author: By the Court. Bosworth, J.

text:
    The Mayor, &c., of the City of New York v. Philip Mabie and others.
    (Before Duer, Bosworth, and Emmet, J.J,)
    October 26;
    November 19.
    ' Jn an action for the recovery of rent, reserved in a lease in writing, damages resulting from a subsequent tortious act of the lessor, not amounting to an eviction, nor constituting a breach of any covenant in the lease, could not, before the amendment of the Code, in April, 1852, be recouped or set off by the defendant.
    Whether in actions" commenced since April, 1862, damages thus sustained can be made the subject of a counter claim under § 150 of the Code—Quere? Judgment for plaintiffs upon verdict,
    Cabe on a verdict for the plaintiff, taken subject to the opi-' nion of the court at general term.
    As the questions of law, which the case involves, arose upon the pleadings, it is necessary to state the complaint and answer <m externo,

    The complaint of the above-named plaintiffs, the Mayor, Aldermen, and Commonalty of the city of New York, shows that they were, at and before the time next hereinafter mentioned, possessed of certain issues and profits arising and accruing from certain wharves in the city of New York, hereinafter mentioned, viz. the right to collect wharfage from such vessels as should lie against or touch at the said wharves; and being so possessed, they, the said plaintiffs, on the twenty-ninth day of April, in the year one thousand eight hundred and fifty, by a certain instrument in writing, bearing date the day and year last aforesaid, one part whereof was duly executed under the common seal of the city of New York, and the other part whereof was duly executed under the hand and seal of the said Philip Mabie, demised and leased to the above-mentioned Philip Mabie, in Consideration of certain rents and covenants • therein reserved and contained, the right to levy and collect to his, the said Philip Mabie’s own use, all the wharfage which should or might arise, accrue, or become due between the 1st day of May, A,D. 1850, and the 1st day of May, A.D. 1851, from the use or occupation by vessels of more than five tons burden, of any of the wharves belonging to the said parties of the first part, the said the Mayor, Aider-men, and Commonalty of the city of New York, from and including the easterly side and end of the middle pier at Coenties Slip, or Pier Ho. 7, to and including the westerly half of Pier Ho. 8, or the pier on the easterly side of Coenties Slip, together with the bulk-head between said piers, and which were known as district Ho, 3 of public docks and slips, except certain docks, slips, wharves, piers, and places therein mentioned and excepted.
    And the said plaintifls, the Mayor, Aldermen, and Commonalty of the city of New York, further thereby authorized the said Philip Mabie to demand and receive all lawful suma of money due for wharfage thereon.
    And the said Philip Mabie on his part covenanted to pay to the said the Mayor, Aldermen, and Commonalty of the city of New York, the sum of five thousand five hundred dollars, in four equal quarterly payments, on the first days of August, Hovember, February, and May next thereafter.
    That the said Philip Mabie, on the said day, in order to secure the payment of the said rent, in and by the said lease, agreed to he paid, duly executed, together with the said Simeon Fitch, and William Fitch, under their respective hands and seals, a joint and several bond, in the penalty of eleven thousand dollars, conditioned for the payment of the rents in said lease, reserved unto the said, the Mayor, Aider-men, and Commonalty of the city of New York, at the times at which they should respectively fall due.
    That the said Philip Mabie entered upon the said.premises and collected and retained for his own use and benefit and be-hoof, of the wharfage thereof, under and in pursuance of the said lease for the full term theieof, but has neglected and failed to pay the full amount due to the said the Mayor, Aldermen, and Commonalty of the city of New York, under the said lease, but that there is still due and unpaid for rent .thereon, from the said Philip Mabie, the sum of four thousand four hundred and twenty-five dollars, with interest, upon the sum of three hundred dollars, from the first day of August, A.D, "1850, upon the sum of thirteen hundred and seventy-five dollars, from the first day of November, A,D. 1850, upon the sum of thirteen hundred and seventy-five dollars, from the first day of February, A.D. 1851, and upon the sum of thirteen hundred and seventy-five dollars, from the first day of May, A.D. 1851.
    Wherefore the said plaintiffs demand judgment against the said Philip Mabie as prijrcipal, and Simeon Fitch and William Fitch as sureties on the said bond, for the said sum of four thousand four hundred and twenty-five dollars, together with interest on the sum of three hundred dollars, from the first day of August, A.D. 1850; upon thirteen hundred and seventy-five dollars, from the first day of November, A.D. 1850; upon thirteen hundred and seventy-five dollars, from the first day of February, A.D. 1851; and upon thirteen hundred and seventy-five dollars, from the first day of May, A.D. 1851, besides the costs of this action,
    The amended answer of the defendants in this action respectfully shows to this court, that they respectively admit the mating of the lease, and the giving of the bond, as they are respectively set forth in the complaint in this action. But the said defendants for answer thereto allege and declare that immediately after the said defendant, Mabie, entered upon the collection of the wharfage according to and in pursuance of said lease upon the premises described therein and referred to in said complaint, a certain agent or agents of the plaintiffs unlawfully and without any right or authority whatever, came upon the said premises, and then and there entered upon and actually assumed the entire control of all vessels, so far as relates to the berth or location thereof in said slip, or adjacent to said pier or piers, which came up to or into the district so leased to said Mabie, as described in said complaint, and that they, the said agent or agents of the said plaintiffs did, without any authority or right, or consent from said Mabie, and very greatly to his damage, injury, and loss, then and there, and have ever since, and still continue to let out and give the exclusive use to certain vessels, lines, or classes of vessels, or the owners, agents, or consignees thereof, to certain berths or locations in said slips, or contiguous to the pier or piers in said district, thereby prohibiting and preventing all other vessels from occupying and using said berths or locations, whether the same were occupied or not.
    That said agent or agents during the period for which rent Is claimed under said lease, as was well known to the plaintiffs, were in the constant habit of letting out and giving the exclusive use of berths and locations within the slip and adjacent tp the pier or piers contained in said district to certain vessels, or the owners, agents, or consignees thereof, and for such exclusive use, either directly or indirectly, receiving a compensa- - tion; and that such agent or agents from time to time would give sitch exclusive use to those who would pay, or directly or indirectly give the most therefor.
    That by reason of the unlawful conduct and interference of the agent or agents of the plaintiffs aforesaid, giving such exclusive use, and in preventing other vessels from occupying such berths or locations, even when vacant, and also by reason of the fact, that should such berths or locations happen to he occupied by any vessel or vessels not enjoying such exclusive use or privilege, and whether loaded or partly loaded, or discharged or partly discharged, or convenient or inconvenient to the captains or owners thereof, and of their being without any right or authority whatever, required by said agent or agents forthwith to haul and remove from said berth or location, the exclusive use of which had been given as aforesaid, other vessels not enjoying such exclusive privileges almost entirely abandoned, and left said district of public docks and ships leased as aforesaid, and obtained accommod; lions elsewhere, and thus, through the unjust and unlawful interference of the agents of the plaintiffs aforesaid, was the said defendant, Mabie, deprived of a large amount of wharfage winch would otherwise have been received by him. ’ That by reason of the unlawful, overhearing, and unjust conduct as aforesaid, of the agent or agents of the said plaintiffs, all of which wore well known to them, the said defendant, Mabie, has sustained a very great loss and damage, amounting to more, as he verily believes, than the whole sum claimed in the said complaint..

