author: By the Court. Paine, J.

text:
    Gomez v. The Tradesmen’s Bank.
    A conveyance, absolute on its face, was executed to four persons as joint tenants, and at the same time a bond was executed by the grantees, which contained the following clause: “And whereas the aforesaid consideration money being a voluntary offering made by them, the said L., &a., [the grantees,] which they appropriated to purchase the above piece of land for a burying-place for the Jewish nation in general, which title being in their names in trust.” And the bond was upon the condition that the grantees in the deed, or their heirs, should not sell, or in any way incumber the premises conveyed, or any part or parcel thereof, but that the same should for ever thereafter remain for a burying-place for the Jewish nation in general, and to no other use whatsoever. Held, 1. That the recital proved that the money paid for the land had been given by the grantees to the Jewish nation, and was paid as their money to the grantor, and hence that there was a resulting trust in their favor.

      Held further, that the instrument itself was a valid declaration of trust, and that the property vested in the grantees as a trust estate; and consequently was not subject to a claim of dower.

      Held also, that if the instrument could only be regarded as a bond, equity would enforce it as a declaration of trust.
    No particular form is requisite to create or declare a trust.
    (Before Oakley, Oh. J., and Sandfoud and Paine, J. J.)
    March 17;
    July 6, 1850.
    This was an action of ejectment, brought to recover the possession of one undivided third part of certain premises on the southerly side of Chatham-square, in the Fourth Ward of the city of New York, known as No. 177 Chatham-street, and which the plaintiff claimed as dower in the estate of her husband Isaac Gomez, Junior, deceased.
    Upon the trial of the cause, in December, 1848, after proving that the plaintiff was the wife of Isaac Gomez, Junior, and that her husband had died in the year 1881, the plaintiff’s counsel read in evidence a deed from Noy Willey, of London, to Lewis Gomez and his three sons, Mordecai, Daniel, and David, as joint tenants of certain lands, including the premises in question, which deed was executed on the 17th December, 1729. It was admitted by the defendant’s counsel, that the premises described in the declaration, were parcel of certain lands formerly known as the Jews’ burying ground,- and were embraced in the deed of Noy Willey, • The plaintiff’s counsel then read a notarial certificate of letters patent from George L, king of Great Britain, granting to Lewis Gomez and his three sons, the right to hold and- convey any real estate, in any part of the realm or its dependencies.:
    Mordecai Erois, a son-in-law of the plaintiff, was then called as a witness, and produced a bible in the Spanish language, bearing the imprint of 1660. It appeared by the testimony of this witness, that this bible had belonged to the family of Gomez, •and for a long period of time had been spoken of and regarded as a family relic or heirloom. It contained many entries-of births, .marriages, and deaths in the family, .and also of remarkable events which had occurred-in-the 17th century. -
    Various entries were then read- from the book by the witness, subject to objection on- the part of the defendant’s counsel. The first entry was of the .death, in 1740, of Lewis Gomez. • There was an entry-also-of tjje death, in-T750, of his son Mordecai Gomez'; in 1769, of David Gomez; in 1780, of Daniel; and in 1789, of Moses, a son of-Daniel Gomez. It also appeared that Isaac Gomez, Junior, was one of the sons of this Moses-Gomez, and that he was the only descendant of Moses'Gomez, who had issue, or'who survived him. ■ The witness -testified to the handwriting of a part only of the entries, as of his own knowledge. He stated that the other entries were in the book in 1816, when he became a member of the family. It also appeared -by the testimony of Moses E. Gomez, a son of the plaintiff, 'over 40 years of age, that this bible had been, in the family from ■ his earliest recollection, and that it contained the -genealogy of the family, from Isaac Gomez of Spain. • .
    The plaintiff’s counsel next read in evidence a deed of release and quit-claim from Isaac Gomez, Junior, to the congregation of “Shearith Israel,” dated April 14th, 1828,- conveying the-premises described in the deed of Noy Willey..- The plaintiff- was not a party to this deed. ■ • •
    The plaintiff here rested, and the counsel for. the-defendants.. moved for a nonsuit, on tbe ground that there was no actual seisin shown on the part of the original grantees of Noy Willey, or of those claiming under him, nor any legal seisin of Isaac Gomez, Junior, in fact or actual seisin shown; which motion the presiding justice decided must prevail, unless further evidence was.offered. The counsel for the plaintiff thereupon called upon the counsel for defendants to produce a paper in their possession, which was produced by them and read in evidence by the plaintiff as follows:
    “ Know all men by these presents, that we Lewis Gomez, Mordecay Gomez, Daniel Gomez, .and David Gomez, all of thecity of New York, merchants, are held and firmly bound unto Abraham Isaacs, Jacob Eranks, and Nathan Levy, of the same place, merchants, in the sum of one thousand pounds current lawful money of the province of New York, to 'be paid unto the said Abraham Isaacs, Jacob Franks, or Nathan Levy, their certain attorneys, executors, administrators or assigns, to the which payment well and truly to be made and done, we do bind ourselves, our heirs, executors and administrators, and every of them, firmly by these presents. Sealed with our seals. Dated this twenty-fourth day of November, 1780.
    . “ The condition of this obligation is such that whereas Richard Davis, attorney of Noy Willey, of the city' of London, by a certain deed under his hand and seal, bearing date seventeenth of December last past, for the consideration of thirty pounds, current money of New York, did sell and convey unto the above bounden Lewis, Mordecay, Daniel and David Gomez, a certain lot of land situate and being in the city of New York, aforesaid, on the south side of fresh water, beginning at the south-east corner of the Jews’ burying-place, running three hundred and ninety foot north 17 degrees westerly to the highway, thence along the highway north 69 degrees east fifty-one foot and three quarters, thence south. 17 degrees 67 foot, thence south 69 degrees west'fifty-six foot to the place where it first began. And whereas the aforesaid consideration money being a voluntary offer made by them the, said Lewis, Mordecay,. Daniel and David Gomez, •which, they appropriated to purchase the above said piece of land for a burying-place for the .use of the Jewish nation in general, which title being in their names in trust.
    “ Now if therefore, the above bounden Lewis, Mordecay, Daniel and David Gomez, or their heirs, shall not sell or any ways incumber the aforesaid lot of land, or any part or parcel thereof, but that the same shall for ever hereafter remain for a burying place for the Jewish nation, as aforesaid, in general, and to no other use whatsoever, then this obligation to be void and of none effect, otherwise to remain in full power, force and virtue.
    “ Signed, sealed and deliv-I Luis Gomez, [L.S.] ered in the presence of us, [ Mordy. Gomez, [L.S.] Baruck Judah, ) Daniell Gomez, -[L.S.] Zachary Polock. ) David Gomez, [L.S.]”
    It appeared by the testimony of Mordecai Erois, that the premises in question had been formerly used as a burying-ground for the Jews, but within the last fifteen years had been parcelled out and sold, and that a portion was now in the occupancy of the defendants.
    The plaintiff again rested, and the motion for a nonsuit was renewed by the defendants’ counsel, upon the same grounds as before, and also because the instrument produced on the part of the plaintiffj created an estate in trust in the original grantees of the premises, and that therefore the plaintiff was not entitled to dower .therein.
    The motion for a nonsuit was denied.
    The defendants’ counsel thereupon read in evidence, the certificate of incorporation of the congregation of “ Shearith Israel,” under the act of 1784. Also an order of the court of chancery, made March 81st, 1823, directing a sale and conveyance of the premises in question to the defendants, and a deed of the premises by the trustees of the congregation, “ Shearith Israel,” to the defendants, dated April 30, 1823.
    It appeared by the testimony of the defendants’ witnesses that the premises in question had been occupied by the congre•gation of “ Shearith Israel,” from the time of their incorporation in 1784, as a burying-ground, until tbe conveyance to the defendants. A portion of the premises now occupied by the defendants was used as an entrance to this burying-ground. The congregation, during this period, exercised control over the property, mortgaging and leasing it, and receiving the rents and making improvements upon it, and that during this time no claim was made by any other person to the property. It was admitted by the plaintiff, that the defendants were created a body politic and corporate in March, 1828, and that the common council of the city of New York, in the same year, passed=an ordinance prohibiting burials south of Broome-street in the city, pursuant to an act of the legislature.
    The case here closed, and the court directed a verdict for the plaintiff, for an undivided third of the premises in question, subject to the opinion of the court.

      John Graham and Geo. Wood, for the plaintiff.

      P. A. Gowdrey and John Slosson, for the defendants.
   By the Court.

Paine, J.

We think that the decision of this case may and should depend entirely upon the construction and effect to be given to the sealed instrument dated November 24th, 1730, and executed.by the grantees in the deed from Noy Willey.

One of these grantees was .the ancestor of the plaintiff’s husband, by virtue of whose seisin she claims dower in a part of the premises conveyed by the deed. And the first question upon which her right to dower depends is, whether the deed from Willey was an absolute or a trust deed.

The deed on its face is absolute, and furnishes no evidence of being a trust deed. But the defendants insist that the instrument of the 24th of November, executed by the grantees, .was a declaration of trust, or shows the deed to have been a trust deed.

The clause of that instrument upon which the defendants rely is in the following words: “And whereas the aforesaid consideration money being a voluntary offer made by them the said Lewis, Mordecai, Daniel and David Gomez, which they appropriated to purchase the above said piece of land for a burying-place for the Jewish nation • in general, which title being in their names in trust.” Excepting this clause, the whole instrument consists of the ordinary penalty and condition of a bond.

The clause above quoted seems to have been as studiously and carefully drawn, as it was singularly inserted in the bond; and the whole instrument may be regarded as framed with abundant caution, and with the unquestionable intent, on all hands, to secure the property conveyed by the deed to the Jewish nation as a perpetual burial-place. This is, perhaps, more evident than the reasons which induced the parties to give the instrument the shape it bears.

