source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    Wm. B. Fairbanks and others v. Smith Bloomfield and another.
    The provisions in the Revised Statutes, relative to chattel mortgages, have no application to a mortgage, executed in a British province, upon a British vessel. It is by the rules of the common law that the validity of such a mortgage must be determined.
    At common law, the continuance in possession of a mortgager of chattels is not per se evidence of a fraudulent intent, rendering the mortgage void, as against creditors and purchasers.
    It is no objection to the validity of a mortgage, that it is given to cover future advances, as well as a present debt.
    It is now settled law, that a mortgage of chattels is not rendered void, as against creditors, by a provision that the mortgager shall retain the possession for a definite period.
    Such a provision gives to the mortgager a legal and exclusive right of possession, during the period so limited.
    As the mortgagee, in this case, has no immediate right to the possession, his omission to take it is not even presumptive evidence of an intent to defraud creditors.
    The possessory right of a mortgager, by force of such a provision in the mortgage, is a proper subject of a levy and seizure, under an attachment, as well as under an execution.
    But if this possessory right is determined while the property mortgaged is still in the hands of the attaching ofBcer, as the title of the mortgagee thereby becomes absolute, he has an immediate right, as owner,- to claim the delivery of the property, and its farther detention, under the attachment, is then an unlawful conversion.
    When the attaching creditor is the sole plaintiff, in the suit in which the attachment is issued, and, as such, is alone entitled to the benefit of the process, he is bound to comply with the demand of a mortgagee, who has become the absolute owner, for the delivery of the property, by directing that delivery to be made by the attaching officer. In such a case, he has the same power to release the property from an attachment, by such a direction, that he would have to release it from an execution; and, by his refusal to give the direction, he renders himself liable for the value of the property.
    The delivery, to which the mortgagee, as owner, is entitled, is unconditional, and he is under no obligation to pay, or tender payment of the costs and expenses of the attachment.
    Judgment for plaintiffs, with costs.
    (Before Oakley, Ch. J., and Duer, J.)
    Heard, February;
    decided, March, 1856.
    The- action was brought to recover damages, against the defendants, for the wrongful conversion, by them, to their own use, of a vessel or brigantine, called “ The Bloomfield,” of which the plaintiffs claimed to be the legal owners, by virtue of a mortgage, executed and delivered to them, on the 23d of May, 1848, at Halifax, in Nova Scotia, by one J. G. D. McLellan, then the sole owner of the vessel. The mortgage was set forth, at large, in the complaint, and by its terms was given to secure to the plaintiffs the payment, in three months from its date, of the sum of £800, Nova Scotia currency, with lawful interest: and it contained a provision that, if default should be made, in the payment of that sum, it should be lawful for the plaintiffs to enter into, possess, occupy, and enjoy the said vessel, and all her appurtenances, and to sell the same, at public or private sale, and give a valid title to the purchaser. The complaint then averred, that the said sum, of £800, was not paid to the plaintiffs, when due, and that they thereby became entitled, on the 23d of August, 1848, to the possession of the vessel, by virtue of the conditions of the mortgage; that, on the 25th of July, 1848, the defendants caused the vessel to be seized and taken possession of, by a constable of the town of Bridgeport, in Connecticut, under and by virtue of a process of attachment, issued out of the Superior Court of that state, at the suit, and for the sole benefit of the defendants, against the said J. G. D. McLellan, and that such seizure was made by the express direction of the defendants; that the plaintiffs, after they became entitled to the possession of the vessel, and whilst the vessel was still in the custody of the constable, demanded, from the defendants, that they would deliver to them the said vessel, or authorize the constable to make such delivery, but that the defendants refused to make such delivery, or give such authority, and thereby converted the vessel to their own use, to the damage of the plaintiffs of $3,200, the amount due to them upon the mortgage.
    The answer of the defendants, after taking issue upon the exe cution and delivery of the mortgage, admitted that the brigantine Bloomfield was seized and taken possession of, as alleged in the complaint, but denied that any demand of the vessel was made, by the plaintiffs, from the defendants, except in the city of New York, and averred that, when such demand was made, the vessel was still in the custody of the officer, in Connecticut, by virtue of the process mentioned, in the complaint, and that no offer was made to pay his fees, or any of the costs and expenses attending the execution of the process. The answer then denied that the defendants had any control over the attachment, or any power or authority to authorize or compel the officer, who executed the same, to deliver the possession of the vessel to the plaintiffs.
    It then averred that possession of the vessel had never been delivered to the plaintiffs, and that the defendants, as creditors of McLellan, had full authority, under the laws of Connecticut, to issue the attachment, mentioned in the complaint, and, under the same, to seize and retain the possession of the vessel, as alleged in the complaint.
    .Upon these pleadings, the cause was tried, before Slosson, J., and a jury, in June, 1855.
    The following are the material facts established, by the evidence upon the trial:—
    In May, 1848, one McLellan, being indebted to the plaintiffs, merchants in Halifax, executed to them, as security, the chattel mortgage, mentioned in the complaint, upon the vessel, called “ The Bloomfield.” The consideration, mentioned in the instrument, is £800 currency ($3,200.) At the time of such execution, there was actually due, from McLellan to the plaintiffs, the sum of £566 5s. 10cZ., ($2,265,) besides interest, being a portion of moneys advanced by the plaintiffs, previous to the mortgage, in repairing the said vessel, after she had been wrecked. The plaintiffs, at the same time, agreed to advance to McLellan further sums, and did, after-wards, advance to him £51, for the insurance of the vessel, and £35 in cash: the mortgage was intended to cover such future advances. By the terms of the mortgage, the plaintiffs were to become entitled to the possession of the vessel, upon McLellan’s default, in payment, in three months. Such default was made; and, on the 23d day of August, 1848, the plaintiffs became entitled to the possession of the vessel. The plaintiffs held no other security for the indebtedness, and there was now due to them, on account thereof, the sum of £450 currency, ($1,800.)
    In July, 1848, while the vessel was at Bridgeport, in the state of Connecticut, the defendants, who reside, and are merchants, in the city of Hew York, sued, out of the Superior Court in the state of Connecticut, an attachment against the goods, &c., of the said McLellan, under and by virtue whereof the said vessel was seized and taken possession of, by a constable, and was in his possession, under such attachment, on the 23d day of August following. The attachment, which was produced and read on the trial, is in these words:
    “ To the sheriff of the county of Fairfield, or his deputy, or either of the constables of the town of Bridgeport, within said county, greeting:
    By authority of the state of Connecticut, you are hereby commanded to attach, to the value of eight hundred dollars, the goods or estate of John Gr. D. McLellan, of Nova Scotia, British North America, if the same should be found within' the precincts, and summon him to appear before the Superior Court, to be holden at Danbury, within and for the county of Fairfield, on the first Tuesday of October, 1848, then and there to answer, unto Smith Bloomfield and Ellis S. Bloomfield, both of the city, county, and state of New York, copartners in trade, by the name and firm of S. & E. S. Bloomfield, in a plea that, to the plaintiffs, the defendant owes the sum of five hundred and fifty dollars, which, to the plaintiffs, the defendant justly owes, by book, to balance book accounts, as by the books of the plaintiffs, ready in court to be produced, fully appears; which debt the defendant has not paid, .though often requested and demanded, which is to the damage of the plaintiffs the sum of seven hundred dollars, and, for the recovery thereof, with just costs, the plaintiffs bring this suit.”
    The plaintiffs, after they became entitled to the possession, made a demand of the defendants, at the city of New York, for the said vessel. The defendants refused to deliver the vessel, or to authorize its delivery, by the constable, but did not allege that they had no control over the attachment, or that the fees and costs, attending its execution, must be paid. The defendants, subsequent to the commencement of this action, recovered, in the attachment suit, a judgment against McLellan, for $684.57, under which the vessel was advertised for sale. The judgment was assigned by the- defendants, for the benefit of the plaintiffs, who paid the amount thereof, and a stipulation was entered into that the damages, in ease of a recovery against the defendants, should not exceed $684.57, besides damages for detention.

      When the plaintiffs rested, the counsel for the defendants moved that the complaint should be dismissed, upon the following grounds:
    1. That the mortgage was fraudulent, and void, as against the defendants, the creditors of McLellan.
    2. That the plaintiffs had failed to show title, or a right to the possession of the vessel.
    3. That the taking of the vessel, under the attachment, was lawful, and the plaintiff’s only remedy was against the officer, in Connecticut.
    4. That there was no proof of the conversion of the vessel by the defendants.
    The court refused to grant such motion; to which refusal, the counsel for the defendants then and there excepted.
    And thereupon the jury, by direction of the court, found a verdict for the said plaintiffs, for six hundred and eighty-four dollars and fifty-seven cents, subject to the opinion of the court at General Term, upon a case to be made, with liberty to turn the same into a bill of exceptions, and with liberty to the said defendants, upon ■ the hearing, to move that the complaint be dismissed.
    Ebb. 7.—The cause was now argued upon the case so made.

      B. S. Emmet, for the plaintiffs.
    We insist that the plaintiffs are entitled to judgment upon the ■verdict. The mortgage was a valid transfer to the plaintiffs, of a limited property in the vessel, and of the right of future possession, if the debt, to which the mortgage related, should be unpaid when it became due. It is no evidence of fraud that the mortgager remained in possession, until default of payment. (Bissell v. Hopkins, 3 Cow. 166; Hall v. Tuttle, 8 Wend. 375; Holbrook v. Baker, 5 Greenleaf, 309.) ETor is it any objection to the validity of the mortgage that it was given to secure future advances as well as a present debt. The fact that the indebtedness was less than the amount mentioned on the mortgage can only affect the question of damages, and the sum actually due greatly exceeded the amount of the verdict. (McGowan v. Young, 2 Stew. 276.)
    The detention of the vessel by the defendants, and their refusal to deliver it to the plaintiffs, when the latter, by force of the mortgage, had become entitled to the possession, was a tortious conversion. If the original seizure of the vessel was lawful at all, it was only so in respect to the interest of the mortgager, who was then in possession, but when his right of possession ceased, and that of the plaintiffs, as mortgagees, accrued, the further detention of the vessel, against the will of the plaintiffs, was illegal, for the plain reason that the mortgager had no longer an attachable interest. (Murray v. Burling, 10 John. 172; Newman v. Van, Antwerp, 2 Cow. 553; Mattison v. Barcus, 1 Comst. 295; Hull v. Carnley, 1 Kern. 501; vide, also, Stuart v. Taylor, 7 How. Pr. R. 251; Fenn v. Bettleston, 8 Law & Eq. R. 483.)
    The demand was properly made, in this city, where the defendants resided, and the possession of the officer was, in judgment of law, the possession of the defendants. Moreover, in their answer, they admit and justify their possession and detention of the vessel. (Libby v. Soule, 1 Shep. 310; Calkins v. Lockwoods, 17 Connec. 154; Forbes v. March, 15 id. 385; Robinson v. Armstrong, 34 Maine, 145.)

