author: By the Court. Bosworth, J.

text:
    James Moore, Appellant, v. J. J. V. Westervelt, Sheriff and Respondent.
    The omission of a party on whose behalf a sheriff is acting to interfere with him in the discharge of his duties, or to complain of the manner in which they are performed, is no evidence of his assent to the sheriff's neglect or violation of duty.
    Hence where such omission is the only proof of the assent of the party that is relied on, the question whether the assent was given ought not to be submitted to the jury.
    (Before Campbell, Bosworth, and Emmet, J.J.)
    December 10, 1852;
    March 26, 1853.
    A vessel in the custody of the sheriff was lying near one of tW wharves of the city, when there were strong indications of an approaching storm, but he took no measures himself nor instructed any one to take any measures on his behalf, for the safety 6f the vessel, and during the night a storm arose in which she sunk.
    Held—that the question whether reasonable care and diligence had been used by. the sheriff to guard the vessel against the consequences of the storm ought not to have been submitted to the jury, but a positive instruction ought to have been given that he had been guilty of negligence, which rendered him liable.
    Upon these grounds new trial ordered. Costs to abide event.
    This was an action to charge the defendant for neglect of duty as sheriff of the city and county of Yew York. The plaintiffs in September, 1848, before this action was brought, commenced an action in this court against Lewis Hoffmann, then master of the schooner “ Calcutta,” lying in the port of Yew York, to recover the possession of 161 tons of coal, then on board of said schooner, and by the bill of lading under which it had been shipped from Philadelphia to Yew York, consigned to the plaintiff.
    The sureties in that action having been excepted to, the defendant having, as sheriff, the papers by which it was commenced, to execute, instead of immediately removing the coal from the vessel and putting it in a secure place, left it on board, during the period allowed by law for the sureties to justify. ■ The schooner was heavily laden and leaky, and a storm arising, was sunk, and the coal damaged. The plaintiff having recovered in that action, brings this, to recover the damages alleged to have been sustained by the sheriff’s neglect to remove and put the coal in a secure place.
    The complaint charges, that on the 28th of September, 1848, being the owner of a cargo of coal, on board schooner Calcutta, Hoffman master, the plaintiff commenced a suit against Hoffman, and made a claim in due form of law, to have the property delivered to him.
    That the defendant received the papers, approved the undertaking on the part of the plaintiff, served the papers on Hoffman, found the coal on board the vessel, and assumed to seize it; but instead of taking it from the heavy laden vessel, he put a man in charge of the coal, and left it on board till the sureties should justify.-
    That this was wrongful on the part of the sheriff, and that he ought to have taken the coal from the vessel, and put it in a secure place.
    That before the sureties justified, bad weather came on, and the vessel sunk with the coal.
    That the sureties justified in due time, and the coal was demanded of the sheriff by the plaintiff, &c., but he declined to deliver it.
    The defendant admits in his answer the receipt of the papers, &c., and substantially all the above facts, except the allegation that it was his duty to take the coal from the vessel, and put it in any more secure place, and insists the coal was safe against ordinary, perils, but sunk by means of a severe gale.
    He also sets up, that after the suit was commenced, he delivered the coal to the plaintiff, and offered to pay the costs of the suit.
    The plaintiff replies that the coal was not safe where it was, and that it did not sink -by the act of God, but by the defendant’s neglect of duty.
    He also denies the alleged delivery after suit, and says it was after he had been at the expense of getting up the coal, that the pretended delivery was made.
    He states the damages sustained by him in being put to expense in getting up the coal, &c.
    Ou the trial there was evidence tending to prove, that when the deputy went with Mr. Moore to serve the order of delivery, Hoffman, the defendant in that action, offered to surrender the coal at once, and Moore said he wanted it, but that the deputy told him the coal was in his possession, and he must keep it till the sureties justified.
    That no further communication took place -between Moore and the sheriff, or his keepers; that the keeper was not directed to see to the safety of the coal, but a watch was pretended to be set against the removal of the vessel.
    That the keeper was informed of the approaching storm, and refused to allow the captain to remove her. That she was in an exposed position, and would have been safe on the other side of the pier.
    That on the third night after the seizure, the storm increased. That no keeper of the sheriff was there. The plaintiff justified his sureties and demanded the property, which was not delivered.
    The plaintiff objected to any evidence to show the assent of Moore to the coal remaining on board of the vessel, on the ground that such defence was not set up in the answer. The court overruled the objection, admitted the evidence, and the plaintiff excepted.
    The plaintiff alsb objected to evidence that Moore said he never meant to have brought the "suit. The court overruled the objection, and the plaintiff excepted.
    The plaintiff requested the court to charge several propositions which he declined, and the plaintiff excepted as to each, separately.
    The jury found a verdict for the defendant.
    The plaintiff appeals from the judgment entered on the verdict. The questions presented, are questions of law arising on exceptions to the charge, and to refusals to charge, as the plaintiff requested. The parts of the charge made, and the refusals to charge as the plaintiff requested, which are reviewed and considered by the court on this appeal, and the evidence relating to the points covered by such parts of the charge, and to such requests to charge, appear in the opinion of the court.

      H. P. Hastings, for appellant,
    argued the following points.
    I. The court erred in admitting evidence for the purpose of showing any assent of Moore to what the sheriff did, and in submitting any such assent to the jury.
    1. The complaint charges the defendant with a breach of duty in not moving the coal from the vessel, and the answer, so far from setting up any interference of the plaintiff Avith the execution of the order of delivery, admits the leaving the coal on board, and insists in law that it was not the defendant’s duty to remove it, till the sureties should justify. The only question upon this part of the case is, whether the law required the defendant to remove it. If it did, the consent of Moore would discharge the sheriff, but such affirmative defence should have been pleaded (Kelsey v. Western, 2 Com. 506).

      2. The evidence given was not sufficient to authorize a jury to find that Moore in any manner dispensed with any duty of the sheriff, or interfered with the execution of the order, or made the deputy or keeper his agent to, take care of the property. On the contrary, the evidence of one of the defendant’s witnesses is, that Moore referred the party to his attorney, and refused to interfere even by taking the property into his possession then; and of all, that the deputy said the coal was in his possession, and the keeper was his deputy to take care of it.
    II. The court erred in admitting evidence that Moore said he never meant to have sued the sheriff, &c.
    1. The facts were all clearly proved, and this declaration of Moore could not tend to prove or disprove any material fact in the case.

      2. Immaterial facts are none the more admissible because the declarations of the party.
    3. The declaration relates only to the intention to sue, and in no manner negatives the existence of just cause of action.
    4. If this evidence were merely irrelevant, the admission of it would be error; but it is worse than that—actually calculated to prejudice the jury against the plaintiff’s case.
    IH. The court erred in refusing to charge that the plaintiff was entitled to recover upon the facts admitted in the pleadings and clearly proved.
    1. Such charge is proper in all cases where the evidence is so clear, that a verdict the other way would be set aside as against evidence (Woodbeck v. Keller, 6 Cow. 118; Stevens v. Fisher, 19 id. 181).

      2 There was no dispute about the facts that the plaintiff was entitled to the delivery of the property, when he demanded it, and the sheriff did not deliver it.
    3. There was no dispute about the facts, that the coal was not taken from the vessel of Hoffman, nor Hoffman and his men expelled from the vessel, nor any keeper put in the possession or care of the vessel as to her safety.

      4. There was no dispute about the facts, that the vessel was heavy laden, on the north-east side of the pier in an exposed situation; that the wind was from the north-east when the blow came on; that it came on gradually, and the vessel might have been removed, and that the other side of the pier was safe against any wind.
    5. There was no dispute about the facts that the' storm was coming on, on Saturday afternoon; that Mr. Hoffman called the keeper’s attention to the question whether she would not sink, and that the keeper told him, Moore or the sheriff would be responsible, and that he should not remove the vessel.
    6. There is no dispnte about the facts, that the keeper was not charged to take care of the safety of the vessel, and did not take any care of it whatever.
    7. There is no dispute about the fact, that she did sink where she lay.
    8. The pleadings had admitted the fact, that the coal was not removed, nor the vessel removed, and insisted that it was not the duty of the sheriff to do either, and this was a question of law.