From the view which we take of it, however, no instrument, however regularly drawn, could have furnished better legal reasons for holding the deed from Willey to the Gomezes to be a trust deed.

In the first place, the consideration of the deed is evidently referred to, to show that the property conveyed by the deed was in trust, and in reality not the property of the grantees. This could be done by showing that the consideration paid for the land did not in truth belong to the grantees at the time they paid it. And even if this had not been the evident intent in using the language about the consideration, we do not see what other meaning the language will admit of. It is not the land, after it was purchased, which was voluntarily offered or given by the grantees to the Jewish nation, but it is the consideration money paid for the land. The consideration money, before it was paid, was voluntarily given to some one. A voluntary offering is a gift. To whom then was it given? Not to Noy Willey, for it was paid to him as the price of the land. It could then have only been given to the Jewish nation. It became theirs before the land was purchased, and the land was purchased with their money. This is the version of the transaction by the Gomezes, confirmed by their seal, and which they themselves could not have questioned. We must' now allow it- the same effect, as if it had been proved that the Gomezes delivered the money to the Jewish nation as a gift with every requisite formality, and that the Jewish nation themselves afterwards paid Willey *the money for the land.

This part of the clause was probably inserted to show that in equity there was a trust by implication, and to avoid the difficulty, that the land, having been purchased with the grantees’ money, must be held to enure to, their use.

We think that without any thing further there would have been a good resulting trust; but the instrument proceeds expressly to declare that the title to the land was placed in the grantees’ names in trust.

Is this a valid declaration of trust?

In Bellamy v. Barrow, (Cas. Temp. Talb. 97,) a brief note or memorandum, containing almost the same words as were used in this instrument, was held to be a good declaration of trust, and the only doubt was, from an apparent ambiguity in the words, which does not exist in this case.

In Deg v. Deg, (2 P. Will. 412,) a person’s mere admission by deed that he had received money of another to be laid out in land, and that he had so laid it out, was held to be a declaration of trust. The same was held in Hampton v. Spencer, (2 Vern. 288,) upon a similar admission by the defendant in his answer. So in Crooke v. Brookeing, (2 Vern. 106,) a description of the trust in a letter from the trustee was held a sufficient declaration.

Indeed, it is unnecessary to cite authorities to this point. It is well established that no form is requisite to create or declare a trust.

But it is strongly urged for the plaintiff, that this instrument is only a bond or personal covenant not affecting the land.

As we have already shown, we view it differently. It is much more than a bond, for it contains a declaration of trust studiously inserted in it. If it were intended only ás a bond, .that part of the recital above quoted would be superfluous. The preceding part of the recital is pertinent to the purpose of a bond; but-this part is, to say the least, wholly unnecessary. Besides, if tbe declaration is in itself sufficient, bow should it impair its validity, that it., is placed in a bond or personal covenant ?

But if tbis instrument could be regarded only as a bond, equity would enforce it as a declaration of trust.

In Moorecroft v. Dowling, (2 P. Will. 314,) a penal bond was given, conditioned to surrender a copybold to uses. After a judgment bad been recovered against tbe obligor for tbe penalty, a bill was filed to compel him also to surrender to tbe uses. It was not contended that the bill would not lie, but only that both remedies could not be had upon tbe bond. Tbe court acquiesced in tbis view, and decreed that tbe obligor should perform tbe trust upon receiving back tbe money which bad been' recovered of him.

Tbe view which we have taken of tbis case renders it unne-' cessary that we should decide upon other points presented on tbe argument; but we think that tbe grounds of presumption of a grant, want of actual seisin in the husband, and adverse possession, are serious obstacles in tbe way of a recovery.

Tbe estate in question being a trust estate, tbe plaintiff cannot be entitled to dower, and judgment must be entered for tbe, defendants.


source: Caselaw Access Project

author: Oakley, Ch. J.

license: Public Domain

text:
    Laimbeer v. The Mayor, Aldermen, and Commonalty of the City of New York, and J. Porter.
    It is not necessary for the corporation of the city of New York to cause an estimate of the expense of constructing a sewer to be made, and the amount thereof to be assessed upon the owners and occupants of premises liable to such assessment, previous to entering upon the construction of the work.
    After the common council has, by the ordinance for the construction of a sewer, appointed three persons to make the assessment, it has the power afterwards to remove them and appoint others in their places.
    The common council being authorized to appoint the assessors, the right of removal and substitution is implied.
    It is no objection to an assessment, that' no oath of office was taken by the assessors.' until after the assessment was made. It is sufficient if the oath is taken before the making of the report of the same to the common council
    An objection to an assessment that the lots were not described by street numbers, must be taken at the trial. If not then taken it cannot be made afterwards.
    (Before Oakley, Gh. J., and Campbell and Paine, J. J.)
    July 1;
    July 15, 1850.
    This was an action brought to restrain the defendants from further proceeding against the personal property of the plaintiff, under a distress warrant issued by the defendants for the collection of an unpaid assessment, and also to recover the damages sustained by him, by reason of the proceedings already had. The assessment in question was laid by the defendants for the constructing a sewer in Jane-street in the city of New York. The sewer was built before the assessment was made. The defendant was the owner of property in Jane-street, adjacent to the sewer, and was assessed the sum of $204 for the benefit and advantage acquired by reason of its construction. The plaintiff having refused to pay the assessment thus imposed, the defendants issued their distress warrant for its collection. The plaintiff, by his complaint, prayed that an injunction order might be granted, restraining Jhe defendants and their officers and agents from appraising, advertising, removing, or selling the plaintiff’s property for the said assessment. And he demanded judgment against the defendants for the trespass and damage sustained, and that the cloud upon the title to the plaintiff’s real estate in Jane-street, occasioned by the assessment, might be removed, &c. On the trial, before Sandford, J., in October, 1849, the jury, under the direction of the court, found a verdict for the defendants, and the plaintiff appealed. Some additional facts will be found in the opinion of the court.

      F. B. Gutting, for the plaintiff.

      H. F. Davies, for the defendants.
   By the Court.

Oakley, Ch. J.

The main question in this case is, whether,.under the statute, it was not the duty of the defendants to have made an estimate of the expense necessary to be incurred in the construction of the work, and to make the assessment thereof upon the owners and occupants of premises liable to the same, previously to entering upon the construction of the work.

This question came before us recently, in the case of Wetmore v. Campbell, (2 Sandf. Rep. 341.) In that case, an assessment similar to the one in the present instance, was held to be valid and legal. The reasons laid down in the opinion of the court for the conclusion thus arrived at, we deem well grounded, and we have no hesitation in'applying the principles of that decision to the case before us.

Various other objections are taken by the plaintiff to the regularity of the proceedings on the assessment in question, which we will notice.

In the first place, that the common council had appointed three individuals to make the assessment in the original ordinance, and that these persons were afterwards removed, and others substituted in their places, by whom the assessment was actually made. It is contended that the common council had no authority of removal or substitution as thus exercised; that the power of appointment was a naked power, and that when once executed, it was exhausted. There is no weight in this objection. The common council were in the habit of appointing the assessors from the deputies and clerks in the office of the street-commissioner. After the appointment of the assessors named in the original ordinance, a change of administration occurred in the street-commissioner’s office, and those persons ceased to be officers there; in consequence of which the change of the assessors was made by an amendment of the ordinance, and the substitution of the three individuals who succeeded those officers. We can see no objection to this. The law authorizes the common council to appoint the assessors, and the right of removal and substitution is implied. An assessor may die, or may decline to act, or other causes may arise which may prevent him from exercising his duties. No rights are injured by the substitution in the present case.

It is also objected, that the newly appointed officers took no oath until after the assessment was made. This fact does not appear. The time when the assessment was in fact made is not distinctly proved. It is enough, if the oath were taken before the making of the report to' the common council, which is the-completion of the assessment, and the adoption of all that has been previously done in its preparation.

' It is also objected, that the law requires that the lots should be described by street numbers. It is a sufficient answer to this objection that it was not taken at the trial, when it might have been shown that there were no street numbers. In all cases of this kind, the objection must be made at the trial.

Judgment for the defendants.


author: Mason, J.

text:
    Wilson v. Mallett.
    A bill filed by an assignee of a factor, to discover the state of accounts between the assignor and his principal, will not be entertained, where the bill is merely in aid of a suit at law; nor where it is filed for relief, if the right to relief is made to depend upon the right to the discovery.
    A court of equity has jurisdiction over matters of acco'unt between parties, in whatever way they arise. And a bill may be filed for the settlement of such, accounts, although there may be a concurrent remedy at law.
    Tlie right of set-off is one which exists in the case of independent contracts. The right of account is essentially different. It assumes that the demands have no independent existence, but have been so connected by the original contract or course of dealing, that the only thing which either party can claim is the ultimate balance. The only right in such case is that of taking the account.
    A bill may be filed by the assignee of a factor, for the settlement of accounts between the assignor and his principal.
    (Before Duer and Mason, J. J.)
    July 1;
    July 15, 1850.
    The bill in this cause was filed in the court of chancery by the-plaintiff, as the assignee of the firm of Hinman & Beach,, who were successors to Mallett, Hinman & Beach, to compel a. discovery and account from the defendant, and the payment of whatever balance might, on such accounting, be found due. The bill set forth, that Hinman & Beach, and Mallett, Hinman & Beach, during the existence of those firms, were the factors of the defendant, and had, from time to time, received from him consignments of merchandise for sale upon commission; that in the course of these consignments, the defendant had drawn various drafts upon the assignors, which had been accepted and paid by them, which drafts exceeded the amount of the defendant’s consignments; that the assignors subsequently endeavored to obtain an account and settlement with the defendant, without success.
    The bill then stated that Mallett transferred to Hinman & Beach his interest in the firm of Mallett; Hinman & Beach, and that subsequently Hinman & Beach assigned to the plaintiff all their property and effects. The bill averred that the plaintiff was ignorant of the precise state of the accounts between the parties, and it prayed from the defendant a full discovery of the goods consigned, their quantities and prices, the dates of the consignments, also the commissions and charges which were allowed, and the dates and amounts of the drafts paid by the assignors, and that the defendant be decreed to pay the balance.
    The defendant demurred to the bill for want of equity.

