author: By the Court—Mohcrief, J.

text:
    Thomas Walker, Plaintiff and Respondent, v. Jacob Wilson, Defendant and Appellant.
    1. In an action for forcible and malicious injuries, the Jury may give punitive damages.
    2. In an action for trespass, in wrongfully entering the plaintiff’s office, and there making a disturbance and a violent assault upon the plaintiff’s clerk, it appeared that the defendant went there for the purpose of demanding payment of a small debt, with the malicious intent of provoking a quarrel with the clerk in case he was not paid; and that he assaulted and wounded the clerk in pursuance of this intention: Held, that a verdict of $400 damages was not excessive.
    3. In an action for a wrongful trespass by a stranger, on the premises held by the plaintiff as a lessee, the plaintiff need not produce the lease. Evidence of possession on his part under a claim of right by written instrument is enough against a wrong-doer.
    (Before Woodruff, Moncrief and Robertson, J. J.)
    Heard, October 15;
    decided, -November 30, 1861.
    Appeal from a judgment on a verdict, and also from an order at Special Term denying a motion for a new trial.
    This action was by Thomas Walker against Jacob Wilson.
    The complaint alleged that the defendant, on March 31, 1859, “with force and arms, unlawfully entered and broke into the office and premises of the plaintiff, # * * and then and there made a great noise and disturbance therein, and continued therein making such noise and disturbance for fifteen minutes or thereabouts, and then and there forcibly and violently assaulted, beat and wounded one Gavin Brown, a clerk for the plaintiff ';” and ■ that defendant soiled, &c., plaintiff’s premises.
    The answer of the defendant denied that he, with force or arms, or unlawfully, entered or broke into the office or premises of the plaintiff, or there unlawfully made a noise or disturbance, or continued unlawfully therein, or that said defendant unlawfully soiled any property of plaintiff.

      The action came on to be tried before Chief Justice Bosworth and a Jury, on the 23d day of October, I860".
    The facts as to the assault and the motion to dismiss the complaint, are sufficiently stated in the opinion of Robertsor, J.
    The Jury rendered a verdict for the plaintiff for $400 damages.
    The defendant moved, at Special Term in May, 1861, before Mr. Justice Robertsor, for a new trial, upon a case made, on the ground that the damages were excessive, and also upon exceptions contained in the case, which motion was denied, the following opinion being rendered :
    Robertsor, J. The motion for a new trial in this case is founded upon a supposed excessiveness of damages, and an exception to a refusal to dismiss the complaint.
    The action was for trespass. The evidence showed that the defendant entered upon certain premises occupied by the plaintiff, demanded from a clerk in his employ the payment of a debt; and after his refusal, struck such clerk a violent blow or blows in the face, causing his nose to bleed copiously; called him harsh names; attempted to seize and arrest him; struck him several other blows; went down stairs, and threatened to go back and continue his violence.
    The Chief Justice, before whom the issues were tried, charged the Jury that if the defendant went to the plaintiff’s office for a malicious purpose to injure the clerk or the plaintiff, the Jury would have a right to give beyond the actual damage sustained, what was called punitory damages.
    If the defendant went to the plaintiff’s place of business with the malicious intent of provoking a quarrel with the clerk, in case he was not paid, so as to commit any violence there instead of elsewhere, even without a deliberate purpose to commit violence, the damages could not be considered excessive, under any of the rules laid down as to excessiveness, (3 Grab. & Wat. H. Trials, 1127, 1134.) The only question is whether he went there for such purpose.
    The testimony in the case shows that the defendant, in company with another person, went to the place in question, after the plaintiff had left, late in the afternoon, and demanded payment of the debt, amounting to $28; the clerk said he could not pay, to which defendant replied, according to the testimony of his companion, he came for the express purpose, and he would make him pay. The defendant then struck the clerk two or three times in the face, probably with a railing between them, so violently as to cause his blood to spirt about the place to the extent of a teacupfull. The clerk called out of the window, and brought some persons from below, who found that the defendant’s passion, if any, had so far subsided that he was writing’ on a card. He then recommenced his misconduct by calling the clerk “a thief,” and striking him again two or three times, and was only prevented from continuing his violence by one of the persons whom the clerk’s cries had brought to his assistance. He then went down stairs, and on his way down threatened to go back and “give him more.” Ho excuse is offered for the outrage, except that the clerk, after being told that the defendant meant to make him pay, laid his hands upon his collar. The defendant’s companion testified they clinched. Whether the clerk did so or not, in consequence of some demonstrative gesture of the defendant, does not appear. At all events, his previous language that he came on purpose, and would make the clerk pay, after he was told by him that he could not pay, would seem to imply that there was something in his attitude or gestures threatening violence of some kind. The violent blows given, and, after an interval, renewed, were not only unwarranted, but utterly unpalliated by any previous conduct of the clerk. And the Jury were fully justified in not only believing that the defendant committed the assault to punish the clerk for not paying him the money he demanded, but that he came upon the premises with the intention of doing so, or meant to provoke the clerk to do some act which might seem to warrant his retaliating with a hundredfold violence.
    There is therefore no reason for interfering with the verdict on the ground of excessiveness of damages.
    • The other objection was founded on a refusal to dismiss the complaint, because a lease was not produced. The plaintiff had testified that he had an office in South street, into which he went about three months before a certain date; he was also there at another time, and leased from a Mr. Harkness and Mr. Webb. He did business in that office, and paid the rent for it. No objection was made to the admission of such testimony, but on cross-examination he stated he had not the lease in Court., Harkness also testified that the plaintiff occupied such office over a year. A motion then made, on behalf of the defendant, to dismiss the complaint upon the ground that there was not evidence of legal title in the plaintiff, the lease not being produced, was denied.
    It is very evident that no objection was made to the introduction of parol evidence of the contents of the lease, if the plaintiff’s testimony was such; and if it was not, the fact that the lease had not been produced was only made a ground of the defendant’s motion for dismissal of the complaint, and not as a separate objection. But such production was not necessary. The action was brought for an injury to the possession, since every trespasser assumes domiuion in committing acts of trespass; which is an assertion of the right of possession, and to that extent injures the party’s right who is trespassed upon.
    The evidence in the case established possession in the plaintiff under a claim of right by a written instrument, which is enough against a wrong-doer, who does not justify under any title at all. The exception was therefore untenable.
    • The motion for a new trial is therefore denied, with ten dollars costs.
    The defendant now appealed from the judgment entered on the verdict, and from the order denying a new trial entered upon the foregoing decision of Mr. Justice Robertsoh.