      9. There was no fact, therefore, to submit to the jury, but the amount of damages, and, particularly, there could be no excuse for submitting whether the sheriff took reasonably prudent care of the coal from the danger of sinldng, when the proof was that-he took no care.
    IV. The court erred in refusing to charge as requested by the plaintiff’s second proposition. 1. If Hoffman was willing to have the coal delivered to Moore without justification of sureties, and offered that it might be, it was the duty of the sheriff to deliver it. 2. The court refused to submit whether such assent was given, or say what effect it would have, but submitted whether the parties agreed to settle the suit, which nobody pretended.
    V. The court erred in refusing to charge that it was the duty of the sheriff to have taken the coal from the vessel and the custody of Hoffman, and put it in á secure place, according to the third or fourth proposition' of the plaintiff. 1. The charge, without responding directly to this, substantially denies the correctness of the proposition, by submittingvto the jury only that if the sheriff, after leaving the coal on board of the vessel, did not take ordinary care, &c., he was liable. (Lisher v. Pierson, 2 Wend. 345; 11 id. 58; 17 id. 518. Browning v. Hanford, 5 Denio, 586. 5 Hill, 588. Opinion of Cowen in Supreme Court and Putnam in the Court of Errors, and authorities there cited.) 2. By saying that if Moore assented to leaving the coal on board, then the mere fact that the coal was not removed from the vessel would not make the sheriff liable, would seem to imply that he would be liable, if no such assent were given; but this is only an evasion of the question proposed, and not answering it in favor of the plaintiff; for, without regard to how the jury find upon the question of the assent, he submits that the sheriff is liable only if the keeper after-wards omitted ordinary care, without in any event authorizing a verdict for the plaintiff, on the ground that the coal was not removed, though it remained without the plaintiff’s assent. 3. The charge that if Hoffman had objected to leaving the coal on board, it would have, been the duty of the sheriff to have removed it, was calculated to mislead the jury and cause them to believe that it was purely a matter between the sheriff and Hoffman, whether the coal should be left on board; whereas, Hoffman’s acts or consents, one or the other, could not affect the plaintiff; and the evidence was that Hoffman did object, and asked if there was no way the coal could be got off the vessel.
    VI. The court erred in not charging as requested by the fifth proposition submitted by the plaintiff, that as the evidence showed that the vessel would have been safe if removed to the other side of the pier, and the sheriff neglected to remove her, or watch her safety, he is liable in this action. 1. These facts appear by uncontradicted evidence. 2. It appeared that the safety of the vessel was not watched at all. 3. The question whether the vessel would have been sunk if the sheriff had taken care of her safety, was not even submitted to the jury, but only whether he took reasonable care, when he took none. 4. The negligence was actually proved, and if the right of action depended upon negligence, the plaintiff was entitled to recover upon the evidence.
    VH. The court did charge that the sheriff had no right as against Hoffman to use the vessel as a place of deposit, hut erred in declining to charge the residue of the eighth proposition of the plaintiff, that Hoffman was under no obligation to. take care of the safety of the coal after the sheriff took charge of it; from which the jury inferred that it belonged to Hoffman to take care of it.
    VIII. The court erred in refusing to charge as requested by the eighth proposition of the plaintiff.
    IX. It also erred in refusing to charge according to the 9th proposition of the plaintiff.
    X. The general scope of the'charge as given, was erroneous, in placing the liability of the sheriff upon the question, not whether he took the property into his possession and put it in a secure place, but whether he took ordinary care of it where it was.

      E. Sandford, for respondent,
    made the following points.
    I. The evidence tending to show an assent of the plaintiff to the acts or omissions of the sheriff in leaving the coal on board the vessel, or in the place where it was in the vessel, was properly admitted. Such defence was set up in the pleadings. The gravamen of the action was, that as against the plaintiff the defendant had wrongfully and negligently omitted to take said coal from said vessel, and left the same in the vessel, and put keepers in charge of it there. These allegations are denied in the answer. The consent of the plaintiff to the act complained of, was a part of the evidence to sustain this issue on the part of the defendants. It was not in any sense new matter. In Van Gieson v. Van Gieson, the Court of Appeals decided that an averment of payment in an answer to an action on a note, was not a pleading of new matter, but was merely taking issue on a material averment of a breach of the contract. It amounted only to • a denial of a material allegation in the complaint. The allegation, if made in defendant’s answer, of an assent of the plaintiff to the acts complained of, would have been, in legal effect, a denial that the defendant had been guity of the negligence charged. Facts, and not the evidence to prove the facts, are to be alleged in the pleadings. (Corwin v. Corwin, 9 Bart. 219, 226. Stone v. Depuga, 4 Sandf. S. C. R. 681.)
    II. The exddence given xvas for the consideration of the jury, in connexion with all the circumstances of the case. There was evidence for their consideration, and whether the court would or would not have come to the same conclusion upon it at which the jury arrived, the verdict will not be set aside from any possible difference between the court and the jury as to its effects. This issue has been tried already before three different juries, each of whom have rendered a verdict for the defendant, and the questions"of fact should be deemed to be settled by three concurring verdicts. (Green v. Brown, 3 Bart. R. 119. Douglas v. Trusey, 2 Wend. 352-56. Keeler v. Firemen's Ins. Co., 3 Hill, 250-56.)
    III. The evidence of Moore’s declaration was competent, because it was made by the plaintiff, and relevant, because it related to the subject of this suit. It was quite material as showing, in connexion xvith the other evidence, an implied admission by Moore that he knew that the defendant had not omitted to perform his duty. It xvas for the jury to say how far it negatived the existence of a just cause of action. It is sufficient for the court that it had a bearing on'that question.
    IV. The court properly refused to charge that, upon the facts admitted by the pleadings, and those proved by uncontradicted testimony, the plaintiff was entitled to recover. 1. There was clear proof of the fact, that when the papers were served, Hoffman offered to give up the coal, and plaintiff declined to receive it, and referred Hoffman to plaintiff’s attorney. This was a refusal to accept it until costs were paid. 2. It is equally undisputed, that up to the time of the service of the papers, all parties deemed and believed the coal to be perfectly safe where it was. 3. It is equally clear that plaintiff knew where the coal lay; knew that the sheriff put keepers over it in that location, and expected to retain it there until the sureties justified. That the plaintiff* made no suggestion in regard to its removal. 4. That the captain of the vessel made no objection to the use of the vessel for that purpose. That the vessel was properly manned at the time with persons to look after its safety, and the only duty to be performed by the defendant was to see that no coal was removed. There was no expulsion of Hoffman and his men from the vessel, nor any interference with their moving her, so long as the coal was not carried away. 5. That whether the safety of the vessel on one side of the. pier would be greater than on the other, depended wholly upon the course from which the wind should happen to blow. That she was safe where she was all Saturday night, and all Sunday, and until Monday morning; if - she had been moved, and the wind had happened to shift, and blow from the south-east, she would have been carried into a more dangerous situation. 6. That the vessel had been lying along side of the wharf, where she sunk, all the time for two weeks, only four days of which -her coal was in charge of the sheriff. That plaintiff’s yard was two blocks from the vessel. That plaintiff' had no apprehensions for its safety during this storm; and that all parties acted upon an honest conviction that the vessel and coal were safe as they were. 7. That the removal of the coal from the vessel, and the hiring of a place to store it, until the sureties justified, would have been very expensive to the plaintiff ; this view, no doubt, influenced him, in sanctioning the effort of the sheriff to retain the coal as it was, so that but one removal might be made. 8. Although it be true, that the vessel did sink where she lay, there can be no dispute that the coal was in her at the timé, by the assent of the plaintiff, to save expense to him; that he afterwards took the coal without objection, and said he never intended to commence this suit. 9. The sheriff was not bound to exercise any greater care than Moore did, as a prudent and reasonable man, before the levy. Moore had left the coal for ten days in that vessel, in the same place, with the vessel in the same charge. The defendant put a keeper over the coal, and otherwise took the same care that plaintiff did. 10. It was a question entirely for the jury, whether the altempt to move the vessel after the storm had commenced, in,view of the difficulty of getting around the end of the pier against the wind and waves, and the probable change of the wind, would not have been more hazardous than to leave her as she was.
    V. The evidence did not warrant the charge secondly requested. Moore said, in answer to that offer, that “ he could not take it then, he had nothing to do with it then, and Hoffman must see Moore’s attorney.”
    VI. It was a question for the jury, upon all the evidence, whether the vessel, where it was, was not in a reasonably secure place to keep the coal; and the fourth request to charge was properly refused.
    VII. It was also a question for the jury to say, whether there was not exercised all reasonable and proper care to guard against the sinking of the vessel; placing her at a suitable wharf, in a reasonably secure position, and there leaving her fast, would be such proper care. It was not necessary that it should have been watched, after these precautions, with an eye that never sleeps. Watching could not have prevented her sinking. The question of the sufficiency of the watch and the expediency and duty of removal, were for the jury.
    VIII. The evidence shows that Mr. Hallenbeck thought she was safely moored and fastened; that he was an experienced navigator; that she was properly fastened at the time ; and that if all hands had been there on the morning of the accident, they could not have prevented it. It was for the jury, upon the evidence, to decide the issue whether the defendant had been guilty of any negligence.
    IX. The seventh request to charge had no bearing on the merits of this case. The eighth request presented only a part of the evidence bearing on the general question of negligence, and the judge was not bound to submit separate portions of the testimony in that form to the jury.
    X. The charge of the judge was correct, unless the parties so agreed to settle as to discharge the sheriff. There was no determination of his rights or liability by their agreement.
    XI. The judge correctly defined the rule by which the jury were to be guided in coming to them determination of the issue upon the evidence. Also in reference to the inference they might draw from the circumstances of an assent on the part of the plaintiff, and in the legal conclusion, if the jury should find such an assent.
    XII. There was no room for any pretence or question upon the evidence, that the vessel, in the position she occupied at the time of the levy, was not in as safe a place to keep it, as in any other that could have been selected. There was no duty, imposed by law, upon the sheriff to remove it from that place. The only question arising upon the evidence was, whether there was any want of care in guarding the property against the storm which subsequently arose, and which sunk the vessel. That storm alone created the danger and the injury. This question was fully and fairly submitted to the jury. It is settled law that a sheriff is not liable for any loss to goods by fire, or other accident, unless it is connected with his own negligence. (Browning v. Handford, 5 Hill, 588, 591; Story on Bailments, § § 130, 620; Jenner v. Joliffe, 6 J. R. 9.) The sheriff is responsible only for good faith and ordinary diligence; and the law requires some proof of negligence, to overcome the legal presumption that he has done his duty. Showing that a loss has happened, does not throw the burden of proof on the • officer; it must also be shown that when it occurred he was not exercising such ordinary diligence as belongs to a prudent and honest discharge of his duties. (Burke v. Trevitt, 1 Mason’s R. 96, 101.) ¡Neither of the cases cited by the plaintiff tends to sustain his proposition that the law made it the duty of the sheriff to have the coal taken from the vessel at any time. Browning v. Handford, 5 Denio, 586, was decided solely upon the effect of taking a receipt for the property; and Lisher v. Pierson, in the several volumes of Wendell cited, turned upon the provisions of the Eevised Statutes, relative to the situation of the property where a claim of title was interposed, until that claim should be tried.
    The plaintiff was not only bound to show that the sheriff did not" remove the boat, and that by removing the boat, the loss might have been prevented; but also to show such circumstances as made the omission to do so a neglect of ordinary prudence on the part of the sheriff. There is no fixe'd rule of law prescribing his action, and the question, in all cases of this class, is, whether in the exercise of due care and caution, the course pursued was that which a reasonably prudent man would have adopted; and this is a question exclusively for the jury. (Williamson v. Howard, 13 How. 101, 109.)
    XIII. The charge of the judge fairly and 'fully submitted to the jury the only question in the cause, which was, whether the sheriff had "been guilty of the negligence charged in the complaint. The particular propositions presented "by the several requests to charge, embraced only partial views of portions of the evidence, and were not propositions of law; so far as it was proper to include them, they were embraced in the charge as given.
    XIV. Three several juries have concurred in the verdict that the defendant was not guilty of the neglect charged. After these repeated verdicts upon a question of fact, the court should not interfere, even though the verdict should, in their opinion, be against the weight of evidence. (Fowler v. Etna Ins. Co., 7 Wend. 270; Ex parte Bailey, 2 Cow. 479; Ackley v. Kellogg, 8 Cow, 223; Felter v. Whipple, 8 J. R. 369; Jackson v. Zimmerman, 12 Wend. 299; Overseers of Poor of Rochester v. Lunt, 15 Wend. 565.)
    XV. Tire judgment should be affirmed, with costs.