      And the said defendant, further answering, alleges, that the Said agent or agents of the said plaintiffs in entering upon, doing and performing all the various acts and matters as hereinbefore mentioned, and each and every of them, acted under the authority, direction, and approval of the said plaintiffs, and that all the doings and conduct of the agents aforesaid, in each and every of the matters aforesaid, were known to, approved of, and ratified by the said plaintiffs.
    That the said defendant, Mabie, upon the trial of this action, will seek to have the amount of damages aforesaid sustained as aforesaid, recouped and set off against the amount claimed by the plaintiffs for the excess over and above the amount claimed by them, together with its costs, and that the said complaint, as to the defendants, Eitch, may be discharged With judgment in their favor against the said plaintiffs for their costs.
    The reply controverted the allegations in the answer, and denied that the defendants were entitled to recoup or set off the damages which they claimed. -
    The action was brought on to be tried on the twenty-fifth day of April, 1853, before the Chief Justice and a jury.
    The defendants admitted the allegations of the complaint, whereupon they were allowed by the court to open the case.
    The defendants then offered to prove the facts set forth in the answer.
    The court excluded the evidence, and directed the jury to find a verdict for the plaintiffs.
    Whereupon the jury found a verdict for the plaintiffs for the sum of five thousand one hundred and five dollars and'fifty-six cents, the amount claimed and interest, to which direction of the judge the counsel for the defendants then and there duly excepted. His honor then directed that the entry of judgment upon the verdict should be suspended until the decision of the general term could be had upon the questions of law involved.
    R. J. Dillon, for the plaintiffs,
    moved for judgment on the verdict upon the- following grounds.

      The evidence offered by the defendants was inadmissible— because;
    I. It was in contradiction of the allegations in the Complaint, which the defendants had admitted.
    II. The damages claimed by the defendants for the acts of the plaintiffs, are not a subject of set off, as alleged in the answer, Such damages are not a subject of “ recoupment,” 'L “ Recoupment” is allowable only fot the violation of the covenants, agreements, or stipulations on the part of the plaintiffs, contained in the same contract upon which the plaintiffs bring suit. (Ives v. Van Epps, 22 Wend. 155; Whitbeck v. Skinner, 7 Hill; 56; Ballerman v. Pierce, 3 Hill, 174; Road v. McCullister, 8 Wend, 109; Nichol v. Dusenberry; 2 Comstock, 286.) 2. The faóts alleged in the answer constitute a tort, or trespass ;• having no" reference to the contract sued upon, or any obliga* tion therein, on the part of the plaintiffs, but entirely inde* pendent and extraneous to it. (Cases supra; Cram v. Dresser, 2 Sandford, 125; Ogilvie v. Hall, 5 Hill, 52.)
    IH. The testimony offered does not constitute an eviction, 1. The doctrine of eviction does not apply to an incorporeal hereditament, 2, A tresspass is not an eviction. The facts alleged in the answer, do not show that the defendants were deprived of the use or enjoyment of the premises; they simply allege an interference with the mode of enjoyment. (Cases supra; Hunt v. Cope, 1 Cowp. 242; Bennett v. Bittle, 4 Rawle, 839.)

      W. E. Noyes, for the defendants,
    insisting that the verdict ought to be set aside) and. a new trial be granted; argued as follows.
    The quéstíons in this casé amé U]ion the following facts,
    The plaintiffs being the owners of certain wharves, for & valuable consideration, granted and assigned to these defendants the right to receive and collect such wharfage, as during the continuance of the gránt should accrue; or become due from vessels lying at Of using such, wharves.
    That from the timé the grant took effect, and dining the entire continuance thereof, the plaintiffs, without the defend-tot’s consent, assumed the control of all vessels which came up to and used said wharves, permitting some to use certain parts to the entire exclusion of all others, and arbitrarily compelling many to haul, and others to take their places, to the very great inconvenience of the masters and owners thereof—and thereby almost entirely prevented the use of said wharves by all ves» Eels, except those to which the plaintiffs gave siich exclusive privileges. That, in consequence of such interference on the part of the plaintiffs, the defendants have lost wharfage and Sustained damage to an amount equal to the consideration agreed to be paid for the grant.
    1st. tinder this state of facts Can the defendants recoup the damages thus sustained? of,
    2d. Set them off under the statute by way of a Counter claim ?
    I. That the damages thus sustained can be recouped is evident, because the damages arise from the plaintiffs* violation of the spirit of their own contract. They granted to us the right to collect all wharfage, and then from the date of the lease so conducted themselves, that the defendants only got a small portion of what otherwise would have accrued to them, the same as if they had leased us ten rooms in á house and never permitted Us at all to enjoy but five of them, and claimed the whole rent. The consideration of the grant has in a great measure failed from the lessor’s own acts, and is therefore a proper subject for recoup» ineiit. (Reab v. M‘Alister, 8 Wend. 109; 4 id. 483; Ballerman v. Pierce, 3 Hill, 171; 10 Barb. Sup. Ct. Rep. 55; 4 Sandf. 147.)
    II. There is an implied agreement on thé part of every lessor as a condition of his receiving rent, that the lessee shall quietly enjoy the rights.or privileges granted. (Taylor’s Landlord and Tenant, 144, and cases cited; 2d ed. id. § 304, note ; 1 Sandf. 260.)
    III: If this defence does not cOme within the doctrine of recoupment, it unquestionably is within §§ 149,150, of the code of procedure, and can be sustained as a counter claim. (Sub. 1, § 150, Code of Procedure.)
   By the Court. Bosworth, J.

The judge, who presided at the trial of this action, precluded the defendants from proving the facts alleged in their answer, Was that decision erroneous ? This is the only question presented by the case,

It is alleged that the defendants, by the wrongful acts of the plaintiffs, were deprived of the free and Uninterrupted enjoyment of the demised premises. The free and uninterrupted enjoyment of the premises was the consideration of the defendants’ agreement to pay the stipulated rent, for the recovery of which this action is brought. The plaintiffs, by their unlawful conduct, have produced a partial failure of the consideration of this agreement, Can this partial failure of consideration, thus occasioned, be shown, in an action to recover the whole stipulated consideration, to reduce the amount to be recovered?

On the part of the plaintiffs, it is not denied that they are liable for damages, assuming that they have done the acts set tip in the answer, But it is insisted that such damages could hot be recovered in an action ex conbraetM, and that damages resulting from an unauthorized interference of a lessor with his lessee’s enjoyment of the demised premises, not amounting to an eviction, is not a ground for recouping damages, in an action to recover the reserved rent. That damages resulting from acts dui’ing the term cannot in any case be recouped, unless the defendant could recover them in an action ex contraetiu. That the damages suffered in tiffs case could only be recovered in an action ex delicto, and are, therefore, not a proper subject of recoupment.

Cram v. Dresser (2 Sand. S. C. R. 125) is cited by the plaintiff as decisive of this question.

Whether the 150th section of the Code, as amended by the act of April 16th, 1852, would allow such facts to be averred and proved, on the ground that they would constitute a defence falling within its definition of a counter claim, it is not material to inquire, All the pleadings in this action had been interposed some months before the provision in relation to counter claims became apart of tile Code.

This case must, therefore, be determined by the law as it was when the action was commenced, and the issues arising in it Were joined. It seems to be difficult to distinguish this case from that of Cram v. Dresser. Each is an action by a lessor against his lessee, to recover the rent agreed to be paid for the use of the demised premises. In each case the lessee entered upon the premises, and continued in the actual possession and enjoyment of them during the term.

In each case, the damages sought to be recovered resulted from misconduct of the lessor, subsequent to the commencement of the term, "Which disturbed the lessee’s enjoyment of the premises, and rendered stich enjoyment less valuable than it would otherwise have been.

In Cram v. Dresser, the mere entry of the lessor was lawful, because authorized by the terms of the lease. The tortious conduct of the lessor after entry is characterized" by the court as being of the same quality as a trespass, although Unaccompanied by any force.”—Id. 126

In this case, the interference Was forcible as well as tortious. There was no covenant in either lease that the lessor would not interfere with, nor disturb the lessee’s enj oyment of the premises. This court held in Cram v. Dresser that as there was no covenant against any such interference, the damages resulting from it could only be recovered by an action of tort, and could not be recouped.