      James T. Brady, for appellant, urged that the evidence did not sustain the recovery.

      Anthony R. Dyett, for respondent, cited 19 Conn., 300 ; 3d Grah. & W. on New Trials, 1286,1290,1291 ; 3 Sandf., 341 ; 2 Southard, 518 ; 3 Brevard, 417 ; 15 Johns. R., 493 ; 3 Sandf., 19.
   By the Court—Mohcrief, J.

The reasons assigned by the Justice at Special Term, upon denying the motion for a new trial, are sufficient, satisfactorily to dispose of this appeal and to affirm the judgment and order.

In Hunt v. Bennett, (19 N. Y. R., 173,) the Judge had charged the Jury that “ the plaintiff was not only entitled to recover to the full extent of the injury done him, but a Jury might go further, and, if the circumstances of the case warranted it, increase the amount of damages as a punishment to the slanderer;” and to this charge the defendant had excepted. Upon the hearing of the appeal, “the Counsel for the appellant, on commencing the discussion of the exception to the Judge’s charge in respect . to punitive damages, was stopped by the Court and informed that the question luid been settled against him in the Court of Appeals in unreported cases, the last of which (Keezeler v. Thompson), was decided in December, 1857.” (Id., 175.)

In the present action, the Jury, under proper instructions from the Justice presiding at the trial, (to which instructions no exception was taken,) must be deemed to have found, as a matter of fact, that the defendant “wrongfully entered and made a disturbance in the office of the plaintiff, at Ho. 154 South street, in the City of Hew York.” This was the material issue to be tried between the parties.

An examination of the testimony in the case has not induced either the Justice presiding at the trial (under § 264 of the Code), or the Justice presiding at the Special Term, to interfere with the verdict found by the Jury; and a very careful scrutiny of all the evidence has not led me to call in question the entire fairness and justice of such finding. The damages may be large but are not excessive. (See 5 Taunt., 442 ; 10 Serg. & Rawle, 399 ; 2 South., 518 ; 1 id., 61 ; 6 Peters, 272 ; 2 Wils., 405 ; 3 Dev. [N. C.], 55 ; 4 Mass. R., 1 ; 12 Johns., 234 ; Starkie, 1451 ; 4 Denio, 464 ; 12 Conn., 580 ; Sedg. on Dam., 35, 204.)

The exceptions taken at the trial are not well founded and were properly overruled.

The judgment and order must be affirmed.


source: Caselaw Access Project

author: By the Court—Bosworth, Ch. J.

license: Public Domain

text:
    Garrett S. Mott, Plaintiff, v. The Union Bank, Defendants.
    1. After a judgment has been vacated on the application of the defendant, with leave to him to answer, which he does; and with a provision that the judgment shall however stand as security, it is no longer to be regarded as a judgment within the meaning of the provision of section 183 of the Code of Procedure, which authorizes orders of arrest to be made only before judgment. The defendant continues liable to arrest, in a proper case, until the litigation ends in a judgment which finally determines the rights of the parties in the action.
    2. A judgment thus suffered to stand on setting aside a default, does not determine" any right of the parties in the action, but exists merely as a security.
    3. It seems, that after judgment has been vacated with the reservation that it is to stand as security for any final recovery in the cause, if the plaintiff succeeds, he may enter a new judgment for his recovery, notwithstanding the fact that the first judgment still remains upon the record.
    (Bosworth, Oh. T., and Woodruff and White, J. J.)
    Heard, November 4;
    decided, November 30, 1861.
    The questions of law arising at the trial of this cause were directed to be heard in the first instance at General Term.

      The action was by Garrett S. Mott against The Union Bank in the city of New York, for alleged false imprisonment.
    The cause was tried before Mr. Justice Robertson and a Jury, on the 14th day of January, 1861.
    The facts are stated in the opinion of the Court.

      D. D. Field, for plaintiff.
    I. An order of arrest can only be issued before judgment. (Code, § 183.) “ The order may be made to accompany the summons, or at any time afterwards, before judgment.”
    II. There can be but one judgment in an action. (Code, §245.)
    III. The judgment of November 5th, 1858, remained a judgment after the order of November 11th.
    The order declared that “ the judgment stand as security.’’ The judgment stands. The lien it created remains. All executions are to be issued upon it. The proceedings upon the answer are merely to inform the conscience of the Court, what sum the plaintiff may be permitted to collect upon the judgment.