      C. Jones, for the defendants.
    The defendants are entitled to a judgment, dismissing the complaint, with costs.
    The mortgage was fraudulent and void, as against the defendants, as creditors of the mortgager. He continued in the use and possession of the vessel after the mortgage was given, and she was in his possession when seized under the attachment, and this, by the laws of Connecticut, by which the rights of the parties must be determined, was conclusive evidence of fraud. (Potter v. Smith, 5 Connec. R. 196; Swift v. Thompson, 9 id. 63: 2 Kent Comm. 525,) and for the same reason the mortgage was void by the common law of this state, as it existed before the Revised Statutes. (Sturtevant v. Ballard, 9 John. 337; Jennings v. Carter, 2 Wend. 446; Divver v. McLaughlin, id. 596.) The mortgage was, moreover, given for a larger sum than was advanced by the plaintiffs, and this was also a badge of fraud. But, passing over the objections to the title of the plaintiffs, we insist that there was no proof of a conversion of the property, by the defendants. The seizure of the vessel was lawful, and the defendants are not chargeable in this action for having directed the officer to make it. After the seizure they were not in the possession of the vessel, which, from that time, was in the custody of the law, and remained so, when ■the delivery of the possession was demanded from the defendants and it was not their duty, nor is it shown to have been in their power, to comply with the demand. On this point the case of Jenner v. Jolliffe, (6 John. 9, S. C.; 9 John. 581,) is a decisive authority. At any rate, the demand of the defendants, in the city of New York, was insufficient, especially as no tender was made of the officer’s fees. But we contend that the defendants were not ■liable at all, and could not be made so, and that if the plaintiffs were entitled to any remedy whatever, their only remedy was against the officer in Connecticut.

        Vide 2 Duer, 249. The complaint was amended, in conformity to the decision then made.

   By the Court. Duer, J.

The plaintiffs, in our opinion, are entitled to judgment upon the verdict, for the amount, with interest and costs, for which it was rendered.

We can allow no weight to the objections that have been taken to the validity of the mortgage. It was executed in Nova Scotia, upon a British registered vessel, and it is, therefore, certain, that, in judging of its validity, we must be governed by the rules of the common law, and not by the provisions of the Revised Statutes, which can only apply to mortgages executed within, or relating to property at the time within, the jurisdiction of the state. As to the common law, without entering upon a discussion of the authorities, we are satisfied, that there never has been a period in its history, when the continuance in possession of a mortgager, until a default in payment, has been deemed per se evidence of a fraud, rendering the security void as against creditors or purchasers; nor have we been able to discover, nor can we believe, that, prior to the adoption of the Revised Statutes, an opposite doctrine ever prevailed in the courts of this state. The cases to which we were referred upon the argument, were all of them cases in which the instrument of transfer was, not a mortgage, but an absolute bill of sale.

The objection that the mortgage, with a view to cover future advances, was given for a larger sum than the plaintiffs had advanced at the time of its date, was not much pressed upon the argument, and is plainly untenable. The mortgage, when given, was certainly valid for the sum which the plaintiffs had then advanced, and was certainly valid, when they asserted their title, for the sum that was then due to them, and which, it appears, without including subsequent advances, largely exceeded the amount for which the verdict was rendered.

Even were the provisions of the Revised Statutes applicable to the case before us, we should still entertain no doubt as to the validity of the mortgage. We consider the law in this state as now settled, that when the mortgager of chattels, by the terms of the mortgage is to retain the possession until a default in payment, the provision does not render the mortgage void, but gives to the mortgager a legal right of possession during the period so limited; and it is a necessary consequence that the mortgagee can have no right to interfere with or disturb the possession, which he has thus agreed that the mortgager shall retain. This doctrine was recognized by this court as the established law, in Hull v. Carnley, (2 Duer, 99,) and although our judgment in that case has since been reversed in the Court of Appeals, this particular doctrine was not only unquestioned, but was distinctly affirmed, and was even made a ground of the decision. The chattels mortgaged, in that case, were sold by the sheriff, under an execution, during the time the mortgager, by the terms of the mortgage, was entitled to the possession, and the plaintiff, the mortgagee, claimed to recover the value of the property upon the ground that the sale, being absolute and not limited to the possessory right of the debtor, was unwarranted and wrongful. The Court of Appeals held that the mortgage was a valid instrument, but reversed our judgment—which was in favor of the plaintiff—upon two grounds: First, that the sale was justified by the process under which the sheriff acted; and, second, that the plaintiff, not having the right of possession when the alleged injury was committed, was not warranted to bring the action. (1 Ker. p. 506-10.)

By the terms of the present mortgage, the plaintiffs were not to enter into the possession of the vessel until the expiration of three months from its date, and by a necessary implibation the debtor, McLellan, was to retain the possession during this period. The plaintiffs, therefore, so far from being bound to take immediate possession, would have violated the rights of the mortgager, and rendered themselves liable as trespassers, had they attempted to do so. If it was neither their duty, nor within their power, to take the possession, it is impossible to say that their omission to do so was evidence of a fraudulent intent.

I shall close my observations on this branch of the case by referring to a somewhat recent decision in the Court of Exchequer, which it is, perhaps, to be regretted, escaped the attention both of this court and of the Court of Appeals in Hull v. Carnley. The decision has a direct bearing upon the questions before us, and affords a very clear illustration of the law, as now understood in England.

Fenn and others v. Bettleston and others, (8 Law & Eq. E. 483, S. C. 21; Law Jour. Excheq. N. S. 41.) The action was trover for goods, and the material facts of the case were these:—

A. conveyed the goods in question to B. by a deed, which, as it was conditioned to be void on the payment of a certain sum on a future day, was in effect a mortgage. The deed contained a provision that, until a default in payment of the principal sum or interest, A., the mortgager, his executors, &e., should be allowed to hold and enjoy the possession of the goods. A., during the time he was thus entitled to the possession, became a bankrupt, and the goods passed into the possession of his assignees, by whom, but while the right of possession given by the deed still continued, they were subsequently sold. B., the mortgagee, before that time, had transferred his title to the plaintiffs, who brought the action against the assignees to recover the value of the goods, upon the ground that the sale made by them, being absolute, was a wrongful conversion.

The Judge, upon the trial, directed a verdict for the plaintiffs, for the value of the goods, with leave to the defendants to move to set it aside, and enter a nonsuit. The cause was before the court upon this motion.

The validity of the deed was not contested, nor doubted; but the argument turned entirely upon the questions, whether the agreement, that the mortgager should retain the possession of the goods until the day fixed for the payment of the debt, gave him a legal right of possession for the stipulated term, or was a mere covenant, not affecting an immediate right of possession in the mortgagee; and whether the sale, made by the assignees, was justifiable, or a wrongful conversion. Upon the first question, the court held, that the effect of the agreement was not to give to the mortgager the possession and use of the goods, as a mere bailee, but a right of possession until the end of the stipulated term; and, consequently, that, had the goods been taken by a third person from the custody of the mortgager, during the term, the plaintiffs, having then no present right of possession, could not have maintained an action for their recovery. But, upon the second question, they held, that the voluntary act of the assignees, in selling the goods, absolutely, during the term, as it prevented their delivery to the plaintiffs, in case of a default in payment, at the end of the term, was a conversion, which entitled the plaintiffs to judgment upon the verdict.

Overruling, as we must do, all the objections that have been raised, in the present case, to the validity of the mortgage, it follows, that the plaintiffs, on the 23d of August, became, at law, the absolute owners of the vessel, as there was then a default in the payment of their debt, and the temporary right of possession in the mortgager was then determined. The plaintiffs, therefore, from that day, were entitled, as owners, to demand and recover the vessel, or its value, from any and every person by whom the possession, no matter under what pretext or title, might then be held. If the vessel, therefore, was, on that day, and subsequently, in the possession, or under the control of the defendants, and they refused, upon a proper demand, to surrender her to the plaintiffs, they must be liable in the present action.

The defendants, on the preceding 25th of July, had caused the vessel to be seized, under an attachment against the property of McLellan, the former owner, and the complaint avers, and the answer, by not denying the allegation, admits, that the seizure Was made by their express direction. The attachment, it appears, from its terms, was not issued for the general benefit of the creditors of McLellan, but was a process, in the commencement of a suit,

. instituted by the defendants, in their own names, and for their own exclusive benefit. It was, therefore, a proceeding, subject, like all other proceedings in the action, to their personal control, to be prosecuted and enforced, or revoked and abandoned, at their pleasure.

The regularity of the attachment, and the jurisdiction of the court, by which it was issued, are not denied; and, as the temporary interest of McLellan in the vessel had not then ceased, it is not denied that the original seizure was justifiable and-lawful. Such an interest, it has been decided, in our own courts, is a proper subject of levy, under an execution, and, therefore, under an attachment; and it was conceded, by the counsel for the plaintiffs, and we shall, therefore, concede, that such is also the law in Connecticut. But, on the 23d of August, the interest of McLellan in the vessel wholly ceased, and we can perceive no reasons for doubting that, from that time, the detention of the vessel, under the attachment, contrary to the will of the plaintiffs, the true and only owners, was just as unlawful, as the original seizure would have been, if they had possessed, at that time, the same exclusive title. Hence, if this detention may be justly attributed to the acts or authority of the defendants, it is a necessary conclusion, that they were guilty of the conversion with which they are charged. As the answer admits that the delivery of the vessel was demanded from the defendants, on behalf of the plaintiffs, after the 23d of August, and before the commencement of this action, and as the fact was very clearly proved, upon the trial, it is evident that the subsequent detention of the vessel must be attributed to them, if it was in their power, and it was their duty, to have complied with the demand.

