, insisted that he was entitled to judgment upon the verdict.
    I. The $750 was paid by the plaintiff to the defendant substantially as a premium or difference; and the case is within the spirit and intent of the 6th and 8th sections of the act to prevent stock jobbing. (1 R. S. 892, 3d ed.; 710,1st ed.)'
    The plaintiff is, on this ground, entitled to recover.
    The facts stated in the defendant’s answer, show that the money was paid to and received by him as a difference, and that this was the substance of the transaction between the parties.
    ■ II. If this is not so, then the contract between the plaintiff and defendant was a legal one ; the plaintiff legally employed the defendant, to make a lawful contract for the sale of the stock. The testimony shows that, at the time the defendant contracted to sell to Gilbert & Johnson, and to Wheelock & Brother, neither he nor the plaintiff had any stock. Consequently, the defendant’s contract with Gilbert & Johnson, an'd Wheelock & Brother, was an illegal contract, such, an one as he had no right or power to make to affect the plaintiff, in any manner. He, of course, is not entitled to retain the money. (Vide Sects, above cited.)
    III. But suppose the defendant’s contract with Johnson, &c., to be legal, then, clearly, the defendant has no right to retain the money, because he delivered the stock within five days after the contract, instead of waiting the thirty.. The plaintiff has a right to the thirty days, and if the defendant delivered before, it was at his own risk.
    IV. Assuming the whole transaction, in all its parts, to have been legal, it is manifest that the defendant cannot retain the money. He could, in no legal sense, have been damnified, because at the expiration of the thirty days, fixed by the contract, the stock was below the contract price with Johnson, &c., viz. 66. The defendant could, therefore, have delivered it, and thus fulfilled the contract, without any loss whatever.

      J. Larocque, for defendant.
    I. Neither the plaintiff, nor the defendant, at the time when the latter was employed by the former to sell stock, having had the possession, ownership, or control thereof, the whole contract was illegal and void. (2 R. S. 892, 3d edition, secs. 6 and 7.)
    II. The deposit of the $750, now sought to be recovered back, was made to secure this illegal contract; and the well settled principle, that the law will not assist either party to such a contract to enforce any of its provisions, or to recover back any thing advanced under it, therefore applies, and bars a' recovery. (Pennington v. Townsend, 7 Wend. 276; Nellis v. Clark, 4 Hill, 424; 2 Sand. S. C. 146, Bell v. Quin.) (1.) This is not the case of a premium or difference actually paid, under the 8th section of the act, but only that of a deposit of money, with the agent or broker employed to make the contract, as an indemnity or security to him, against a premium or difference which he might be compelled to pay, in consequence of making it. (2.) The 8th section, giving the action to recover back a premium or difference paid, is highly penal, and must therefore be strictly construed. (3.) It has been decided, that money lent to be staked on the event of a horse race, cannot be recovered back, on account of the illegality of the contract, to facilitate the making of which it is lent. (Ruckman v. Bryan, 3 Denio, 340, ed. 307; McKinnel v. Robinson, 3 Mees. & W. 434; Cannan v. Bryce, 3 Barn. & Ald. 179; and other cases cited in Ruckman v. Bryan, 1 R. S. 639, § 9.) (4.) This is a stronger case for the defendant than that, because there is no evidence here, that when the contract was made, the defendant knew that the plaintiff had not the stock, while the borrower, in the case of the bet, was himself a particeps criminis.

    III. The defendant, on discovering that the plaintiff had not the stock, which he had employed him to sell, as his broker, was justified in fulfilling the contract before the expiration of the thirty days. (1.) He was exposed to, and has actually sustained a very severe loss, in addition to the $750, now in controversy, and which loss would have been more than doubled at the price to which the stock afterwards rose. (2.) The defendant was not bound to take advantage of the illegality of a contract, which he had made, according to established usage, in his own name, without disclosing his principal.
    For these reasons, there should be judgment for defendant, with costs.
   By the Court.

Bosworth, J.

The plaintiff advanced his money to the defendant, to indemnify him against any losses he might incur by reason of making, or having made, contracts for the sale of two hundred shares of Canton stock. The obvious purpose of the advance was to furnish moneys, with which the defendants might pay the amount of any increase there might be in the value of the stock on the day for the delivery of it, above the contract price of $66 per share. The plaintiff did not own any stock at the time he authorized the contract to be made, nor at the time he was notified that the contracts had been made, nor within thirty days thereafter. The only inference is, that he employed the defendant to make a contract, which is declared void by statute. If it was intended that the defendant should contract in the plaintiff’s name, as principal, then he employed the defendant to make a contract, falling within the express words of the statute, in relation to stock jobbing, 1 R. S. 710, § 6.

It was probably intended that the defendant should contract it in his own name, without disclosing his principal. If this was not intended, the deposit of the $750, as an indemnity against the consequences of contracting, would»be an idle ceremony. For if it was intended that the defendant should expressly contract, as agent, in behalf of the plaintiff, as principal, no indemnity would be wanted, as the defendant could not then in any event be subjected to liability, or loss, by reason of making the contract, whether the transaction was lawful or unlawful. A contract on time for the sale of stock, made through the medium of a broker, where the name of the principal is not disclosed, is as much within the mischief of the statute, as if made by the principal personally in his own name. (6 Paige, 124, Gram v. Stebbins and Stebbins; 2 Hall, 162, J. & W. G. Ward v. Van Duzer.)

The defendant did not own any stock, when he made the contracts. The contracts were therefore void, whether regarded as his contracts or those of the plaintiff. The answer and complaint severally aver that the contracts were made by the defendant, on account of the plaintiff.