      H. P. Hastings, in reply,
    made the following points.
    I. The evidence of plaintiff’s consent that the coal should remain on board of the boat, does not tend to rebut the charge of negligence, but only that the sheriff was excused from ordinary diligence; it is in the nature of a license, which should be specially pleaded. This case differs from Van, Gieson v. Van Gieson in this, that in that case the plaintiff in his complaint, was obliged to aver non-payment to make out his breach, and proof of payment negatived one of the material allegations of the complaint. Hot so in this case; the plaintiff does not aver that the coal was left without his consent, nor was he bound so to do. The plaintiff could not be prepared by the pleadings to meet any such state of facts. The evidence was clearly inadmissible.
    II. The verdicts of the jury establish nothing, because they have been set aside for error in law.—Non constat, but if the ruling of the court had been correct, the verdicts would have been the other way. We are to presume they would, or the court would not have set them aside.
    III. The evidence of Moore’s declaration that he did not intend to sue the sheriff, was clearly inadmissible, because the only question for the jury was, whether the plaintiff had a just cause of action. His intentions did not, nor could not affect the justice of his cause of action. Most men do not sue when they have a just cause of action, and frequently express their intentions to that effect, and many do when they have not. It is a declaration which may be used in the hands of a skilful counsel to prejudice a cause, and throws no light at all upon the merits of the cause.
    IV. If the facts admitted in the pleadings, and the evidence in the‘case clearly showed that the plaintiff was entitled to recover, the court ought to have so charged. 1. Referring a party to his attorney, is not tantamount to a refusal to receive a delivery, but the reverse. 2. The fact that the boat was safe when the papers were served, imposed the duty upon the sheriff, of keeping it so, and is no excuse for negligence. 3. If the plaintiff knew where the boat lay at the time the papers were served, he could not have known that it would remain there unless he possessed the gift of prophecy. It is plain that it ought not to have remained where it did. It might have been safe when he knew it, but it is perfectly plain it was not sate afterwards. 4. The coal was in the custody of the sheriff, and his custody was not interfered with by the plaintiff. Hor could it be. He had full and absolute control over it. The plaintiff had a right to look to him for its safe keeping. The sheriff cannot shift the responsibility of its safe custody from himself to the plaintiff. 5. The boat was safe, undoubtedly, until the approach of danger. Others saw the danger, and warned the sheriff. That there was danger, is proved by the loss. That it could have been foreseen and provided against is proved by the fact that the sheriff was warned in season, and a perfect protection suggested. Hot-withstanding the variableness of the wind, experienced men could see the approach of danger. 6, 7, 8, 9,10. There is no evidence as to the plaintiff’s apprehensions, nor have they anything to do with the case. He could not interfere. Moore’s conduct did not impose upon or release the sheriff from any duty. If Moore had been over careful, the sheriff would not therefore have been bound to exercise diligence. Moore did not pretend .to interfere with the- sheriff in any way in the exercise of Ms duty, and there is nothing in the case to relieve the sheriff from his obligation to take due care of the goods. It is plain that he did not, and the jury ought to have been instructed to bring in a verdict for the plaintiff.
    V. The fifth, sixth and seventh points of defendant, do not show that the plaintiff’s request to charge secondly was incorrect. Moore’s reference to Ms attorney was proper, because the whole matter was then in the custody of the law, and he did not know how far his own acts might affect his rights, but the sheriff interposed and made the reference of no effect. He claimed the absolute custody and control of the goods. He assumed all the responsibility of their keeping. Hallenbeck’s experience as a navigator is problematical. He was employed tMee years on a steamboat. Itniight have been as a stoker. If watching would not have prevented the disaster removal would. The boat was not in a suitable and safe place. On this point the testimony was all one way. Any number of witnesses could not prove the contrary, and there is uncontradicted proof that the danger was apparent in time to afford a remedy. The negligence of the sheriff is placed beyond question. There is nothing to submit to a jury on this point, and if he was not excused by the act of the plaintiff, he is clearly liable.
    VI. The seventh request to charge was proper, and the court ought to have charged in accordance with the request, because there had been an attempt to shift the obligation of taMng care of the coal, upon the master; and because, as a matter of law, the master was under no obligation to take care of the coal— the sheriff had no right to impose any such duty upon him, and the jury ought to have been clearly instructed to that effect, that they might know as a matter of law where the obligation for the safe custody of the coal rested. The eighth request to charge is clearly correct, and embraces only a distinct point in the case, and the charge ought to have been in accordance with the request.
    VII. If the sheriff choose to leave the coal on board the boat, and by the exercise of reasonable care the boat could have been removed to a safe place, the law imposed the duty of removal upon the sheriff, inasmuch as he assumed the exclusive custody and control of the- coal. It is true that the storm alone created the danger, but this danger might easily have been averted; and it is preposterous to assert the contrary. The sheriff would not permit interference, even when warned of danger. Hoffman testifies without any possible interest and without apparent bias. It is preposterous to assert that because the coal was in the custody of the law, no one was bound to look to its safety and that it was necessarily devoted to perfectly apparent and inevitable destruction.. The case of Browning v. Hanford, 5 Denio 586, is directly opposed to any such doctrine. But it is not necessary to invoke the doctrines of that case, to make the sheriff liable in this. This is a clear case of negligence on the part of the sheriff, arid it is impossible to get around or over it. It is not true that those acting in a special or official capacity, are not bound to take more care of the property intrusted to their charge than a prudent man in the ordinary discharge of his business would with his own. They are paid for their care. It is their special duty. The charges of the sheriff for taking care of property are very onerous ; and to say that he is only bound to take ordinary care after all, is absurd. There is no hardship in the case : the office of sheriff is not only voluntarily assumed, but eagerly sought after; the emoluments are large, the responsibilities are by no means commensurate.
    VIII. The question of negligence is not the only qxiestion as stated in respondent’s thirteenth point; and, as to that question, the appellant claims the benefit of all his exceptions.
    IX. Where three several verdicts have been rendered, and two set aside as being against the weight of evidence merely, there might be some propriety in the court’s hesitating to set-aside the third for that .cause only; but when the other verdicts were set aside for errors of law, there is no impropriety in asking the coxirt to set aside the third as being against the weight of evidence, and if it is against the weight of evidence, the party is as much entitled to have it set aside as though it was the first verdict instead of the third.
    X. The judgment should be reversed with costs.
   By the Court. Bosworth, J.