We think, that they had the legal power, and that it was their legal duty, to comply with the demand, and that they have rendered themselves liable to the plaintiffs, by their refusal.

What are the grounds, I propose next to consider, upon which this liability of the defendants, is denied ?

It is said, that the vessel, when its delivery was demanded, was still held, by the officer in Connecticut, under the attachment, and was, therefore, in the custody of the law; and we were told that, where property is thus situated, it is settled law that the owner can maintain no action, for its recovery or value, but must seek his remedy in an application to the court under whose process, or order, the property is held; and, in support of this broad proposition, we were referred to the decision of the Supreme Court, in the early case of Jenner v. Jolliffe, as a controlling authority. (6 John. 9; 9 id. 381.)

The proposition, that property, in the custody of the law, cannot be made the subject of a new and separate action, when properly understood and limited, is undeniably true, and the case to which we were referred, the purport of which was greatly misunderstood, well illustrates the true meaning and application of the rule.

The plaintiff, in Jenner v. Jolliffe, brought the action, which was trover, to recover the value of a quantity of timber, of which he was the owner, and which the defendants had caused to be seized, under an attachment, in Canada; but, as it appeared, that the process was regular, on its face, was issued by a court of full jurisdiction, and, by its terms, directed the seizure of the very property in question, as that of the plaintiff, who was named as the defendant in the suit, the Supreme Court properly, and necessarily, held, ¡that the action was not maintainable. This case, therefore, only proves what, probably, has never been denied, or doubted, that a defendant, in a suit in which his property is seized or attached, under a process or order of the court, and to abide its final determination, is not permitted to try the validity of the proceeding—when the jurisdiction of the court is undoubted—as plaintiff in a separate action; for this is the very question to be determined in that to which he is already a party, as the defendant

But the ease is widely different, when the property seized is that óf a stranger to the action, and the seizure is not directed by the terms of the process. The property seized is not then in the custody of the law, for the seizure is, itself, an unlawful act, which renders the officer making, and the plaintiff directing it, at once, liable as trespassers, and gives, to the true owner, an immediate right of action against them. The familiar case is, where the goods of A. are seized, under an execution against the property of B.; and whether the seizure is made under an execution, or under an attachment, is plainly immaterial. What has been said of an unlawful seizure, must be equally true of an unlawful detention. Where the goods detained belong to a stranger to the action, and their detention is not justified by the terms of the process, they are not in the custody of the law, and the owner is, at once, entitled to the remedy, by an action against those who wrongfully withhold from him the possession to which he is entitled. Here, the vessel, when the interest of McLellan had ceased, was no longer in the custody of the law, and, as its detention was no longer justified by the terms of an attachment, which related to the property of McLellan alone, the plaintiffs had an immediate right of action against those to whom the wrongful detention was imputable.

We think, that in reason, and in law, it was imputable to the defendants.

The demand of the vessel was properly made Rom the defendants themselves, and was properly made in the place where they were found. They were the sole plaintiffs in the suit in which the attachment was issued—it was by their direction that the vessel was seized, and hence, the officer, holding the attachment, acted as them agent in making the seizure. It was not a manual delivery of the vessel that was asked, but an order, directing the officer, as their agent, to make that delivery to the plaintiffs. It was at them own peril—the peril of showing that the plaintiffs were not, as they claimed to be, the owners of the vessel, that they refused to comply with such a demand; and, as to their power, to direct a delivery by the officer, we cannot doubt that they had the same right, to release the property from an attachment, in which they alone were interested, that they would have had to release it from an execution, had such been the form and nature of the process by which it was held; and, if such was their right, its exercise was them duty.

As to the objection, that, when the vessel was demanded, no tender was made of the fees of the officer, and of the other costs of the attachment, it scarcely deserves attention. No such payment, or tender, was required; and, had it been required, the plaintiffs were under no obligation to comply with the request. The delivery, to which, as owners of the vessel, they were entitled, was unconditional, and, by refusing to make it, the defendants converted the property to their own use. It is plain, from the evidence, that they refused to deliver the vessel, because they meant to retain it, under the attachment, in order that its proceeds, when sold, might be applied to the satisfaction of their own debt. It is plain, that, with this view, they meant to deny, wholly, the title of the plaintiffs ; and, as the denial has proved to be groundless, they have no right to complain that judgment is rendered against them.

Judgment for plaintiffs, with costs.


author: By the Court. Duer, J. Bosworth, J.

text:
    Willis, appellant, v. Havemeyer, respondent.
    To a complaint which charges that the defendant, without cause, caused the plaintiff to be arrested and sent to prison, and detained there until the enforced payment of a sum for his deliverance, an answer which states, in proper form, that the plaintiff was brought before the defendant charged with an offence which the defendant had jurisdiction to try and decide, a trial, according to law, and a decision which he was competent to make, and the issuing of process to enforce it, and that the imprisonment was by virtue thereof, and in execution of such decision, is sufficient.
    A reply, which does not controvert" any of the alleged facts requisite to confer jurisdiction on the defendant to hear and determine such offence, or the fact of making the decision and issuing of the process set out in the answer, was demurrable (in Jan. 7,1851) for insufficiency.
    When not required by statute, it is not necessary to the protection of an officer of special jurisdiction, that a formal record of his decision should be made and filed. It is enough that his decision was reduced to writing at the time it was made.
    When a statute confers authority on such an officer to try a specified class of offences, and punish by fine or imprisonment, it necessarily confers authority to issue process to enforce his judgment.
    A reply to such an answer, alleging matters which, if true, would show the decision to be merely erroneous, and not void, is insufficient. While unreversed it will protect the officer making it.
    Under the code, it is sufficient, as a pleading, in justifying under the judgment or final determination of an officer, or a court of special jurisdiction, to state that such judgment or determination was duly made. It is only when such allegation is controverted that the officer must establish at the trial the facts conferring jurisdiction.
    (Before Oaklet, Oh. J., and.DüER and Bosworth, J.J.)
    Heard, February;
    decided, March, 1856.
    This action came before the court on an appeal, by the plaintiff, from a judgment in favor of the defendant, upon a demurrer interposed by the defendant to the plaintiff’s reply to the defendant’s answer.
    The action was commenced on the 28th of December, 1850. The answer was served on the 27th of January, 1851. The reply on the 21st of February, 1851. The demurrer on the 17th of March, 1851.
    It was tried before Mr. Justice Duer, in October, 1851. The pleadings are as follows:

      Complaint.—The plaintiff complains against the defendant, for that the defendant, on or about the sixth day of January, 1849, in the city and county of Hew York, without any justifiable cause, against the law of the land, and against the will of the plaintiff, caused the said plaintiff to be arrested and detained in and about the city hall of said city for some time, and caused the said plaintiff, by a pretended commitment, to be forcibly conveyed' to the city prison of said city, and the said plaintiff was, in consequence of said pretended commitment, confined in the said prison for a considerable period of time, to wit, the period of sixteen hours or thereabouts, and until the enforced payment of a sum of. money for his deliverance therefrom, by means whereof the plaintiff was, during all that time, prevented from following his lawful and necessary affairs and business, which he otherwise would and might have done, was put to great trouble and inconvenience, was deprived of his liberty, and greatly wounded in his feelings, wherefore the plaintiff demands judgment against said defendant for the sum of one thousand dollars, and the costs of this action.
    Answer.—The defendant, William F. Havemeyer, for answer . to the complaint of the plaintiff in the above entitled action, on information and belief, denies that he caused the plaintiff to be arrested, as is in said complaint alleged.
    And this defendant further, on information and belief, says, that on or about the sixth day of January, 1849, John A. Ricard, who was then a police officer of the city of Hew York, brought a person, who gave his name as Edward Willis, and whom this defendant believes to be the said plaintiff, before this defendant, who was then and there the mayor of the city of Hew York, duly elected and -qualified and acting as such mayor, at the mayor’s office in the city hall of the city of Hew York, and charged the said Edward Willis with having, within the view of the said officer, committed the offence of driving a wagon for the transportation of goods, wares and merchandise, for hire, without being duly ' licensed by the mayor of the city of Hew York, contrary to the ordinances of the mayor, aldermen, and commonalty of the‘city of Hew York, passed May 30, 1848. That this defendant, , by virtue of the power and authority in him vested as such mayor, did then and there proceed to hear, examine into, and determine "upon the said charge; and then and there, on the testimony of the said John A. Ricard, (who was’duly sworn,) and on the confession of the said Edward Willis, which said testimony and confession were reduced to writing, and verified by the affidavit of said Ricard, did then and there convict the said Edward Willis of the offence aforesaid, and this defendant did then and there make up and sign a record of said conviction; and this defendant did then and there declare and deem the said Edward Willis guilty of a misdemeanor, and order and adjudge that the said Edward be fined in the sum of ten dollars, or in default of the payment of such fine that he be imprisoned in the city prison for ten days, which said record of conviction, with the said testimony and confession therein contained, are in the following words, that is to say:—

      City and County of New York, ss.