The money advanced was delivered to the defendant, to secure his aid in furtherance • of an object, repugnant to the express provisions of the statute, and to be put by the latter to an unlawful use, if such use of it should become necessary to save him from loss or damage on his contracts. It was therefore advanced to be used for an illegal purpose, and as an inducement to the defendant, to engage, on the account of the plaintiff, in transactions contravening the policy of a statute law of the state. It is well settled that an act malum prohibitum, or malum in se, cannot be made the foundation of a civil right, which will be enforced in a court of justice. If a person lends money, or sells property to be put to an unlawful use, and if such unlawful use enters into the contract, and is the inducement to the loan -or sale, the lender cannot recover back the money lent, nor the vendor, for the property sold, though not in any other respect, a party to, or connected with, the unlawful action. (5 Denio, 364, Morgan v. Groff; 2 Sand. S. C. R. 146, Bell v. Quin; 7 Wend. 276, Pennington & Kean v. Townsend; 3 Mees. & Wells, 434, McKinnell v. Robinson; Vide Gray v. Hook, 4 Coms. 449.)

The plaintiff cannot recover under § 8 of the statute. That section provides that, “ every person who shall pay and deliver any money, by way of premium or difference, in pursuance of any contract or wager, in the two last sections declared void, may recover such money, &c., of and from the party receiving the same, and his personal representatives.”

This was not paid or delivered as a premium ór difference. It was paid or delivered to indemnify the defendant against the losses to which his contract might subject him. It was not paid either as a premium or difference, in pursuance of the contract of sale which defendant made with Gilbert, Cobb & Johnson, or with Wheelock & Brother. There was never anything paid in pursuance of either of those contracts, as a premium or difference ; there was a literal performance of each of those contracts by a delivery of the stock sold. That section evidently means that where a person sells stock on time, not then being the owner of any, at a stipulated price, and, instead of delivering it, pays the excess of its market value above the contract price, or receives the excess of the contract price above the market value, the party so paying the premium or the difference, may recover back the amount thus paid. The extent of the statutory provisions is simply this: the contract of sale is made void ; it cannot be enforced by either party, neither can recover damages for the breach of it. If, instead of being literally executed, either party, in pursuance of such contract, has paid or delivered money by way of premium or difference, he may recover it back. In this case the defendant, in substance and effect, received the money, to be paid by him by way of premium or difference, if the market value of stock at the period for fulfilling the contracts, should exceed the contract price; this, at all events, is the interpretation of the object of the advance most favorable to the plaintiff, so far as his right to recover under the eighth section is concerned. If it was in fact advanced, or deposited, merely to secure the defendant from loss, by reason of making the contract, without any intention that it should be actually applied in any event, to pay a premium or difference, then the advance or deposit is not such a payment or delivery, as is specified in the eighth section of this act, therefore it cannot be recovered back under that section (5 Denio, 364, Morgan v. Gross). Neither can the plaintiff say that he repented of his intended violation of the statute before it was violated, that he so notified the defendant, revoked the agency, and demanded a return of the money, and that therefore he is entitled to recover it back. The plaintiff cannot recover on such grounds ; even if the law would aid him to recover back the money, on such a state of facts, it is a sufficient answer to say, that such are not the facts of this case.

There is no proof of a revocation of the agency; on the contrary, the contracts were made for the plaintiff’s benefit. He was so notified, and did not dissent ,• no request for a return of the money was made, until after the whole time, allowed for a delivery of the stock, had elapsed. If the locus ■penitentim could continue beyond that period, it would continue until the plaintiff’s claim should be barred by the statute of limitations ; the repentance for which the law gives opportunity to a party is repentance of a purpose to offend against public policy, or to violate the laws, and not of having lost his money ; it must therefore be exercised while a contract is executory, or before the contingent event happens; the happening of the event is the crisis in the contract, which terminates all election, option, or repentance. -If that principle could by any possibility be applied to a case of this character, the rescission of the contract, and demand of a return of the money, should have been made within the thirty days fixed for the delivery of the stock.

What would have been the rights of the parties if it had appeared that the plaintiff, during the thirty days, had notified the defendant not to perform the contracts, and had demanded a return of the money advanced, it is unnecessary, therefore, to discuss, and no opinion is intended to be expressed on that point.

On the case as now presented to the court, the verdict should be set aside, and a judgment of non-suit entered.


text:
    Catherine Brown v. William T. Burlingham, and others.
    DESCENT.
    The rule of the common law, that in the descent of a newly purchased inheritance the blood of the father is to be preferred, is not applicable when the descent is to brothers and sisters, or their descendants. •
    The rule is in fact abolished in every case of a descent for which the statute provides.
    "Whether it is still in force in cases omitted by the statute. Qucere ? ■

      Qutere also, whether in those cases the disability of the half blood has been removed 8
    (Before Ddeb, Paine, & Boswoeth, J. J.)
    Feb. 19th, 28th, 1852.

      The complaint states that Dorcas M. Remsen died August 1, 1849, intestate and without lawful issue, or any father, mother, brother; or sister, and at the time of her death was seized of the premises No. 150 Elizabeth street, of which she was first purchaser : that she left her surviving the plaintiff and Ann Eliza Price, children of her deceased sister of the whole blood, her only heirs. That she also left her surviving William L. Burlingham and Philena White (wife of Hartson White), the brother and sister of the intestate of the half blood on her mother's side, being the brother and sister of the intestate by the same mother, but by a different father, who was a former husband of the mother, and who died before the marriage of the mother and father of the intestate, who claim also to be heirs at law and tenants in common, and entitled each to one-third of the estate —that Burlingham’s wife claimed an inchoate right of dower. The plaintiff insists that Burlingham and Philena White have no interest, but that herself and defendant Ann Eliza Price are each seized of a moiety of the property, and pray that the court may declare the rights of the parties, &c.
    The defendants, Burlingham and wife, answer, denying that the plaintiff and Ann Eliza are heirs at law, and setting up that Burlingham and Philena White are the only heirs at law and each seized of a moiety, and that if plaintiff and Ann Eliza are entitled to any share, it only can be one-third as representatives of a deceased sister; and admit their own relationship and the other facts as stated in the complaint, except that they aver that the money with which Dorcas M. Remsen purchased the estate was given her by her mother, for the purpose of investment therein.
    The case was referred to J. S. Bosworth, Esq., sole referee, who made his report on the 5th day of June, 1851, giving the plaintiff one-third, and Burlingham and Philena White each one other third of the property. From this decision the plaintiff appealed. (Ann Eliza Price was excluded from the inheritance as illegitimate.)