In Cram v. Dresser, the defendant, by a notice annexed to his plea, stated that he would insist on recovering the damages Which he had sustained by the improper conduct of the plaintiff, “ by way of recoupment of the damages at the trial.”

In the case at bar, the defendant, Mabie, in his answer gives notice, that he will insist on having the damages he has sustained recouped, and set off against the damages claimed by the plaintiffs.

In each ease, therefore, the defendant sought to recoup the damages which he claimed he had sustained. In each case the defence was attempted to be interposed, on the principle that the doctrine of recouping damages was applicable to the facts of the case. If the evidence is inadmissible, provided it is not a proper case for recoupment, then the case of Cram v. Dresser is conclusive upon this court, unless it is prepared to reconsider and overrule it.

In this case there was no express covenant for quiet enjoyment. Hone is implied by law, on which an action will lie. (1 R. S. 738, § 140; Kinney v. Watts, 14 Wend. 38; 1 R. S. 750 § 10; id. 762, § 36; Dalston v. Rowe, 1 Ld. Raym. 77.)

In Cram v. Dresser, the court enumerated the cases in which the doctrine had been applied, and said that it had “been applied to the reduction of the price of goods sold, when there was either a Warranty-broken, or fraud in the sale, or a distinct agreement, relative to the subject matter, which was broken, to dimmish the recovery on a contract for labor and materials, Which was not faithfully executed; and, finally, a tenant’s da* mages, by reason of the breach of an agreement to repair, have been admitted in his defence to an action brought by the land" lord to recover the rent of the demised premises.”

In all the cases in which the defendant has been allowed to recoup damages, resulting from the breach of a covenant or promise of the plaintiffs, it wás a covenant or promise cotem* pol-áneous with that made by the defendant, and deemed to be part and parcel of the contract.

If; in this case, there had. been a covenant for quiet enjoy» ment, the acts of the plaintiffs, which the defendant offered to prove, would have been a breach of it, and the damages re= suiting from such breach would have been a proper subject of recoupment. (Ballerman v. Pierce, 3 Hill, 171; Ives v. Van Epps, 22 Wench 155.)

In the case supposed, the damage would have resulted from a trespass, which trespass would have been the breach df an express covenant In this ease, the acts done are not a breach of an express covenant for quiet enjoyment, for the lease con* tains none ; but they are the breach of a duty resting on the plaintiffs, which duty required them to abstain from any and all acts that Would diminish the wharfage that would otherwise accrue¡

But that duty or obligation was one existing With equal fores against other persons as against the plaintiffs. It was equally the duty of strangers to not interfere! If the plaintiffs or strangers interfered, an action at law would lié, and the same damages would be recoverable in the one case as in the other. (Kinney v. Watts, 14 Wend. 38.)

This duty of the plaintiffs did'not arise otit Of any covenant On their part contained in the lease, hut is One which the laW imposes upon every member of the community.

It cannot therefore be said, that the claim or demand df the defendant springs out of the contract or transaction, which creates the liability on his part, It does not arise out Of any fraud inducing the acceptance of the léase, nor Out Of the breach of any covenant on the part Of the plaintiffs, Contained in it, of of any promise made contemporaneously with it.

It arises from a tort, which might as well have been commit* ted by a stranger as by the plaintiffs, which was subsequent td the execution of the lease, and the entry by the defendant upon the enjoyment of‘the thing demised.

It may be urged, that if a tenant id deprived, by the lessor, of the thing letten in whole or in part, the obligation to pay rent ceases, because such obligation has its force only from its consideration, which is the enjoyment of the thing demised. (Gilbert on Rents, p, 145.)

That an unlawful interference by the lessor, with the lessee’s enjoyment of the premises, rendering their use less valuable, although not amounting to a technical eviction, deprives him, in part, of the consideration of his covenant to pay rent, and therefore presents the case of a partial failure of consideration, which should operate to reduce the plaintiff’s recovery.

To this it may be answered, that all the cases in which the doctrine of recoupment has been applied, are those in which the defendant failed to ultimately receive a full consideration for the sum sought to be recovered of him. When sued for thé price of property which he was induced to buy by reason of fraudulent misrepresentations as to its quality, by showing the ff'aud, he establishes the fact, that he at no time had the whole of that which constituted the consideration of his promise to pay the contract price. (Van Epps v. Harrison, 5 Hill 63-66.) He was never put in possession of that which he contracted to buy, •

But if the property had been as represented, and subsequent to its delivery to the defendant, the plaintiffs had tortiously injured it, or interfered with the defendant’s beneficial enjoy* ment of it, although liable in tort for such conduct, no one, I think, will pretend that, in an action for the price, such tort could be proved and tile damages resulting from it be recouped» Yet the tort supposed, would have deprived the defendant, in one sense, of part of the consideration of his promise.

In judgment of law, the, cause of action arising from the tort, in such a case, does not spring from the same contract or transaction, as the action upon the promise to pay the stipulated price, It does not spring from the same contract, for that contains ho stipulation ifi respect to the conduct complained of.

In the case at bar, the liability of the plaintiffs to the defendant, upon the facts offered to be proved, would have been precisely the same, if the lease had been given to the defendant, by some other person. I think no case can be found, which" allows a tenant to show a tort of the lessor, in bar of an action for the rent reserved, or to reduce the amount of the recovery, unless such tort amounts, in law, to an eviction. That a trespass upon, or tortious interference with, the demised premises, during the term, which merely renders the tenant’s enjoyment less valuable, but which cannot he treated as an eviction, and Which violates no Covenant contained in the lease, cannot be set Up as a partial failure of the covenant to pay a fixed rent, or by way of recoupment.

That such conduct on the part of the landlord, is to be redressed in the same way as if it had been the act of a stranger.

That Cram v. Dresser was decided in accordance with adjudged cases, and that no well considered case justifies us in extending the doctrine beyond the limits authorized by the previous decisions. (Reab v. McAllister, 8 Wend. 109; Ballerman v. Pierce, 3 Hill, 171; Van Epps v. Harrison, 5 Hill, 63; King v. Paddock, 18 I. R. 141; Nichols v. Dusenburg, 2 Coms. 286; Harrington v. Snyder, 8 Barb. S. C. 281, 6 Barb. S. C. R. 386; Willoughby v. Coms., 3 Hill, 392; Bushell v. Lechmere, 1 L. Ray., 369.)

In this Case the defendant, Iffabie, received all the wharfage that actually accrued, during the whole term,

The motion for a new trial must be denied, and a judgment entered in favor of the plaintiffs upon the verdict.