    John A. Ricard, Cart Inspector, being duly sworn, deposes and says: that Edward Willis was, this day, driving one horse before a wagon, having goods on it, and driving for hire, without license according to law.
    JOHN A. RICARD..
    Sworn to before me, January 6th, 1849,
    Wm. F. HAvemeyer, Mayor.
    Edward Willis states as follows:—Examinant drives a wagon for his father, Anson Willis. I carry goods when I get employed, and receive pay for it. I drive it as an express wagon. I am. twenty years old the 10th of this month.
    EDWARD WILLIS.
    Taken before me, January 6, 1849,
    Wm. F. Havemeyer, Mayor.
    The defendant, Edward Willis, being convicted on his own confession, and upon the testimony of John A. Ricard, of driving a wagon for the transportation of goods, wares, and merchandise, for hire, without being duly licensed by the mayor -of the city of New York, contrary to the ordinance of the mayor, aldermen, and commonalty of the city of. New York, passed May 30, 1848, is, pursuant to section 10, article 3d, of an act to .amend an act entitled' “ an act for the establishment and regulation of the police of the city of New York, passed May 7th, 1844,” passed May 18th, 1846, by a two-third vote, deemed guilty of a misdemeanor.
    It is hereby ordered and adjudged, that Edward Willis be, and he is fined, in the sum of ten dollars, or, in default of the payment of such fine, that he be imprisoned in the city prison for ten days.
    New York, Jan. 6th, 1849.
    WILLIAM F. HAVEMEYER, Mayor.
    And this defendant further, on information and belief, says: That, if the said plaintiff was detained in the city hall for some time, as alleged in said complaint, it was only during a period of' time necessary and proper to conduct the examination and determination of the complaint aforesaid, and no longer.
    And this defendant, on information and belief, further says: that the said Edward Willis did not pay the said fine so imposed upou him, but made default therein, after a reasonable time allowed him so to do, whereupon the defendant, acting as such mayor, did, in due form of law, make an order, warrant or commitment, under his hand and seal, by which the constables and policemen of the city of New York, and every of them, were commanded to convey to the city prison of the city of New York, the body of Edward Willis, and deliver him to the keeper thereof and the said keeper was thereby commanded to receive into his custody the body of the said Edward Willis, and safely keep the said Edward Willis in his custody in the said prison, until he shall pay the sum of ten dollars, but the said imprisonment not to exceed the space of ten days, or be thence delivered by due course of law, of which said order, warrant or commitment, the following is a copy, that is to say:—

      City and County of New York, ss.

    [L. S.] By Hon. William F. Havemeyer, Mayor of the city of New York, to the constables and policemen of the said city, and every of them, and to the keeper of the city prison of the said city:
    These are in the name of the people of the state of New York, to command you, the said constables and policemen, and every of you, to convey to the said prison the body of Edward Willis, and deliver him to the keeper thereof, and you, the said keeper, are hereby commanded to receive into your custody, in the said prison, the body of the said Edward Willis, who stands charged before me, on oath of John A. Ricard, with having, on the 6th day of January, 1849, at the city of New York, in the county of New York, also upon the confession of said Edward Willis, with driving' a wagon for the transportation of goods, wares, and merchandise, for hire, without license from the mayor of the city of New York, contrary to the ordinance of the mayor, aldermen, and commonalty of the city of New York, passed May SOth, 1848; he is, therefore, pursuant to section 10 of article 3, of an act to amend an act, entitled “ an act for the establishment and regulation of the police of the city of New York, passed May 7th, 1844,” passed May 13th, 1846, by a two-third vote, deemed guilty of a misdemeanor, whereupon I ordered and adjudged that the said Edward Willis pay a fine of ten dollars, in which he has made default, that you safely keep the said Edward Willis in your custody, in the said prison, until he shall pay the sum of ten dollars, but the said imprisonment not to exceed the space of ten days, or be thence delivered by due course of law.
    Given under my hand and seal this 6th day of January, 1849.
    WILLIAM E. HAVEMEYER, Mayor.
    And this defendant further, on information and belief, says: that the said Edward Willis was only committed to the said prison in compliance with said commitment, warrant or order, and therein detained for a short space of time, but not over the space of sixteen hours, and until he- having paid the said fine of ten dollars, was then discharged.
    And this defendant denies that he caused the said plaintiff to be confined in the said prison, as is in said complaint alleged, by any other agency or means, or for any other cause or reason, than those hereinbefore set forth. And this defendant avers, that during all the proceedings aforesaid, he acted in good faith, and in the "faithful discharge of his duty as such mayor, and under and by virtue of the authority with which he, by law, as such mayor, was invested, and according to the statute in such case made and provided, and more particularly under and by virtue of an act, entitled “ an act relative to the powers of the common council of the city of New York, and the police and criminal courts of said city,” passed May 23d, 1833, and also an act to amend an act, entitled “ an act for the establishment and regulation of the police of the city of New York, passed May 7th, 1844,”—passed May 13th, 1846, by a two-third vote,—and in accordance with an ordinance of the mayor, aldermen, and commonalty of the city of New York in common council, passed May 30th, 1848, and an ordinance of the said, the mayor, aldermen, and commonalty of the city of New York convened, passed May 14th, 1839, as by reference thereto will more fully appear. And this defendant further says, that he-had good, sufficient, reasonable, and justifiable cause to convict the said Edward Willis, as aforesaid.
    And this defendant, on information and belief, says: that at the time of such offence and proceedings, and for a long time thereafter, the said Edward Willis was a minor, under the age of twenty-one years.
    And this defendant further says, that on the said sixth day of January, 1849, and for a long time before, and also for a long time subsequent thereto, he, the said defendant, was mayor of the city of New York, and as such duly elected and qualified. And that he, the said defendant, as such mayor, and not otherwise, on the said sixth day of January, 1849, as it was right and lawful for him to do, on the complaint aforesaid, for the offence aforesaid, being made before and to him as such mayor, did proceed to hear and determine the said complaint, and the said Edward Willis, having been of said offence duly convicted by this defendant, as such mayor and not otherwise, imposed the said fine of ten dollars as aforesaid, as also made the record of conviction aforesaid under his hand, and was right and lawful for him to do. And this defendant further saith, that the said plaintiff did not pay the fine so imposed, but made default therein, whereupon this defendant, as such mayor, and not otherwise, as it was right and lawful for him to do as such mayor, did malee and issue, or cause to be made, issued and delivered to one of the police officers of the city of New York, the order, warrant, or commitment above set forth, which said officer, as this defendant states on information and belief, under and by virtue of the said commitment, on the said 6th day of January, 1849, took and imprisoned the said plaintiff, as it was right and lawful for him to do, and which said warrant or commitment, this defendant believes, is the pretended commitment referred to in this complaint.
    And this defendant says, that the said complaint and offence came, and were legally within his jurisdiction, as such mayor as aforesaid. '
    And this defendant further says, that some few days prior to the sixth day of January, 1849, the said Edward Willis was charged before this defendant with another and like offence to that above stated and set forth, and this defendant, as it was the first offence on which said Edward Willis had been charged before him, permitted him, in the exercise of his discretion as such mayor, to depart without fine or other punishment, but with an admonition that a second offence would meet with the punishment appointed by law.
    And this deponent further says, that he has not any knowledge sufficient to form a belief whether by means of said commitment, the plaintiff was, during all the time thereof, prevented from following his lawful and necessary affairs and business, or whether he might or would have done so, or whether the said plaintiff had any lawful and necessary affairs and business, or whether the plaintiff was put to great trouble and inconvenience, or whether he was deprived of his liberty otherwise, or whether he was greatly wounded in his feelings than is above stated.
    And this defendant, for greater certainty, prays leave to refer to all and singular the proceedings on said complaint, and to said testimony, confession, and record of conviction, and to said warrant or commitment, as well as to the "said ordinances of the said, the mayor, aldermen, and commonalty of the city of Hew York.
    And this defendant prays judgment in his favor in this action against the plaintiff, for his costs in this action.
    The plaintiff, replying to the answer of the defendant, in the above entitled action, says he did not confess that he committed the offence mentioned and referred to in said answer, as is therein alleged.
    And plaintiff, as to the allegation of said defendant, that he, said defendant, made up and signed a record of the conviction in said answer mentioned, denies that he, the said plaintiff, has any knowledge or information thereof, sufficient to form a belief in regard thereto.
    And plaintiff denies that he committed the offences mentioned and referred to in the answer of said defendant, and that defendant had good, sufficient, reasonable and justifiable cause to convict him, said plaintiff, as stated in the answer.
    And plaintiff denies that he has any knowledge or information, sufficient to form a belief, as to whether he, said plaintiff, was detained in the City Hall only during a period of time necessary and proper to conduct the examination, and determination of the complaint, in said answer mentioned.
    And plaintiff further says, that, at the time of the alleged commitment of the offence, first mentioned and referred to in the answer of said defendant, he, said plaintiff, was driving a wagon, containing goods, in the lawful and necessary prosecution of the business of an express, established and running between the city of New York and the village of Croton Falls, in said state, and for no other purpose whatever, which driving, as aforesaid, in said lawful and necessary prosecution of said business, was well known to the said defendant, at the time of plaintiff’s said arrest, detention, and conveyance to prison, and which said driving is the driving mentioned and referred to in defendant’s said answer.
    The defendant demurs to the reply of the plaintiff, because the said reply, to the defence set up by the answer of the defendant, is insufficient in law, and the defendant states the grounds of his demurrer as follows:—
    1. It is admitted, by the plaintiff, that the complaint against the plaintiff was made; that the defendant, as mayor of the city of New York, had jurisdiction of said complaint; that a judicial hearing and determination was had thereupon, and that the plaintiff was. convicted thereof, as alleged in the answer. If it be admitted that the plaintiff was driving an express wagon, as alleged in the reply, this is no sufficient reply, in law, to the answer of the defendant.
    2. It does not appear, by the reply, but that the allegation of the plaintiff, in his said reply, that he was driving an express-wagon, was controverted, and proved not to be true, on the hearing of said complaint by said defendant, as mayor, nor but that it was then and there decided, by the said defendant, to be no defence to said complaint.
    3. The reply departs from the complaint, and, so far as any cause of action is stated therein, it is a new and different cause of action from that stated in the complaint, and renders it uncertain for what the plaintiff seeks to recover in this action.

      Wm. M. Brackett, for plaintiff.

      S. J. Tilden, for defendant.
   Mr. Justice Duer assigned the following reasons, in support of the judgment, which he ordered:—

By the Court. Duer, J.

Upon an attentive consideration of the pleadings, in this case, and of the law applicable thereto, I am satisfied, contrary to my impressions upon the hearing, that the demurrer to the reply must be allowed. The following are, briefly, the grounds of my decision:

1. That the jurisdiction of the defendant, as mayor of the city is sufficiently alleged in the answer, and that these allegations are not denied in the reply. I must, therefore, consider the original jurisdiction as admitted.

2. That the making up and filing of a record were not necessary to render lawful the subsequent commitment of the plaintiff. The averment of these facts, in the answer, was, therefore, unnecessary, and, consequently, the denial, in the reply, forms an immaterial issue.

3. That, as the defendant had jurisdiction of the offence, of which he convicted the plaintiff', the conviction must be regarded as conclusive, upon all the questions, both of fact and of law, which the judgment of the magistrate, of necessity, involved.