      A. R. Dyett, for the plaintiff, made and argued the following points:
    I. The referee erred in allotting any portion of the estate to Burlingham and Mrs. White. 1. Dorcas M. Remsen being first purchaser, the estate descended ut feudum antiquum, and no person could inherit except he or she were of the blood of the common ancestor, the father of the intestate (2 Black Comm 222; ib. 234, 6; ib. 245; H. Chitt, Des. 3, 123; 3 Cru. Dig. 359). 2. As between brothers and sisters, they do not inherit directly from each other, but as next heir to the common father, whose blood is preferred before that of the mother. 3. Inasmuch as Burlingham and wife must therefore claim, through the father of the intestate, through whom the estate is supposed to have already passed, they cannot inherit unless they be of his blood, and could have inherited, had he died seized of the premises in question (Black. Comm., book ii. p. 204 to 206; ib. 221 to 242; 1 Feud. 182; Redpath v. Rich, 3 Sandford, 81). 4. As Burlingham" and Mrs. White had none of the blood of the intestate’s father in their veins, they could not have inherited from him, and cannot inherit from the intestate. Half blood has been admitted in royal descents—but always they must be of the blood of the “ first conquasstor ” (Plowd. 245; Co. Litt. 15; Hilliard, Real Property, 2d vol. 199, § 78; 4 Kent Comm, p. 403 to 408, and note). 5. Our statute concerning half blood relatives only applies where the party claiming has some heritable blood, but not full blood. It cannot apply where the party has only half blood, and that half not heritable. If in this case, Burlingham and Mrs. White had been children of the same father, but different mother, or had the father’s blood been extinct, they might have inherited. Again it only applies to relatives' in the same degree, which the parties are not here. Should it be said the defendants were nearer ; a distant kinsman of the whole blood is preferred to a near one of the half blood (Black. Comm. 225 to 229; Hallett v. Hare, 5 Paige 315; Watts v. Crook, Shower, 108; Strahan’s Domat, by Cushing, vol. 2, p. 238, No. 2930-2929; Champlin v. Baldwin, 1 Paige, 562; 3 R. S. p. 604; 1 R. L. p. 53). 6. Our statute of descents does not impair the doctrine of the common law, that the father’s blood shall be preferred, except in the particular instances in which it alters the rules of descent from those of the common law. Beyond that, it expressly leaves all common law rules untouched (1 R. S. 751, §§ 1 to 15 inclusive; 10 Paige, 140; Torrey v. Shaw, 3 Ewd.Ch’y Rep. 361).

      II. The referee erred in excluding Ann Eliza Price. Her relationship was admitted by plaintiff, and the other defendants, not being interested, had no right to contest it.
    III. The plaintiff and Ann Eliza Price, being of the blood of the intestate’s father, and sole heirs at law in equal degree to the common ancestor, took per capita each a moiety, and the judgment should lie modified accordingly.

      Beebe and Donahue contra :
    William T. Burlingham and Philena White, being the brother and sister of the half blood of the decedent, Dorcas M. Remsen, inherit each equally with the sister of the whole blood, or with Catherine Brown, the plaintiff, who is her sole representative (R. S., part 2, chap. 2, §§ 8, 15, vol. 1, p. 144, 2d ed.; R. L., chap. 12, § 4, vol. 1, p. 53; Chaplin v. Baldwin et al., 1 Paige, 562; Bond v. Bergh, 10 Paige, 140; Den v. Jones, 3 Halst. 340; Karwon v. Lowndes, 2 De Sauss. 210).
   By the Court.

Duer, J.

It was insisted by the counsel for the plaintiff, that although the R. S. have abolished the distinction between the whole and the half blood, so as to render the latter capable of inheriting, they have not abolished the rule of the common law, which declares that when the intestate was the first purchaser of the inheritance, relatives on the side of the father shall be first entitled to take, so as to exclude those on the side of the mother, until the blood of the father shall be wholly exhausted. The counsel enforced this position with much ingenuity and learning; but it is difficult to be reconciled with the terms of the statute, and, in our judgment, is plainly inconsistent with its intent and spirit.

It would be a sufficient reply to the argument of the counsel to say that, admitting the rule of the common law upon which he insisted to be still in force, it could never be applied .in a case like the present. It was only applicable when the descent, from the want of nearer relatives, could only pass to collaterals on the side of the father or mother, and when, consequently, those only could be entitled to take who were able to trace their descent from a common ancestor. But as between brothers and sisters it is settled law, that the descent is not necessary to be traced from a common ancestor, but is immediate, in the same sense, as that from a father to a son, and, in an elaborate judgment, the court of appeals has recently determined that this doctrine is not confined to.brothers and sisters, but extends to and embraces their descendants (McGregor v. Comstock, 3 Cow. 408).

The words “ relatives of the half blood shall inherit equally with those of the whole blood in the same degree,” in § 15 of the statute, plainly mean, that such relatives shall inherit precisely as they would have done had they been of the whole blood ; nor can it be doubted, that they must be applied, in this sense, to every case of descent, for which the preceding sections in the statute were meant to provide.

Apply them thus construed to § 8, which declares that “ if all the brothers and sisters of the intestate be living, the inheritance shall descend to such brothers and sisters. If any of them be living ; and if any of them be dead, then to the brothers and sisters and every of them who are living, and to the descendants of such as shall have died, &c., &c.,” and it is at once seen, that the argument which has been addressed to us needs no further reply. In all cases of a newly purchased inheritance that can arise under § 8, all brothers and sisters and their descendants of the half blood are to take as relatives of the whole blood.