      Samuel A. Foot, for defendants.
    I. The judgment referred to in section 183 of the Code is a final one.
    II. This judgment was in substance and effect, set aside by the order of the 11th of November, 1858, and changed from a judgment into a mere security for money. It ceased to be evidence of the right or extent of the‘respondent’s demand, nor could any final process be issued on it. (Union Bank v. Mott, 8 Abb. Pr., 150 ; S. C., 9 Id., 106.)
   By the Court—Bosworth, Ch. J.

In an action commenced in the Supreme Court by the Union Bank against Jacob H. Mott and Garrett S. Mott, The Union Bank, on the 5th of November, 1855, recovered, by default, a judgment against Garrett S. Mott alone, for $198,600.87 damages and $12.50 costs.

On the 11th of November, 1858, at a Special Term of the Supreme Court, on a motion made in that action by G-. S. Mott “to set aside the default and judgment * * and the proceedings subsequent thereto,” it was “ ordered that the said defendant have leave to serve his answer to the complaint herein, within ten days from the date of the entry of this order, and to proceed with his defense in this action, upon payment to the plaintiff’s attorney, of $22.50, being costs of default and of this motion, -and also the fees and charges of the Sheriff upon the execution issued in this action. And it is further ordered, that said judgment stand as security for the alleged indebtedness of the said defendant to the plaintiff.”

G. S. Mott “paid the costs, fees and charges mentioned in the order, and served his answer to the complaint.

On the 8th of December, 1858, an order was made by a justice of the Supreme Court in that action, requiring the Sheriff to arrest and hold G. S. Mott to bail in the sum of $142.00.

The Sheriff of Kew York, by virtue of said order, arrested G. S. Mott on the 11th of December, 1858, and committed him to jail, where he was detained, in close custody, for the period of five weeks, when he succeeded in giving bail, and was set at liberty.

This action is brought to recover damages for such'arrest and imprisonment, on the theory that said order of arrest is void.

At the trial of this action, the complaint was dismissed, on the ground that such order is legal and valid. The plaintiff excepted to the decision. The Court ordered the questions of law arising at the trial to be heard in the first instance at the General Term, and the entry of judgment, in the meantime, to be suspended. The case now comes before the General Term under that order.

' It was shown at the trial, that on the 11th of March, 1858, on commencing the action in the Supreme Court, an order was made to arrest and hold both Jacob H. and G. S. Mott to bail in the sum of $142,000, and that Jacob H. Mott was arrested by virtue of that order.

That the order of the 8th of December, 1858, was made on three affidavits of that date, and also upon sworn copies of the affidavits on which the order of the 11th of March was granted.

That G. S. Mott, on the 14th of December, 1858, moved the Supreme Court, at Special Term, to vacate the order of December 8th, and that such motion was denied, and that on an appeal to the General Term of that Court, the Court on the 10th of February, 1859, affirmed the order denying such motion.

The plaintiff in this action insists that the order of the 8th of December is absolutely void; that the judgment of November 5th having been recovered, and being a subsisting judgment in the action, a Judge had no power to make an order of arrest; that such order must be made before judgment, and cannot be granted after judgment.

The word “judgment,” wherever used in the Code, has a uniform meaning. The Code defines a judgment to be “ the final determination of the rights of the parties in the action.” (§ 245, [201].)

After the order of the 11th of November, 1858, was made, and its terms had been complied with, and G. S. Mott had put in an answer to the complaint in the action in the Supreme Court, the judgment of the fifth of November was not in any sense a judgment, within the meaning of that word as defined by the Code.

It did not determine any right of the parties in the action in which it was entered, nor in any manner affect it. The rights were to be determined on a trial of the issues in that action, to be subsequently had, and by the judgment that should be thereafter rendered.

In substance and in form, (the judgment and order of the 11th of November being read together,) the judgment is one which neither acknowledges nor establishes any indebtedness of G. S. Mott to the Bank; but is a judgment given as security for the payment of any sum the Bank should establish that Mott was liable to pay; and the order vacates the judgment in all respects, except to retain it merely as such security.

It was to perform the same precise office as a judgment confessed without action for the same purpose, and no other.

The plaintiff insists that if, on the trial of the action in the Supreme Court, the Bank shall recover a verdict, no judgment can be entered on such verdict, and that if Mott shall recover a verdict, he cannot enter judgment on it until the judgment of the 5th of November is vacated.

The first of these propositions finds some countenance in the observations of Bronson, J., in Dows v. Boughton (3 Hill, 452,) and in Shepard v. Hoyt, (6 Id., 395.)

Still, I do not see anything incongruous with the Code, in permitting a judgment to be entered on such a verdict.

There are a great many conveniences in such a practice, if there be not an absolute necessity for it under the Code. If the action in the Supreme Court be tried by a Jury, the defeated party cannot be heard upon his exceptions, at the General Term, unless a judgment be first entered and an appeal taken from it, or unless the exceptions be ordered at the trial to be first heard at the General Term; and such an order cannot be made unless the case shall present questions of law only. But if heard there, it is not easy to see in what way either party can obtain a review in the Court of Appeals, if no judgment can be entered on the verdict.

The Bank might vacate the judgment of the 5th of November, (if the defeated party,) and thus put itself in a position to enter a judgment from which it could appeal. But if compelled to relinquish its security, the appeal might not be worth prosecuting. If Mott should be the defeated party, there would not seem to be any means within his power of taking the case, as a matter of right, to the Court of Appeals.

If, as was suggested on the argument, that cause has been referred to a Referee, it is difficult to perceive that there is any mode by which either party can review, as a matter of right, any decision he may make on the trial, or in his final disposition of the cause.

The only mode provided by law for reviewing a Referee’s decisions of questions of fact or law, is by an appeal from a judgment to be entered on his report. If no judgment can be entered on it, his decisions cannot be reviewed.