The same judgment will be entered in the other action between the same parties.


source: Caselaw Access Project

license: Public Domain

text:
    George Webb, Respondent, v. Henry Goldsmith and Leon Goldsmith, Appellants.
    (Before Duer, Bosworth, and Emmet, J.J.,)
    October 27;
    November 19, 1853.
    One E. K, 0, held notes of the defendants, including the three notes in suit, which were payable to his order, amounting to nearly $3000, and they being unable to pay their creditors, he made a settlement with them, and accepted from them as a payment in full of all the notes so held hy him, the note of a third person for $500, which was paid at maturity. E, K. G. then for a valuable consideration endorsed the notes in suit without recourse to the plaintiff, who at the time of the endorsement had notice of the settlement with the defendants,

      Jffeld, that although the note of a third person so received by E, E. 0. was for a much less sum than was then owing to him from the defendants, yet its acceptance by him as a payment in full, rendered the transaction valid as an accord and satisfaction, and that the plaintiff having notice of the facts was hound by the settlement.
    Report of a referee in favor of the plaintiff set aside, and new trial ordered,
    This action was brought by the plaintiff, as endorsee, against the defendants, as makers of three promissory notes, each payable to the order of B. K. Olark, each dated Hay 1,1845, two of which were severally for the sum of $133, one at eight, and the other at ten months, and the third was for $135, and payable at twelve months.
    The answer denied indebtedness on the notes, and averred that the defendants never received any consideration for either of the notes, either from the plaintiff or the payee, and alleged on information and belief, that plaintiff knew when he received the notes, that the plaintiffs were not indebted to Clark, and that the plaintiff paid Clark no consideration for them.
    The reply put in issue the new matter contained in the answer, and also stated that the notes were received from Clark, in the course of business, for a valuable consideration, without notice of any equity or set-off against the same in favor of the makers.
    The cause was referred to a referee. On the trial, it appeared that the notes were transferred by the payee to the plaintiff, on the 30th of April, 1846, without recourse, in satis» faction of notes held by the plaintiff against the payee, and with full notice that there had been previously a settlement of the notes, between the payee and the makers, The settlement between the payee and the makers took place on the 21st of July, 1845.
    The payee then held the notes in suit, other notes made by the defendants, and also certain notes received from them, made by third persons. A receipt was given by Clark at the time of the settlement, the operative words of which are a@ follows;
    “ Beceived, Bew York, July gist, 1845, from Henry Gold» smith, James M. Smith, Esq.’s note at sixty days, for five hundred dollars, in full for the following notes, leaving it to their honor to pay the balance should they ever become able.” The receipt contained a description of the notes, and was signed CíB. B. Glabk,”
    The referee reported in favor of the plaintiff for the full amount of the notes. A motion was made for a new trial on the ground of newly discovered evidence. On the trial, it was doubtful whether any receipt or voucher was given at the time of the settlement. On affidavit of the discovery of it after the trial, a motion was made for a new trial, the motion was denied, with liberty to appeal from such order, and bring the appeal to argument, at the time of arguing an appeal from the judgment entered on the report of the referee. The appeals from the order and the judgment, were submitted on printed points,

      P. J. Joachimsen, for the defendants and appellants.
    The referee erred in his judgment,
    I. The settlement with Clark, by which he took from the defendants a new security (viz. Mr. Smith’s note), for the indebtedness of the defendants, including the notes in suit, was a complete satisfaction of all their indebtedness to him.
    H. The notes' in suit were extinguished, so that from the time of the settlement, Mr, Clark became a holder without consideration, and only a trustee for the defendants: he was bound, on demand, to surrender these notes to Messrs, Goldsmith.
    III. The plaintiff in this suit took these notes, with fell and complete knowledge of the compromise ; he is .not, therefore, an innocent, or bond fide holder. He took them “ without recourse,” exchanging Clark’s liability to him for Goldsmith’s liability, whatever it might be, to Clark 3 and the bar to Clark’s recovering against these defendants, is equally a bar to the plaintiff,
    IV. This is certainly so, to all intents and purposes, as to the two notes at eight and ten months’ date, which the plaintiff took after .maturity, He certainly is affected, as to those .two notes, by the equities subsisting between Clark and the defendants, The judgment, therefore, ought to be reversed. The motion for a new trial ought to have been granted. The receipt of Mr, Clark is conclusive evidence of the compromise made by the defendants. This evidence was supposed (on the trial) not to exist. Argument cannot be needed to show its materiality 3 its non-production at the trial is fully accounted for in the affidavits used on the motion, and which remain wholly uncontradicted; and the motion was made at the earliest practicable period, There is no conflict of testimony jn this case ; its equity as regards the defendants is too transparent to require any comment. Belying upon that equity, and feeling assured that the whole case upon its merits, irrespective of technicalities or objections (none having been made before the referee), is felly before this just and impartial tribunal, the defendants are warranted in asking, that this court will so mould the case to conform to the facts proven, that we may be relieved from what undoubtedly will be an unjust recovery,

      Slosson & Hutchins, for plaintiff, respondent,
    I. The referee was correct in ruling that the answer did not deny the making of the notes upon which the action was brought. ' The answer simply denies that the defendants were indebted to the plaintiff, upon any promissory note or notes made by them.- This is pleading a conclusion of law, which is bad (McMurray v. Gifford, 5 Pr. R. 14). This was the only-exception ta]ien on the trial.
    II. It is not a case for a new trial, on the ground of newly discovered evidence, 1, The receipt, the discovery of which is made the ground of the application, was in the possession of the defendants at the time of the trial, and they knew it. The affidavit of Henry Goldsmith, one of the defendants, shows this. It is no excuse that Goldsmith did not succeed in his search for it, in time for the trial, for the defendants could have applied to postpone the trial on that account, and should have done so (Vandervoort v. Columb. Ins. Co. 2 Caine’s R. at p, 163). Emanuel L. Goldsmith testified, on the trial, that he was present at the alleged settlement; that he thought there was a release or receipt given, signed by Clark, at the time of the settlement, and he gives his reasons for thinking so ; and, from his affidavit, used on this motion, it appears that he was apprised by defendant’s counsel that the testimony was material, and that after searching he informed the defendant’s counsel, on the morning of the hearing, that he could not find it. R. K. Clark, who is alleged to have given the receipt, and who was examined as a witness for the defendant, was not asked a word in respect to such receipt, nor even whether a receipt was given, though the defendants were confident there was one, and had looked for it immediately before the trial. They might have proved by Clark, the contents of such receipt as a lost receipt, if they had deemed it material; but they made no effort to do so. Under these circumstances, this cannot be called newly discovered evidence, nor are the defendants in the position of those against whom laches cannot be imputed, 2. But it is a conclusive answer to this application for a new trial, that the evidence sought to be introduced is immaterial. The evidence must be material, as well as newly discovered. (See case of Vandervoort v. Columb. Ins. Co. above cited, 2 Caine’s R. p. 165,) The receipt, in itself, proves nothing more than the parol evidence already in—or, if it does, its meaning must be qualified by that evidence, and no objection can be taken to the character of such parol evidence, as varying a written contract (even if the receipt is to be taken as a contract, which we do not admit) in as much as the evidence was introduced by the defendants themselves. The evidence, then, as it stands, is, “ that on payment of the $500, the defendants were to be released from all indebtedness.” (See Smith’s testimony.) Now, even admitting that on the evidence, the $500 here spoken of was represented by Smith’s note, referred to in the receipt, though it is not so stated, it is, notwithstanding, manifest that the agreement, if any, was executory, and not to take effect until the note was paid ; this is further manifest from the fact, that the notes to be compromised by the payment, were all left in the possession of Clark. The transaction was not completed at the time—by the defendant’s permitting Clark to retain the notes, they negatived all idea of taking Smith’s note at their own risk—this, under any decided case, would be fatal. The rule of law, as laid down by Justice Sutherland (Mulden v. Whitlock, 1 Cowen, p. 306), is this: “ No principle of law is better settled than that taking a note, either from one of several joint debtors, or from a third person for a pre-existing debt, is no payment, unless it be expressly agreed to be taken as payment, and at the risk of the creditor—nor does the taking a note, and giving a receipt for so much cash, in full of the original debt, amount to evidence of such express agreement to take the note in payment. The agreement must be clearly and explicitly proved by the original debtor, or he will still be held liable.” "Under this evidence, as construed by this rule, the referee could not find otherwise than he did; and, were the receipt introduced, it could-not vary the case. It is perfectly reconcilable with the parol testimony, and proves no more.
    III. The defendants have no equity; by permitting Clark to retain the notes, they enabled him to pass them to innocent parties, and for value.
    IV. The notes were originally for value ; they were given for cigars, and they were passed to plaintiff for value; he gave up Clark’s notes to á considerable amount, and Clark assigned these notes to him, without recourse to him, Clark.
    V. One note, at all events, was passed to plaintiff before due, and, in respect to that, there should be a verdict for plaintiff in any event.
   By the Court. Bosworth, J.