We have said, that the rule of the common law, which gives a preference to the blood of the father in the descent of a newly purchased inheritance, applies only where there are relatives on the side both of the father and mother, and it merits observation, that in the only case of that kind, for which our statute provides, that of the brothers and sisters of the father and. mother of the intestate, and their descendants, this rule of the common law is expressly abolished (1 R. S. p. 753, § 13). It would be absurd to suppose that while in all cases under the section referred to, relatives of the half blood of the mother would be entitled to take, there can be any in which the nearest relatives of the half blood of the intestate himself were meant to be excluded. The effect of such a construction might be to give the whole inheritance to a second or third cousin of the half blood, to the exclusion of a brother or sister ; an effect which it is impossible to believe could have been intended by the legislature.

The provisions of the statute are not incongruous, but entirely consistent. In respect to brothers and sisters of the father and mother of the half blood, the rule of the common law was necessary to be abolished, since otherwise it would certainly have applied.

In respect to brothers and sisters of the half blood of the intestate, its abolition was unnecessary, since by removing the disability of the half blood it ceased to be applicable.

It may be true that, in those cases of descent, for which our statute has omitted to provide, the rigid and technical rule, that we have been urged to follow, retains all its authority, and it may also be true that, in these cases, the common law incapacity of the half blood, has not been removed; but these are questions that do not properly arise in the case, and we shall therefore decline to answer them.

The judgment at special term confirming the report of the ¡referee is affirmed, with costs.


text:
    Alexander Watson, Respondent, v. The Cabot Bank, of Cabotsville, Massachusetts, Appellant.
    The endorser of a note, made and delivered, to be discounted for the maker’s benefit, lodged it with defendant, as collateral security for the payment of a note •of $875, discounted for his own benefit The defendant had notice of the facts, before the discounted note fell due, but presented it at the bank, where it was payable, and obtained payment, and claimed the right to retain it as security for a note of $650, discounted on payment, at maturity, of the note for $875, under a previous arrangement, to discount such a note in such a contingency. It was held, 1. That the bank was a bond fide holder of plaintiff’s note, and could-retain it as security for the note for $875. 2. That after having notice of the fraud practised on the maker, it could not, by a contract, with the fraudulent endorser, acquire any new rights as against the maker, to retain it after the note for $875 was paid. 3. That the note of $650, was not a renewal of the note for $876, and the latter having been paid, the defendant had no claim to plaintiff’s note. 4. That the payment of it was not a voluntary payment by the plaintiff, and that he might recover back the amount of the note. 6. That this court has jurisdiction of all actions against foreign corporations, where they arise in tnis city or county, and in such a case, the voluntary appearance of the party, fives jurisdiction of the person.
    (Before Dder, Paine, and Bosworth, J. J.)
    (Feb. 7,

    Feb. 28, 1852.)
    This action was brought by Watson, to recover the amount of a note made by himself, and which, by the improper conduct of third persons, came to the possession of the defendant, who presented it at maturity, to the bank, where it was made payable, and received payment after notice of the misappropriation. Watson made a note, dated September 20,1849, for $400, payable ninety days after its date, at the Mechanics' Banking Association, in N. J., to the order of, and delivered it to, G. F. Butler, that he might get it discounted for Watson, and bring the proceeds to him. Butler endorsed and delivered the note to one S. Hoyt, who said he could get it done by the defendant.
    Hoyt, on the 26th of September, obtained a discount at the Cabot bank, for his own benefit, and among others, of a note for $875, due November 28, made by one Aza Hoyt, and endorsed by himself, and at the time left Watson's note, as collateral security.
    On the 26th of November, Watson having learned that his note was in the Cabot bank, wrote to the cashier, stating the purpose for which the note had been made, that he had not received one cent of it, and requesting an explanation by return mail. The president of the bank, on the 27th, replied that they negotiated a loan to S. Hoyt, on the 26th of September, on the strength of this and other notes, and concluded thus :—“ If Mr. Hoyt carries out the arrangement which we have made with him, and wé do not doubt that he will do so, that note of yours will be released as early as six days before its maturity, and he will return it to you.” ..
    ■ The arrangement made by S. Hoyt, with the bank, was, that the latter would discount for Hoyt, a note of $650, on receiving word from New York, where the one for $875 had been sent for collection at its maturity, that it was paid. Hoyt left on the 16th of November, a note for $650 to be discounted under this arrangement. Hoyt paid the note of $875, and the Cabot bank, on being informed of the fact, discounted the note for $650, and sent Hoyt the proceeds. The bank claimed the $650 note to be a renewal, in part, of the note for $875, and a right to hold plaintiff’s note as collateral security for its payment. It presented plaintiff's note at maturity, and obtained payment of it. The $650 note was protested. The defendant subsequently settled, and gave up that and other protested notes, to Hoyt, on being paid the balance due, after crediting him with the amount of plaintiff’s note.
    The judge, before whom the cause was tried, decided that the defendant was, in the first instance, a bond fide holder of plaintiff's note, and had a right to hold it until the note for $875 was paid. That the discount of the note for $650, was not a renewal of the note for $875, and that the bank had no lien on it, to secure the payment of the note for $650. That the payment of plaintiff’s note was not a voluntary payment, which would preclude him from receiving the amount of it, and that he was entitled to a verdict for $437 53, the amount of the note and interest. Exception was taken to each point ruled by the judge, and the appeal brings up for review, the exceptions taken at the trial. When the trial commenced, the defendant moved for a dismissal of the complaint, on the ground, that as the defendant was a foreign corporation, this court had no jurisdiction of the party defendants. The motion was denied, and an exception taken.