4. Hence, all the issues of fact, which are raised in the reply, must be regarded as immaterial, since they all relate to questions which were necessarily determined, by the defendant, in pronouncing a judgment of conviction.

5. That, however erroneous such determination may have been, it is a complete bar to any action for a false imprisonment, unless the acts of the legislature, and the ordinance of the corporation, under which the defendant acted, must be pronounced unconstitutional and void.

6. That the misdemeanor, of which the plaintiff was convicted, belongs to a class of offences, in relation to which, a summary jurisdiction,'without the intervention of a jury, was known, and universal, in this state, before the adoption of the constitution oí 1779.

7. That, consequently, the acts of the legislature in question, and the ordinance passed by the corporation in pursuance thereof, do not violate any of the provisions of the constitution of 1821, but are fully sanctioned by the construction that has been given to the provisions that are alleged to have been violated, and to similar provisions in the constitution of 1779, not only in repeated acts of the legislature, but by an unbroken series of decisions in the courts of justice.

The defendant is entitled to judgment, with costs; but twenty days are allowed to the plaintiff, to amend his reply, upon payment of the costs of the demurrer and hearing.

Bosworth, J.

The answer contains, first, a denial that the defendant “ caused the plaintiff to be arrested,” as stated in the complaint. This puts at issue allegations of the complaint, which are, of themselves, sufficient to constitute a distinct cause of action.

Second. The residue of the answer, contains matter which is pleaded as a defence to, or justification of the charge, that the defendant “ caused the plaintiff, by a pretended commitment, to be forcibly conveyed to the city prison,” and to be detained there.

The reply must, of necessity, be regarded as applying only to so much of the answer, as sets up a justification of the second cause of action, stated in the complaint.

The substance of the justification is, that the defendant was mayor of the city of New York, and that, as such mayor, upon a complaint made against the plaintiff, of having violated an ordinance of the mayor, aldermen and commonalty of the city of New York, passed May SO, 1848, he investigated the matter, upon the plaintiff being arrested and brought before him, on said complaint, and convicted him of the alleged offence, and adjudged that the plaintiff be fined, in the sum of $10, or that, in default of the payment of such fine, he be imprisoned ten days in the city prison, and that such judgment was duly given.

The Code provides, that, “in pleading a judgment, or other determination of a court, or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment, or determination, may be stated to have been duly made or given. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction.” (Code, § 161.)

The natural order, of considering the points to be decided, involves the inquiries:

First. Does the answer conform, substantially, to § 161 of the Code?

Second. Does the reply, if the answer is sufficient, set up matter which avoids it, or deny any of the allegations of the answer, which it would be necessary to prove, to establish the defence which the answer sets up ?

This part of the answer, of the defendant, states that the proceedings before him, and the acts done by him, by force and in pursuance of which the defendant was committed to prison, and detained in custody, were had before him, and done by him, as mayor of the city of New York, and “that the said complaint, and offence, came and were, legally, within his jurisdiction, as such mayor as aforesaid.”

This is preceded by averments, that the plaintiff was brought before him, charged with having committed “the offence of driving a wagon, for the transportation of goods, wares and merchandise, for hire, without being duly licensed by the mayor of the city of New York, contrary to the ordinances of the mayor, aldermen and commonalty of the city of New York, passed May 30th, 1848;” an examination into, and determination upon, the charge; the making of a record of the proceedings and judgment; the issuing of process, pursuant to, and to carry the decision into effect; that he acted under, and by virtue of, authority, with which he, as such mayor, was invested by statutes of the state, which are pleaded by their title, and the date of their passage, and in accordance with ordinances, which are also pleaded, by stating the date of their passage: that, in all these proceedings, “he acted in good faith, and in the faithful discharge of his duty, as such mayor, and under and by virtue of the authority with which he, by law, as such mayor, was invested, and according to the statute in such case made and provided, and, more particularly, under and by virtue of ” certain acts and ordinances to which the answer refers.

I think these allegations substantially satisfy section 161 of the Code.

Unless the reply puts in issue facts necessary to be proved to sustain some allegation of the answer, essential to a complete defence, or sets up some fact which, being admitted or proved, would establish that the determination of the defendant, as mayor, was void, or the proceedings before him were a nullity, the demurrer was properly sustained.

A reply could be demurred to, for insufficiency, at the time the pleadings in this action was conducted. The demurrer was put on the 17th of March, 1851. The first sentence of the reply states an immaterial fact. Whether the defendant made up and signed a record of the conviction, is not matter which affects the question of his jurisdiction to entertain the complaint, or try the defendant for the alleged offence.

The act of 1846, chap. 802, and sections 20 and 21 of the act of 1833, chap, ii., page 14, do not require any record of the conviction to be signed and filed.

If it be assumed essential to a justification under it, that every judicial determination should be in writing, the answer shows that at the time the decision was made, the defendant reduced to and made in writing, an order, warrant, or commitment, under his hand and seal,” which state's the fact, that the plaintiff had been, that day, convicted before him of the alleged offence, the proceedings had, which resulted in such conviction, and the judgment rendered, as well as the default of the plaintiff to then pay the fine imposed upon him.

In the absence of any statute requiring a record of the conviction to be made and signed, we regard this “order, warrant, or commitment” as a sufficient written record or memorial of the trial or judgment. (Van Wormer v. Mayor, &c., of Albany, 15Wend. 262-265; and see Meeker v. Van Rensselaer, id. 397-399.)

The point has not been made nor suggested, that, assuming or conceding the defendant to have had jurisdiction of the offence charged against the plaintiff, and to have rendered the judgment in question, he had no authority to issue a warrant to effect its execution.

If such a point had been raised, it would, perhaps, have been a sufficient answer to it that, having jurisdiction of the offence, and to render judgment, he had power to issue process to execute the judgment. (4 Bl. Com. 290; 1 Chitty’s Grim. Law, 55.) The statutes should not be so construed as to.render them wholly nugatory.

The plaintiff’s denial that he committed the alleged offence, or that the defendant had good and sufficient cause to convict the plaintiff, puts in issue no allegation which affirms jurisdiction of the defendant to entertain the complaint, or give the judgment. This, at most, affirms that the judgment was erroneous. But if erroneous, so long as it is conceded that it was rendered by an officer of competent jurisdiction, and under a form of proceeding authorized by law, it will protect the officer who gave it, for his acts, in investigating the alleged offence, and in issuing proper process to carry the judgment into execution. (Brittain v. Kinnard, et al., 1 Brod. & Bing. 482.)

A denial that he was not “ detained in the city hall, only during a period of time necessary and proper to conduct the examination and determination of the complaint in said answer mentioned,” puts in issue no fact essential to a full justification of the second cause of action. Ho detention of the plaintiff, in the city hall, by the defendant, is alleged, except as part and parcel of a transaction of which the plaintiff complains, by averring that the defendant “ caused the plaintiff to be arrested and detained in and about the city hall of said city for some time.” The fact of causing such an arrest is denied, by the part of the answer not now under consideration.

This action does not profess to be one to recover damages for an abuse, by the defendant, of his powers as mayor, and exercising them tyrannically and oppressively by the manner in which he conducted proceedings, of which he had jurisdiction.

The only other matter, contained in the reply, affirms that the act of the defendant, and which was alleged to be a violation of the ordinance of May 80,1848, was “ driving a wagon, containing goods, in the lawful and necessary prosecution of the business of an express, established and running between the city of Hew York and the village of Croton Falls, in said state, and for no other or different purpose whatever,” and that “the defendant, at the time of the plaintiff’s arrest, detention, and conveyance to prison, well knew this.”

' There is no averment that this wagon, in transacting the business in which it was employed, was ever driven, or run, out of the limits of the city of New York. For aught that is averred, or can be justly inferred, from the averments made, the wagon may have been used, exclusively, within the city of New York, in carrying goods to and from the Harlem railroad-dépót, which were to be taken out of, or had been brought within the city, by an éxpress company, or by a person engaged in that business, who conveyed all articles from the dépót out of the city, or brought all articles to it from the country, upon that railroad, and in the cars of the railroad company.

Enough is not stated to show that it was not a question, proper to be determined by the mayor, whether driving an express-wagon, in transporting goods, within the city, for hire, was a violation of that ordinance.

The reply does not allege that an express-wagon is, by the terms of the ordinance, excepted from its operation, nor does it set forth the ordinance itself. The defendant, if the allegations in his answer, showing jurisdiction to entertain the complaint, and give the judgment he rendered, had been controverted by the reply, might have shown the existence of an ordinance, of the date of the one said to be violated, which, by its terms, or fair meaning, prohibited the driving of an express-wagon, as well as any other wagon, which was employed in carrying goods, for hire, exclusively, within the limits of the city; or he might have shown one, the terms of which would have rendered it a proper subject of inquiry, and determination, whether the driving of such an express-wagon came, fairly, within its prohibitions.

In either case, his judgment, while in force, and unreversed, rendered in proceedings conducted according to law, would protect him against an action for hearing the complaint, and issuing process to execute his judgment, the reply not denying that “he acted in good faith, and in the faithful discharge of his duty, as such mayor.” (Brittain v. Kinnard, et al., 1 Brod. & Bing. 432.)

It necessarily follows, that, whether the act which the defendant had done violated the ordinance or not, or, in other words, whether the defendant had done any act prohibited by it, was the question to "be tried. The mayor, acting “ in good faith, and in the faithful discharge of his duty, as such mayor, and under and by virtue of the authority with which he, by law, as such, was invested,’’decided that the defendant had done an act which that ordinance prohibited, and he gave such a judgment as he was authorized to render against a person convicted of the offence of violating it.

The reply, as we think, is clearly insufficient, and the plaintiff was entitled to judgment, on the demurrer, assuming the answer to be good, in form and substance, under the Code.

We consider it good, in form and substance, unless it is apparent that the laws, under which the proceedings against the plaintiff were had, are unconstitutional and void.