The judge charged that “ the jury might infer, if they thought the circumstances warranted it, an assent on the part of Moore to the leaving of the coal on board of the vessel. If this were assented to by Mr. Moore, the mere fact that the deputy sheriff left the coal on board of the vessel, would not render the defendant liable in this action.”

The plaintiff insisted that no such question should be submitted to the jury, because no such defence was set up in the pleadings, and because there was no evidence authorizing the submission of any such question.

There was no evidence authorizing the submission of any such question, unless the fact that the plaintiff knew the coal was not removed, and did not remonstrate with the sheriff against such conduct, is evidence from which such an assent may be inferred.

An omission to interfere with a sheriff in his discharge of the duties imposed by law, or to object to, or complain of the manner in which he performs them, is no assent to his neglect or violation of duty.

The statute made it the duty of the sheriff to take the property (Code, § 209) and “ keep it in a secure place” (id. 215), and deliver it to the party entitled to it.

The schooner may not have been a secure place in which to keep the coal. The schooner was heavy laden, leaked badly, and would probably have sunk, if not pumped daily.

The sheriff did not take any measures to have her pumped, and although this was done, it was not done by men employed by the sheriff, or acting under his authority, or who had assured him such services would be performed.

This instruction, as I view it, was equivalent to charging the jury that although the schooner might be an insecure place in which to keep the coal, yet no liability would attach to the sheriff merely in consequence of his having left it in that place, if they found that Moore assented to its being left there.

The further proposition submitted in connexion with this was, whether the sheriff was wanting in reasonable and proper care in guarding the property against the consequences of the storm, which subsequently arose, and during the continuance of which tiie vessel was sunk. The jury were instructed that it was the duty of the sheriff to watch the property, and see if anything should arise, while it was in his custody, to endanger its safety, and to use due and reasonable care and diligence to prevent it; if that duty was not performed, he was responsible for the neglect, and the plaintiff was entitled to recover.

The plaintiff insisted that no such question should have been submitted, on the ground that there was no evidence tending to show that the sheriff took any care, or instructed any one..for him to take any care, to prevent the vessel being sunk or injured by the storm.

As I read the evidence of Hallenbeck, the sheriff’s agent, he swears expressly, “I had no charge to take care of the safety of the vessel; I was charged by the sheriff to take charge of the coal, and see that the vessel was not removed; I was not charged to see to her safety from sinking.”

He was at the vessel between five and six o’clock in the afternoon preceding the night on which she sunk, and although there were strong indications of a storm, and his attention was called to the dangerous position and condition of the vessel, he did nothing with a view to her safety. At night he left a police officer of that,ward in charge of her, to see that the vessel was not removed.

There was no evidence on which to submit the question, whether the sheriff was wanting in reasonable and proper care in guarding the vessel against the consequences of the storm which subsequently arose and sunk her. His own officer swore affirmatively that he neither took any such care, nor was charged by the sheriff with any such duty.

He also swears, that “ on Saturday, in the afternoon, about 4 o’clock, the captain came and asked me what would be the consequence if she sunk? who would be answerable for the property ? I said I could not say, but I suppose Mr. Moore or the sheriff; he then said he would not have anything to do with her; he spoke about moving the vessel; he never asked me if he could remove her; I should not have cared if he'had moved her from that place, so long as the coal was safe; the vessel lay fifteen or twenty feet from the end of the pier; I told him if that vessel was taken- away without my consent, or the sheriff’s consent, he would be liable for stealing.”

It seems to me that on such evidence it cannot be left to a jury to say whether the sheriff took reasonable and proper care to guard the property against the consequences of the storm.

Ho care was taken, or attempted to be, with a view to that object; no one was even left to watch it, with a view to guard it against such consequences. On the contrary, although it was raining and blowing in the afternoon, and although it looked likely for a storm, and in the night the wind inóreased in violence, nothing was attempted for the safety of the vessel. The agent went home and went to bed, and charged the police officer to see that the vessel was not removed, but not to do anything to prevent her being sunk.

She was sunk, and the jury may have, exonerated the defendant, on the ground that Moore assented to the coal being left on board the vessel, and having- so assented, the sheriff took proper and reasonable care to guard the coal against the consequences of the storm.

There was no evidence to warrant the submission of either of these questions, or on which a jury could properly find either of them in favor of the defendant.

So far as the case depended on these questions, I think the jury should have been instructed, that if the vessel, in the condition in which she then was, was not a secure place in which to leave and keep the coal, considering the season of the year, and the storms commonly incident to it, the sheriff was liable for any damages resulting from its being left in that place.

If he had removed the coal to a secure place, it would not have been damaged by the storm, and it is not to be assumed that it would have been equally damaged in a secure place.

It was damaged by being on the place where it was. The sheriff neither removed it, nor attempted to protect it from the storm that injured it, notwithstanding his attention was called to the danger of its position, to his liability if the vessel was sunk, and was told by the captain that he would have nothing to do with it.

It may very w.ell be, that on another trial it may appear that the captain of the schooner assented to the coal being left on board, and to the use of the schooner by the sheriff, as a place of keeping it.

If this should be so, such evidence may possibly be given as will render it proper to submit to the jury as questions of fact, whether that was a secure place in which to keep the coal; and whether the indications of a storm were such as to require of the sheriff any extra precautions for the safety of the vessel.

On the case as presented to us, we agree in the opinion, that there was no evidence authorizing ■ the submission of the question of Moore’s assent to the coal being left where it was, or of the question whether the sheriff was wanting in proper care in guarding the property against the consequence of the storm which subsequently arose and during which the vessel was sunk. A .new trial must be granted, with costs to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    Henry Keep, Respondent, agt. George P. Lord and Samuel N. Brown, Appellants.
    (Before Campbell., Bosworth, and Emmet, J.J.)
    December 17, 1852.
    March 25, 1853.
    Where two persons are indebted to each other, on disconnected demands, and one becomes insolvent, the solvent party cannot maintain an action for that canse alone, to compel an equitable set-off before the debt owing by the insolvent party becomes due. If, before it becomes due, he assigns the demand against the solvent party, the assignee may recover the assigned demand, free' from all claims pf set-off on the part of the solvent debtor against the insolvent, where there is no pretence that the assignment of the claim was made with intent to defeat the set-off.
    When no other ground exists to support an equitable set-off than the insolvency of one of two parties, severally indebted to each other, the right of set-off does not attach until the debt owing by the insolvent has become due.
    This case came before the general term on an appeal from a judgment sustaining a demurrer to the answer to the complaint.
    The plaintiff, as assignee of Charles King, brought this action to recover for goods sold and delivered by King to the defendants between the 20th of February and the 1st of July, 1851, on a credit which expired on the 25th of December, 1851. King assigned this account to the plaintiff on the 18th of September, 1851.
    The defendants were owners of a note made by King on the 2d of June, 1851, payable six months after its date, and which was purchased by them on the 5th of June, 1851.
    In their answer, they claimed an equitable right to' set off the note against, and in extinguishment of, a like amount of the account, on the grounds that they owned the note when King assigned the account he had against them to the plaintiff; that King was then and since has been insolvent, and since then has moved out of, and ceased to reside in, this State. There was no allegation in the answer, that King assigned to the plaintiff with the intent to prevent one demand being set-off against the other, or that he knew when he assigned that the defendants owned the note mentioned in their answer, or that his subsequent removal from the State was fraudulent.
    All-other facts requisite to a full understanding of the case, are stated in the opinion of the Court.

      A. P. Man, in behalf of the appellants,
    made and argued' the following points.
    I. It is a primary principle, that the assignee of a thing in action (other than negotiable paper) takes it subject to all equities between the original parties. (Murray v. Sylburn, 2d Johns. Ch’y R. 441, 443; 2d Story’s Ev., § 1047; Niagara Bank v. Rosevelt, 9 Cow. 409.)
    II. Die present case is fully within the equity, if not within the letter, of the statutes of set-off.
    III. The answer presents a clear case for an equitable set-off, and courts of equity have uniformly compelled a set-off under like circumstances.
    (See cases below cited.)
    1. The counter-claim or set-off is properly presented by answer. It was not necessary to file a cross-complaint. (Jennings v. Webster, 8 Paige, 503; Gay v. Gay, 10 Paige, 369, 377.) 2. The power of courts of equity to compel a set-off is not derived merely from the statute. It rests upon the original jurisdiction of courts of equity, and upon their general power over their suitors. (Gay v. Gay, 10 Paige, 369, 376; Simpson v. Hart, in error, 14 J. R. 63; Merrill v. Fowler, 6 Dana, on p. 306; 2d Story’s Eq. Jur., §§ 1431, 1432, 1437, 1444.) 3. The true and actual debt due from defendants to King, at the time of his assignment to plaintiff, was only the balance between their respective demands against each other. This was the rule of the civil law, and has always been acted upon by courts of equity. 4. The facts of the insolvency of King, and his removal beyond the State, and that defendants have no security for their note, are controlling reasons with a court of equity for compelling a set-off. (Lindsay v. Jackson, 2d Paige, 581; Gay v. Gay, 10 Paige, 369, 376; Stewart v. Chamberlin, 6 Dana, 32; Merrill v. Fowler, 6 Dana, 305; Jennings v. Webster, 8 Paige, 503. 5. A court of equity, under such circumstances, would compel a set-off, even against a plaintiff who had purchased for actual consideration paid at the time. It certainly would, in a case like the present, where no consideration has passed. (Stewart v. Chamberlin, 6 Dana, 32; Merrill v. Fowler, 6 Dana, 305; Chance v. Isaacs, 5 Paige, 592.) 6. The fact that the note of King was not due at the time when he assigned the book account to the plaintiff, does not impair the equitable right to a set-off. The right to an equitable set-off became perfect the moment King became insolvent. It was enough, at any rate, that the note would mature before the account. (Chance v. Isaacs, 5 Paige, 592; Lindsay v. Jackson, 2 Paige, 581; Gay v. Gay, 10 Paige, 369.)