      A. Thompson, for respondent.
    I. It is admitted that when plaintiff’s note was left with defendant, as collateral security, for the payment of Aza Hoyt’s note, the bank took it bond fide, and had a right to retain it, till said note was paid.
    II. The plaintiff’s letter of 26th Nov., and President Wells' reply of 27th Nov. 1849, prove notice to the bank, that plaintiff’s note had been misapplied; and the defendant could not, after such notice,.make any new contract or discount, retaining the plaintiff’s note as collateral for the same; to wit: a new discount of the $650 note after payment of the $875 note on Nov. 28,1849. (1 Barn. and Adolphus, 528; 6 Dowl. and Ry. 120; 5 Moore and Payne, 14; 4 Coms. 166.)
    III. The discount of the $650 note was not a renewal of the $875 note.
    IV. The defendant appearing and putting in an answer, gave the court complete jurisdiction. The 427th section of code, also confers jurisdiction.
    V. There was no evidence, that plaintiff paid the $400 note voluntarily, and the court could not charge the jury as requested, nor dismiss the complaint. (1 Hill, 91; 3 Denio, 594.)
    VI. The facts of the case, as appears by the evidence, do not admit of dispute. The only question that could arise was, whether an agreement to discount a note for $650, upon the payment of a note for $875, then running, would change the nature of John D. Hoyt’s payment of such note, on 28th November, 1849, or whether it continued a payment. This could not be a question of fact, but must be one of law, and the judge very properly decided, so far as the plaintiff’s rights were concerned, that the payment of a note was a payment.

      H. B. Cowles, for appellant.
    I. The appellants, the Cabot Bank, being a foreign corporation, created by the laws of Massachusetts, and situated in and doing business in that state, were not and could not be served with process. Therefore, this court had no jurisdiction over the appellants.
    The code gives jurisdiction to the superior court of the city of New York, where all the defendants shall reside or be personally served with the summons within the city. (Code, Title 5, k 33, &c., page 31; Case v. Ohio Ins. Co., 2d Code Rep. 148.)
    The court, therefore, erred in refusing to dismiss the complaint on that ground.
    II. The court erred also in refusing to dismiss the complaint :
    1. Because the respondent failed to make out a cause of action.
    2. The evidence did not support his complaint.

      3. The, agreement set out in the complaint was not proven.
    III. Butler and Hoyt were the plaintiff’s agents ; if they were guilty of misconduct in respect to plaintiff’s note, the defendants ought not to suffer by reason of it.
    IV. But the money was, in fact, raised upon it in such manner that it performed its legitimate office, and the plaintiff has no legal ground of complaint. (Bank of Rutland v. Buck, 5 Wendell 66.)
    V. The letter of the plaintiff to the defendants, asking an explanation merely, and the answer of the defendants thereto, November 26 and 27, 1849, introduced by plaintiff, in the absence of any proof of dissatisfaction or hostile action on the part of the plaintiff, accompanied with evidence of the payment of the note by the plaintiff, prove,
    1. That 'the explanation given by the defendants was satisfactory to him.
    2. That the arrangement made by Hoyt was approved and thereby ratified by Mm.
    3. That Hoyt had not performed that arrangement, and that by means thereof the note in question was due and payable to the defendants.
    VI. But as the payment by Watson of the note of four hundred dollars, was a voluntary payment by him, with a full knowledge of the facts, or with the means of such knowledge, he was not entitled to recover back the' amount.
    The complaint should therefore have been dismissed upon that- ground. (Fleetwood v. City of New York, 2 Sandford’s S. C. R. 475, and cases there cited; Supervisors of Onondaga v. Briggs, 2 Denio R. 26, and cases there cited.)
    VII. The court erred in its charge to the jury, that the taking up of the note of eight hundred and seventy-five dollars was a payment, and that the bank had no right to hold the Watson note for the six hundred and fifty dollar note. And that the six hundred and fifty dollar note was not a renewal of the eight hundred and seventy-five dollar note. And that it was a mere question of law, and that Watson, the plaintiff, was entitled to recover four hundred and thirty-seven dollars and fifty-three cents.
    At least these questions should have been submitted to the jury.
    VIII. The court also erred in refusing to submit the question of voluntary payment to the jury, as requested by the counsel for the defendants.
   By the Court.

Bosworth, J.

The judge, at the trial, correctly refused to dismiss the complaint. The defendant is a foreign corporation. The-cause of action, upon which this suit is brought, arose within the city and county of New York. The code gives this court jurisdiction of an action against a foreign corporation, upon any cause of action arising ” in the city of New York. (Sec. 33, sub. 3.) When a court of record has jurisdiction of the action, a voluntary appearance, without service of process, will give jurisdiction of the person.

The code, as amended in 1851, declares that, “ a voluntary. appearance of a party, is equivalent to a personal service of the summons upon him.” (§ 139.) Under the code, as'it was, at the time this action was commenced, the summons might be served by publication. An order to make service in that mode, could be obtained, upon affidavit, showing that a cause of action existed against the defendant, and that the defendant was a foreign corporation. The record shows that an order, that service of the summons, in this action, be made by publication, was granted on the 23d day of February, 1850. The record does not show, whether the publication was in fact made. But whether it was made or not, the court acquired jurisdiction of the person, by the defendant’s appearing and answering to the action.

There was no error in the charge of the judge, at the trial. The note for $650, was not a renewal of any part of the note for $875, which fell due on the 28th of November, 1850. That note was payable in the city of New York, and was, in fact, paid there, and taken up by the maker, or by some one in his behalf, at maturity. The defendant did not discount the note for $650, until after the note for $875 had been paid, and evidence of such payment • had been furnished to its president. The defendant agreed, in October, 1850, to renew the note of $875, for three-quarters of its amount. On the 16th of November, the note of $650, was taken to the Cabot bank, to be discounted as such renewed note. But instead of being then discounted, to furnish means, in part, to take up the note for $875, it was left with the defendant under an arrangement, then made, “ that Hoyt should take up the note for $875, and on the president of the Cabot bank, receiving notice that it had been taken up, he was to discount the $650 note, and remit Mr. Hoyt the amount.

The president testified that when the $875 note became due, and he received notice of its having been taken care of, he sent Mr. Hoyt the $650 agreeably to the arrangement between him and Hoyt, of the 23d of October. There is no pretence that the discount of the note for $650 can be regarded as a renewal of a like amount of the note of $875. The latter note was paid to the holder when due. The defendant furnished no part of the moneys with which it was paid. After such payment was made, the bank discounted the $650 note, remitted the proceeds to Hoyt to use as he pleased, and the decision at the trial, that it was not a renewal of the note for $875, was correct.