      T. H. Hodman, for the plaintiff.

      tS. A. Grapo, for the defendant.
   By the Court.

Mason, J.

The plaintiff, as assignee of Hinman & Beach, stands in.their shoes, and is chargeable with the knowledge which they possessed of all the facts of the case, and he has the same, and no greater rights than they would have if they were before the court. _ If they were the plaintiffs they could not maintain this bill on the ground of the necessity of discovery, because all the particulars of the account between them and the defendant were within their own knowledge. It was their duty to keep the accounts between the parties, and to render such accounts to their principal, and it would be utterly impossible for him to state the account or to answer as to the particulars required of him by the bill, except upon information from them. We apprehend, therefore, that the counsel for the defendant is right in his position, that if this were a mere bill of discovery in aid of a suit at law, it could not be maintained; and much less could it be sustained for discovery •and relief, if the right to the relief depended solely on the right’ to the discovery.

But there is another ground upon which we. think the bill can be sustained, and that is the ground of mutual accounts.

The defendant has claims against the plaintiffs’ assignors for the proceeds of goods consigned to them, and they or the plaintiff, as their assignee, have claims against him for acceptances paid and moneys advanced upon' such consignments. It is not, as was contended on the argument, a case of set-off by the defendant. The distinction between set-off and- mutual accounts is thus clearly stated by a late writer, (Adams’ Doctrine of Equity, p. 222:) “ The right of set-off is that right which exists between two persons, each of whom, under an independent Contract, owes an ascertained amount to the other, to set off their- respective- debts by way of mutual deduction, so that, in any action brought for the larger debt, the residue only after such deduction shall be recovered.” “ The right óf account is essentially different from this. It is not a right to amalgamate independent cross demands for the purpose of enabling one action or suit to suffice; but it assumes that the several demands have no independent existence, but have been so connected'by'the original contract or-course of dealing, that the only thing which either party can claim is -the ultimate balance. The only right, therefore, is that of taking the account, ■and the form of procedure both at law and in equity, are framed for that purpose.

■The case before us comes-precisely within this definition of mutual' accounts, as distinguished -from a mere set-off, and no authority is necessary fo show ’that the court of chancery has ■jurisdiction- in all cases -of mutual accounts.-

Nor is it any answer to say that the plaintiff' had a competent and adequate remedy at law. The question as to the jurisdiction of the court of chancery in cases where there is also a legal remedy, was very fully considered by this court in the case of Mayne v. Griswold, decided a few months since, and we then held, upon a. review of numerous authorities, that although it is one of the doctrines of equity, that where a plaintiff has a plain, adequate, and complete remedy at law, a court of equity generally Will not interfere; yet that the application of this doctrine must be controlled and governed by another equally well established, that if the jurisdiction originally has properly attached in equity, on account of the supposed defect of remedy at law, that jurisdiction is not changed or taken away by the fact that courts of law have subsequently exercised jurisdiction in similar cases. Although, therefore, in the present case, complete justice might be done to these parties at law, by a reference under the statute, yet the plaintiff had the right, if he thought fit, to have his account settled in a court of equity.

The demurrer must be overruled, and the defendant must put in his answer and .pay the costs of the hearing in forty days after notice of the order overruling the demurrer.

       Reported in voL iii. p. 463.


author: Duer, J.

text:
    E. and R. Rich v. Husson, impleaded with Lynch.
    One of two copartners sued for an'alleged partnership debt, who has given his individual note for the debt, is not a competent witness for the plaintiff, under the act of lSií or the code of procedure, although he has suffered a default. He is interested in favor of the plaintiff against his co-defendant.
    Where two persons are sued together on joint promises, a joint liability must be established against both, before a final judgment can be entered; and the rule is the same where one of them suffers judgment by default.

      The act of 1847 enabling parties in civil suits to call any adverse party as a witness, was intended to obviate the technical objection arising from the person called being a party to the record. It does not render him competent if he is otherwise disqualified.
    Such also is the construction of the code of procedure. Per Curiam.

    (Before.Dueb, Mason, and Campbell, J. J.)
    May 15;
    July 15, 1850.
    Assumpsit for goods sold and labor and materials furnished by the plaintiffs to the defendants, as partners under the firm of Edward Lynch & Co. The defendant Husson pleaded the general issue — Lynch suffered a default for want of a plea. On the trial in February, 1848, before the Hon. S. B. Strong, one of the justices of the supreme court, one of the grounds of Hus-son’s defence was, that the goods, labor, and materials were furnished for and on the. credit of a firm of Benson & Lynch, of which E. Lynch was a partner, and not on the credit of E. Lynch.& Co.; also, that the plaintiffs, after the dissolution of E. Lynch & Co., had taken in satisfaction of their demand the individual note of Lynch; and that on other grounds, Husson was not liable. It appeared that Benson & Lynch had executed a release of all demands to Husson at. E. Lynch & Co.’s dissolution.
    The plaintiffs called Edward Lynch as a witness, to whom the counsel for Husson objected,
    1st. On the ground that the act of 1847 applies only to those who are called to testify against their interest — the real adverse party;
    2d. That the ■ act does not apply to suits pending when the same was passed;
    3d. As to his liability as one of the firm of Benson & Lynch, he testifies to support a liability of Husson for a debt Benson & Lynch have released.
    •The court overruled the objection, and Lynch testified as a witness. Husson excepted to the ruling.
    The jury rendered a verdict for the plaintiff, and, the cause having been transferred to this court, the defendant, Husson, moved for a new trial.

      JS. Sandford, for the defendant Husson.

      A. Wight, for the plaintiffs.
   By the Court.

Duer, J.

Although the verdict in thisuase between the parties may be perfectly just, yet the law imposes upon us the necessity of setting it aside. We are satisfied that the defendant Lynch was improperly admitted as a witness on the part of the plaintiffs. We have found no escape from the conclusion, that he was directly interested in their favor. We do not say that there was not sufficient evidence to charge the defendant Husson as a partner without the testimony of Lynch, but it was upon his testimony that the judge laid the stress of his charge, and the jury, it is probable, founded their verdict. Had his testimony been rejected, we have no right to say that the same verdict would have been given.

The right of the plaintiffs to examine Lynch was placed at the trial and argument, upon the provisions of the act of December 14th, 1847, (Laws of 1847, p. 630,) which declare that any party in any civil suit, &c., may require any adverse party, whether complainant, plaintiff, petitioner, or defendant, or any one of the adverse parties, to give testimony under oath in such suit or proceedings, in the same manner as persons not parties to such suit or proceedings, and who are competent witnesses therein.” We attach no weight to the objection that Lynch, by suffering a default before he was examined, had ceased to be an adverse party within the meaning of the statute. The statute evidently contemplates that the plaintiffs and defendants in the suit are in all cases adverse parties, and it would be unreasonable to give to it any other construction. We do not doubt that the intention of the Legislature was to supersede the rule of the common law, which excludes the testimony of parties in all the cases to which it applies, and it applies just as certainly to a defendant who has suffered a default, as to a defendant who has pleaded. We add, that it does not appear from the case that Lynch objected to being examined, and in England the law is fully settled, that the consent of the party who is called as a witness, if lie is otherwise competent, is alone sufficient to render him admissible. (King v. Inhabitants of Woburn, 10 East. 395; Worrall v. Jones, 7 Bing. 395.) But we are not prepared to say that such was considered or would have been held to have been the law in this state previous to the adoption of the statute.

The statute, however, furnishes no answer to the objection that Lynch had a direct interest in enabling the plaintiffs to obtain a judgment. The sole design of the act of 1847, and of the enactment in the code of procedure (Code, § 344) by which it has been superseded, is to remove the technical objection arising from the person who is called as a witness being a party to the record; but the person so called is not rendered a competent witness if otherwise disqualified. If not interested or otherwise incompetent, he may be admitted and compelled to testify, although he is a party to the suit. But he is not to be so admitted or compelled, merely on the ground that he is a party. The question of his competency must still be determined by the same rules that are applicable to other witnesses. The supreme court has recently given the same construction to the statute and to the code in the case of Pillow and wife v. Bushnell and others, (4 How. Pr. R. 9,) in which it was held that a wife, a co-plaintiff on the record' with her husband, had been improperly admitted as a witness on the part of the defendants. Indeed, this reasonable and almost necessary limitation of the general terms of the law, it seems to us, is very plainly implied in the language which is used both in the act of 1847 and the code. By the first, parties to the suit are to testify in the same manner as persons not parties who are competent witnesses, and by the second, they are to be subject to the same rules of examination as other witnesses.