Treating the judgment of the 5th of November as being precisely , what the order of the 11th of November declares it to be, viz., a security and only “ a security for the alleged indebtedness ” of Mott to the Bank; there is no technical objection to taking precisely such future proceedings in that action, as would be regular and requisite if no security had been given, or the judgment by default had never been entered.

Neither party can be prejudiced by such a practice. If the Bank shall recover a second judgment, the first judgment and the order opening it will furnish record evidence that both are for the same cause, and constitute but one debt. Under the former practice, where, on a writ of error brought from this Court, or a Court of Common Pleas to the Supreme Court, the judgment was affirmed, there were two judgments for the same debt. But the two records showed there was but one debt, except for the costs in error, and those could only be collected by execution on the judgment of affirmance.

But whatever practice may ultimately prevail or be established, it is quite clear that the judgment of the 5th of November, vacated as it is for all purposes but one by the order of the 11th of November, is not a judgment by which any absolute liability is either confessed or established. Even the default which is essential to uphold it as a regular proceeding, is set aside for every purpose except the qualified one of supporting the judgment as security for an alleged debt.

It is not a judgment within the meaning of section 183 of the Code.

An order of arrest may be made at any time before such a judgment is recovered.

The Supreme Court, both at Special and General Term, have decided that the order in question is legal and valid. (Union Bank v. Mott, 8 Abb., 150 ; 9 id., 106.)

Whatever embarassments may be thought to attend the question, it cannot well be said that that Court has clearly erred.

I think the decision of that Court is not erroneous, and that judgment in this action should be ordered in favor of the defendants, in conformity to the decision made at the trial.

Ordered accordingly.


author: By the Court—White, J.

text:
    Charles Wall et al., Plaintiffs and Appellants, v. The Home Insurance Company of New York, Defendants and Respondents.
    It is not within the general powers of an agent of an insurance company for issuing policies and receiving the premium notes, to waive a stipulation contained in a policy issued by him, declaring that in case the note given for the premium should be not paid at maturity, the policy shall become void while the note remains unpaid, especially after a forfeiture of the policy has attached by the non-payment of the note.
    (Before Bosworth, Ch. J., and Woodruff and White, J. J.)
    Heard, November 6;
    decided, November 30, 1861.
    Appeal from a judgment entered on an order made at the trial dismissing the complaint.
    This action was brought by Charles Wall, Samuel W. Truslow and William Wall, Jr., against the Home Insurance Company, upon a policy of insurance (for the sum of $4,000) for the term of one year commencing May 17,1858, issued by the defendants, upon the schooner Zenobia, on account of Charles T. Bruce, loss, if any, payable to the plaintiffs. The policy was issued on behalf of the defendants by David P. Dobbins, their agent, at Buffalo, where the schooner was owned and the insurance effected. The premium was paid by the note of Charles T. Bruce, indorsed by the plaintiffs, payable four months from May 17, 1858, and which became due during the life of the policy, and was not paid at maturity. While the note remained overdue and unpaid, and during the time for which the policy was issued, the vessel was lost, and this action was brought to recover the insurance money.
    The policy contained, in the printed portion of it, a provision, that “ in case the note given for the premium be not paid at maturity, the policy becomes void while such note remains overdue and unpaid.”
    There was some proof on the trial, that the defendant’s agent at Buffalo, after the note became overdue and unpaid, consented that it might lie for a few days.
    The testimony was, that Elijah K. Bruce, acting on behalf of the schooner, applied to David P. Dobbins, the defendants’ agent at Buffalo, within a day after the -note matured, and asked Dobbins to wait for payment of the note until the Zenobia came home, “ a few days,” she being then at Chicago; that Dobbins said, in reply, that the note would be all right to lie over; that the Company would as soon have the interest as the money; that it would be no harm to wait a few days; that “it was all right enough for a few days.” And it was also testified, that Dobbins stated to a broker, who made inquiry upon the subject after the note'matured, that “it was just as well for everybody as it was.”
    Within a few days after these alleged declarations of the agent, and while the note was yet unpaid’, the vessel was lost on her voyage homqward from Chicago.
    The plaintiffs contended on the trial, that the above declarations of Dobbins amounted to a waiver of the stipulation in the policy, that it (the policy) should be void Awhile the note remained overdue and unpaid; and they attempted to show, that Dobbins, the defendants’ agent, had authority to make such waiver.
    The defendants introduced proof contradicting the evidence given by the plaintiffs, both on the question of waiver, and on the alleged authority of Dobbins.
    The action was tried before Mr. Justice Woodbubp and a Jury, on the 21st and 22d days of March, 1861.
    Dp on the close of the testimony, the defendants moved to dismiss the complaint, upon the ground that neither a waiver, nor any authority in Dobbins to waive the forfeiture provided for in the policy, had been proved.
    The Judge who presided at the trial granted the motion, and the plaintiffs, having excepted, bring the present appeal from, that decision.