Section 10, of article 3, of chapter 302, of the laws of 1846, (p. 408,) and sections 20 and 21, of the act of 1833, chapter ii., (p. 14,) taken together, in effect, provide, that the mayor, aldermen and commonalty of the city of Hew York, in common council convened, may pass such ordinances as they may deem necessary, for the licensing, and otherwise regulating the use and employment, in said city, of “ carts and cartmen, cabs and cabmen, hackney-coaches and hackney-coachmen, stages, and accommodation coaches, or omnibuses, and their drivers, and public porters, and handcart-men,” and that “ all persons offending against such ordinances shall be deemed guilty of a misdemeanor, and be punished, on conviction, before any” of certain magistrates named, of whom the mayor is one, “ by a fine, not exceeding ten dollars, or, in default of the payment of such fine, by imprisonment, provided such imprisonment does not exceed ten days.”

These statutes are pleaded, by their title, and the date of their passage, and expressly authorize the mayor to try all persons offending against any ordinance, made pursuant to the power which they grant, and also authorize such a judgment to be rendered, as was given against the plaintiff, by the defendant, as mayor.

We can not hold this statute unconstitutional, without adjudging that all similar offences cannot be tried summarily, without a jury, and thus deciding, that the construction given to the laws regulating the trial of such offences, throughout our whole judicial history, has been erroneous. We think the order appealed from is not erroneous, and it must be affirmed; but the plaintiff may amend his reply, in twenty days, upon payment of the costs of the demurrer and of this appeal.


text:
    Reuben Ross. v. Chester Bedell.

      Semble, that the question whether the protest of a foreign bill of exchange is properly authenticated depends upon the law of the state where payment was demanded and the protest made.
    A sea], stamped upon paper of sufficient tenacity to retain the impression, is a seal within the strictest rules of the common law.
    When a certificate of protest is properly authenticated by the seal of the notary, no proof of his signature, or of his authority to act, is required.
    When the certificate states that the notary went to the place of business of the acceptor of a bill, to demand its payment, and found the doors closed, it will be intended that he took the bill with him so as to enable him to demand its / payment in the usual and proper form.
    The holder of a negotiable bill or note is not bound to prove that he gave value for it, merely because it has been proved, on the part of the defendant, that the bill or note was without consideration as between the immediate parties, i. e., was accommodation paper.
    But when it appears that the bill or note was fraudulently negotiated or put into circulation, the plaintiff must prove a valuable consideration to entitle him to recover.
    New trial; costs to abide event.
    (Before Dueb, Boswobth and Slosson, J.J.)
    March, 1856.
    This was an action by the plaintiff, as endorsee, against the defendant, as drawer of a bill of exchange. The complaint averred that the bill was drawn by the defendant, ™ the city of New York, on one James Gordon, at the city of Philadelphia, on the 15th of October, 1854, and required Gordon to pay to the order of the defendant, two months after date, the sum. of $1,000, and that the same was-endorsed by the defendant, and delivered to the plaintiff, who purchased the same for a valuable, consideration. That Gordon accepted the bill, which was duly presented to him for payment when it became due; that payment was refused and due notice of such refusal given to the defendant.
    The defence in the answer was, that the bill was accepted for the accommodation of the defendant, that it was placed by him in the hands of a third person by whom it was fraudulently put into circulation, and that the plaintiff was not a holder for value. It also denied that the bill had been duly presented for payment to the acceptor.
    The cause was tried before Oakley, Ch. J., and a jury, in April, 1855.
    The plaintiff, upon the trial, produced the bill, and proved its acceptance by Gordon, and to prove demand and refusal of payment, and notice to defendant, he offered in evidence the following notarial certificate.
    The counsel for the defendant objected to the evidence. The objection was overruled, and the counsel excepted.
    The certificate, after giving a true copy of the bill, proceeded as follows:—■
    Be it known, that on the day of the date hereof, at the request of The Philadelphia Bank, the holder of the original bill of exchange, of which a true copy is above written; I, Edward Hurst, Notary Public for the commonwealth of Pennsylvania, by lawful authority duly commissioned and sworn, residing in the city of Philadelphia during the usual hours of business for such purposes, went repeatedly to the place of business of the acceptor, No. 46 Walnut street, to demand the payment thereof, which was not obtained, said place being closed and' unattended, and no person there to answer about or to pay said bill.
    Whereupon 1, the said notary, at the request aforesaid, have protested, and do hereby solemnly protest, against all persons, and every party concerned therein, whether as maker, drawer, drawee, acceptor, payer, endorser, guarantee, surety or otherwise, howsoever against whom it is proper to protest, for all exchange, re-exchange, costs, damages, and interest suffered and to be suffered for want of payment thereof: of which demand and refusal I duly notified the drawer and endorsers.
    [L. S.]
    Thus done and protested at the city of Philadelphia aforesaid, the fourteenth day of December, 1854.
    EDWARD HURST, Notary Public.
    The only seal upon the certificate was an impression of a seal upon the paper.
    The plaintiff then, after proving the amount due upon the bill, rested.

      The defendant then proved that the bill had been accepted by Gordon, for his accommodation, and in addition to this proof the following facts were admitted, that the defendant had borrowed of one Smith $500, upon a pledge of the draft, and afterwards one S. B. Pree went to Smith and paid him the loan, acting, as he stated, for the defendant, and as his clerk, and that Smith delivered the bill to him to be returned to the defendant, which he promised to do, and that these facts occurred a few days before the maturity of the bill. The only additional fact proved on the trial, necessary to be mentioned, is that the defendant had given notice to the acceptor not to pay the bill. •
    The Chief Justice directed a verdict for the plaintiff for the sutil $1,055.93, subject to the opinion of the court at General Term, upon the facts in evidence, and judgment, in the mean time, to be suspended.

      J. R. Pomeroy, for the plaintiff.
    We claim that the plaintiff is entitled to judgment upon the verdict. The principal question is, whether the Chief Justice erred in allowing the notary’s certificate to be read in evidence. The seal was sufficient, by the laws of Pennsylvania, and was prima, facie evidence that the notary was duly commissioned. (Long v. Ramsey, 1 Ser. & Raw. 72; Browne v. Philadelphia Bank, 6 id. 482.) Hor even by the law of this state is a seal impressed simply upon paper for that reason invalid. (4 Kent’s Com. 452; 17 Barb. 358.) The only other question is, whether the facts admitted were sufficient to raise such a presumption that the bill was fraudulently put into circulation, so as to make it incumbent upon the plaintiff to prove that he gave value for it, and we submit, with confidence, that they were wholly insufficient. Finally, we insist that the defendant, having stopped the payment of the bill, is estopped from saying that he was. prejudiced by its non-presentment for payment, if the proof of its presentment is to be deemed insufficient; and neither the drawer nor the endorser of a bill is discharged, when it clearly appears that he could have suffered no injury from the laches of the holder. (17 Wend. 94; 21 Wend. 375; 4 Hill. 263; 8 Wend. 168; Chitty on Bills, 355.)

      D. Marvin, for defendant.

      The verdict ought to be set aside, and the complaint be dismissed.
    There was no legal proof, of a demand of the payment of the bill from the acceptor; the only proof was the notary’s certificate, and this was only authenticated by his signature, which was not proved. By the law of this state, as by the common law, a notary’s certificate is not evidence, unless authenticated by his official seal, and our statute, as to the mode of sealing such a certificate, does not apply to the acts of a foreign notary. (5 John. 239; 2 Hill, 227; 5 Denio, 110; 2 Duer, 278.) The certificate is, moreover, insufficient, on its face. It does not state that the notary had the bill in his possession, or that he took it with him when he made the demand of payment. (7 Barb. 143; Mason v. Luke, 4 How. U. S. R. 262.) But, supposing the proof of presentment and notice to be sufficient, the evidence clearly shows, that the bill was without consideration, that it was accepted for the sole accommodation of the defendant, and that it was lost, or fraudulently put into circulation. The plaintiff was, therefore, bound to prove, that he gave value for it, and took it without notice of these facts; and, no such proof' having been given, he cannot be entitled to recover. (1 Duer, 309; 5 Binney, 469; 5 id. 412; 13 Mees. & Wel. 73; 3 En. L. &. Eq. R. 379; 4 id. 531; 6 Wend. 615.)
   By the Court. Duer, J.

We think, that the certificate of the notary was properly admitted in evidence, and that, were it excluded, there is still sufficient evidence to entitle the plaintiff, in the first instance, to recover.

It was admitted, upon the argument, that 'the certificate was properly authenticated, according to the laws of Pennsylvania, and we strongly incline to the opinion, that, upon such a question, the law of the state in which payment of the bill is demanded, and the instrument of protest is executed, ought to govern our decision. (Story on Conflict, &c. § 360—on Bills, § 139, § 176; Chitty on Bills, pp. 193-506.) But, supposing this view to be erroneous, we are clearly of opinion, that an actual seal—not mere words or lines, in writing—stamped upon paper, of sufficient tenacity to receive and retain the impression, must be deemed a seal, in the technical sense, and within the strict definition, of the common law; and we are glad to find that the Supreme Court of this district made the same decision, in the case of Curtis v. Leavitt, where bonds of the North American Trust Company were held to be sealed instruments, although bearing upon their face no other seal than an impression, stamped upon the paper alone. (17 Barb. S. C. R. 318.)

The other objections, that were taken, to the admission of the certificate, were also groundless.

When the certificate of protest is properly authenticated, by the seal of the notary, no proof of his signature, or of his authority to act, is necessary, nor, as we believe, has ever been required. (Holliday v. McDougall, 2 Wend. 84; Cape Fear Bank v. Stinemitz, 1 Hill, 44; Nichols v. Webb, 8 Wheat. 381; 2 Green on Ev. p. 153.)

Nor can we say that the certificate is insufficient, on its face, as not showing that the notary had the bill in his possession when he went to demand its payment. When payment is, in fact, demanded, the protest must, undoubtedly, state that the bill was exhibited, when the demand was made; but, when it appears, from the protest, that the accepter was absent, from the place where the demand was properly to be made, and had left no person there, of whom. the demand could be made, it is sufficient to state that the notary went there, for the purpose of demanding payment; and, in these cases, such, we understand, is the usual form of the protest. The law will intend that he meant to make the demand in the proper form, by the exhibition of the bill, and, consequently, that the bill was then in his hands for that purpose. The cases to which we were referred of Mason v. Luke, (4 How. 262,) and the Bank of Vergennes v. Cameron, (7 Barb. 163,) are inapplicable, since, in each, there was an actual demand of payment, and the question was, whether it sufficiently appeared, upon the face of the protest, that the bill was exhibited when the demand was made.