In denying the competency of Lynch in the present case, we do not proceed on the ground that, as a partner, he was interested to prove a joint liability in the defendant Husson. It is true that this broad rule of exclusion, denying upon the ground of interest, the competency of partners and part owners to prove a defendant to be jointly liable with themselves, was adopted by the supreme court more than thirty years since, in Marquand v. Webb, (16 John. 89,) and in a much more recent case, notwithstanding the dissent of Mr. J. Cowen, .and the doubts of Mr. J. Bronson, has. been adhered to by- the same court, (Pierce v. Kearney, 5 Hill, 82.) But admitting the doctrine, (although contradicted by the English decisions, and, as. we thiuk, Mr. J. Oowen has proved, the principle by analogy,).to. be the established law of this state, we doubt exceedingly whether it embraces the case where the partner who is called as a witness is himself a defendant in the suit. The apparent immediate interest of every defendant is against the.plaintiff, not in,his favor. His apparent interest is to prevent a judgment being obtained against himself, and his interest, in this respect is not changed by the fact that he has suffered a default,, since where, he is sued with another upon joint promises, the joint liability mus.t be established before a final judgment upon his default can be entered. It has indeed been held by the court of common pleas in England, in the cases of Brown v. Brown, (4 Taunton, 752,) and Maint v. Mainwaring, (8 Taunton, 1891,) that a co-partner who had suffered a default was not an admissible witness for the plaintiff. But we have the authority of Lord Tenterden .for saying, that this exclusion was no.t upon the ground of interest, but was founded upon the general rule that a party to the record cannot be examined, (Blackett v. Wein, 8 Dowl. and,. Ryl. 45,) and the language.of the judges in Maint v. Mainwaring, clearly shows that the decision was also founded upon the supposition that the consent, not of the witness alone, but of all the parties to the suit, was necessary to remove the objection, In England, since the decision in Worral v. Jones, this.necessity.no longer exists, and with us it has been abolished by the act of 1847, and by the code.. Hence, had there been no other objection to the admissibility of Lynch than his own confession that he was a partner, we should not be prepared to say.that his testimony ought to be rejected. In Marquand v. Webb, and Pierce v. Kearney, the partner who was rejected was not a defendant in the.suit, and this circumstance creates an obvious, and, we'are inclined to think, a. material distinction.

.But tlie objection ;to. the competency .of-.Lynch does not rest merely upon the fact that he was a partner of the defendant Husson. It appears from the case, that he had given his own note to the plaintiffs for much the larger portion of the debt which they now seek to recover. A judgment in the present suit will extinguish his separate individual liability on the note, and will establish that in the result he can only be liable for a proportionate share of the entire debt. The note will be merged in the judgment. It is, therefore, we think, a necessary consequence that he had a greater interest in assisting the plaintiffs to obtain a judgment than to defeat their recovery.

Whether, under the provisions of the code, he is or can be . made a competent witness, is a question upon which we express no opinion. But the verdict founded upon his testimony when incompetent, must be set aside.

A new trial is granted, with costs to abide the event.


author: Oakley, Ch. J,

text:
    Huff v. Bennett.
    In an action for a libel in publishing the proceedings of a court of justice, it is proper to submit to the jury, as a question of fact whether the defendant had made a true publication of such proceedings.
    It is not necessary to submit to the jury, the question whether the defendant had made a fair and impartial statement. For the purpose of determining as to the character of the alleged libel, it is sufficient if the publication be true.
    The minutes of a judge, of the testimony given on a former trial, are not of themselves evidence. If the judge making them testify that they are correct, or that he has no doubt of their being so, they are admissible. But where the judge oannot testify that they are full and accurate, they cannot of themselves be regarded as evidence.
    The proprietor of a newspaper is responsible for whatever appears in its columns; and in an action against him for a libel contained in his paper, it is not necessary to show that he knew of the publication, or authorized it.
    Where a witness swears that he is a subscriber for a specified newspaper, and being shown several papers of the same name and date containing the alleged libels, testifies that the papers are in all- respects similar to those left at his office, that the articles contained in the papers produced are the same that he had read in the copies left at his office; this is sufficient proof of publication, without proving a loss of the papers originally left with the witness.
    (Before Oaklet, Ch. J., and Campbell and Paine, J. J.)
    July 8;
    July 15, 1850.
    This was an action for the publication of certain alleged libels in the New York Herald. The answer set up a justification. The cause was tried before his Honor the Chief Justice, and a jury, in December, 1849. On the trial, the defendant admitted that he was the proprietor and editor of the New York Herald, at the time of the publication of the alleged libels. The plaintiff next called as a witness George W. Stevens, who testified that he subscribed for the Herald and read it; that he subscribed for it in May, 1846, and had taken it ever since; that he paid the carrier at his office. Being shown a paper, the New York Herald of November 29th, 1848, he testified, that it was in all respects similar to the one left at his office. Being asked to look on the papers produced under the dates of December 2d, and November 29th, 1848, and say whether those papers were ever seen before by the witness, or papers like them, the counsel for the defendant objected to this question. The judge overruled the objection. The defendant took an exception. The witness answered he had. Q. What papers were those ? The witness answered, the New York Herald. The question was then asked the witness, where he saw those papers of the dates of November 29th and December 2d, 1848. The witness answered, at his law office, 27 Beekman-street, in the city of New York. He testified that the papers came from the publication office of the New York Herald; that he was a subscriber, and subscribed for the paper at the publication office, and the boy left those papers at his law office. The witness was then asked if he had read the article, “ The Illegal Bail Case of Recorder Scott,” and also the article “ Police Intelligence,” in the paper of the 29th of November, 1848; The witness testified, that he saw those articles and read them, and also the article headed “ A Hard Case,” under the date of December 1st, in the paper of the 2d of December, 1848. That those articles were in the papers left at the witness’s law office in Beekman-street. On cross-examination, this witness testified, that these papers are not the same that were left at his office.
    The counsel for the plaintiff then offered to read in evidence the alleged libels, from the papers so shown to this witness. The counsel for the defendant objected to such reading of the first two papers, .on the grounds that no sufficient proof of the publication thereof, or connecting the defendant therewith, had been given on the part of the plaintiff, to entitle him to read the same to the jury. And as to the third paper, it was not in issue, and not admissible for any purpose. The judge' overruled the several objections taken to the reading of the first two papers, and to his decision thereon, the counsel for the defendant excepted. As to the third paper, the judge sustained the objection. The articles from the first two papers were then read in evidence as follows:
    “The Illegal Bail Case of Recorder Scott. — r¥e give in our police intelligence to-day, a very full and authentic report of the facts in the history of the recent very extraordinary case of illegal bail, which was authorized by Recorder Scott, under the advice of counsel, one day last week. It will be seen .by this report, that as soon as notice was called to the subject in the public journals, the recorder took occasion to make a statement of the circumstances under which he accepted bail and permitted the prisoners to escape, in a manner which, however, by no means justifies so high an, officer as the recorder, or takes away all blame from him in the case, as it now stands. The judge of a high criminal court ought to have, to use an expressive but ordinary term, his law always 1 at his fingers’ ends;’ nor should he be under the necessity of taking legal advice, as well as a statement of facts, from counsel on any occasion. But certainly, one of the strangest things is, that Recorder Scott, at that particular juncture, should, under any circumstances, have forgotten the existence of the statute prescribing the legal proceedings in such cases; or that such an important and active principle of law should have been obliterated by the eloquence of learned counsel,, or any thing else, from the mind of so respected and independent a public functionary as Recorder Scott claims to be. The recorder, however, in giving an explanation, places the stress of the policy he pursued on the advice of the counsel engaged in the case. This counsel, it seems, is a person by the name of Huff, and who appeared to have officiated in this particular case, as legal adviser, not only of the two prisoners implicated, but also of his honor the recorder. Now, the question arises at once, who is this Mr. Huff, and how did he exercise such extensive functions as legal adviser, not only to the persons arrested, but also to the recorder himself, on the occasion of giving and taking illegal bail in this case ? On inquiry into the history of Mr. Huff, we find that that distinguished man has made a great deal of noise in the world on former occasions. His debut in life we have not ascertained; but his profession, for many years, was crier to the old marine court, in which Recorder Scott sat as one of the dispensers of justice. In that capacity, Mr. Huff has made considerable noise, strictly according to law, giving notice to the lawyers that the court was opened, and threatening the boys and loafers with punishment, unless they would keep still and quiet. On the accession of Mr. Scott to the recordership, by an appointment given to him through the influence of the late Governor Wright, and for the purpose, it is said, of making John Yan Burén attorney-general of the state, Mr. Huff transferred his talents and acquirements from the marine court to the court of sessions, where he was appointed to the responsible office of crier, which he filled with great honor and trust up to last winter. At that time he was admitted as a lawyer to practice in some of the courts, and therefore abandoned his highly responsible position of crier, and of keeping the loafers and boys quiet, for that of picking up cases about the Tombs, and managing the affairs of clients. Among other curious specimens of his legal learning and talent, we have the original of the following curious note addressed to a person named, and which we copy verbatim ei literatim ”

    (Here followed a dunning letter, defectively expressed, and spelled erroneously.)