      J. M. Van Cott, for the plaintiffs, (appellants.)
    I. The complaint should not have been dismissed. There was evidence, which should have been submitted to the Jury; (“ whether there be any evidence is a question for the Judge; whether there be sufficient evidence is a question for the Jury,” 24 How. U. S. R., 224 ; 4 Seld., 37 ;) and the appellants “are entitled to have every doubtful fact found in their favor.” (Colegrove v. N. Y. and N. H. Railroad Co., 20 N. Y. R., 492.)
    1 D. P. Dobbins was the defendants’ general agent, to transact all their insurance business at their Buffalo agency. (Wilson v. Genesee Mutual Ins. Co., 14 N. Y. R., 418, 421.) His powers, as to such business, were as plenary as those of any executive officer at the home office in New York. (Com. Bank of Lake Erie v. Norton, 1 Hill, 501 ; 1 Am. Lead. Cases, 104, et seq. ; Pratt v. Hudson River R. R. Co., 21 N. Y. R., 305, 311 ; Prince of Wales Ins. Co. v. Harding, Manager, &c., 96 E. C. L. R., 183 ; Blackstock v. N. Y. and Erie R. R. Co., 20 N. Y. R., 52 ; Rourke v. Story, 4 E. D. Smith, 54 ; United States v. Hudson, 3 McLean, 156 ; Livingston v. Radcliff, 6 Barb., 204 ; Smith v. McGuire, 3 Hurlst. & Norman, 554 ; Liddle v. Market Fire Ins. Co., 4 Bosw., 179 ; Taylor v. Nuss

      baum, 2 Duer, 302 ; N. Y. Central Ins. Co. v. National Protection Ins. Co., 20 Barb., 468 ; Dows v. Greene, 16 Id., 72 ; Wilson v. Genesee Mut. Ins. Co., Id., 511, 513, 14 N. Y. R., 418 ; Johnson v. Jones, 4 Barb., 369 ; Sexton v. Montgomery County Mut. Ins. Co., 9 Id., 191 ; Perkins v. Washington Ins. Co., 4 Cow., 645 ; McEwen v. Montgomery County Mut. Ins. Co., 5 Hill, 101 ; Lightbody v. North Am. Ins. Co., 23 Wend., 22 ; Wing v. Harvey, 27 Eng. L. & E , 140 ; Brocklebank v. Sugrue, 5 Carr & P., 21 ; Campbell v. International Life Ins. Co., 4 Bosw., 298, 310, 311 ; Leeds v. Mech. Ins. Co., 4 Seld., 351 ; Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. R., 305 ; Ames v. N. Y. Union Ins. Co., 14 Id., 254 ; Benjamin v. Saratoga County Mutual Ins. Co., 17 Id., 415 ; Goit v. National Protection Ins. Co., 25 Barb., 190 ; Whittaker v. Farmers’ Union Ins. Co., 29 Id., 312 ; Story on Agency, §§ 53, 85, 106, 110, 126 ; Boehm v. Williamsburgh City F. Ins. Co., MS.)
    •2. The agent agreed to extend the time for paying the premium.
    3. That it was proved to.be usual to take renewal notes does not vary the case.
    The very form of the note seems to imply a usage to extend the time of payment, and at varying rates of interest.
    4. It is no objection that the extension was without ■ consideration. (Cornish v. Abington, 4 Hurls. & Norm., 549 ; Young v. Hunter, 2 Seld., 203 ; Conkling v. King, 6 Seld., 440.)
    Dobbins having exercised the power in this particular manner, the Company is estopped to allege any secret limitation of the power, as to manner and form. Exercising the power in this mode was equivalent to a declaration that this mode was not excluded from the power; and it would be a fraud upon the insured to permit the declaration to be retracted. (Plumb v. Cattaraugus Mut. Ins. Co., 18 N. Y. R., 392.)
    If the time had not been extended, the premium would have been paid, or the vessel would not have left port uninsured. (Bank of Vergennes v. Warren, 7 Hill, 91 ; Conover v. Mut. Ins. Co., 1 Comst., 292.)
    6. The Court erred in excluding evidence of the customary powers of insurance agents in Buffalo. (1 Am. L. Cases, 400, et seq. ; Story on Ag., § 106.)
    II. Upon the defendants’ construction, the condition is void. It is repugnant to the general object and scope of the contract of insurance, and is against public policy.
    And it is extortionate to enforce the entire contract on one side, and discharge its entire obligation upon the other.
    III. If not absolutely void, the condition should be construed with great strictness; and merely suspends the right of action during default, and payment or tender restores it. (Jube v. Brooklyn Fire Ins. Co., 28 Barb., 412.)

      William Allen Butler, for defendants, (respondents.)
    I. The condition in the policy was valid; and upon the non-payment of the note, the defendants’ risk as insurers ceased and was suspended, without impairing their claim upon the maker and indorsers of the note for its whole amount. (Beadle v. Chenango County Mut. Ins. Co., 3 Hill, 161 ; Neely v. Onondaga County Mut. Ins. Co., 7 Hill, 49.)
    II. There was no evidence that the defendants ever waived this condition, or varied the terms of the policy.
    1. Dobbins had no authority to waive it. It was not within the scope of his agency.
    The authority could only be implied from similar action by the agent in other prior cases, sanctioned of acquiesced in by the defendants, (Stephenson v. N. Y. and Harlem R. R. Co., 2 Duer, 341 ; Wilson v. Genesee Mut. Ins. Co., 4 Kern., 418 ; Bunten v. Orient Mut. Ins. Co., 4 Bosw., 254,) and the evidence did not disclose a single such instance.
    2. The cases relied on by plaintiffs’ Counsel, are all cases in which the agent’s authority was clearly deducible from the scope of his employment, or in which his acts became binding by the ratification or acquiesence of the principal, and in which his exercise of the implied authority was clearly proved. (See Perkins v. Washington Co., 4 Cow., 645 ; Lightbody v. North American Co., 23 Wend., 22 ; McEwen v. The Montgomery Co., 5 Hill, 101 ; Wilson v. Genesee Co., 16 Barb., 511 ; Sexton v. Montgomery Co., 9 Barb., 191 ; Leeds v. Mechanics’ Co., 4 Seld., 351 ; Ames v. New York Co., 14 N. Y. R., 254 ; Benjamin v. Saratoga Co., 17 Id., 415 ; Quimby v. Vanderbilt, Id., 312 ; Baptist Church v. Brooklyn Fire Ins. Co., 19 Id., 305.
    III. There was no request to submit to the Jury any question arising on the offer to pay the premium note after the loss, and no exception taken.
   By the Court—White, J.