No objection seems to have been taken before the referee, that the evidence given in the trial, was inadmissible under the pleadings. ■ Ho such position is taken in the points made by the respondent. The appeal should be determined, as it would be, if the pleadings were incontestably adapted to the facts as proved.

According to the facts proved, while the payee held these notes, and before the maturity of either of them, he accepted of the makers a note made by a third person, falling due before either of the notes in suit, in full payment and satisfaction of these notes. The note so received was paid.

The testimony given at the trial was explicit, that the note against Smith was accepted, in settlement and discharge of the notes in suit.”

The legal import of the receipt signed by Clark is, that he accepted the note against Smith, in satisfaction of the three notes in suit.

The receipt imports, that the defendants had become liable to pay these debts, and declares, that should they become able it was to be left to their honor to determine whether they would pay the same. It states, that the note against Smith is taken, in full, for notes of a larger amount, and it is so transferred and accepted, before either of the notes in question became due.

The acceptance, by the holder, from the maker of a note, of a note made by a third person, though for a less sum, in settlement of it, and in full for it, is a valid accord and satisfaction (Boyd v. Hitchcock, 20 J. R. 76; Le Page v. McCrea, 1 Wend. 164; Booth v. Smith, 3 Wend. 66; Frisbie v. Larned, 21 Wend. 450; Kellogg v. Richards, 14 Wend. 116).

The notes having been satisfied while in the hands of the payee, the plaintiff, who took them with full notice of all the facts and circumstances, has no equities superior to those of the payee.

On the merits, as the facts now appear, the report of the referee was erroneous.

But the pleadings do not allege a settlement and compromise of the notes. They aver nothing is due on them, but state no facts, from which such a conclusion can be drawn. They aver that the defendants received no consideration for them. This fact is disproved; for it is proved that they were given for cigars.

The pleadings should be amended. The issues now formed, do not raise the question, whether there was an accord and satisfaction of the notes. If an agreement to abstain from prosecuting a criminal complaint formed part of the consideration of the settlement and compromise, the whole transaction may prove to be void.

The judgment appealed from must be reversed, and the report of the referee set aside, with liberty to the defendants to serve an amended answer in twenty days; the date of the issue to be unchanged.


author: By the Court. Duer, J.

text:
    St. John v. The American Mutual Life Insurance Co.
    (Before Duer, Bosworth, and Emmet, J.J.)
    October 28 ;
    November 19, 1853.
    A sole cestui que trust, who, as such, will be entitled to the whole, or a definite portion of the amount, for the recovery of which the action is brought, is not a competent witness for the plaintiff.
    ' The construction and effect of a policy of insurance made by a company incorporated in Connecticut, are governed by the law of that State.
    A wager policy is a valid contract at common law, and it must be presumed, until the contrary is shown, that it is so by the law of Connecticut.
    An assignment, or other instrument in writing, to which there is no subscribing witness, when it comes from the possession of the person entitled to its custody, may be read in evidence, upon proof of its being genuine, without proof of its actual execution at the time of its date; this, when no circumstances of suspicion are shown, will be presumed.
    The assignee of a policy of insurance upon life, in trust for the wife of the assured, upon his death may maintain an action for the recovery of the sum insured in his own name, as trustee of an express trust. Neither the wife nor the personal representatives of the deceased, are necessary parties.
    The assignee for value of a policy of insurance effected by the assignor, upon his own life, is entitled, upon the death of the assignor, to recover the whole amount insured, without reference to the consideration paid by him for the assignment.
    Every policy of insurance upon life is valued; that is, the interest meant to be covered, is valued at the sum insured. Judgment for plaintiff, with costs.

      Case upon a verdict for the plaintiff, subject to the opinion of the court, at general term.
    The action was brought to recover the amount of two policies of insurance upon the life of one Charles Hoyes.
    The complaint averred that the defendants are a corporation, created by the laws of Connecticut, and that, on or about the 12th of October, 1850, they effected a policy of insurance with one Charles Hoyes, numbered 2,500, and dated 11th October, 1850; and executed and delivered the same to Hoyes, by which, in consideration of the sum of §4.22, to them paid, and of the premium of $19.20, to be paid annually, on the first day of January in each year, they insured the life of Hoyes in the amount of $2,000, for the term of six years and six months, from the llfch October, 1850; and promised to pay the said sum of $2,000 to the heirs, executors, administrators, or assigns of Hoyes, within ninety days after due notice, and proof of, his death.
    The complaint then averred, that, on the 20th October, 1850, Hoyes, for a valuable consideration,'and by an instrument in writing, duly assigned the said policy to the plaintiff, who, on the same day, caused notice of the assignment to be given to the defendants, and an entry thereof to be made in their books.
    It then set forth the execution by the defendants, and the delivery to Hoyes, of a second policy upon his life, numbered 2,499, of the same tenor and date, for the same amount and for the same term of years, which, it alleged that Hoyes, on the 14th of February, 1851, for a valuable consideration, by an instrument in writing, duly assigned to the plaintiff, of which due notice was given to the defendants, and an entry thereof made in their books. It then averred the due payment of premiums, and the performance by Hoyes, and the plaintiff as assignee, of all the conditions of the insurance. That Hoyes died at New Haven, in Connecticut, on the 12th March, 1851. That, on the 15th of the same month, the plaintiff gave to the defendants due notice and proof of his death. That the defendants, although admitting their liability, had omitted to pay to the plaintiff the sum insured, and demanded judgment for $4,000, with interest from the 13th June, 1851, besides costs.

      The answer of the defendants denied that due notice and proof had been given of the death of Noyes; and then set up four separate defences, the two last of which only are necessary to be stated, no evidence having been given on the trial in support of the others.
    The fourth separate defence, after denying that the plaintiff gave a valuable consideration for the assignments of the policies, averred, upon information and belief, that he had not, at the time of the death of Noyes, any interest in his life, and had not been injured by his death. The fifth averred that, if the plaintiff ever lent, or advanced any sum whatever on the said policies, he lent or advanced no more than the sum of $300, and was, therefore, not entitled to recover more than that sum; and that, if the defendants were liable to pay the sums insured, the personal representatives of Noyes were interested in the claim, and were necessary parties to the action.
    The reply takes issue upon the allegations in the first four defences, and, in answer to the fifth, avers, that when Noyes assigned the policies, the plaintiff paid to him the sum of $300 in cash, and agreed and undertook to pay all the premiums which might thereafter accrue thereon during the periods for which they were issued; and in case of the death of the said Charles Noyes, to collect the amounts secured to be paid by the said policies of insurance, and, after deducting five hundred dollars to reimburse the said plaintiff for his payments to the said Charles Noyes and otherwise, on account of the said policies of insurance, to pay the balance of the amounts secured to be paid by the said policies of insurance to Elizabeth Gr. Noyes, then the wife, and now the widow of the said Charles Noyes; and that no executor, administrator, or other personal representative, of the said Charles Noyes, or any other person, has any claim upon or interest in the amount secured to be paid by the said policies of insurance, or either of them, or is a necessary party to this action; but that the whole of the amount secured to be paid by the said policies of insurance is due and payable to the said plaintiff, upon his own account, and in trust for the said Elizabeth Gr. Noyes ; and that the said plaintiff is entitled to receive and recover the same and to judgment, therefore, in this action.