But, while we are of opinion that the certificate, in its actual form, was sufficient evidence of a demand and refusal of payment, we are not to be understood as saying, that it was sufficient proof that due notice of the dishonor of the bill was given to the drawer, the defendant; but as this objection was not raised, either on the trial, or on the argument before us, we must regard it as waived. We have certainly no right to make it now a ground of decision.

But, as I have before intimated, had the defendant in this case relied solely on the insufficiency of the proof on the part of the plaintiff, we must still have held that the proof was sufficient to warrant a recovery, even had no evidence whatever been given that payment of the bill had been demanded and refused, and notice of its dishonor been given to the defendant.

The bill, it is not only admitted, but insisted by the counsel for the defendant, was accepted for the sole accommodation of the defendant, who had no funds, nor expectation of funds in the hands of the drawer, either when it was drawn, or when it became due.

In such a case, the law is settled, that the drawer is not a surety, but the primary debtor, and is not discharged, either by the omission to demand acceptance or payment of the bill from the drawer, or to give him, the drawer, notice of its dishonor, when acceptance or payment is refused. He has no right to complain of an omission by which, in judgment of law, he could not have been prejudiced. (Chitty on bills, pp. 356, 362, 469, 490; Story on bills, §§ 278, 280, 327, 367, n. a., and the cases there cited.) The present case is even stronger than any of those to which Mr. Justice Story has referred, since it appears that the defendant himself stopped the payment of the bill, and therefore, knew that payment would not be made.

Hence, the only question that remains to be considered, is, j whether the proof on the part of the defendant was such as to ; cast upon the plaintiff the burden of proving that he gave value , for the bill when it was transferred to him. The presumption of ¡ law in all cases is, that the endorsee of a negotiable bill or note, j is a holder for value, and it is a mistake to suppose—although the f mistake is frequently made—that this presumption in favor of > the holder is repelled merely by proof that the bill or note, as be-I tween the immediate parties, was without consideration, and wasi made, accepted, or endorsed by one, for the sole accommodation of the other. When no other proof is given, we hold it to be certain, that the holder is not bound to prove a valuable consideration. (Charles v. Marsden, 1 Taunt. 224; Grant v. Ellicott, 7 Wend. 229; Com. Bank v. Norton, 1 Hill, 501; Harvey v. Towers, 4 En. L. &. Eq. R. 531; Berry v. Alderman, 24 id. 318.)

But the law is equally clear, that when it is proved that the ' bill or note, in respect to the defendant in the action, was fraudulently put into circulation or negotiated, the plaintiff is not entitled to recover without proof, that he parted with value when it came into his hands. We do not say, that he is also bound to prove, that he received the paper without notice of the fraud affecting its title, for when he has proved that he parted with value, the burden of charging him with notice is cast upon the defendant. (Catlin v. Hanson, 1 Duer, 609.)

""it is upon the last question, whether the plaintiff, upon the whole evidence, was not bound to prove that he was a holder for value, that with some hesitation, we have come to a conclusion in favor of the defendant. We think, that upon the facts admitted on the trial, the question whether the bill was not fraudulently transferred by the agent of the defendant, Peet, to whom it was delivered, when the sum of $500 was paid, upon his promise that he would return it to the defendant, ought to have been submitted to the jury, and, consequently, that to repel this defence, it was incumbent upon the plaintiff, to prove that he was a holder for value. Upon this ground, there must be a new trial, costs to abide event.


author: By the Court. Bosworth, J.

text:
    E. W. Clark and others v. Loomis and Sisson.
    When a note or bill is sold at its inception, at a discount exceeding the legal rate of interest, having°no validity except that which such sale imparts, it is usurious and void.
    This rule has been acted upon in this state so long and so uniformly, that the courts are not at liberty to treat it as an open question.
    The fact, that it contains the words "value received,” does not estop any party to it from showing that it was usurious at its inception.
    The delivery to the parties, who discounted such a bill usuriously, of another bill made by the parties to the first one, and made and delivered merely as security for the payment of the first, and having no other consideration to support it. renders the second bill equally void as the first.
    (Before Duer, Boswobth and Slosson, J.J.)
    March, 1856.
    This action came before the court, on a motion made by the plaintiffs for á new trial. It was tried before Chief Justice Oakley and a jury, on the 21st of Hovember, 1855. After the evidence on both sides was closed, the Chief Justice dismissed the complaint, and the plaintiffs excepted to his decision. The case presenting only questions of law, an order was made at the trial, that they be heard in the first instance at the General Term.
    The complaint, first, alleged that Loomis, at the city of New York, on the 14th of July, 1851, drew a bill of that date, on Sis-son, directed to him at Poughkeepsie, New York, payable to order of Loomis at the Bank of Poughkeepsie, on the 2d of August then next, without grace, for $2,000, its acceptance by Sisson, and its endorsement by Loomis to J. J. Stewart & Go., and by the latter to the plaintiff, its nonpayment at maturity, and the acts necessary to charge the defendant Loomis as drawer and endorser.
    The complaint then proceeded and concluded as follows:—■
    “And the plaintiffs further say, that afterwards, and on or about the 5th day of August, 1851, said defendants, or one of them, came to said plaintiffs and represented that they were not then able to pay said bill, but promised that if said plaintiffs would extend the time for thirty days, they would pay the same in full, to which proposition the plaintiffs readily acceded, and thereupon the defendants drew and accepted their certain, other bill of exchange, for the said sum of $2,000, dated said 5th day of August, 1851, and payable on the 1st day of September next ensuing, to the order of said defendant, Loomis, at said Bank of Poughkeepsie, and by him duly endorsed to said plaintiffs; which said last-mentioned bill was also in due form presented for payment at said bank, and payment thereof duly demanded; but said defendant Sisson then and there wholly failed and refused to pay the same, or any part thereof, whereof also the defendant Loomis had due notice.
    “ And the plaintiffs further say, that they are now the lawful owners and holders of said bills, and that the said defendants, and each one of them, are justly indebted to them thereupon in the sum of $2,001.50, principal and expense of protest, together with interest thereupon from the said 4th day of September, A. d. 1851.
    “ Wherefore, the plaintiffs demand judgment for the said principal sum, expense of protest, interest, and the costs of this action.” Loomis and Sisson for answer to the complaint, said, “ That the bill of exchange therein mentioned, was drawn by Loomis, to raise money for his own benefit, and was accepted by Sisson solely for his consideration, and was placed in the hands of J. J. Stewart & Go., as agents of Loomis, to procure a loan upon it. That plaintiffs agreed to, and did loan upon it $2',000, for which it was agreed they should be paid, and for which they were paid $20 interest, for the loan of 2,000 for fifteen days. That the transfer of it to the plaintiffs, on this loan was its first inception.”
    On the trial, the plaintiffs produced the two bills of exchange, and proved that the interest on $2,000, fw from the 4th day of September, 1851, to the time of the trial, was $590 x<nr and rested.
    The defendants proved that the bill of the 14th of July, 1851, was drawn by Loomis, to be negotiated for his own benefit, and was endorsed by Sisson, for his accommodation. That Mr. Loomis carried it to Mr. Canfield, one of the firm of J. J. Stewart & Co., and asked Canfield to try and sell it for him, who said he would do so. On, or about, the 19th of July, 1851, he sold it to the plaintiffs for $20 less than its face, and before delivering it and receiving the money, endorsed it with his firm’s name, that being required by the plaintiffs.
    That the bill of the 5th of August, 1851, was left with the plaintiffs for collection, by Loomis, “ and, if paid, the proceeds were to be applied to the first bill, the plaintiffs holding that.”
    The second bill was offered to the plaintiffs as a renewal of the first. They refused to receive the second draft other than for collection. They assigned, as a reason, that they had J. J. Stewart & Co. as endorsers of the first draft, and they would do nothing to lose their endorsement.”
    The bill of the 5th of August was also accepted by Sisson, solely for the accommodation of Loomis.
    When Loomis took the bill of the 14th of July to Canfield, nothing was said by either to the other about its being business paper, and no statements were made by Canfield to J. J. Stewart & Co., nor did the latter inquire in relation to the character of the paper.
    The two bills read as follows:
    “ $2,000. “ New York, July 14th, 1851.
    “ On the 2d of August next, no grace, pay to the order of myself, at the Bank of Poughkeepsie, two thousand dollars, value • ' received, and charge the same to account of
    “ Freeman Loomis.
    “Isaac Sisson, Esq., Poughkeepsie, N. Y.”

      “$2,000. “ New York, August 5th, 1851.
    “ On the first of September next, pay to the order of myself, at the Bank of Poughkeepsie, two thousand dollars, value received, and charge to the account of
    “ Freeman Loomis.
    “ Isaac Sisson, Esq., Poughkeepsie, N. Y.”,
    Each bill was endorsed by Loomis, and accepted, in due form, by Sisson.
    At the conclusion of the evidence given, the plaintiff’s counsel offered to prove that the current rate of exchange betwéen New York and Poughkeepsie, on or about the 19th day of July, 1851, and also on or about the 5th' day of August, 1851, was one half of oné per cent. The court rejected the evidence, to which plaintiff’s counsel excepted.
    The court refused to allow the case to be submitted to the jury, to which the plaintiff’s counsel excepted. The court thereupon dismissed the complaint as to both defendants, to which the plaintiff’s counsel excepted.
    The court then made an order, that the questions of law presented by the case, be heard, in the first instance, at the General Term, and that the entry of judgment, in the mean time, be suspended.

      M. S. Bidwell, for plaintiffs,
    insisted, among other considerations, that the following rules and principles of legal and equitable jurisprudence and practice, are applicable to this case.
    The burthen of proof was upon the defendants. If the proof of the facts stated in the answer was insufficient, or left the case doubtful, the plaintiffs were entitled to a verdict in their favor.
    Where a party sets up the defence of usury, he is bound to allege the facts exactly according to the truth; or, in other words, he must prove the facts exactly as they are stated in his answer. (State v. Willing, 3 T. R. 538; Curtis v. Masters, 11 Paige’s R. 16; Vroom v. Ditmas, 4 Paige’s R. 526, 533; N. Orl. G. & B. Co. v. Dery, 8 Paige’s R. 458; Rowe v. Phillips, 2 Sandf. Ch. Ca. 14.)
    In this case the defendants have alleged in their answer, and in order to sustain their defence, are bound to prove that the plaintiffs agreed to, and did, loan two thousand dollars upon the first-mentioned bill of exchange, and receive for such loan for the space of fifteen days twenty dollars.