I think the learned Judge was right in the disposition made by him of the cause at the trial.

There is nothing in the plaintiffs’ testimony which shows that Dobbins had any authority to vary contracts made by the defendants, or to waive any condition in any policy issued by them.

■ Certainly he had no authority to waive this important stipulation in the policy, forfeiting it, or suspending its obligations while the assured were in default upon their part; and especially he had no such authority after the forfeiture had attached, and the policy had become, for the time being, an absolute nullity.

The testimony introduced on the part of the defendants, only tended to strengthen and confirm the view of the case presented by the plaintiffs’ evidence. There was no conflicting testimony upon any material question.

The judgment should, therefore, be affirmed, with costs.


author: By the, Court—Bosworth, Ch. J.

text:
    Charles King and George King, Plaintiffs and Appellants, v. Edwin W. Phillips and Lewis S. Phillips, Defendants and Respondents.
    1. Where goods are fraudulently purchased with a preconceived design not to pay for them, the purchaser does not acquire title, and the defrauded vendor may recover possession of them from him, or any one claiming under him not being a bona fide purchaser for value.
    2. It is not indispensable that any representation should have been made; it is enough that the goods were obtained with the fraudulent intent not to pay for them, and under circumstances that deceived and which it was designed should deceive the vendor and induce him to part with the possession of the goods.
    3. Where the buyer’s omission to disclose the fact of his insolvency or great pecuniary embarrassment, on applying to purchase from one supposing, and believed to suppose the applicant solvent, is the result of a fraudulent purpose to get possession of goods with intent not to pay for them, the purchase is fraudulent; but where the omission is in consequence of an honest belief that the purchaser can improve his condition, and will be able to pay for the goods, the purchase is not fraudulent.
    4. Evidence that after the purchaser had been allowed a considerable credit, the seller required him to give business paper for any further purchases, is not sufficient to prove as matter of law, that he had any doubt of the purchaser’s solvency, or any suspicion of an adverse change in the condition of his business.
    5. After a course of dealing by sales on credit for several years, the buyer, being required by the seller to furnish business paper, stated that he would give business paper of merchants designated by him, to be delivered whenever the seller required, and after about three weeks from the time of sales made on these terms, the buyer failed and assigned, owing a large amount, and having demands due him to only one-lialf the amount he owed, and but little merchandise which had not been pledged, but having' no notes or other demands against the merchants, whose business paper he had agreed to give to the seller, except open accounts against some of them, which, together with his other demands, he had pledged to other creditors; Held, that upon these facts, there was some evidence that the buyer was, and knew that he was, insolvent at the time of Ms purchases, and that in the absence of any explanation from him, a Jury might find that Ms purchase was fraudulent.
    6. In such a case, the question ought to be submitted to the Jury; and an order dismissing the complaint cannot be sustained.
    7. Instituting an attachment in another State against the buyer of goods, to recover their price from him, does not affect the creditor’s right of recovery in an action previously commenced by him in this State, against third persons, to recover possession of the same goods on account of fraud in the sale.
    (Before Bosworth, Ch. J., and Woodruff and White, J. J.)
    Heard, November 6;
    decided November 30, 1861.
    Appeal from a judgment entered on an order dismissing the complaint at the trial, and also from an. order made at Special Term denying a new trial.
    This action was brought by Charles King and George King against Edwin W. Phillips and Lewis S. Phillips, to recover the possession of a quantity of furs sold by the plaintiffs to Julius Sheldon, on the 8th day of July, 1859, and on the. 26th July, 1859, and which were transferred to the defendants by a general assignment made by Sheldon on the 16th day of August, 1859.
    The plaintiffs claimed that Sheldon agreed to pay by notes ■ of third persons, and that the sale was, in that respect, conditional, and that the conditions had not been waived or complied with; and also that he had purchased the goods after his insolvency and with a preconceived design not to pay for the same; and that he had procured their delivery .by false representations as to his ability to procure the notes agreed to be given. The cause was tried before Mr. Justice Robertson and a Jury, on the 11th and 14th days of January, 1861.
    The details of the evidence are sufficiently stated in the opinion of the Court.
    It also appeared that on the 17th of August, 1859, and about the time of the commencement of this action, the plaintiffs commenced an action against Sheldon, in JSTew Jersey, by attachment, to recover the price of the same goods, the possession of which he sought to recover in this action, including the two bills in question.
    At the close of the evidence, the defendants’ Counsel moved to dismiss the complaint. The plaintiffs’ Counsel requested the Court to submit to the Jury the questions whether the conditions of sale were waived ; whether the purchase was with preconceived design not to pay; and whether the delivery was procured by fraud on the part of Sheldon. The Court declined to submit the case to the Jury and dismissed the complaint, and directed the Jury to assess the value of the property, as the plaintiffs had retaken it by proceedings of claim and delivery.
    A motion for a new trial having been made at Special Term, upon a case, and denied, the plaintiffs now appealed, both from this order and from the judgment entered on the verdict.