But even if it had been discounted in renewal of, and the proceeds had been applied to take up the note for $875, the plaintiff would be entitled to recover.

On the 26th or 27th of November, and before it was discounted, the plaintiff, by letter, notified the defendant that his note of $400 was made, to be discounted for the plaintiff’s benefit, and that the proceeds were to be handed to him. That the note had been delivered by him to G. F. Butler for that purpose ; that the plaintiff had not received one cent of the proceeds, and some explanation by return mail was asked. To this letter the president replied on the 27th of November, and stated that the plaintiff's note was negotiated to the Cabot Bank on the 26th of September, by Sylvanus Hoyt. That he then negotiated a loan to a large amount, on the strength of this and other paper. The letter concludes thus : “ If Mr. Hoyt carries out the arrangement we have made with him, and we do not doubt that he will do so, that note of yours will be released as early as six days before its maturity, and he will be able to return it to you.”

The plaintiff had a right to understand from this letter, that the defendant’s only claim to his note grew out of the transaction of the 26th of September ; that it was held as security for a loan then negotiated on the strength of this and of other notes; that some arrangement was, or had been made, by which, if it was carried out by Hoyt, the plaintiff’s note would be released six days before its maturity, from the claim and right to it, acquired by the defendant under the negotiation of the 26th of September.

The testimony shows the transaction of the 26th of September to have been this. On that doy, the note of $875 was discounted by the Cabot Bank, for S. Hoyt, on his leaving with it the plaintiff’s note and other notes, as collateral security. If the Cabot Bank had received the. plaintiff’s letter of the 26th of November, prior to discounting the note of $875, it cannot be pretended that the plaintiff’s note would have been valid in its hands, whether it had been actually discounted by the bank or taken as collateral for other notes discounted, if the facts stated in the letter should prove to be true. Neither could it, after such notice, make any new contract, on the security of the plaintiff’s note, which would enable it to enforce the note against the plaintiff. At all events, it could not, after receiving such notice and after the note for $875 was paid, by discounting a new note for $650, acquire any right to compel the plaintiff to pay his note to the bank. That discount was made after express notice to the defendant of the fraudulent misapplication of the plaintiff’s note. There was no error, therefore, in the charge that the plaintiff was entitled to recover the sum of $437 53, the amount of his note and interest.

The defendant complains that this part of the charge took from the jury the consideration of every question of fact. The judge was requested to charge the jury, “ that if the jury should find that Watson voluntarily paid Ms note of $400, that then the defendants would be entitled to recover, and requested his honor to submit that question to the jury.” His honor refused so to charge, or to submit the question of voluntary payment to the consideration of the jury. To which decision and refusal the defendant's counsel excepted.

The plaintiff had a right to presume that the Cabot Bank dealt truthfully with Mm, in making the reply of November 27. It ought not to be alleged against him that he had no right to presume that it would act honestly thereafter. He had a right to assume that if the note was or should be presented for pay ment when due, it would he for the reason that the loan negotiated on the 26th of September, 1850, on the strength of that and other notes, had not been paid. If it had not been paid he would be legally bound to pay his note, and could be compelled to pay it, whether he withdrew his funds or not, from the bank where it was made payable.

The Gabot Bank had no right, after receiving payment of the loan made on the strength of this and other notes, to keep that fact concealed from the plaintiff, and, in fraud of his rights, present his note for payment at the bank where it was made payable and where he kept his funds ; and after thus obtaining payment, should not be permitted to say to the plaintiff, “You voluntarily allowed it to be paid, and therefore are without remedy.” It is a perfect answer to say, “ I assumed that you told the truth in your letter of the 27th of November ; and the facts you stated made me liable to pay my note, if the loan of the 26th of September should not be paid. If it was, in fact, paid before my note matured, I was not bound to withdraw my funds from the Mechanics’ Banking Association, or forbid its paying the note, to prevent you, in fraud of my rights, from presenting it and obtaining payment. It was paid in ignorance of material facts. It was a fraud in you to have concealed them, and a more palpable one to have obtained payment of the note by such means, after the debt, for securing the payment of which you took it, had been fully satisfied.” The judge was right in refusing to submit to the jury the question whether the payment of the plaintiff’s note was a voluntary payment. (9 Mass. R. 408, Garland v. Salem Bank; 6 Barn. & Cress. 671, Milnes v. Duncan.)

More diligence was exercised by the plaintiff in this case, to ascertain what claims the Cabot Bank had to enforce payment of his note, than was exercised by the plaintiff in the case of Goddard v. The Merchants' Bank (4 Comst. 147), before leaving his check with the notary to take up a draft supposed to have been drawn by the Canal Bank, at Cleveland, and which had been protested. In the latter case, the plaintiff volunteered to pay a protested draft, which he supposed to be genuine. The notary being out of his oEce when he called, Goddard did not see the draft, and, without seeing it, left his check to pay it, requesting that the notary, on his return, should send him the ■ draft that day. All parties acted innocently. Yet it was held that there was not such negligence in paying the draft, before seeing it, as to bar his right to recover. The money was paid voluntarily, but under a mistake of material facts. In this case, the Cabot Bank, on being notified of the fraudulent misapplication of plaintiff’s note, informed the plaintiff that it was a bond fide holder of the note, and received it on the 26th of September, as security for a loan then made on the strength of that and other notes. It did not inform the plaintiff at what time that loan would become due. But the defendant and plaintiff both knew, that when that loan was satisfied the defendant would have no right to enforce payment of the note ; that after such notice, the bank could not make any new loan or discount on the credit of it, which would give any right to retain it, or impose on the plaintiff any obligation to pay it. The plaintiff did not, in fact, pay it. He gave no authority to pay it, except such as may be inferred in behalf of a bank depository to pay notes of its depositors made payable at their counter. There was no authority, express or implied, given to the defendant to present it for payment. The defendant presented it and obtained payment, knowing that such conduct was a fraud on the plaintiff, and that the plaintiff had no reason to anticipate such a result, if the loan which it was taken to secure, should be satisfied, before the note fell due.