      “ From this note it will be perceived that Mr. Huff, the legal adviser of Recorder Scott in the case of the Martins, pays no particular regard to the rules of Lindley Murray, either in spelling, grammar, or in punctuation. This, then, is the distinguished counsel, the eminent lawyer, on whom Recorder Scott rested in the emergency described by our report, when the two dressmakers or washerwomen, were called up to give bail in the case in question. We do not think it is necessary to add a single word on the character of this case, on the conduct of Recorder Scott, or on that of Mr. Huff, who appears to have been his principal legal adviser on that occasion. We are extremely sorry for the recorder. We have known him for nearly twenty-five years, and we have always _ esteemed him to be an honest, upright, intelligent, and learned man. We think, however, that there were some exhibitions, during the recent election, which resulted in such a tremendous majority against Recorder Scott, and in favor of Mr. Tallmadge, .that will modify the opinion of any man in regard to the present reeorder. The people are good judges of recorders. We may, however, forget the violent and unprovoked attacks on the character of Mr. Tallmadge, nor pry narrowly into their source, provided Recorder Scott will be particular to present this case of illegal bail to the grand jury, side by side with the alleged illegal conduct of Sheriff Acker, on Blackwell’s Island, which took place a few days ago. We shall insist upon this course.”
    “ Police Intelligence. — The Illegal Bail Case. — The Martins. — Some further proceedings have taken place in this extraordinary case. On Saturday last, Recorder Scott, it appears, ordered the re-arrest of the two prisoners for whom he took illegal bail on the Wednesday previous. Their counsel, Mr. Huff, instead of taking them before the magistrate who issued the warrant, conveyed them before the recorder in the court of sessions. Justice Lothrop informed the recorder that his proceedings were decidedly illegal, and in direct violation of the statute; and then left the court-room. After this interview, the counsel for the prisoner applied to Justice Lothrop, and asked him to come into the court of sessions and examine the prisoners, and take bail for tbeir appearance. Justice Lothrop informed bim that bis place of doing business was in the police court, and the prisoners must, therefore, be brought before him in the same manner as all other cases of the like nature. The counsel, finding there was no alternative, brought the prisoners before the magistrate in the police court, where they underwent the following examination according to law
    “Court op Special Sessions. Before the recorder, and Aldermen Eranklin and Stevens. Dec. 1. — A Hard Case. — A respectable-looking woman, named Catherine Boyle, was this morning placed at the bar, charged with having stolen $14 from one Bridget Conway, of No. 67 Cherry-street. The accuser charged that the accused had snatched the money from her hand, and that it was all in gold coin. The appearance of the accused did not indicate a character that would stoop to such means for the improvement of her store of wealth, and she begged the court to allow her time to send for witnesses. She stated that she was a stranger in this city, and averred that she could show that her character was above any imputation of this kind. While the case was pending, Mr. Huff stepped up and informed one of the judges that the prisoner had been before the court before. As Mr. Huff was formerly a crier of this court, his word was taken, and the judges evidently thought, that, they had an old offender before them. At length the witnesses for the defence arrived, and gave evidence to prove that Mrs. Boyle was a respectable person, and possessed of money of her own; that she had a large amount of gold coin, similar to that alleged to have been taken from the complainant; and, last of all, the daughter of the accused was called 'to testify. She stated that her mother had only been in the country about six weeks, that she was on her way from Liverpool to New Orleans, and had paid her passage to the latter city. Mr. Huff again being appealed to, persisted in his declaration that the accused had been before the court before; and on this declaration being made, the court sentenced her to imprisonment in the city prison for the term of thirty days. On hearing her mother’s sentence, the daughter, a young girl, perhaps sixteen years of age, hastened to leave the room, but had only got outside the door, when she dropped perfectly insensible. The indignity cast upon her mother quite overcame her, and she found it impossible to bear up under the severe stroke. She was a stranger, the money found upon the person of her mother was claimed by the accusing party, (who resides at 67 Cherry-street,) and on conviction of the accused, given up to the officer for the benefit of Mrs. Conway. The mother thus bereft of means, the daughter was alike destitute, and had nowhere to look for necessary food, until some kind friends offered her their aid. On application to the female department of the city prison, it was found that Mrs. Boyle was an entire stranger there, none of the old officers ever recollected seeing her before, and Mr. Huff was the only man that could recollect her. It was evident, in fact, and proven by a careful investigation out of court, that Mr. Huff was mistaken, and if the court sentenced Mrs. Boyle to the city prison because Huff said ‘ she was up here before,’ they have done a great wrong to her. Quite a number of sympathizing friends clustered around the girl, outside the doors of the court-room. One gentleman of the bar offered his professional services gratuitously to see the matter set right. The girl, meantime, suffering under the severe dispensation of law, was unwilling to test it farther, and would rather that a false accuser should go unwhipped of justice, than to venture further in her experience of legal affairs.”
    The plaintiff then proved his admission as an attorney of this court in 1844, and rested his cause.
    The defendant introduced evidence on his part in support of the truth and fairness of the statements in the alleged libels. John B. Scott, formerly recorder of the city, was sworn as a witness, and testified for the plaintiff. He stated what took place on the trial of Catherine Boyle in the sessions, from his recollection.
    In order to show that he had testified differently on this and other matters at the former trial of this cause, the counsel for the defendant called as a witness, Lewis H. Sandford, who testified that he was the presiding judge on the former trial of this cause; that John B. Scott was then sworn as a witness; that he, the witness, took notes of the testimony on that trial, but could not recollect of his own knowledge what Recorder .Scott testified to on that trial, except as he referred to his minutes; that he had those minutes present, and they were pretty full, but he would not say that they contained the testimony of Recorder Scott accurately; that he might have omitted things which the recorder testified to.
    Hereupon the counsel for the defendant offered the minutes taken by Judge Sandford in evidence, and the counsel for the plaintiff objected to the same as illegal evidence. The court sustained the objection, and the defendant’s counsel excepted to this decision. The witness further testified, that he recollected that the recorder stated on the former trial, that he did not recollect much about the testimony given on the trial of Catherine Boyle, except what he had down in his minutes, and that these minutes were very short. The counsel for the defendant again insisted that the minutes of Judge Sandford were competent evidence to be read to the jury, but the court overruled such evidence, and excluded them altogether, except where the witness could testify to their correctness from his recollection. The pendant’s counsel excepted. The testimony on both sides was voluminous, but sufficient of it is stated to render intelligible the points decided.
    The judge charged the jury, that where any proceeding takes place in a court of justice, or before a magistrate, in the regular administration of the law, and a publication thereof is made containing nothing but the truth of what did take place, the party making such publication will not be liable in an action for a libel; but if the publication contain matters which did not take place, and were not true, and were libellous, that the publisher is liable, and subject to an action. That in the present case, so far as the libel or publication in the New York Herald of the 2d- December contains a true aiid fair account of the judicial proceedings in relation to Catherine Boyle, the defendant was protected. But if, from the whole evidence, the jury believed that the publication misrepresented the facts to the prejudice of the plaintiff, either to hold him up to contempt, or hatred, or ridicule, the defendant would be liable. That the defendant would also be justified in any comments on the conduct of the plaintiff, in connection with the same proceedings, if they were fair, and it was-a question of fact for the jury whether the defendant had made a true statement of the proceedings in court, and a fair criticism upon the acts and proceedings of the plaintiff on that; occasion. That in regard to the question of illegal bail, and the whole article headed “ Illegal Bail Case of Recorder Scott,” under the date of the 29th of November, 1848, the plaintiff’s counsel contended that the general scope of the article was censorious, so far as the matters therein related to him the plaintiff; that much of the language of it was ironical; that it intended to hold him up to ridicule, and to show that he was ignorant and unprincipled, and it was calculated to throw odium upon him, and to expose him to public hatred. If such were the character of the publication, it was no doubt libellous. That, if the jury came to the conclusion, from the whole evidence, that the plaintiff had knowingly deceived the recorder in regard to the bailing of the Martin girls, the defendant would be justified for the publication to this extent. That in regard to the letter, the jury would look at it, and the remarks concerning it, and if a true copy of it had been published, and if the remarks were no more than a fair criticism upon it, it would be a justification for the defendant in this particular. That in regard to the publication concerning the plaintiff, in respect to his being a' crier of the marine court, the defendant had offered no evidence to justify this part of it; that the office of crier in the marine court was a legal appointment, and the station was as respectable as that of any appointment of the kind .in any court; and the defendant had not shown but that the plaintiff had always conducted himself with official and personal propriety while he held that office. That the remarks contained in this part of the publication were to be considered by the jury, and if they thought that the plaintiff was held up to ridicule and odium, in regard to 'the office of crier .of the" marine court, the defendant would be liáble.- ■ And so in- regard to the charge of picking up cases about the Tombs, no evidence had been offered-by-the defendant-in 'regard to-this part of the publication which would seem-to justify the allegation.- • *
    The defendant’s counsel excepted to the charge. The jury rendered a verdict for the plaintiff for one hundred and fifty dollars damages,'and six cents costs. ■

      B. Galbraith, for the defendant.

      A. Nash, for the plaintiff.-
   By the Court.

Oakley, Ch. J,

In the' main, the charge of the judge upon the trial, as to the law of libel, -viras favorable to the defendant, and in accordance'with the -positions'assumed by his counsel: • ' - - '• •

There were, however, various exceptions taken which' are brought .forward upon the appeal. ' One'is, that the court -erred in charging that “ it was a question of fact for the jury whether the defendant had made, a true statement of the proceédíngs in court,” and that the question submitted to them-should have been, whether the- defendant had made á fair and impartial statement. As to this, any thing that is true is fair/

Another exception -was -taken- to the ruling of ¡the court'a's to the admissibility of the minutes of Judge Sandford, .before whom the case was formerly tried, which contained the testimony of Recorder .Scott, a witness examined upon that trial. It was contended upon the trial, as was also strongly urged upon the argument before us, that the minutes were of - themselves evidence. But we are not aware that they are ever regarded as such. If the party making them swear that they are correct,. or that he had no doubt of -their being so, in such a case, we think, they would be admissible. But where this is not the case, the minutes cannot, of themselves, be regarded as evidence. Such a rule of evidence would be manifestly -unsafe, . In this case, Judge Sandford was .-unwilling-so to .sw.ear-.-':- He-testified •that he had taken minutes upon the trial, as was his usual custom, but would not say that they were full or accurate; that he might have omitted things to which the witness Scott had testified. We think the ruling of-the court below, as to this point, ■clearly correct, and that the minutes were properly rejected.