      J. M. Van Cott, for plaintiffs, (appellants.)
    I. The goods were obtained from the plaintiffs by fraud, and no title passed to Sheldon or his assignees.
    The intent is matter of fact, and the Jury are to draw the inference from the evidence. (Hall v. Naylor, 18 N. Y. R., 588 ; Nichols v. Pinner, Id., 295 ; Biggs v. Barry, 2 Curtis C. C. R., 259, 262 ; Chamberlain v. Hoogs, 1 Gray, 172 ; Brown v. Montgomery, 20 N. Y. R., 287 ; Hoe v. Sanborn, 22 Id., 552 ; Ash v. Putnam, 1 Hill, 302, 305 ; Cary v. Hotailing, Id., 311 ; Bristol v.Wilsmore, 1 Barn. & Cres., 514 ; Noble v. Adams, 7 Taunt., 59 ; Read v. Hutchinson, 3 Campb., 352 ; Tanner v. Bennett, Ryan & M., 182, 21 E. C. L. R., 411 ; Root v. French, 13 Wend., 570 ; Roth v. Palmer, 27 Barb., 652, 654 ; Durell v. Haley, 1 Paige, 493.
    If there is but slight evidence of fraud, the Jury must pass upon it. (McDonald v. Trafton, 3 Shep., 225 ; Marden v. Babcock, 2 Metc., 99 ; Bank of Pittsburgh v. Whitehead ; 10 Watts, 402 ; Cary v. Hotailing, 1 Hill, 311 ; Olmsted v. Hotailing, Id. 317 ; Hanford v. Artcher, 4 Id., 271 ; Waterbury v. Sturtevant, 18 Wend., 353 ; Van Cleef v. Fleet, 15 J. R., 147.)
    II. Whether the goods were unconditionally delivered, was a question of fact for the Jury. (Morris v. Rexford, 18 N. Y. R., 552.)
    III. The effect of the attachment in Hew Jersey depended upon a state of facts to be found by the Jury. It did not authorize the dismissal of the eonrolaint. (Morris v. Rexford, 18 N. Y. R., 552.)

      John E. Burrill, for defendants, (respondents.)
    I. The sales were not conditional but upon credit.
    II. The delivery was absolute and any condition which may have been attached to the sale, was thereby waived.
    III. The plaintiffs, by the attachment proceedings in Hew Jersey, made their election to affirm the contract of sale, and cannot now rescind. (Morris v. Rexford, 18 N. Y. R., 552.)
    IV. There was no evidence to prove that the goods had been fraudulently obtained by Sheldon.
    Even if he was insolvent at the time, and knew the fact, he was under no obligation to disclose it, and the omission to do so was not a fraud on his part, and did not vitiate the sale. (Nichols v. Pinner, 18 N. Y. R., 295 Brown v. Montgomery, 20 Id., 287 ; Mitchell v. Worden, 20 Barb., 253 ; and see 3 Eng. L. and Eq., 17, 34.)
    V. The Court was correct in refusing to submit the question whether he purchased with a preconceived design not to pay.
    Even if he had such design, still, as he used neither artifice or deceit to procure the goods, the design did not vitiate the contract nor render the purchase fraudulent. (Nichols v. Pinner, 18 N. Y. R., 299, Opinion of Pratt, pp. 299, 300, Opinion of Selden, 303 ; Smith v. Smith, 21 Penn. R., 367 ; 2 Parsons on Contracts, 268, note p. ; Id., 269, 270, note w. ; Powell v. Bradlee, 9 Gill. & J., 220 ; People v. Cook, 4 Seld., 79.)
    In all cases where purchases have been adjudged void, for a preconceived design not to pay, there was proof of actual representations or other overt acts on the part of the purchaser in furtherance of such design. (Ash v. Putnam, 1 Hill., 305 ; Cary v. Hotailing, Id., 315, and other kindred cases.)
    V. The Court was correct in refusing to submit the question, whether the delivery was procured by false representations as to the ability of Sheldon to furnish the paper which was to be given in payment.
   By the, Court—Bosworth, Ch. J.

Where goods are fraudulently purchased with a preconceived design not to pay for them, the purchaser does not acquire a title to them. The defrauded vendor may recover possession of them from the fraudulent purchaser, or from any one claiming under him not being a Iona fide purchaser for value.

It is not indispensable that any representation should have been made; it is enough that the goods were obtained with the fraudulent intent not to pay for them, and under circumstances that deceived, and which it was designed should deceive the vendor, and induce him to part with the possession of the goods.

In Tanner v. Bennett, (1 Ry. & Moody, 182 ;) Root v. French, (13 Wend., 570 ;) and Brown v. Montgomery, (20 N. Y. R., 287,) it does not appear that any representation was made.

The important question in the present case is whether the evidence given by the plaintiffs should have been submitted to the Jury, and was sufficient to uphold a verdict finding that the purchase was fraudulent.

In Root v. French, (supra,) the case states that the plaintiff sold the goods on the 14th of Hovember, 1832, to one Jenkins, and that he, on the 17th, assigned them, with all his stock in trade, to the defendant, to indemnify him for responsibilities assumed for Jenkins, as -indorser. “The plaintiff proved the purchase by Jenkins fraudulent, being made on the eve of bankruptcy.” Ho other evidence of fraudulent intent is stated in the case.

In Brown v. Montgomery, (supra,) the fraud consisted in selling a check made by a firm reputed to be in good standing, after being informed that a check drawn by the same parties had been that day protested for non-payment, without disclosing that information. The Court held that the transaction was a fraud which avoided the sale.