      Upon the facts in this case the plaintiffs were entitled to recover upon the first-mentioned bill of exchange.
    1. If a bill of exchange is a valid instrument between the parties thereto, and not a mere nudum pactum, it may lawfully be sold for any sum; such sale will not be an usurious or unlawful transaction, although the bill may be sold at a greater deduction than the legal interest from the face of such bill. (Rice v. Mather, 3 Wend. R. 62; Cameron v. Chappel, 24 Wend. R. 94.)
    2. When a bill of exchange is disposed of under a representation that it has been accepted for value received, the defence of usury cannot be sustained to an action by the holder to recover the amount of the bill.
    There is no ground for charging a party with usury if he makes the contract and advances the money in ignorance of the facts which constitute usury. (Holmes v. Williams, 10 Paige’s R. 326, 333; Aldrich v. Reynolds, 1 Barb. Ch. R. 43, 279; Jackson D. Walsh v. Colden, 4 Cow. R. 266; Ramsey v. Clark, 4 Humph. R. 244; Taylor v. Bruce, 1 Virginia, Gilmer’s, R. 42; Whitworth v. Adams, 5 Rand. R. 333; Law v. Sutherland, 5 Gratt. R. 357, 360, 361; Smith v. Beach, 3 Day’s R. 268; Middletown Bank v. Jerome, 18 Conn. R. 448; Murray v. Harding, 3 Wils. R. 395, 396; Davison v. Franklin, 1 B. & Ad. R. 142.)
    3. If a party, by his silence, allows another to act upon a mistake of facts, he is thereby estopped from setting up those facts afterwards to the prejudice of the person who has been misled. His silence binds him upon the same principles as if he had by express misrepresentation misled the other party. He is estopped in both cases upon equitable principles from denying the truth of the facts upon which the other had been induced, by such misrepresentations or silence, to rely. (1 Story’s Eq. Jur., sec. 385; Picard v. Sears, 6 Adol. & El. 474; Town v. Needham, 3 Paige’s R. 555; Watson's Executors v. McLaren, 19 Wend. R. 563, 564; 1 Cow. & Hill’s Notes, 204.)
    4. There may be a misrepresentation by actions as well as by words. (Chisholm v. Gadsden, 1 Strobh. Law. Rep. 210.)
    5. In this case, there was a legal presumption raised by the mere fact of acceptance, that the acceptor had in Ms hands funds of the drawer, to the amount of the bill, and, of course, third parties, unless informed to the contrary, had a right to presume that such was the fact. (Griffith v. Beed, 21 Wend. R. 504, 505; Suydam v. Westfall, 4 Hill R. 216.)
    6. The defendants had joined in a written representation that Sisson had accepted the bill for value received. This representation was shown to the plaintiffs at the time when they purchased the bill. It was not the less to be relied upon, because it was contained in the bill itself, than it would have been if it had been in a letter or a certificate. (Mandeville v. Welch, 5 Wheat. R. 277.) On the contrary, it was more credible and less suspicious, than if it had been formally stated in such certificate.
    7. There was nothing in the circumstances in the transaction to involve suspicion. It was taken by them in the usual course of business. From one who had frequently sold notes and bills to them. It was brought to them as a thing for sale. They were not asked to make a loan; did not intend to make a loan; did not suppose they were making a loan. It had the appearance of business paper; it bore a prior date; was drawn on a different place; payable in a short time, and without grace. It was endorsed by J. J. Stewart & Co. The contract of Canfield, under the circumstances, amounted to a virtual representation, that the bill was a valid subject of sale.
    The evidence offered, to prove the rate of exchange between the city of New York and Poughkeepsie, was pertinent and admissible.
    1. It is not usurious, for a person, upon a loan of money, to receive, in addition to the lawful interest, the difference of exchange between the place of loan and the place of payment. (Merritt v. Benton, 10 Wend. R. 116; Cayuga Co. Bk. v. Hunt, 2 Hill, 635; Ontario Bank v. Schermerhorn, 10 Paige’s R. 109; Buckingham v. McLean, 13 How. IT. S. R. 151.)
    If it be alleged, that the charge for such exchange is a mere pretext, to cover usury, the court cannot determine the question, but must leave it to the jury. (Andrews v. Pond, 13 Pet. R. 65-76; Carstairs v. Stein, 4 Mau. & Sel. R. 192, 202.)
    2. The defendants ought, in equity and good conscience, to refund to the plaintiffs the money, which they received from them, and the interest thereon. (Early v. Mahon, 19 J. R. 149; Roger v. Rathbun, 1 J. C. R. 367; Tupper v. Powell, 1 J. C. R. 439; Beach v. Fulton Bank, 3 Wend. R. 573; Livingston v. Harris, 11 Wend. R. 330; 1 Story’s Eq. Jur. sec. 301.)

      3. The defence of usury, was a personal privilege of the defendant.
    They could waive it, if they saw fit to do so, and, in such a case, neither the court nor any third party could object to their doing so. (Stoney v. Am. Life Ins. Co., 11 Paige R. 635; Churchill v. Hunt, 3 Denio R. 325; Spingler v. Snapp, 5 Leigh. B. 478; Littel v. Hord, Hardin’s R. 81, 82; Campbell v. Johnston, 4 Dana R. 182.)
    4. Where there has been an usurious loan, a new contract between the parties, for the repayment of the sum actually advanced, and the lawful interest thereon, is valid and binding: it is a promise, founded on a sufficient consideration. (Early v. Mahon, 19 J. R. 149.)
    5. The evidence, thus offered and rejected, was sufficient to have established the validity of the second bill of exchange, if the first were void for usury, as such second bill was for less than the money received by the defendants, and lawful interest thereon, to the time of payment, added to such exchange.
    Amount of bill,.............$2j000 00
    Less discount of.....■........ 20 00
    $1,980 00
    Int. on this amt. from 19 July to 4 Sept., 1 mo. 16 ds., 17 71
    Exchange between New York and Poughkeepsie, . . 10 00
    $2,007 71
    The case ought to have been submitted to the jury.
    The judgment should be set aside with costs.

      John Van Burén and A. L. Pinney, for defendants, made and argued the following points:—
    I. The draft in question was drawn by Loomis, and accepted by Sisson, for the accommodation of Loomis in obtaining a loan. It had no legal inception until passed to plaintiffs. It was not, then, the subject of a sale, but the instrument of a loan, and, having been received at an usurious rate of interest, was void in their hands.
    II. There was no representations made, to the plaintiffs, by the defendants, or their agent, that would authorize a jury to find they were estopped from setting up the defence of usury.
    HI. ■ The second bill did not belong to plaintiffs; but, if it did, it is equally with the first infected with usury.
    IV. The evidence offered, as to the current rate of exchange, was wholly irrelevant.
    1. There was no pretence that it entered into the contract of the . parties: the evidence shows that it did not.
    2. Even deducting this exchange, the contract is usurious.
    V. There was no question of fact to submit to the jury, and no evidence, on which a verdict for plaintiffs, if found, could be upheld.
    VI. The motion for a new trial should be denied, with costs.
   By the Court. Bosworth, J.

The bill, of the 14th of July, 1851, had no legal inception, before it was transferred to the plaintiffs.

The purchase, or a discount of it, on a deduction, from its amount, of a sum, which exceeded the legal interest on the money advanced, for the time the bill had to run, made the transaction usurious, and the bill void in the plaintiffs’ hands. (Arby v. Rapelye and others, 1 Hill, 9; Williams v. Storms, 2d Duer, 52; Dowe v. Schult, et al., 2 Denio, 621; Powell v. Waters, 8 Cowen, 669.) We consider this rule to have been uniformly acted upon, judicially, for too long a period, to leave us at liberty to treat it as an open question.

Interest, to the maturity of the bill, on the sum paid for it, and the amount of exchange, at one half of one per cent., and such sums, added together, are less, by some dollars, than the face of the bill. There can be no pretence, that it was the understanding, or intent of the parties, that only legal interest, and exchange, at the current rate,' should be deducted, and that too much discount was taken, by an error in computation,' and unintentionally.

The bill, of the 5th of August, 1851, was delivered to, and received by the plaintiffs, as collateral to that of the 14th of July. The plaintiffs refused to receive the former, except for collection. If paid, the proceeds were to be applied to the latter bill.

The bill of the 5th of August was not accepted, as a substitute, for that of the 14th of July. Having no consideration, to support it, except such as arises from forbearing the payment of the bill of the 14th of July for thirty days, and having been given to the plaintiffs, the parties who discounted that usuriously, to secure the payment of that bill, it is also void, on the plaintiffs’ hands. (Tuthill v. Davis, 20 J. R. 285; Dowe v. Schult, 2d Denio, 621; Mitchell v. Ostrem, 2 Hill, 520.)

The fact that the bill contains the words, “ value received,” does not make the mere offering of such a bill for sale or discount, a representation, by Sisson or Loomis, that it was actually accepted for value, received by the acceptor, which will preclude, or estop, either of them from proving the contrary to be true, as against a party who discounted it usuriously, without any inquiry into the consideration on which it was founded. It is not essential that a bill or note should contain such words, but such has been their common form from their earliest use. Treating such words as a representation that the actual truth is such as they import, and giving to them the effect of an estoppel, would virtually operate as a repeal of the statute against usury.

If the possession of the bill by Canfield, and the endorsement of his firm’s name upon it, was evidence that Canfield’s firm then owned it, there could be no pretence that the plaintiffs supposed him authorized, as the agent of Loomis or Sisson, to make any representation concerning its business character, nor could such a representation, if made by him, affect them. (Dowe v. Schult, et al., 2 Denio, 621.) But he did not, in fact, make any such representation.

The plaintiffs are not entitled to recover on either note. The complaint was properly dismissed, and the defendants are entitled to judgment.