      Upon these pleadings, the cause came on to be tried before . Mr. Justice Campbell, and a jury, on the 22nd January, 1853."
    Upon the trial, the counsel for the plaintiff put in evidence the two policies, and the assignments thereof, the due execution of all being admitted. The sale and assignment of the policy, 2,499, was stated to be in general terms “ for a valuable consideration that of policy, 2,500, in consideration of the sum of ' $300, paid by the plaintiff to Hoyes. It was also proved that the policies in question were issued from the office of an agency of the company in the city of New York, in exchange for a prior policy for $4,000, which Hoyes had previously effected, and then surrendered. That a book of the defendants, lettered on the back, “ American Mutual Life Insurance Company— New York Eegister,” was kept in that office, in which entries in columns, properly headed, of all particulars deemed material in relation to the policies issued from the office, were made; and that in that book the following entry, bearing date 11th October, 1850, was made in a column, headed, “ For whose benefit,” relative to the policy, 2499 : “ Wife”—the following, relative to policy, 2,500: “ Self assigned to M. St. John.”
    A great deal of testimony was given upon the question whether due notice and proof of the death of Hoyes had been given to the defendants, but it is not necessary to be stated, as the defence, upon this ground, was finally abandoned.

      JVelson J. Waterbwy, a witness on the part of the plaintiff, produced the papers, of which copies are given below, and proved that they were in the handwriting of the plaintiff, and had been put in the hands of the witness by Mrs. Hoyes, the widow of the deceased, after the commencement of the suit, but before the reply had been served. The counsel for the defendants objected to their being read, on the grounds that they were the evidence of the plaintiff, and that there was no proof of their existence before the commencement of the suit. The. objection was overruled by the court, and the counsel for the defendants excepted.
    The papers were then read in evidence in the words and figures following:

      “ New York, October 30th, 1850.
    “ In case of the payment to me by the American Mutual Life Insurance Company, of New Haven, Ct., of a policy of insurance, effected by Mr. Charles Noyes, in said company, on his life, for two thousand dollars, and this day assigned to me by said Charles Noyes, I will pay to his wife, Elizabeth G. Noyes, the sum of fifteen hundred dollars.
    “ Milton St. John.”
    “ In case of the decease of Charles Noyes, during the continuance of policy of insurance, No. 2,499, effected on the life of said Charles Noyes, in the office of the American Mutual Life Insurance Company, New Haven, Ct., for two thousand dollars, for the term of six years and six months, from October 11th, 1850, which I promise to keep alive by the payment of such premiums as the said company have a right to demand, and to account faithfully to Mrs. E. G. Noyes, wife of said Charles Noyes, for such sum as may be received by me from said American Mutual Life Insurance Company. New York, February 14th, 1851.
    “ Milton St. John.”

      Elizabeth Q. Noyes, the widow of the deceased, was then offered as a witness on the part of the plaintiff, and was objected to by the counsel for the defendants as incompetent, upon the ground that the action was prosecuted for her immediate benefit. The objection was overruled, and she was examined; but her testimony, as upon the ground of her incompetency it was excluded by the court at general term, is here omitted.
    When the case was rested on the part of the plaintiff, the counsel for the defendants made the following points:—1. Noyes assigned one policy for $300, and the other for a valuable consideration. The plaintiff does not show further consideration or interest in the life of the assignor, and is, therefore, entitled to judgment only for $300 and interest. 2. The defendant puts in issue the consideration of the assignment, and the plaintiff is bound to prove that Noyes assigned to the plaintiff for $500, and the balance in trust for his wife. 3. The widow is the administratrix of the deceased, and the title is in her, and she should he a party to this action. 4. The plaintiff cannot recover interest unless he proves the law of Connecticut regulating interest. 5. Otherwise, the Connecticut rule of interest, which is six per cent., must be applied.
    The court overruled the points, and the counsel for the defendants excepted.
    Under the direction of the court, by consent, the jury returned a verdict for the plaintiff, for four thousand four hundred and sixty-one dollars and ninety-eight cents, subject to the opinion of the court, on a case to be made, containing the objections of each party, and subject to liquidation, with leave to each party to turn the case into a bill of exceptions ; the case to be heard in the first instance, at the general term, without additional security.

      J. Blunt, for the plaintiff,
    made and argued the following points.
    I. There was no fraud set up or proved, or attempted to be proved, in procuring the execution of the policies.
    II. Charles Hoyes, the assured, had an indefinite interest in his own life, and might insure to any amount the company would agree to, and the insurance was valid so long as he held it undisposed of, for the benefit of his representation. It is only when one person insures the life of another, that the question of interest in the life can arise. (Reynolds on Life Ins., pp. 24, 27.) The policies in question were unquestionably good and valid in the hands of the assured, and in case of his death without assignment, would have been so in the hands of his executor or administrator.
    III. The policies being good and valid in the hands of the assured, were assignable like any other chose in action. The stipulation in the policy runs to the assigns of the assured, and to restrict its assignability would, therefore, be a violation- of the express terms of the instrument. The equitable interest in a policy is assignable by the common law, and under the Code, the privity of contract and right of action vests in the assignee. (Blaney on Life Ass., p. 75; Reynolds on Life Ins., 151 to 153; 1 How. 390; Godsall v. Webb, 2 Keene Ch. Rep. 99; Code, § 111.) The obligor is protected by the assignment in paying to the assignee, if the assignment be not a forgery. He is not at liberty to set np a want of consideration as between the assignor and assignee. The consideration expressed on the face of the assignment is enough for his purposes. And if it were otherwise, a counter obligation, such as the declaration of trust on the part of the assignee, and the money due to him, would be a sufficient consideration.
    IV. The wife has an insurable interest in the life of her husband. This right exists at the common law, independent of the statute of 1840. (Read v. Royal Exchange Assurance Co., Peake’s Additional Cases, p. 70.) The statute of New York, above referred to, is not regarded as extending the right of effecting insurance, but merely as doing away with proof of the pecuniary interest in the assurances authorized by it. (Reynolds on Life Insurance, pp. 52, 53.) And it gives her the additional right of insuring in the name of any other person as her trustee. Had, therefore, riie policies in question been original policies, taken by the plaintiff in his own name, for the use and benefit of the wife, they would have been valid, and it is insisted that the equity of the statute extends to policies effected by the husband, and assigned to another person as her trustee—a fortiori, the insurable interest of the wife in the life of her husband, constitutes a good consideration for an assignment of the policies effected by him. A creditor may insure the life of his debtor, or may take an assignment of the policy effected by the debtor on his own life for security of his debt. In the former case, if the debt be paid, the policy becomes void—but in the latter case it reverts to the representatives of the assured. (Ellis on Life and Fire Insurance, pp. 124, 5, 6; Godsall and others v. Boldero, 9 E. 72; Reynolds on Life Insurance, pp. 54, 155.) In the present case, therefore, if the wife had no insurable interest, and if the assignment did not bring her within the equity of the statute, and the declarations of trust to be utterly null and void, all of which we deny, yet nevertheless, the full amount insured is recoverable by the plaintiff, for the benefit of the representatives of the insured, all beyond the amount intended to be seemed for himself.