      E. S. Young, in behalf of the respondent,
    made and argued the following points.
    I. The claim of the defendants is not a demand against the plaintiff, nor is it such as might have been set off against Charles King, the assignor, while the demand on which suit is brought belonged to him. (2 R. S., 3d ed., p. 450, § 39, sub. 7, 8,10,11.) The defendants’ demand had not become due at the time of the assignment to plaintiff of demand on which suit is brought; consequently, no right to set off defendants’ demand existed at the time, and the assignee took the claim clear of any right of set-off' against it. (Wells v. Stewart, 3 Barb. S. C. Rep. 40; Graves v. Woodbury, 4 Hill, 559; Spencer v. Barber, 5 Hill, 569; Watts v. The Mayor, &c., 1 Sand. Supr. Ct. R. 23; Beckwith v. The Union Bank, 4 id. 604.)
    II. The defendants have no right, in equity, to set off the note held by them against the plaintiff’s demand.
    1. The demands are independent, and not connected with each other. To be the subject of set-off, in equity, under its extra statutory jurisdiction, there must be a connection between the demands. (2 Story’s Eq. Jur., § 1434; Schermerhorn v. Anderson, 2 Barb. S. C. Rep. 584; Rawson v. Samuel, 1 Craig and Phil. 161, 173, 174, 178.) 2. No equitable right of set-off in favor of the defendants, had attached at the time of the assignment to plaintiff, the note held by them not being then due. A court of equity would not interfere to enforce or establish a set-off in their favor of a claim not due. The doctrine of equitable set-off has never been carried to the extent of changing the contracts of parties. (Bradley v. Angel, 3 Com. 475; Spencer v. Barber, 5 Hill, 569; Ainslie v. Boynton, 2 Barb. S. C. Rep. 263; Lindsay v. Jackson, 2 Paige, 584; Duncan v. Lyon, 3 John Ch. Rep. 358, 360.)
   By the Court. Bosworth, J.

The debt owing to King by the defendant, was for goods sold and delivered by him to them between the 20th of February and the 1st of July, 1851, and became due on or about the 25th of December, 1851.

King, on the 18th of September, 1851, assigned to the plaintiff, in trust for the payment of his debts, all his property, including the debt owing to him by the defendants.

About the 5th of June, 1851, the defendants purchased a note against King for the payment of $300, payable six months from June 2d, 1851, or on the 9th of December following, being a few days prior to the maturing of the demand on which this action is brought.

The defendants insist on the right to set off the amount of the note in satisfaction of a like amount of the debt or demand on which this action is brought, on the grounds that they owned the note when King assigned his account against them to the plaintiffs; that he then was and since has been insolvent, and ‘since then has moved out of, and has ceased since to reside in, the State.

It is perfectly well settled that such a set-off cannot be made under any provision of the Revised Statutes, as neither demand was due when King assigned to the plaintiff. (2 R. S. 354, § 12, sub. 8, and id., p. 174, § 43.)

But the defendants insist that the case presents a natural equity, entitling them to a set-off, and insist in their answer, under §§ 149 and 274 of the Code, for the same relief that a court of equity would have given them on a bill filed to compel the set-off to be made.

This is not a suit between King and the defendants, and neither demand was due when King assigned to the plaintiff. If, on a bill filed by the defendants against King on the day, but before the assignment was made, stating the facts contained in their answer, they would not be entitled to a decree malting the set-off, then the judgment appealed from is correct, and must be affirmed. Ho case has been cited in which such a bill was sustained on such grounds, where the debt owing by the defendants was not due at the time the bill was filed.

In Lindsay v. Jackson, 2d Paige, 584, a set-off was decreed, but the demand against the defendant was due when the bill was filed. The demand against the complainant was not due. It was the duty of the defendants to pay at once and without delay. The complainants alone had an interest in having the credit on the demands against themselves to which the terms of their obligations entitled them. And, in that case, no third persons had acquired any legal or equitable right.

In Chance v. Isaacs & Smyth, 5 P. 594-595, the Chancellor intimated that, in that case, if the complainant had held and owned the note against Isaacs at the time the latter assigned a demand he had against the complainant to Smith, he would have decreed the set-off, on the ground that, although the note held by “ Chance was not due at the time of the assignment, yet, as it would have become due long before the complainant’s notes were payable, an equitable right of set-off would then have existed, which it would have been unconscientious on the part of Isaacs to deprive him of by assigning the complainant’s notes to other creditors.”

The same remark is applicable to this opinion as the .same learned Chancellor made concerning an opinion intimated by Chancellor Sandford in Troup v. Haight, Hop. R. 270, viz. “ that it is not entitled to the force of a judicial decision, and was not called for by the case before him; nor does it appear to be founded upon any adjudged case.” (Jennings v. Webster, 8 P. 505.)

The opinion intimated in Chance v. Isaacs, 5 Paige, 595, professes, on its face, to have no other authority for its support than the principle of the case of Lmdsay v. Jackson. In the latter case, the bill was entertained because the debt owing by defendant was due at the time the bill was filed, and the Chancellor there said that it might present an entirely different question if the defendant’s debt was now due from the complainants, who were seeking to compensate it by a claim against the defendants, payable at a future day.” (Young v. Gye et al., 10 J. B. Moore, 198.)

In Gay and others v. Gay, 10 Paige, 269, before and at the time J. P. Gay assigned to Messrs. Lee and Morrison, the defendant owned judgments against J. P. Gay, recovered on notes endorsed by defendant for J. P. Gay’s accommodation, and which defendant had paid. The judgments were due at the time of the assignment, and the demand assigned was due, and the amount owing by defendant had been liquidated by a master’s report. It therefore presented a case in which the party seeking to compel the set-off had a demand against the other, which was due when the latter assigned the demand belonging to him.

In Bradley v. Angel, 3 Coms. 475, the Court of Appeals denied the right of set-off, although the plaintiff’s debtor was dead, and his estate insolvent, on the ground that the debt against his estate was not due when the bill was filed. In that case, the debt owing to the defendant by the plaintiffs was due. Allowing a set-off before the debt owing by the defendant becomes due, is compelling him to pay before the time stipulated by his contract, and is making a new contract for him.

This, it is believed, a Court of Equity never attempts to do, in a case of independent and. disconnected demands, on the mere ground of the insolvency of one of the parties.

Unless there has been a mutual credit, founded on a subsisting debt on the other side, or an express or implied agreement of set-off, it will not be done. (Howe et al. v. Shephard, et al., 2 Sum. 414-418; Gordon v. Lewis, id. 629; Dade v. Irwin's Ex’rs, 2 How. S. R. (U. S.) 383, 390.)

In Ainslie v. Boynton, 2 Barb. S. C. R. 263, the assigned claim had been liquidated in amount by a report of referees before it was assigned; and before and at the time it was assigned, the plaintiffs held a judgment against the assignor of the claim. The plaintiff’s claim was due when the assignment was made, and the amount of the claim against him had been then ascertained and liquidated.

I find no adjudged case to the effect that one of two parties, having distinct and disconnected demands against each other, neither of which is due, can, on the mere ground of the insolvency of the other, file a bill against the insolvent and compel a set-off against the other. Unless this can be doné, no bill could have been filed by the defendants against King, on the facts stated in the answer, at any time prior to kjs assignment to the plaintiff. Ho equitable right to a set-off had then attached, because neither debt was then due, and there was no connection between them, creating an equitable right to have tine debt made to compensate the other.

I do not find, in any of the cases cited on the argument, nor in any which have come under my observation, any opinion in favor of the contrary doctrine, except that intimated in Chance v. Isaacs, 5 Paige, 505, and this intimation is opposed to one made by the same Judge in Lindsay v. Jackson, 2 Paige, 584-585, on this point.

It seems to me that the principle decided in Bradley v. Angel, is conclusive upon this question.

"Whether the debt owing by the party against whom a set-off is sought matures before or after the one owing to him, does not seem to affect the principle.

Although maturing first, he cannot be compelled to pay it before it is due by the terms of his contract. Where there is no fraud, and no agreement to set it off against a debt owing-to him, and where there is no connection between it and any such debt, he cannot be compelled to pay it before the time he contracted to pay it by cancelling and discharging a debt owing to him by a person to whom he is thus indebted.