Another question discussed upon the argument before us, related to the responsibility of the defendant for the publication of the libel. It was admitted upon the trial, that the defendant was the publisher of the Herald, but there was no evidence that he had actual personal knowledge of the publication of the article in question. This, however, was an immaterial point. The defendant, as the proprietor of the paper, was responsible for whatever appeared in its columns; and it was unnecessary to show that he knew of the publication, or authorized it. This point is well established.

. Another question related to the admissibility of the testimony as to the publication of the libel. The witness Stevens testified, that he was a subscriber for the Herald, and being shown the several papers containing the publications in question, testified that they were in all respects similar to those left at his office, and that he had read the articles contained in these papers, in the copies left at his office. It was contended that the testimony was inadmissible, until a loss of the papers originally left at Stevens’ office, and read by him, had been proved. We think the evidence properly admitted, but if not, the defendant clearly proved the fact of the publication in the course of his defence.

Motion for new trial denied.


text:
    Fitch v. Redding.
    The presumption that a check is founded upon a good consideration is not absolute, it may be repelled; but it can only be repelled by positive affirmative proof of a -want of consideration. The presumption remains, so long as its truth may be reconciled with the evidence adduced to impeach it.

      Where a maker of a check has no funds in the bank upon which it was drawn, he is not entitled to notice of protest.
    A defence to a written promise to pay, which' rests upon the single ground of the absence of a valuable consideration, does not deserve much favor in a court of justice.
    The rule of law which permits such a defence, is almost peculiar to our own jurisprudence, and is condemned by the general sense of legislators and jurists, as well as of merchants. . •
    Where the maker of a note, invalid between the parties for want of consideration, gives a check for the note, it seems that he is liable upon such check.
    (Before Doer, Mason, and Campbell, J. J.)
    June 10, 11;
    July 15, 1850.
    This was an action brought in tbe supreme court, to recover tbe amount of a check drawn by tbe defendant on tbe Atlantic Bank, Brooklyn, for four, hundred and sixty-two dollars and forty-five cents, payable to tbe order of tbe plaintiffs, and dated July 21st, 1847.
    The cause was referred to a sole referee. Upon tbe trial, tbe plaintiffs proved tbe making of tbe check, its presentment at tbe bank, and its non-payment. It also appeared, that, at tbe time of tbe presentment of tbe check, and for a long period thereafter, tbe defendant had no funds in tbe Atlantic Bank, out of which tbe check could have been paid. One of the plaintiffs' clerks testified, that, after tbe check was dishonored, be went to the defendant with it,, and that tbe defendant apologized for its not being paid, and gave as a reason, that it was not convenient at tbe time, but 'promised to eall in a féw days and pay it. Tbe plaintiffs rested. It was proved on the part of tbe defendant, that, some time prior to tbe making of'the check, tbe defendant, as tbe agent of one Joel Hall, who resided in Connecticut, bad purchased from -the plaintiffs a cargo of stone for Hall, of tbe value of $513.07. After tbe purchase, Hall died, and tbe plaintiffs applied to the defendant for a settlement of tbe account, and tbe matter was finally arranged by tbe defendant’s giving to tbe plaintiffs bis promissory note at six months, for the amount, and the plaintiffs’ giving tbe defendant a receipt in tbe following form:
    “Received November 21, 1845, from Mr. Thomas H. Red-ding, his note for six months, for five hundred and thirteen dollars and seven cents, for cargo of stone. The conditions upon which the said note is given, is as follows: — That on the 8th day of September, 1845, the said Thomas H. Redding purchased of us the amount of said note in stone, as the agent of Joel Hall, lately deceased. Now it is hereby understood, that, in case the administrator of said Joel Hall’s estate does not admit the said amount in the closing of the accounts between the said Thomas H. Redding and the late Joel Hall, then this amount to be returned to Thos. H. Redding, and collected by us of the estate of Joel Hall, $513.OOj^ bill book.
    “E. Pitch & Co.”
    The note was renewed once or twice upon the same terms. No proof was offered to show that the check was given in renewal of either of the notes given under the arrangement between the parties, except that one of the plaintiffs’ witnesses, in reply to a question put to him by the defendant’s counsel, testified, “I understood from the plaintiffs that the check in suit originated from the debt of Joel Hall, for which Redding had given his note.” Nor was there any evidence offered or adduced to show that the administrator of Hall’s estate had rejected the claim upon his estate.
    The parties having rested, the cause was submitted to the referee, who subsequently made his report in favor of the defendant. It was then transferred to this court, where the plaintiffs moved to set aside the report.

      A. G. Bradley, for the plaintiffs.

      J. M. Van Goit, for the defendant.
   By the Court.

Duer, J.

The preliminary objections that the check in suit was not duly protested for non-payment, and that, if dishonored, due notice of the dishonor was not given to the defendant, were properly overruled by the referee. As the defendant had no funds in the bank upon which the check was drawn, he was not entitled to notice, and had he been notified, his subsequent promise to pay the check would have been a waiver of the defence. We must therefore consider the case upon its merits, and determine whether the finding of the referee in favor of the defendant was agreeable to law and to the evidence.

The check was proved to have been given by the defendant, and it is not denied that the referee was bound to presume that it was founded upon a valid consideration. Hence the bur-then of proof was cast upon the defendant. The presumption which the law raises in these cases, is not absolute; it may be repelled, but it can only be repelled by positive affirmative proof. It can only be repelled by showing its falsity; and its falsity is not shown unless it is a necessary deduction from the facts that are proved. The presumption remains, so long as its truth may be reconciled with the evidence. The application of these remarks will hereafter be seen.

The reasoning of the referee upon the facts of the case seems to have been as follows: — As the original debt to the plaintiffs was contracted by the defendant, not on his own account, but as the agent of Hall, he was not personally liable for its payment ; consequently there was no meritorious consideration for the promissory note, which, at the solicitation of the plaintiffs, he consented to give; and as the check was founded upon this note, it is a necessary consequence that there Ayas no consideration for the check.

We confess that this reasoning has failed to satisfy us. It may be true that the defendant was not originally liable for the debt to the plaintiffs; and it may also be true that the note which he gave was void in its origin. Upon these, questions we forbear to express any definite opinion; but, admitting these to have been rightly decided in favor of the defendant, it by no means follows that he was not liable for the debt when he gave his check for its payment; nor that his note, although void in its origin, had not been rendered valid by subsequent circumstances.

Let it be admitted, as the counsel for the defendant insisted, that when the defendant gave his note, it was the understanding of the parties that he should not be liable for its payment at all, unless its amount should be allowed to him in the settlement of his accounts with the administrator of Hall; but that in this event, he was to be liable,.has not-been denied and cannot be doubted. That such was the intention of the parties when the note was given, is placed beyond the reach of doubt, by the' terms of the receipt, which at that time was delivered to the defendant. For aught that appears, the credit which, by the terms of the receipt, he was to claim from the estate of Hall, has been allowed to him. For aught that appears, he may have received from the estate, before he gave his check, the whole amount of his note. The legal presumption, therefore, of a valuable consideration for the check, is entirely consistent with the evidence, and, so far from having been disproved, it retains all its original force.

But we do not stop here; the case is far stronger than we have stated it. Not only is the presumption of law unrepelled, but there is an additional presumption arising from the facts of the case, which the defendant has wholly failed to meet, and which, unexplained, strike the mind with the force of a positive conviction. What are the facts ? There is no evidence to show, nor the slightest reason to suppose, that there was any special agreement in relation to the check. We are told that the note which the defendant gave was an accommodation note, but it would be absurd to say that the check was an accommodation check, and that the plaintiffs were to provide the funds for its payment. Nor can it be pretended that it was a lent check, the amount of which, if paid by the bank, the plaintiffs were afterwards to refund to the defendant. It is expressly sworn, that after it had been ascertained that the defendant had no funds in the bank, he admitted his liability on the check, and promised to pay it. It is therefore not merely the presumption of law, but the necessary result of the evidence, that the check was given and accepted for the purpose of satisfying a debt which the defendant acknowledged to be then due; and it is quite incredible that this acknowledgment would have been made if the fact were otherwise. If the understanding of the parties really were that the defendant was not to be liable upon the note at all, unless its amount should be allowed to him from the estate of Hall, and if his claim upon the estate ’had been made and rejected, is it not morally certain that, instead of giving his check, he would havé demanded, as he most justly might, the return of his note and of the money he had previously paid ? If he were not to be liable at all, unless he collected the debt from the estate of Hall, was not his admission of this liability.an admission of the fact of such collection ? and does not the probable inference grow into certainty, when we reflect that if the administrator of Hall had rejected his claim upon the estate, it was in his power to have proved the fact, and that ho such evidence was given or offered? We do not hesitate to say, that if this evidence existed, and would have been a defence, he was bound to produce it; but we are not prepared to say that this evidence, if given, would have released him from his liability. Perhaps, under the peculiar circumstances of the case, he is estopped from denying that there was an adequate consideration for the check. The plaintiffs held his promissory note as evidence of a subsisting debt, and upon that ground demanded its payment; and, under these circumstances, the surrender of the note was, perhaps, a sufficient and full consideration. The check was also for a much less sum than the original note, and may therefore have been the result of a compromise; nor is the inference disproved by the fact that he had made a previous payment oh the note, since the amount of that payment does not appear. Upon the questions which these circumstances suggest, as they may hereafter arise, we reserve our final opinion, contenting ourselves with now intimating to the counsel for the defendant, that the law is well settled, that the giving up of a doubtful right is, in all cases, a sufficient consideration to support a promise, and that, when no fraud can be imputed, a promissory note, or . other security given upon the compromise of an existing claim, is undoubtedly valid, even where the claim itself may be shown to have been wholly groundless. (1 Brownlow, 6; 1 Rolle R.' 23; Com. Dig, Tit. Assumpsit F. 8; Langridge v. D'Orville, 5 B. & Ald. 197; Russel v. Cooke, 3 Hill, 504 ; hitty on Contracts, 42, 43, note 1.)