The court did not err in charging the jury that the plaintiff was entitled to recover, and the judgment appealed from must be affirmed with costs.


author: Paine, J. Bosworth, J. Duer, J.

text:
    Bright, Administrator, v. Currie, and others.
    When a plaintiff describes himself in the complaint, as administrator, &c., of an intestate, the allegation may be rejected as immaterial and redundant, if it appear upon the face of the complaint, that he has a legal capacity to sue in his own right
    A proferí of letters testamentary, or of administration, is unnecessary under the code. The rule by which it was required, was technical and formal, and as such, is abolished.
    Upon these grounds a demurrer to the complaint, held to be frivolous, and judgment at special term for the plaintiff, affirmed, with costs.
    (Before Doer, Paine, & Boswortb, J. J.)
    Feb. 4th;
    13th March, 1852.
    This was an appeal of two of the defendants from a judgment rendered against them at special term.
    The plaintiff sued as endorsee of a promissory note, endorsed to him, as administrator of the goods, chattels, &c., of John Bright, deceased, and in his complaint he described himself as such.administrator, but made no proferí of any letters of administration.
    The defendants, Currie, the makers of the note, demurred to the complaint, upon the grounds that it did not appear that the plaintiff was administrator, under, or by virtue of any power or authority, granted by any court or officer in the state of New York, and that the plaintiff had not produced, or set forth any letters of administration.
    Upon motion at special term, the demurrer was held to be frivolous, and judgment rendered for the plaintiffs.
    J. Romeyn, for the defendants,
    Insisted that the demurrer, so far from being frivolous, was well taken. As the plaintiff sued in the special character of administrator, he was bound to show that he had been appointed such by the proper tribunal in this state, and to make a proferí of his letters of administration (Stanley v. Chappell, 8 Cow. 236; Campbell v. Tonsey, 7 Cow. 68; Robinson v. Brandall,
      9 Wend. 426; Schultz v. Pulver, 11 Wend. 972,1 Chitty Plead. 420). It might be that the payee of the note by endorsing it to the plaintiff as an administrator, was estopped from denying his title as such, but this estoppel did not reach the defendants. As makers of the note, they had in no manner recognised or admitted the plaintiff’s title, and to the act of endorsement they were strangers.

      J. M. Mason, for the plaintiff.
    As the note was endorsed to the plaintiff, by his title oí administrator, it was proper that he should state himself to be such in the complaint; but the averment is only to be construed as meaning that he is the person to whom the endorsement was made, and imposed upon him no necessity of making a proferí of his letters of administration. Such a proferí is only necessary, if at all, when the note was made or endorsed to the intestate himself. In such a case the administrator must show his- title as such, in order to establish his right to recover. But here, as it is certain that the action could have been brought by the plaintiff in his individual name, the statement that he is administrator is to be regarded as a mere descriptio personae ; whether true or false it is immaterial, if he is in fact the endorsee. The demurrer is therefore clearly frivolous.
    Each of the judges now delivered his opinion.
   Paine, J.

In this case the plaintiff declared as administrator upon a promissory note endorsed to him as such administrator, but did'not make proferí of his letters of administration. For this cause the defendant. demurred to the complaint. At the special term judgment was ordered upon the demurrer as frivolous, and the defendant appeals.

Upon the argument the plaintiff resisted the demurrer, principally upon the ground, that the allegations in the complaint that the plaintiff owned and sued upon the note as administrator, and demanded judgment upon it as such, were only by way of description, and might be struck out, as surplusage.

In the present state of the law upon this subject, this ground does not appear tenable. Surplusage is defined to be “ matter wholly foreign and irrelevant to the cause ” (1 Chit. PI. 263). And it is now well settled that an administrator may sue upon a promissory note made to himself as administrator, or he may sue upon it in his own right. He has a right to frame his suit in either way, and thus attach to it the incidents which belong to either mode of suing. But if he chooses to sue as administrator, the averment that he does so, is not foreign and irrelevant to the case. The idea that the character in which a party has a right to present himself and does present himself in court, a character which most materially affects the rights of both parties to the suit, may be struck out as surplusage, is certainly a novel one, and, I think, unsupported by authority.

There is, however, a case not very ancient, where it was held that the description of the plaintiff as administrator might be struck out as surplusage (Crawford v. Whittol, cited N. 5, 1 Doug. 4). That case, which was upon a foreign judgment recovered by the administrator, was decided in 1773, and at that time, as appears from several cases decided not long afterwards, such an action could not be brought by one in his character as administrator. The first case in modern times in which such an action was held to be maintainable was King v. Thom (1 T. R. 488), decided in 1786, which was followed by Cockerell v. Kynaston (4 T. R. 278), and finally by Cowell v. Watts (6 East’s R. 409), and since those decisions the law has continued settled that an administrator may sue upon contracts to himself as administrator, and where the money recovered would be-assets.

But it is not a little curious to observe the vibrations of the law upon points of difficulty. Before these two last changes upon this point, two opposite doctrines had been successively held at a much earlier period. The earlier cases of Warfield v. Warfield (Latch 220), 1 Vent. 109, Atkins v. Howard (Cro. Car. 219), 1 Ld. Raym. 436, Gray v. Lockwood (Barnes, 132), and Marsh v. Yellowly (2 Str. 1107), all held that in such cases one could not sue as administrator; that if he did he was liable for costs, and his description as administrator should be rejected as surplusage. But afterwards in Bull v. Palmer (2 Lev. 165). and Mason v. Jackson (3 Lev. 60), it was held that one might sue as administrator in such cases, and Lord Ellenborough, in Cowell v. Watts (6 East, 409), expresses a wish that the rule laid down'in these latter cases had been abided by.