Hie fact that the debt owing by the party against whom the set-off is sought falls due last instead of first, throws no difficulty in the way of adjusting equities to the accuracy of a penny, and if insolvency alone is a sufficient ground for administering an equity at variance with the statutory rules of set-off, it would seem to be at variance with reason and right to hold that a set-off might be compelled if the demand owing by the defendant fell due sixteen days before the one owing to him, but could not be, if it fell due sixteen days after-wards.

But if it can only be compelled on a bill filed after the demand against the defendant is due, no principle is violated. The defendant, in such a case, owes a debt which, in equity and good conscience, he should pay instantly. No injustice is done him, and no new contract is made for him, by compelling him" to pay, by receiving a credit for it, before a demand owing to • himself by the person to whom he is indebted, and who has a strict right to immediate payment.

The principle of such a rule is, that, in case of distinct and independent demands owing by each of two persons to the other, an equitable right of set-off attaches, if one becomes insolvent, the moment the demand against the insolvent becomes due, and not before.

That, where insolvency is the only equity for enforcing a set-off, contrary to the provisions of the statute, such equity gives no right to compel the insolvent to pay before the demand against him has become due.

(Gordon v. Lewis, 2 Sumner, 633-634; Bradley v. Angel, 3 Coms. 475; Wells v. Stewart, 3 Barb. S. R. 40; Schermerhorn v. Anderson, 2 id. 584; Spencer v. Barber, 5 Hill, 569; Graves v. Woodbury, 4 id. 559.)

If this be the true rule, then no equitable right of set-off had attached at the time King assigned to the plaintiff. We are of the opinion that the judgment appealed from should be affirmed.


author: Br the Court. Duer, J.

text:
    Henry L. Van Wyck & Wm. A. Kobbe v. John McIntosh.
    (Before Duer, Campbell, & Paine, J.J.)
    December 20, 1852 ;
    March 26, 1853.
    On the trial of this action, in. which the defendant was sought to be charged, as the endorser of a promissory note, J. M. was offered as a witness on his behalf, and was rejected, on the ground that he had guaranteed the payment of the note, if the endorsement should be proved to be genuine, and had deposited the sum due on the note in the hands of a third person, under an agreement that it should be paid over to the plaintiffs, in the event of their obtaining a verdict.

      Held, that he was not a person for whose immediate, benefit the suit was defended within the meaning of the Code, and was, therefore, notwithstanding his interest, a competent witness.
    On this ground a new trial granted.
    Motion for a new trial upon a case. The action was against the defendant, as the first endorser of a promissory note for $2,045/T5T, purporting to have been made by Messrs. McIntosh & Co., payable to his order. It was defended on the ground that the endorsement was forged. On the trial, which took place before Mr. Justice Sandford, and a jury, in May, 1852, many exceptions were taken to the ruling of the judge, which it is deemed unnecessary to state, as the decision of the court in granting a new trial, proceeded on the single ground that the testimony of a particular witness, who was offered to be examined on the part of the defendant, had been improperly rejected.
    The statement in the case, in relation to this witness, is as follows:—
    The defendant’s counsel called as a witness,

      John Mansfield,

    who was duly sworn, whereupon the plaintiff’s counsel objected to the witness as incompetent, on the ground of interest, and in support read the following papers:
    “ For value received, I hereby guarantee to Mr. William Kobbe the punctual payment, at maturity, of a note of Thomas McIntosh & Co., drawn in favor of John McIntosh, and'by him endorsed, dated Hov. 13th, 1850, on six months, and due on the 13th and 16th of May next, for thirteen hundred and thirty-seven -//ó dollars.
    “ And another note, dated Hov. 14th, 1850, at six months, drawn by the said Thomas McIntosh & Co., in favor of John McIntosh, and by him endorsed, due the 17th of May next, for two thousand and forty-five r\\ dollars, in such a manner its if the same notes were endorsed by me. Dated New York, March 31st, 1851.
    (Signed) “ John Mansfield.”
    “ Hote due May 16, $1,337 40 “ “ “ 17, 2,045 35
    . $3,382 75”
    “ $2,045.35.” “ New York, Hov. 14, 1850.
    “ Six months after date, we promise to pay to the order of Mr. John McIntosh, t.wo thousand and forty-five dollars, at Ho. 133 Pearl street. Value received.
    (Signed) “ Thomas McIntosh & Co.”
    (Endorsed) “ John McIntosh.”
    “The undersigned having for a valuable consideration severally guaranteed to William Kobbe, one of the firm of Van Wyck & Kobbe, the punctual payment of a promissory note, of which and of the endorsement thereon the foregoing is a copy, and said note not having been paid, and said Van Wyck & Kobbe being the owners and holders of said note, having demanded of us severally the payment thereof, and said John McIntosh having denied that he endorsed said note, and we being severally liable to pay the same if the said endorsement is genuine, and beihg desirous to have that question settled in an action against said John McIntosh, as endorser thereof: How, in consideration of the premises, and in consideration also that said Van Wyck & Kobbe will commence an action against said John McIntosh, as endorser of said note, and prosecute such action to final judgment, which we hereby severally request them to do, we promise and agree to and with said Van Wyck & Kobbe, that in the event they shall recover a final judgment against said John McIntosh, as endorser of said note, or against his executors or administrators, that we will, upon the recovery thereof, pay the amount thereof to said Van Wyck. & Kobbe, their executors, administrators, or assigns, and the costs and reasonable counsel, fees which they may pay or become liable to pay in prosecuting said action to judgrhent- by reason thereof. And said Yan Wyck "& Kobbe having agreed in consideration hereof, and of the security herein referred to, to commence and prosecute such action to final judgment, we agree to deposit with Messrs. Haggerty, Draper & Jones, of New York city, the sum of two thousand and forty-six dollars and eleven cents, at interest and upon trust; that it shall remain so.deposited until a final judgment shall be rendered in said action; ■ and, upon the rendition of a final judgment therein, that such moneys, and all interest that may have accrued thereon, shall be paid to said Yan Wyck & Kobbe, their executors, administrators, or assigns, if the said judgment shall be in favor of.said Yan Wyck & Kobbe, their executors, administrators,-or assigns.
    “ Dated New York, May 28, 1851.
    “ John Mansfield,
    “ H. Robinson.”
    “ $2,046tVV
    “New York, June 4, A.D.1851, received of John Mansfield, within mentioned, on interest, at'the rate of six per cent, per annum, upon the trusts in the within agreement specified, two thousand and forty-six dollars and eleven cents, which sum, and the interest which shall at the said rate have accrued thereon, at the time final judgment shall be rendered in the action in said agreement mentioned, we agree to pay to Yan Wyqk & Kobbe, if such judgment shall be in their favor, and, if it be against them, to then pay the same to said John Mansfield.
    “ Haggerty, Draper & Jones.”
    The judge held the witness to be incompetent, and to his decision the counsel for the defendant excepted.

      The jury found a verdict for the plaintiffs for the amount of the note with interest, to set aside which, a case, containing the evidence and the exceptions was made, which was ordered to be heard in the first instance at General Term.
    It was now fully argued by the counsel of the respective parties, upon the evidence and the exceptions, but for the reasons before given, the arguments are omitted.

      E. Sandford for defendant.

      N. B. Blunt for plaintiffs,
    who, in support of the position that the testimony of Mansfield was properly rejected, cited Davies v. Crum, 4 Sand. S. C. Rep. 355.
   Br the Court. Duer, J.

The witness, Mansfield, had certainly a direct interest in the event of the suit, since it was manifestly the understanding of the parties that he was not to be liable at all upon his guaranty, unless the endorsement of the defendant was proved to be genuine; but, although thus interested, he was not a person for whose immediate benefit the action was defended, within the meaning of the Code (§ 399), according to that interpretation of its meaning which we have heretofore adopted (Catlin v. Hansen, 1 Duer, S. C. Rep. p. 319). His interest, therefore, was not a ground of exclusion. He was not a cestui que trust, nor had he given an indemnity to the defendant, thus making himself the real and sole party in interest. The suit was prosecuted with the intent that the judgment, should a judgment be obtained, should be enforced against the defendant, and it was defended by him, not at the request of, nor for the benefit of Mansfield, but upon his own account, and with a sole view to his own protection.

The case would be wholly different were it understood that the moneys deposited by Mansfield and Robinson shall be applied to the satisfaction of a judgment against the defendant, so as to exonerate him entirely from its payment; upon this supposition the action would be defended for their immediate benefit, and their benefit alone. But such is evidently not the meaning of the agreement between them and the plaintiffs. The intention of the parties, we cannot doubt, is that if a judgment shall be obtained against the defendant, Mansfield and Robinson shall succeed to the rights of the plaintiffs, and be entitled to enforce the judgment for their own reimbursement. Had they paid the note as guarantors, without requesting this action to be commenced against the defendant, as endorser, they might have justly claimed a transfer of the note, so as to have enabled them to compel its payment by the defendant. To save themselves from a suit upon their guaranty, and from the necessity of commencing an action in their own name against the defendant, they entered into the agreement with the plaintiffs, but there is no reason to suppose that they meant to deprive themselves of the right of ultimately resorting, for their own protection, to the liability of the defendant; and it would be unreasonable to give this construction to their agreement. Upon the other questions, that were so ably discussed upon the hearing, we are not fully agreed, and therefore decline to express any opinion in relation to them, but we all agree, for the reasons that have been given, that the testimony of Mansfield ought to have been received. He was interested, but not incompetent.