      V. But the husband may insure his own life in his own name, and assign the policy for the benefit of his wife. (Ubi supra.) There is nothing in such an insurance or assignment in the nature of a gambling transaction "or against public policy. On the contrary, it was the original and legitimate purpose of life insurance to provide for the widows and orphans on the death of those on whose exertions while living they depended for support. (Reynolds on Life Insurance, chap. 1; Ellis on Life and Fire Insurance, p. 99, part 2d, chap. 1, sec. 2.) Independent of the Stat. 14, Geo. 3, ch. 8, a wagering policy is void as against public policy (Lord v. Dall, 12 Mass. Rep. 115); but no policy for the benefit of the widow or orphan of the life insured has ever been held invalid. That the equitable interest of any valid chose in action may be assigned ad Mbiintm, when the rights of creditors are not interfered with, is a principle of so universal application, as not to need support by reference to authorities.
    VI. The assignment in the present case was for the benefit of the widow personally, not for the personal estate of the assured. As administratrix, therefore, she had no title or interest, and was not a proper party to the suit. Whether the widow or the creditors are entitled to the fund when collected, is a question between themselves, with which the defendants have nothing to do. It is believed to be easy to maintain, at the proper time, that the creditors have no right in law or equity to moneys which were never the property of the debtor. A creditor cannot compel his debtor to devote his current earnings, necessary for the comfortable support of himself and family, to the payment of his debt.- And if, by partial sacrifices of comfort and convenience in his lifetime, the debtor devotes a small portion of his current earnings to secure to his widow a support after his death, by way of insurance on his life, the creditor is not defrauded, and has no right to complain. It is on the debtor’s property, not on his anticipated future earnings, that the credit is supposed in law to be given.
    VII. Interest is recoverable on default of payment of the insurance money at the time stipulated. (Van Rensselaer v. Jewett, 2 Comst. 135; Reynolds on Life Insurance, pp. 165, 6, 7, 8.)

      VIII. The rate of interest is regulated by Lex loci conbracbus, which in the present case was clearly within the State of New York.

      C. O'Conor, for the defendant, contra.
    I. Elizabeth G. Noyes, the widow of the assured, was the party solely interested in the suit on the policy No. 2,499; and the suit on the other policy was, in part, prosecuted for her immediate benefit. She was, therefore, an incompetent witness. (Code, §§ 398, 399—Voorhies’ Ed., 1853.)
    II. Even if the facts testified to by Mrs. Noyes were supplied in the testimony of Mr. Waterbury, the verdict should be set aside. But inasmuch as the papers are written by the plaintiff himself, and were first brought to light after answer filed, Mr. Waterbury’s testimony was insufficient to make them evidence in the cause. (Walter v. Cronly, 14 Wend. 67; Farmers’ and Manuf. Bank v. Whitfield, 24 Wend. 429.)
    III. In the absence of any sufficient evidence of a trust for Mrs. Noyes, the whole interest in policy 2,499, and the chief interest in the other policy, were in the personal representative of Charles Noyes. She should have sued alone on the former, and should have been a co-plaintiff in the suit of the latter. (Code, §§ 111, 113—Voorhies’ Ed., 1853.)
    IV. The contracts were made in Connecticut^ by a corporation created under the laws of, and locally situated in Connecticut ; and, consequently, the law of Connecticut must govern the case.
    V. Interest is not recoverable at the common law. It is a subject of statute regulation; and no statute of Connecticut having been proved, the plaintiff was not entitled to recover interest.
    At the close of the argument it was admitted that the legal rate of interest in Connecticut was 6 per cent, per annum.
   By the Court. Duer, J.

We are entirely satisfied that the testimony of Mrs. Noyes ought not to have been admitted. Although not a party on the record, she was a party in interest, and under the construction which we have heretofore given to § 399 of the Code, was incompetent, as a person “ for whose immediate benefit the suit was prosecuted.” (Catlin v. Hansen, 1 Duer Sup. C. R., p. 310.) She was a sole cestm que trust, having an immediate right, if not to the whole, yet to a definite portion ($3,500) of the sum that was sought to be recovered.

But although she was improperly admitted as a witness, it by no means follows that, for this reason, there must be a new trials The verdict was taken by consent, subject to the opinion of the court upon the whole case; and if, rejecting her testimony, there is sufficient evidence to sustain it, the plaintiff must still be entitled to our judgment. If we strike out her testimony entirely, as we must do, if this case shall be turned into a bill of exceptions, we are clearly of the opinion, that, upon the proofs that remain, the plaintiff was entitled to a verdict, and that it was the duty of the judge, who tried the cause, so to have charged the jury.

We exceedingly doubt whether any evidence of the right of the plaintiff -to maintain the action in his own name was necessary to be given, other than the assignments endorsed upon the policies. The argument on the part of the defendants was, that the interest on which the insurances were originally founded, that of Charles Hoyes, the assured, in his own life, was certainly extinguished by his assignment of the policies, which, consequently, from that time, became void, as merely wager policies, unless the plaintiff had himself an insurable interest, which was sufficient in law to sustain them. It was conceded, that if the plaintiff had such an interest in the life of Hoyes as would have enabled him to make the insurance in his own name, and for his own benefit, he might, for the protection of his interest, well become the owner of the subsisting policies by virtue of an assignment, and as such assignee be entitled to maintain an action in his own name for the recovery of the loss. It was the existence of such an interest that was alone denied.

It is manifest that the objection rests wholly on the assumption that a wager policy is illegal and void. Such, undoubtedly, is now the law in this State, by force of certain new provisions in the Revised Statutes (1 R. S., p. 662, §§ 8,10), and such is also the law in England, by force of a special act for regulating insurance upon lives,” which by express words prohibits such insurances, “ except when the persons insuring have an interest in the life or death of the person insured ” (14 Geo. III., c. 48). There is, however, no evidence before us that such is, or ever has been, the law in Connecticut; and in this State, as well as in England, it has been frequently decided, that at common law a wager policy, as a contract, is just as binding upon the insurer, as a policy upon interest. As the case now stands, we do not know that we have any right to say, that in this respect the rules of the common law have been altered in Connecticut ; and it is by the law of Connecticut that the legal construction and effect of the policies in suit are exclusively governed.

This was admitted, and indeed insisted on, by the counsel for the defendants upon the argument, and is not at all doubted by ourselves.

It is not necessary, however, nor do we deem it expedient, to place our decision upon this ground. In delivering our judgment, we shall assume that when the insurance is upon the life of a third person, an insurable interest in the person for whose benefit the policy was effected, or is held, is just as necessary to be proved by the law of Connecticut, in order to warrant the recovery of a loss, as by the law of this State.

The plaintiff claims to recover, partly on his own account, but chiefly as the trustee of the widow of the deceased, and the question of his right to maintain the action, as such trustee, will be first considered.

That a wife has an insurable interest in the life of her husband is quite certain. It is not denied, and it is needless to cite authorities to prove, that a policy effected by him upon his own life, for her benefit, is a valid contract, nor that a subsisting policy upon his own life, held by him, may be assigned to a trustee for her benefit. In both these cases, if the husband die during the term covered by the policy, the sum insured, in law, or in equity, belongs to the wife, and may be recovered by a suit, either in her own name, or where the trust is express, in that of her trustee. None of these positions are disputed. The only questions that have been raised on this branch of the case relate to the sufficiency of the evidence to prove the interest of Mrs. Noyes, and the right of the plaintiff to maintain the action as her trustee, and if the declarations of trust executed by him were properly admitted in evidence, it is not denied, that these questions are determined, and his right to a judgment for the whole amount, which the trust as declared embraces, fully established.

Of the interest of Mrs. Noyes in one of the policies, No. 2,499, there is conclusive proof, independent of the declaration of trust in relation to it. It appears by an entry in the registry of the company, made at the time this policy was issued, that the insurance was effected by her husband for her benefit. She was, therefore, the equitable owner of this policy as soon as it was issued, and it was delivered to the husband, and held by him, merely, as her trustee. It is manifest, however, that upon this proof alone the plaintiff would not be entitled to recover. On the contrary, as showing Mrs. Noyes to be the real party in interest, she would be a necessary party to the action. Her interest in the other policy is shown only by the declaration of trust which relates to it, and both the declarations were necessary to be proved to show the title of the plaintiff to prosecute the suit alone, as trustee of an express trust.