We add-a., general observation.- • We cannot think'that a defence which is. rested upon the single ground of the- absence of a, valuable consideration,, deserves much favor in a court of justice.- Where the promise is delibérate, and is reduced to writing, the rule .of law which permits' the defence, (although the fact, is .otherwise stated by many of our-text writers,) is almost peculiar to our.own jurisprudence; and is condemned by the general sense, of legislators and-jurists, as well as of merchants. Still, .as the-rule undoubtedly exists, it must be" obeyed, and the-defence,.when clearly, established, be admitted to prevail.; but it ■ is not inconsistent to say; that, considering the-nature.:of the .defence, the party who relies upon it should-be held to the strictest proof, and every doubt that he suffers to remain, be decided against him. In the present case,'however, these, observations are . not necessary to justify our- decision, since our. objections, to the defence apply not merely to the sufficiency .of its-proof, but to the reality of .its existence.

.Eor the reasons-that have been given, the report of the referee must be set aside, and a re-hearing granted, with costs, to abide, the event.


author: By the Court. Campbell, J.

text:
    Dorr and others v. The New Jersey Steam Navigation Company.
    A common carrier may, by an express special contract, limit or restrict bis'common •law liability as an insurer for the safe transportation and delivery of'goods - intrusted to him.
    Public policy forbids that a common carrier should be permitted to exonerate him-1 self, even bvan express -contract, from a loss occasioned by his default or neglect of duty.
    The carrier’s- liability; as- an insurer,’ cannot be restricted-by a-general-notice that lie -will not be responsible, even if such notice be brought home to the em; ployer.
    The case of Gould v. Sill, 2 Hill’s E. 623, doubted and dissented from.
    (Before Duek, Mason, and Campbeh,, J. J.)
    June 12, 13, 14;
    Sept. 28, 1850.
    Demurrer to Pleas. This was an action instituted against tbe defendants as common carriers upon the Long Island Sound, between New York and Stonington. The declaration averred that on the 13th of January, 1840, the plaintiffs, who were merchants in the city of New York, shipped on board the steamer Lexington, in the defendants’ line, two cases of merchandise, of the value of thirty-five hundred dollars, to be carried to Stonington. That on the same evening, the steamer was consumed by fire on her passage, and the merchahdise of the plaintiffs was destroyed. The plaintiffs claimed to recover damages for the loss of the goods.
    The defendants pleaded that the merchandise in question was received by the defendants under a special contract, by reason of a clause and notice inserted in their bill of lading, which was set forth in the pleadings as follows:
    . “ New Jersey Steam Navigation Company, received of S. & E. Dorr & Co., on board the steamer Lexington, Child, master, two cases for E. Baker & Co., Boston, marked and numbered as in the margin, to be transported to. St.onington, and there to be delivered to railroad agent or assigns; danger of fire, water, breakage, leakage, and all other accidents excepted, and no package whatever, if lost, injured, or stolen, to be deemed of greater value than two hundred dollars. Freight as customary with steamers on this line.
    “ N. B. — The company are to be held responsible for ordinary care and diligence only, in the transportation of merchandise and other property shipped or put on board the boats of this line.
    “Dated at New York, January 3d, 1840.
    “ Contents unknown. George Child, master.”
    The plea averred that the liability of the defendants was restricted by the exception of the casualties mentioned in the bill of lading, and that the loss in question was occasioned by one of the excepted casualties, and was without the fault or negligence of the defendants. To this plea the plaintiffs demurred.
    The case was commenced in the supreme court, and subsequently transferred to this court.

      B. D. Silliman, for the plaintiffs.
    I. The law is settled, in this state, that a common carrier cannot shelter himself from his liability as such by notice, nor' even by special contract.
    II. Common carriers are .liable for all losses and injuries to property committed to their care, arising from any causes except the act of God, or the public enemy. (2 Kent’s Com. 507, 602; Story on Bailments; Coggs v. Barnard, 2 Ld. Raym. 918; Hollister v. Nowlen, 19 Wend. 234.)
    III. This was held to be the settled law from the earliest period, down to the case of Nicholson v. Willan, (5 Easts’ R. 507, A. D. 1804,) when notice by the carrier limiting his liability was held valid. A great mass of cases followed, unsettling the common law rule in England. They are fully cited and reviewed in Hollister v. Nowlen, (19 Wend. 284,) and Cole v. Goodwin, (Ibid. 251.)
    IV. In the confusion which resulted from disregarding the common law, the English courts early perceived that the only proper qualification would have been to permit the carrier, by notice brought home to the customers, to require for the transportation of the goods, a price proportioned to their value. (Leeson v. Holt, 1 Starkie 187; Beck v. Evans, 16 East. 244; Riley v. Horn, 5 Bing. 217.)
    V. The evils which resulted in England by departing from the common law rule, were so great, that the courts expressed strong regret that the innovation had been tolerated, and invoked the action of parliament to restore the original rule. (Bell’s Commentaries, p. 1, 474; Maving v. Tod, 1 Starkie, 79 ; Smith v. Horne, 8 Taunt. 144; Down v. Fromont, 4 Camp. 40.)

      VI. The doctrine of notice was put an end to, by act of parliament, and the common law rule substantially restored, in 1830. (Statute 1 Wm. IV., c. 68.)
    VII. In some of the United States, notices have not been permitted to affect the carrier’s liability, (Jones v. Voorhees, 10 Ohio, 145,) and where notice had been admitted, its expediency and policy have been subsequently questioned by the courts. (Eagle v. White, 6 Wharton, 516; Barney v. Prentiss, 4 Harr. & Johns. 317.)
    VIII. In the state of New York, the common law liability of the carrier is unchanged; he cannot screen himself from it by notice, whether brought home to the customer or not, nor even by special agreement and contract. (2 Kent’s Com. 608 ; Story on Bailments, p. 354, § 554, note; 19 Wend. 234; Ibid. 251; Camden Co. v. Belknap, 21 Ibid. 354; Clark v. Faxton, 21 Ibid. 153; Gould v. Hill, 2 Hill, 623; Alexander v. Green, 3 Ibid. 1; S. C., Court of Errors, 7 Ibid. 533; Jones v. Voorhees, 10 Ohio, 145.)
    IX. Every thing is negligence in a common carrier, which the law does not excuse. (Dale v. Hall, 1 Wilson, 282; Batson v. Donovan, 4 Barn, and Ad. 21; McArthur v. Sears, 21 Wend. 190; Williams v. Grant, 1 Conn. R. 487.) The law holds the common carrier liable for loss by fire, and does not excuse him because the fire was the result of accident. (Forward v. Pittard, 1 Term. R. 281; Hyde v. Trent. Navig. Co., 5 Term. R. 389; Garside v. The Same, 4 Ibid. 581; Story on Bailments, §§ 507, 511; Gould v. Hill, 2 Hill R. 623.)
    X. The common carrier cannot stipulate against his own negligence. The law of this state is settled that the carrier cannot protect himself even by special mutual contract from his common law liability; but even admitting, for sake of argument, that he might do so, still the bill of lading in this case set forth in the plea is not such a contract. It is at most a receipt for the goods with notice incorporated therein that the carrier denies the liability which the law imposes on him. It is no higher evidence of the contract than were the notices of stage proprietors brought home to the knowledge of their passengers.

      XI. The interests of commerce, and especially of the people of this state, who transact so large an amount of business with common carriers, require that the liability established by the common law be not impaired.

      W. M. Evarts, for the defendants.
    I. The plea sets up that the plaintiffs’ goods were received by defendants for transportation, (they being common carriers from New York to Stonington, by water,) under a special contract set forth in the plea; that by such contract, their liabilities as common carriers were- restricted by the exception of certain casualties from their responsibilities as insurers, and that the loss of the plaintiffs’ goods occurred by one of the excepted casualties, and without the fault or negligence of the defendants. The demurrer raises the question whether such a. restriction of their liabilities may be legally made by such common carriers as the defendants.
    II. A common carrier cannot, (in general,) refuse to carry for reasonable hire, and in the line of his business, and insist upon a limitation of his legal liabilities before he will do so. Such refusal subjects him to an action.
    III. But if the bailor, rather than insist upon his legal rights and remedies against the common carrier as such, choose to make a special contract with him for the transportation of his goods upon a restricted liability, the relation pro kao vice of bailor and private carrier for hire according to, and by force of the special contract, arises between them.
    IY. Such a contract is valid and will be upheld. The repudiation of it by the bailor, after gaining the object of his assent, would be a clear fraud upon the common carrier.
    Y. The exceptions of dtmgers of the seas and of navigation has always been sustained in favor of carriers by water. That of fire is of similar character, their liability for loss by this cause being strictly in the nature of insurance, and having no connection with the specific employment as carriers.
    YI. The nature of the employment at the present day, as much exposes the common carrier to fraud from the bailor as the reverse, and public policy is as much concerned to protect the carrier in his service, as the bailor in his property.
    VII. Neither public nor private necessity or convenience requires that common carriers, on the one hand, should be compelled to be insurers against fire, unless the bailor insists upon it; nor that the bailor, on the other hand, should be obliged to pay rates of carriage which include compensation for insurance, unless he choose so to do. To legally incapacitate the parties from separating by mutual contract, the service of transportation and the responsibility of insurance, involves this absurdity. (Wyld v. Pickford, 8 Mees. & Welsh. 442 ; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, Ibid. 251; Orange Co. Bank v. Brown, 9 Wend. 85; N. J. St. Nav. Co. v. Merchants’ Bank, 6 How. U. S. 344; Gould v. Hill, 2 Hill, 623; Wells v. The St. Nav. Co., 2 Comstock, 204.)
   By the Court.