There must, therefore, be a new trial, with costs to abide the event.


text:
    Horton H. Burlock, Administrator, &c., of Eliza A. F. Burlock, dec’d, v. John Peck and George Gordon, Executors, &c., of Elisha Peck, dec’d.
    A., owning two lots of ground adjoining each other, sold and conveyed one of them, and by a clause in the deed provided that the grantee might erect a party wall on the line dividing the two lots, one half on each lot, and covenanted to pay for the wall when used; and A.’s grantee erected such a party ' wall, and then conveyed the lot and building so erected to B. Sold, that B., on such party wall being used by A.’s subsequent grantee of the adjoining lot, might recover of A., and he being dead, of his executors, one half of the value of the party wall. Held, also, that B., having died intestate, after the party wall had been used and appropriated by the grantee of the adjoining lot, the action was properly brought by her administrator.
    That the party wall, when used, was the property of B., and she was "equitably entitled to receive the money to> be paid for using it. That by using and appropriating it, the title to so much of it as stood, on the adjoining lot was vested in the grantee thereof, and did not, on the subsequent death of B,, descend to her heir at law. The right to compensation, was a right in action, enforceable at the suit of the administrator of B.
    (Before Duer., Bosworth, and Emmet, J.J.)
    December 22, 1852;
    March 26, 1853.
    Elisha. Peck, in his lifetime, owned in fee several lots of ground on the northerly side of Third street, between the First and Second avenues, each 20 feet wide, being Nos. 65 to 75 inclusive, No. 75 being the most easterly of the number.
    On the 8th of April, 1839, Peck and wife sold and conveyed by deed to John Hanrahan, lots 65, 67, and 69. The deed, besides the usual full covenants of warranty, contained this clause, viz. “ And the party of the second part has the privilege of building a party wall twelve (12) inchés thick, extending six inches on each side of the easterly line, forty-two feet deep, which wall the said party of the first part agrees to pay for, when used, and that each party has the privilege of extending said party wall ten feet further on the same conditions.”
    In August, 1839, Hanrahan erected a dwelling house on lot 69, the most easterly of his three lots, and constructed the easterly wall twelve inches thick, six inches of it being on lot 69, and the other six inches on lot 71, which latter lot was yet owned by Peck. The wall was of the value of $400.
    On the 20th of March, 1840, Hanrahan and wife sold and by deed conveyed lot 69, to the plaintiff’s intestate. The deed described the lot by metes and bounds, and conveyed the same “ together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and also all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity of Hanrahan and wife of, in, and to the same and every part and parcel thereof, with the appurtenances, unto the sole and separate use of the plaintiff’s intestate, her heirs and assigns for ever.” .
    In April, 1846, Peck sold, and by deed conveyed the lots 71, 73, and 75 to Hanrahan, together with all the tenements, hereditaments, and appurtenances thereunto belonging.
    After this purchase, and in April, 1846, Hanrahan erected buildings on the'three lots last named; and in the erection of the building on 71 used, and made a part thereof, the party wall of the intestate’s building on the easterly side of lot 69.
    The plaintiff’s intestate died in October, 1847, leaving her surviving Thos. IT. Burlock, a son, issue of her marriage with the plaintiff, Horton H. Burlock.' The plaintiff was appointed her administrator in Hay, 1852. Hr. Peck died in Nov. 1851, and the defendants are his executors, and have qualified as such.
    Neither Hr. Peck in‘his lifetime nor his executors, since his death, have paid anything for the party wall so used, either to1 the intestate or to the plaintiff. To a complaint stating these facts, the defendants demurred. Judgment was given for the defendants on the demurrer at Special Term, on the ground that the agreement of Peck to pay for the party wall, did not enure to the plaintiff’s intestate, under the deed given to her, and that on the wall being so used, she as grantee had no right to recover the half of its value. From this judgment the plaintiff appeals.

      H. H. Burlock, the appellant in person,
    made and argued the following points in support of the appeal:
    I. The covenant respecting the party wall was a real covenant, running with the land—because, 1. There was a privity of estate between the covenantor and his grantee. £. The .covenant related to and was made for the benefit of the land. 3. It was the intention of the parties to the deed containing the covenant' to make it a covenant running with the land. (Spencer's Case, 3 Coke, 66. Law Library, 27 vol., N. S. page 75 and notes. Allen v. Culver, 3 Denio, 297 and 298. Norman v. Wells, 17 Wendell, 136. Vivian v. Arthur, 1 B. and C. 410. S. C., L. R. 113. Vernon v. Smith, 5 B. and Ald. 1, (7) C. L. R. 8. Holmes v. Buckley, 1 Equity Cases Abridged, 27. Brewster v. Kitchin, 12 Mod. 166. 27 Law Library, 84 and 85, 92 and 93. Morse v. Aldrich, 19 Pick. 449. Beddoe's Ex'rs v. Wadsworth, 21 Wendell, 120. Weyman's Ex'rs v. Ringold, 1 Bradford, 53.)
    H. The covenant amounted to a grant of an easement which was rendered appurtenant to the lands of the covenantor and Ms grantee. Such clearly was the intention of the parties to the deed—because, 1. The land upon which the party wall was to be erected was granted and set apart by the covenantor and his grantee as and for a party wall between the property. 2. One half of the wall was to be erected on each lot, and the wall thus to be erected remained the sole property of Hanrahan, or his assigns, until Peck or his assigns used the wall and paid therefor a certain sum, to be ascertained. The wall then became the joint property of the owners of the contiguous lots. (See Mott v. Hawkins, 5 Taunton, 20. Sherred v. Cisco, 4 Sandford’s Law Reports, 481.) 3. The conveyance of either lot carried with it, as an incident, the wall or the rights which the party had in and to the wall under the covenant. The burdens and benefits of the covenant were cast upon the respective owners of the lots. 4. If Hanrahan had conveyed to the intestate before building the wall, she would have had a right to build the wall under the covenant, and upon Peck’s afterwards using the wall built by her he would be liable to pay one half of the expense of such wall. 5. If Peck or his grantee had or at any time should extend the wall ten feet further, the intestate, or her heir—devisee or grantee, would, on using such extended wall, be bound to pay one half of the expense thereof. 6. The covenant is in substance and effect, that Peck, whenever the wall shall be used either by him or his assigns, will pay therefor, to the owner of the contiguous lot, at the time of such use. Y. When Hanrahan used the wall, he not only used the part that was upon his own lot, but the part that was on the lot of the intestate. (See Laws of 1830, pages 349 and 350, § 2, § 4. Laws of 1831, page 392, § 1.) 8. Ho person is named in the covenant, as the party to whom the payment for the wall is to be made, and in such a case it is a "well settled principle that the stipulation will be enforced in equity, in favor of the party for whose benefit it is intended, or who is the party legally or equitably entitled, though he be a stranger to the undertaking. 9. The intestate is the person for whose benefit the covenant was made, she being the owner of the lot 69 Third Street, and the easement attached thereto, in lot Y1 Third Street, at the time of the use of the wall. (Allen v. Culver, 3 Denio, 297 and 298. Norman v. Wells, 17 Wendell, 136. Hills v. Miller, 3 Paige, 256. Trustees of Watertown v. Cowen, 4 Paige, 510. City of Cincinnati v. Lessees of White, 6 Peters’ R. 431. 3 Kent’s Com. 433. Worth Ipswich Factory v. Batchelder, 5 N. H. R. 192. Balley v. Wells, 3 Wilson, 26. Bucheridge v. Ingram, 2 Vesey Jr. 317. Brewster v. Kitchin, 1 Lord Raymond, 317. Holmes v. Buckley, 1 Abridged Equity, 27. Earl of Portsmouth v. Bunn, 1 Barn. and Cress. 694. Cruise’s Digest, title Deed, 32, Chapter 6, § 39, § 40. First American Edition. Holmes v. Sellers, 3 Lev. 305. 1 Inst. 147. Willard v. Tillman, 2 Hill, 276. Demarest v. Willard, 8 Cowen, 206. Beddoe's Ex'rs v. Wadsworth, 21 Wendell, 124. Sampson v. Easterby, 9 B. and C. 505. Cubit v. Porter, 8. B. and C. 254, 257. Wiltshire v. Sidford, 1 Mann and Ryl. 404. Morgan v. Mason, 20 Ohio R. 401. Gray v. Cuthberton, 2 Chitty’s R. 482. Lametti v. Anderson, 6 Cowen, 302. Thompson v. Rose, 8 Cowen, 266. Campbell v. Mosin, 4 I. C. R. 344, 6 do. 21. Vivian v. Arthur, 1 B. and C. 410. Gale and Wheatley on Easements, 200 and 201. Savage v. Mason, 3 Cushing, 500. Brown v. Pentz, M. S. Superior Court, February, 1850, Affirmed by the Court of Appeals, April, 1851. Weyman's Ex'rs v. Ringold, 1 Bradford, 53. 1 R. S. 748, § 2.)
    HI. The conveyance of lot 71 Third street, by Peck to Hanrahan, did not discharge Peck from liability on his covenant, to pay for the party wall whenever it was used either by him or his grantee. It is like the case of a lessee and his assignee ; both are liable, one on his express covenant, and the other by reason of his privity of estate. (Taylor’s Landlord and Tenant, pp. 212 and 213.) The assignee may discharge himself from liability, by transferring his interest in the lease, but not the lessee; he always remains liable. (Ibid.)