In our opinion, all the proof of the due execution of these important papers, which the law requires, was given, and this proof, which uncontradicted, was conclusive.

• The testimony of Mr. Waterbury is positive, that both the papers are in the handwriting of the plaintiff, and that they came into his possession from the hands of Mrs. Noyes, although not delivered to him until after the commencement of the suit. As there was no subscribing witness to either of the papers, this evidence was sufficient to prove them to be genuine, and proof that they were so, was all that, in the first instance, could be justly demanded. It was enough to authorize them to be read in evidence.

Upon the trial the counsel for the defendants objected to their reception as evidence, upon the grounds, first, that théy were the evidence of the plaintiff, and second, that there was no evidence of their existence previous to the commencement of the suit. We are persuaded that neither of the objections is tenable. The first, which we find it difficult to understand, was, in effect, abandoned upon the argument before us. If the meaning is, that these declarations of trust were made by the plaintiff with a view to his own benefit, and therefore to be rejected on the same ground as the oral declarations of a party in his own favor, the truth is directly the reverse. His title to both the policies, upon the face of the assignments made to him, was unqualified and absolute, while the effect of the declaration of trust was to show, that nearly the whole beneficial interest was vested in another. The papers were not his evidence, in the sense of the objection, but the evidence of the cestui qm trust. Mrs. Noyes, who, as the person for whose immediate benefit the suit was prosecuted, had the right to insist upon their production. Another short answer to the objection is, that in all cases, where the suit is brought by the trustee of an express trust, his declaration of the trust, whether oral or written, is necessary to be proved in order to maintain the action, and hence to reject the evidence is, in effect, to hold that such an action cannot be maintained at all. Such a decision would be a virtual repeal of the provision in the Code by which the action is given.

To the second objection, that there was no evidence that the declarations of trust were in existence previous to the commencement of the suit, the reply is, that no such evidence was necessary to be given; nor, judging from our own experience, and the uniform practice in this court, can we believe that, in similar cases, such evidence has ever been required. • The rule, we apprehend, to be well established that, when an instrument in writing, to which there is no subscribing witness, is shown to have come from the possession of the party who, according to its terms, has a right to the custody, nothing more is required to be proved, to entitle it to be read in evidence, than the handwriting of the person by whom it purports to have been executed. It is then presumed, that the execution and delivery of the instrument corresponded in time with its actual date, and although this presumption may be repelled by opposite evidence, unless so repelled, it is conclusive.

The declarations of trust, in this case, were the proper evidence of the title of Mrs. Noyes, as the cestui que trust. She was therefore entitled to their possession, and the circumstance that they were not delivered by her to Mr. Waterbury, until after the commencement of this suit, was too unimportant to justify-a suspicion of an execution and delivery subsequent to their date. We have found nothing in the cases to which we were referred in the argument, at all inconsistent with the views that we have expressed. In the first of these cases, Walton v. Crowley (14 Wendell, 67), it is expressly stated, that the paper which was excluded, was executed during the trial. The bearing df the second case, Farmers' and Mechanics' Bank v. Whinfield (24 Wend. 420), upon the question we are considering, has escaped our discovery.

The declarations of trust being properly in evidence, the necessary consequences are, that the plaintiff, as trustee of an express trust, was entitled to bring the action in his own name, and is entitled to recover for Mrs. Hoyes, as the cestui que trust, the whole sum which, by the terms of the declarations, he agreed to pay her when received from the defendants—that is, the full sum insured by policy 2,499, and $1,500 of the $2,000 covered by the other policy. The only question, therefore, that remains is, whether he is not also entitled to recover, for his own benefit, the balance of $500, claimed to be due on the last mentioned policy ; and, that he is so entitled, we have no difficulty in holding.

It is a mistake to suppose, that the assignment of a policy A upon life, varies in any respect the nature of the original contract, or can operate to discharge the insurer from any part of the obligation, which the terms of the contract impose. By the terms of this policy, the defendant agreed to pay the sum insured to the executors, administrators, or assigns of the assured, within a certain time, after due notice and proof of his death ; and we apprehend, that where such notice and proof have been given, and the assignment is valid as between the parties, the \ right of an assignee to demand and enforce the stipulated payrnent, is no more liable to doubt or dispute, than that of an executor or administrator.

The objection to the recovery in this case, assumes, and such Í was the argument, that there can be no absolute sale of a subsisting policy, and that its assignment is only valid, when made as a collateral security for an antecedent debt; but as we understand the law,'a written promise tb -pay a sum of money is just as properly a subject of transfer for value, where it depends upon a condition, as where it is absolute, and we can, therefore, make no distinction between the rights of a bond fide assignee of a policy, and those of an assignee of a mortgage. This seemed to us, upon the argument, very clear upon principle, and we have since found that it is equally so- upon authority. The case of Ashley v. Ashley (3 Simons, 140) which was not referred to upon the argument, and whie Chancellor Kent cites and approves (3 Kent’s Com. 370, note), is a positive decision, upon the exact question, in correspondence with the views we have expressed.

In this case, the sum insured upon the life of the person effecting the policy, was £1,000 sterling. He assigned the policy for a small, but valuable consideration, to one Heath, whose executors sold the policy to General Ashley, for £320. Ashley also died; and, in a suit in equity, between his widow and his executors, an order was made that the policy should be sold by a master, for the benefit of the estate. It was sold accordingly ; but the purchaser refusing to accept the title offered, the case was before the court upon a petition to compel him. The objections to the title urged by his counsel were, that the assignment to the first assignee being for a consideration so trifling as to be merely nominal, was wholly void ; or, if valid, that the purchaser, instead of the full sum insured, would only be entitled to recover the amount paid by the assignee. The Vice-Chancellor overruled the objections, holding that the provision in the Act of Parliament, prohibiting insurances by persons having no interest in the life insured, had no application to the assignment of a subsisting policy, but that the assignee in good faith, of a policy upon life, which was good when effected, is entitled, in all cases, to demand payment of the whole sum insured.

This case, therefore, proves not only that the absolute sale of a life policy does not affect the validity of the contract, but that the assignee, for value, in the event of the death of the assured, is entitled to the same remedies as his personal representatives, when the title to the policy is unchanged. It thus furnishes a full answer to the argument, that the recovery of the plaintiff upon his own account, if he is permitted to recover at all, ought to be limited to the sum which he advanced. Had there been no trust, he would have been entitled to recover for his own benefit, without any deduction, the sum insured. It is further to be observed, that an insurance upon life, in the language of Hr. Justice Park, from its nature, admits no distinction between total and partial losses; but, when a loss happens, binds the insurer to pay, according to the terms of his agreement, the full sum insured (2 Park on Insurance, Hildyard ed. p. 493). In other words, the interest of the assured, in every such policy, is valued at the sum insured, and by this valuation, as in a marine policy, both the parties are bound. Hence, it has never been doubted, that a person may insure his own life in as many policies, and for any amount he may deem proper, so as to entitle his representatives to recover the full sum insured in each policy, without any other proof of their loss than that of his death. The contract is still a contract of indemnity, but the only measure of the indemnity promised, is that which thé policy furnishes.

It is true that in England, a creditor, who insures the life of his debtor, can recover no more than the amount of his debt, whatever may be the sum insured ; but this exception to the general rule is created by a special provision in the Act of Parliament, to which we have before referred, and is, as we have seen, not construed to extend to the assignment of a policy effected by the debtor (14 Geo. III. cap. 48, Ashley v. Ashley). There must be judgment for the- plaintiff upon the verdict; but the rate of interest being governed by the law of Connecticut, must be reduced to six per cent.

Judgment accordingly.