Campbell, J.

The question presented for our consideration is, whether common carriers can by special contract restrict their liabilities for losses which occur otherwise than by the act of God or the public enemies. If the point were, now for the first time raised, we should have considered it, if not entirely free from difficulty, at least as not leaving much room for doubt as to the correctness of the conclusion at which we have arrived. The judgment of a majority of the late supreme court, pronounced in the case of Gould v. Hill, 2 Hill’s R. 623, was cited and urged on the part of the plaintiffs as settling the law in this state, that a common carrier cannot, by special contract, limit his liability. Though the court was divided in opinion, the cause does not seem to have been carried to the court for the correction of errors, and we are not therefore sure of what would have been the decision of the court of last resort. But the clear conviction of all of us, that the case of Gould, v. Hill was not correctly decided, supported as we are by the supreme court of the United States, (Merchants’ Bank v. New Jersey Steam Navigation Company, 6 Howard, 344,) and the great importance of the question to4a commercial people, especially the importance of uniformity between the courts of the State and Union, in the rules of law regulating commercial transactions, compel us respectfully to dissent from the judgment in that case.

We entirely concur in the conclusion at which that court arrived in the case of Hollister v. Nowlen, and Cole v. Goodwin, (19 Wendell, 234 and 251,) that stage-coach proprietors, as common carriers, are answerable for the baggage of passengers, that they are regarded as insurers, and cannot restrict their common law liability by a general notice that the baggage of passengers is at the risk of the owners. The power of a common carrier to restrict his liability by a general notice, whether brought home or not to the knowledge of the owner of the property, is discussed at great length, and with distinguished ability and learning, by Justices Bronson and Cowen in these cases. In Hollister v. Nowlen, Mr. Justice Bronson, referring to the opinion of Lord Ellenborough in Nicholson v. Willan, (5 East. 507,) says: “Although this mode of reasoning is not the most conclusive, I shall not deny that the carrier may, by express contract, restrict his liability; for though the point has never been expressly adjudged, it has often been assumed as good law citing Aleyn, 93, 4 Co. 84, note to Southcote’s case, 4 Burr. 2301, per Yates, J., 1 Vent. 190, 238, Peake N. P. Cas. 150, 2 Taunton 271, and 1 Starkie R. 186. In the case of Nicholson v. Willan, Lord Ellenborough says: “ But considering the length of time during which, and the extent and universality in which, the practice of making such special acceptances of goods for carriage by land and water has now prevailed in this kingdom, under the observation and with the allowance of courts of justice, and with the sanction also and countenance of the legislature itself, which is known to have rejected a bill brought in for the purpose of narrowing the carrier’s responsibility in certain cases on the grounds of such a measure being unnecessary, inasmuch as the carriers were deemed fully competent to limit their own responsibility in all cases by special contract; considering also that there is no case to be met with in the books, in which the right of a carrier thus to limit by special contract his own responsibility has ever been by express decision denied,” &c. So it was- also said by Lord Ellenborough, in Kerr v. Willan, (2 Starkie R. 58): “ The hardship of the case cannot alter the liability of the party. By the common law, the carrier is responsible for the loss of the goods, unless he enter into a special contract by which he limits that responsibility.”

And in the same case, on a motion for a new trial, the court say: “ No doubt the rule of law might be superseded in the particular case by a special contract, since modus et conventio vincunt legem.”

So in 1 Bell’s Commentaries, 5 Ed. 472, the author remarks: “ It seems to admit of no doubt that, as matter of contract, carriers, innkeepers, stablers and others, may, with the consent of those who employ them, undertake only certain risks and responsibilities.”

In the case of the Merchants’ Bank v. New Jersey Steam Navigation Co., (6th Howard, U. S. Rep. 344,) Mr. Justice Nelson says, “ As the extraordinary duties annexed to his employment, concern only in the particular instances the parties to the transaction, involving simply rights of property, the safe, custody and delivery of the goods, we are unable to perceive any well-founded objection to the restriction, or any stronger reasons forbidding it, than exist in the case of any other insurer of goods to which his obligation is analogous, and which depends altogether upon the contract between the parties.” Mr. Justice Daniel, in the same case, remarks: “But a carrier may, in a given case, be exempted from liability for loss without fraud, by express agreement with the person for wj|om he undertakes for I cannot well imagine a principle creating a disability in a particular class of persons to enter into a contract fraught with no criminal or immoral element, a disability indeed extending injuriously to others who might find it materially beneficial to make a contract with them.” In Gordon & Walker v. Little, (8th Sergeant & Rawle, 533,) where the suit was against the defendant as a common carrier, and where there was an exception in the bill of lading of the dangers of the river, &c., Chief J. Tilghman says: “If ’the case had rested solely on the written contract, there would have been much to say in favor of the decision of the court, because, be the common law what it may, the parties have a right to alter or modify it by special contract, and when they have done so, the question is, what is the construction of the contract?”

In the decision of the case of Gould v. Hill, Mr. Justice Cowen refers to his opinion in the case of Cole v. Goodwin, as containing his reasons for that decision, re-affirming the position that there is no difference between a special, acceptance or special contract, and a notice brought home to the owner of the goods, except in the evidence by which the responsibility of the parties is shown. This position was denied by the supreme court of the United States in the case of the New Jersey Navigation Company and Merchants’ Bank; and also by Mr. Justice Bronson, in the case of Hollister v. Nowlen, where he says: “ But conceding that there may be a special contract for a restricted liability, such a contract cannot, I think, be inferred from a general notice brought home to the employer. The argument is, that where a party delivers goods to be carried, after seeing a notice that the carrier intends to limit his responsibility, his assent to the terms of the notice may be implied. But this argument entirely overlooks a very important consideration. Notwithstanding ■ the notice, the owner has a right to insist that the carrier shall receive the goods subject to all the. responsibilities incident to his employment. If the delivery of goods under such circumstances authorizes an implication of any kind, the presumption is as strong, to say the least, that the owner intended to insist on his legal rights, as it is that he was willing to yield to the wishes of the carrier.”

It is said that1 there may be an implied special contract, where the carrier’s notice is brought home to the bailor, and the assent of the latter can be presumed; that there is an express special contract, where the contents of the notice are reduced to the form of a contract, and the express assent of the owner of the goods is given. While the courts of England have recognized the former, and'have given to it force in favor of the carrier, the courts of this state have rejected it; but the power- and right of a carrier to limit his liability by an express special contract, as before observed, has been denied only in the case of Gould v. jKill. A common carrier has in truth two distinct liabilities, the one for losses by accident or mistake, where he is liable, by "the custom of the realm or the common- law, as an insurer; -the other for losses by default or negligence, where he is'answerable as an ordinary bailee. It would certainly seem but reasonable, that he might, by express special contract,' restrict his liability as insurer, that he might protect himself against misfortune, even though public policy should require that he should not be permitted to stipulate for impunity where the loss occurs from his own default or neglect of duty. - - Such we understand to be the doctrine laid down in the case of the New Jersey Steam Navigation Co. v. Merchants’ Bank, in 6th Howard, and such we consider to be the law in the present case. The right and the power to make such contracts is for the benefit.of all parties. The-owner of the-goods may prefer-to select his own insurer. He may have confidence -in the-integrity and good faith of the carrier, and that, his property- will - not be lost through default or neglect, -when' he* knows that; in case of its destruction by fire or other calamity, the carrier will-be unable to respond for the loss; If no contract'-can be made, he must pay the carrier for his risk as insurer, and he- must, also-pay a premium to others for his protection against the same loss-for which the carrier stands responsible.

It may be remarked that the act of 1 William TY.;' eh. 68, passed in 1830, while it declares that no public -notice or declaration shall be construed to limit or in any wise affect' the liability, at common law, of common -carriers, with a single exception, also provides that nothing in the act shall extend or be construed to annul, or in any wise affect; any special ■ contract between such common- carriers and any- other parties for the conveyance of goods and merchandise. If the courts--of -England had departed from the old rule of the common law, by giving effect to notices, the statute has restored the' rulé, and in doing so expressly recognizes the power'to make special "contracts.

The necessity of allowing common carriers upon the seas to make special contracts with the owners of property committed to their care, was early seen and recognized, and exceptions in bills of lading restricting the carriers’ liability, have from time to time been added. The same necessity exists as to the domestic commerce in this vast country of ours, where the internal trade is so extensive, reaching, as it does, over the greater part of a continent, traversing rivers in length equal to the distance across the Atlantic, stretching out over large inland seas, where the amount of property annually carried has swollen up to hundreds upon hundreds of millions of dollars — where there exist extensive lines of transportation, reaching through different states, and controlled in different parts by the several owners, and where insurance, companies are organized for the protection of the owners of the property thus transported.

It will at once be seen how important it is, that the law which regulates the duties and liabilities of those who are the owners and the carriers of this property, should be uniform throughout all the states; and when once an important question like the present is settled by the supreme oourt of the United States, there should be a conformity as far as practicable. In this case, if we were to follow the ruling in the case of Gould v. Hill, we should do so with the full knowledge, that if the case upon the same pleadings was in the other end of this hall, the judgment would be in favor of the defendants.

It is not necessary to discuss the question, whether a bill of lading is evidence of a special contract, or when accepted by the owner forms such special contract. It has been so held, but the pleadings in this case admit that it does constitute a special contract.

We are all of opinion that a common carrier may, by an express special contract, limit or restrict his common law liability as an insurer for the safe transportation and delivery of goods intrusted to him.

The judgment must be for the defendants on the demurrer; but with liberty to the plaintiffs, on payment of costs, to withdraw their demurrer, and reply.