      IV. The plaintiff is entitled to recover from the defendants, the-value of one half of the party wall built by Hanrahan, and on the lots 69 and 71 Third street, at the time of the conveyance by Hanrahan and wife, to the intestate—because, 1. The covenant itself cast the burden of paying for the wall, when used by Peck or his assigns. 2. The intestate was the owner of the lot and wall at the time the wall was used by Hanrahan, and neither Peck nor his assignee who used the wall, had then any interest in the lot or wall, and payment was not to be made until the wall was used. 3. ‘The intestate was, in fact and in law, the assignee of Hanrahan of the lot to be conveyed, and the entire wall. By the deed to her, all the right, title, interest, and claim of Hanrahan to the lot, house, and wall, passed. An easement appurtenant to the land passes with the land, though the deed neither mentions the easement, nor privileges and appurtenances generally, unless it be expressly reserved in the deed, or by another made at the same time. (2 Hillard’s Abridgment, 119 and 349; 3 Kent’s Com. 433; Pattison v. Hull, 7 Cowen, 747.) 4. The privilege to use the land of the testator, for the building of the party wall, given in the deed to Hanrahan, operated as a grant of the use of six inches of the land of the testator for that purpose, and that privilege beyond all doubt was one running with the land, and passed to the intestate by the deed to her. 5. That part of the covenant being one running with the land, the whole of it is, as the covenant cannot be broken into fragments, and part be a real covenant, and part a personal one. 6. When Hanrahan conveyed to the intestate it was an unbroken covenant respecting the land, and something to be done concerning it, to wit, the using of the wall and paying for one half of it at the time of using, and the covenant not only related to so much of the wall as was built on the lot of either owner, but each had an interest in the entire wall and the land it covered. (Weyman's Ex'rs v. Ringold, 1 Bradford, 60, 61; Matts v. Hawkins, 5 Taunton, 20; Campbell v. Mezier, 4 John. C. R. 337, 6 do. 21.) 7. That assigns are not named in the covenant makes no difference; the deed to the intestate passed to her all the equitable interest that Hanrahan had under the covenant, whether the covenant runs with the land or not, and gave her a right of action in her own name since the Code. (Code of 1851, § 111; Thompson v. Rose, 8 Cowen, 266; 4 Kent, 159; White v. Whitney, 3 Metcalf, 81; Platt on Covenants, 481; 3 Law Library, 315; Smith’s Leading Cases, 89.) 8. Although assigns are not named in the covenant, they are necessarily implied; the land is granted to Hanrahan, his heirs and assigns for ever, and by reference to the grant of the land the assigns of the grantee are clearly named. 9. The grant of the land being to Hanrahan, his heirs and assigns, the deed may read thus, the parties of" the first part grant and convey to the party of the second part, his heirs, and assigns, for ever, all that certain piece of land, &c., with the privilege, &c.” ■
    Y. The judgment in favor of the defendant is clearly erroneous, and should be reversed with costs, and judgment rendered for the plaintiff for the amount claimed.

      H. Holden, Counsel for respondents,
    made and argued the following points.
    I. The complaint does not state facts sufficient to constitute a cause of action.
    H. There is no covenant on the part of Peck, the testator, running with the land, by which Mrs. Burlock acquired any right "whatever. The covenant related to a thing not in esse, but to be done upon the land, and Hanrahan’s assigns- are not named. (Tullman v. Coffin, 4 Comstock, 134; Thompson v. Rose, 8 Cowen, 266; Allen & Paxson v. Culver, 3 Denio, 284-296; Weyman’s Ex'rs v. Ringold, 1 Bradford, 40.)
    IH. The deed to Mrs. Burlock describes the land only, by metes and bounds, no reference is made to a party wall, nor is' a dwelling-house named. Mrs. Burlock took, and her heir holds, all that she purchased or intended to purchase. Whatever rights. Hanrahan had, and which he did not convey expressly, he reserved.
    IY. In pursuance of the agreement between Peck and Hanrahan, which was personal in its character, Peck actually paid Hanrahan for the party wall by conveying the adjoining lot to Hanrahan, which Hanrahan immediately improved—allowance was then made to Hanrahan for the party wall, and if the plaintiff now succeeds, the effect will be to compel Peck and his representatives to pay for the whole wall instead of half.
    Y. Each owner owns, in severalty, the portion of the wall situated on his own land—with no qualification except that neither has a right to pull it down without the other’s consent. (Sherred v. Cisco, 4 Sandford, 480.)
    YT. If the agreement set out in the complaint is a covenant running with the land, then Hanrahan (Peck’s grantee) should pay for it; Peck never used the wall. The same Hanrahan, who was the grantee of Burloek, purchased of Peck the adjoining lot, No. 71, and was the first to use the wall by building on No. 71.
   By the Court. Bosworth, J.

The conveyance by Hanrahan to Mrs. Burloek of lot 69, in March, 1840, transferred to her the title to the whole of the party-wall standing on the easterly line of the lot. Six inches of its width had been lawfully erected on lot 71. The right and privilege to so erect it, were given by the deed of 1839 from Peck to Hanrahan. Until Peck or his grantee of lot 71, built on the latter lot, and used the party-wall, the wall was the sole property of Mrs. Burloek, from the time lot 69 was conveyed to her.

Nothing had been paid for'the party-wall up to the time she became the owner of lot 69. The party-wall was not used by any owner of lot 71, until over seven years after she became the absolute and exclusive owner of lot 69, and of the building erected thereon with its appurtenances, and of every claim and demand of her grantors of, in, and to the same.

When Hanrahan built on lot 71, and used the party-wall of the building, belonging to plaintiff’s intestate, he appropriated to his own use her property. It was lawful for him to so appropriate it. But when it was so used she had a right to be paid one half of its value. If Peck wag liable under his covenant to pay half of its value, she was entitled to the payment, for the reason that the property which had been taken and used was hers. (Brown v. Pentz (decided by the Court of Appeals), N. Y. Legal Observer, vol. i., p. 24; United States v. Appleton, 1 Sum. R. 492.)

Mrs. Burloek bought and paid for a lot with a dwelling-house on it, having half of one of its walls rightfully on an adjoining lot belonging to Peck, which party-wall he or his grantees had a right to use, but with respect to which he covenanted to pay half of its value when used. When it was used Mrs. Burloek owned it, and she was equitably entitled to the money. The sale and conveyance of property subject to a certain use on payment of a stipulated consideration, carries with it the right to receive such consideration, when the stipulated use shall be made of the property.

We have not overlooked the numerous decisions of the Supreme Court of Pennsylvania, which hold that the claim to compensation for the use of a party-wall is personal to the first builder, is a mere chose in action, is not a lien on the land, will not pass to a grantee of the building of which it is a part by a conveyance of the lot and building with its appurtenances, and is only a personal charge against the builder of the second house. (White v. Snyder, 2 Miles, 395; Oat v. Middleton, id. 248; Hart v. Kucher, 5 S. & R., 1 Dallas, 341. Ingles v. Bringhurst, 10 Barr. 219; Gilbert v. Drew, 10 id. 155. Todd v. Stokes.)

These cases either arqse under the statute of that State of the 24th of February, 1721, or were decided on the authority of cases thus arising. That statute provides that, the first builder shall be reimbursed for one moiety of the charge of the party-wall, or for so much as the next builder shall use before he breaks into the wall.” (Davids v. Harris, 9 Barr. 503.)

We are unable to perceive any substantial difference between this case, and Brown v. Pentz, and on the authority of the latter the plaintiff is entitled to revover, unless the objection is well taken, that the action should have been brought by the heirs instead of the administrator of Hrs. Burlock.

When this party-wall was used, her right of action to recover half of its value became perfect and absolute. This was in her life-time. The title to the half of the wall standing on 71, on, and after the time it was used by the owner of lot 71, was vested absolutely in him; and the owner of each lot, besides owning in fee the part standing on his lot, has, and from that time had, an easement in the other part for the support of his own house. The title to nothing for which Peck was to' pay, descended to the heirs of Hrs. Burlock. It would seem to be as clear that the administrator should recover for the half of the wall, as for the unpaid consideration money of land sold and conveyed by an intestate in his life-time. (Hamilton v. Wilson, 4 J. R. 72.)

We think the judgment appealed from should be reversed, and judgment entered for the plaintiff, but with liberty to the defendant to withdraw the demurrer, and'answer in 20 days on payment of the plaintiff’s costs upon the demurrer and of this appeal.