Such are the changes that have taken place upon this mooted point, and it would not be strange, where there has been so much difficulty and so much contention about the principal question, if some confusion should have occurred respecting incidental ones; and among them that of striking out as surplusage in such cases. The only modern cases which I have been able to find supporting this doctrine are Biddle v. Wilkins (Pet. S. C. R. 692), and Savage v. Meriam (1 Blackford's R. 176). These cases, however, were decided exclusively and entirely upon the authority of the case in the note to 1 Douglass, 4, and without any notice being taken of the entire change in the law upon the main point since that case was decided. The case in Douglass certainly is not law now, for the law and reason for that decision have ceased to exist; and I can only regard the decisions in Peters and Black-ford as having been made under a misapprehension by no means singular. The reason for the decision in Douglass was that where one could not sue as administrator the description of himself, as such, was foreign and irrelevant. The difference between that case and the cases in Peters and Blackford is, that in the latter he could sue in that character. The authority of cases, the error of which can be so plainly shown, ought not to be permitted to establish an absurdity.

In each of the two last cases the case of Talmadge v. Chappel (16 Mass. p. 71), was cited in support of the doctrine in question. But there is precisely the same want of analogy between that case and those as in the case in Douglass : for it was expressly held in the Massachusetts case that the administrator could not sue, as such, in that case.

It is now necessary to examine whether since the code proferí of letters of administration is any longer necessary. All the old forms of pleading inconsistent with the code are abolished, and the code declares what the complaint shall contain. Proferí of a record or instrument is not within its requirements ; for a statement of the cause of action may be made without making proferí (§§ 140, 142). And for the same reason the want of proferí is not a'ground of demurrer.' We think, therefore, that although before the code the want of proferí, where it was necessary, was a good ground of demurrer, yet that it is not now; and that the judgment of the special term overruling the demurrer as frivolous must be affirmed with costs.

Bosworth, J.

The demurrer specifies, as grounds of objection to the complaint, “ that it does not appear that the plaintiff has legal capacity to sue, for that it is not stated in said complaint, that said plaintiff is administrator under or by virtue of any power or authority, granted by any court or officer in the State of New York, and also for that the said plaintiff has not produced or set forth any letters of administration to him.”

The code authorizes a demurrer, when it appears on the face of the complaint that the plaintiff has not legal capacity to sue. (Code, § 144, sub. 2.)

The defendant insists that it was necessary for the plaintiff to state directly and traversably that he was appointed administrator by the proper tribunal in this state.

This rule is only applicable to suits by administrators for debts due to the intestate, or to suits grounded upon some transaction with the intestate.

An administrator may sue in his own name, for the wrongful taking or conversion of the goods of the intestate, subsequent to his death. By the death of the intestate and the grant of administration, the title to such property is vested in the administrator. He may sue in his own name, and use the letters of administration in establishing his title. (4 Hill 75, Patchen v. Wilson.)

He may sue in one state in his individual capacity, on a judgment recovered by him in another state, as administrator. (16 Mass. 71, Talmadge v. Chapel; 3 Barb. Ch. R. 74, Laurence v. Laurence.)

If he sue as administrator, when he might have sued in his own name, he need not make proferí of the letters of administration. If he names himself as administrator, the description may be regarded as surplusage. (1 Blackford 176, Savage v. Merram.)

An administrator, whether foreign or domestic, may sue in his own name, upon a note payable to bearer, and transferred to his intestate in the lifetime of the latter. (Brooks v. Floyd, 2 McCord, 364; Robinson v. Crandall, 9 Wend. 425; Patchen v. Wilson, 4 Hill, 57.)

The endorsement and delivery of the note to the plaintiff by the payee vests in him a right of action against all prior parties to it. (Chitty on Bills, 265.)

He could sue it in his own name, even if he was such administrator as the endorsement recites and the complaint avers. It cannot be said, therefore, that it appears on the face of the complaint, that the plaintiff has not legal capacity to sue. (Code, § 114, sub. 2.)

On the contrary, it appears that he has legal capacity to sue. The action is brought by the only party who could bring it, whether it is owned by him as administrator, or in his own right. Whether owned by him in the one capacity or the other, he may sue in his own name, and all the allegations in the complaint, as to his being administrator, may be regarded as irrelevant or redundant.

I think the demurrer is "clearly frivolous. It certainly does not assign the objection specified in sub. 2, of § 144. If it had, the answer would be, that the objection does not, in fact, exist.

The judgment appealed from should be affirmed.

Duer, J.

It is not denied that the plaintiff might have brought this action in his own name, and that his right to do so is patent on the face of the complaint, and as the averment of his character of administrator is thus confessed to be immaterial, it seems to me, a necessary consequence that it may be rejected as redundant. The code only requires those facts to be stated in the complaint which are material and issuable, and, under its provisions, immateriality and redundancy are convertible terms. Here, an issue upon the fact whether the plaintiff is administrator or nót, as he has described himself, would be plainly immaterial, and, upon a proper motion, as such, would be stricken out. The argument of the plaintiff, upon such a motion, would be brief and conclusive—“ Whether I am administrator or not, is unimportant; I am the person to whom the note was endorsed, and to whom you, the makers, are bound to pay it.”

It may be quite true, as my brother Paine has argued, that under our former system of pleading, a description of a plaintiff, as an administrator, in a suit like the present, could not have been rejected as “ surplusage but governed by the provisions of the code, it seems to me impossible to say that a demurrer, which raises no other question than that of the legal capacity of the plaintiff to sue, must not be regarded as frivolous, when, striking out every word in the complaint to which objection is taken, the right of the plaintiff to maintain the action, upon the facts that remain and which the demurrer admits, is indisputable.

Upon the other question I agree entirely with my brother Paine, that in a complaint, under the code, a proferí of letters testamentary, or of administration, cannot justly be required, even where the action is brought, and can only be maintained by the plaintiff, in his representative character. It is sufficient to aver in the complaint that he sustains the character, and if it is denied, to produce upon the trial the letters granted to him, as the proper evidence of his title. The rule requiring a prefer t in the declaration was formal and technical, and as such is abolished. In the result, we all agree that the judgment at special term must be affirmed, with costs.