In that case, Denio, J., said, that in Nichols v. Pinner, (18 N. Y. R., 295,) “we decided, that where a merchant, knowing himself to be insolvent, purchases goods without disclosing the fact, there being no inquiry made, he is not necessarily guilty of fraud, as he may honestly believe that he can go on and retrieve his embarrassments. * *

But the case does not countenance the position, that a dealer who has been of known standing, but who has suddenly failed in business, can go to those who were acquainted with his former character, but who have not heard of his failure, and innocently purchase their property on credit. Judge Seldek, in his opinion, puts that case as one not covered by the judgment.” (Id., 305.)

The observation of Judge Seldek here referred to, is that “ there may be circumstances under which the concealment of a marked and sudden change in the pecuniary affairs of a purchaser, which he had reason to suppose unknown to the vendor, might amount to a fraud;” but the case of Nichols v. Pinner did not appear to him to be such a case. (18 N. Y. R., 305.)

These' propositions and the cases cited concur in supporting the doctrine, that where the omission to disclose the fact of insolvency or great pecuniary embarrassment on applying to purchase from one supposing and believed to suppose the applicant solvent, is the result of a fraudulent purpose to get possession of goods with intent not to pay for them, the purchase will be fraudulent; while it will not be, if the omission is in consequence of an honest belief that the purchaser can improve his condition, and will be able to pay for the goods.

And for this reason, the mere fact of an omission to disclose his insolvency, there being no questions asked or representations made, will not of itself be prima facie evidence that the purchase was made with a fraudulent intent.-

Do the circumstances attending the purchases in question, or of either of them, furnish such evidence of a purchase with a fraudulent intent, as should have been submitted to the Jury ?

It was proved that Sheldon had dealt with the plaintiffs since 1856. Prior to the transactions in question he had bought on his personal credit. On the 8th of July, 1859, he owed the plaintiffs some $2,700 or $3,000.

It is a natural inference that the plaintiffs had been selling to him on credit, relying on his solvency, and that he had been purchasing from time to time, believing that the plaintiffs sold and parted with their property in this confidence.

On the 8th of July, 1859, George King told Sheldon, on Ms then applying to buy more goods, that he thought Sheldon owed him enough on his individual paper; that King wanted other paper, such as he would approve. He testifies thus: “ He (Sheldon) named various paper which I declined to take; he then named other paper which I agreed to take. Sheldon offered and King agreed to take the paper of Baldwin & Dodd of St. Louis, and Ruis & Reeke of Louisville.”

Requiring business paper for the goods then applied for, does not necessarily indicate that King had any doubt of Sheldon’s solvency, or any suspicion of any adverse change in the condition of his business. It is all consistent with the idea that the credit was as large as was given, according to the ordinary course of business, or as had at any previous time been given.

King also'testifies that the sale of the 26 th of July was made on the terms of Sheldon’s paying with the paper of John McHeil & Go., whenever King chose to demand payment. When he applied to make that purchase he proposed to pay with such paper, and that offer was' accepted, and the goods delivered.

On the 16th of August, 1859, the twenty-first day after the last purchase, Sheldon assigned all Ms property to the defendants, by an assignment which stated his inability to pay Ms creditors “ with punctuality, or in full.” There are schedules annexed to the assignment, which, as the assignment states, are intended to contain a statement of all Ms property and of all debts owing to Mm, with a list of Ms creditors.

These schedules show an indebtedness to the amount of about $120,000, and that all the debts owing to Sheldon amounted to only about $60,000, and that all of such debts, whether evidenced by notes, or resting in open account, had been pledged to some of his creditors, before the assignment was made.

They also show that he had but little merchandise which had not also been pledged.

They also show that he had an account against Ruis & Reeke, amounting to $283, and an account against John McNeil, amounting to $1,310.26, both of which had been pledged, but does not show that he had a note against either of them, or any note or account against Baldwin & Dodd.

King testifies that about two weeks after the assignment, he was present at a meeting of Sheldon’s creditors •, that he thinks Sheldon and E. W. Phillips were present. That a statement was submitted; some of the creditors examined it, and thought the estate could pay from twenty to thirty cents on the dollar, and were willing to take that, if the Messrs. Phillips would becoine security for the amount.

PTo witness was examined, nor was any evidence given, to rebut or affect any inference which a Jury might justly draw from the facts before stated.

These facts furnish some evidence that Sheldon was irretrievably insolvent when he made these purchases, and that he knew it. That he applied to the plaintiffs, expecting to obtain goods on their reliance upon his solvency, good faith and ability to pay as he had agreed, and that they parted with their property in this confidence.

In the absence of any explanation from Sheldon, a Jury might find that he had pledged the account against McPfeil prior to the 26th of July. Also that he had received no orders from Baldwin & Dodd or from Ruis & Reeke, nor'had any reason to suppose that he would; and that he had no grounds whatever for expecting to become possessed of their paper.

Under such circumstances, and in the absence of any explanations from Mr. Sheldon, a Jury might find that he did not intend to pay for the goods; and that he gave assurances of his ability to furnish, and promised to furnish paper made by the firms named, to mislead and deceive the plaintiffs, and induce them to part with goods which they declined to deliver on his personal responsibility alone. A verdict to this effect, found on such evidence, would not be disturbed.

Assuming the testimony of Mr. King to be true, as we ' must on this appeal, it being neither contradicted nor discredited, what Sheldon said amounts to a representation that he could furnish the paper he had agreed to give, and within the time he had contracted to furnish it.

If he makes no explanation to counteract the force of the evidence given by the plaintiffs, a Jury might find that the representation was known to be untrue when made, and was made in bad faith and with intent to defraud.

We think the evidence should have been submitted to the Jury.

It is, of course, open to the defendants to rebut the evidence given by the plaintiffs, and to prove a state of facts tending to show or establishing that these assurances were given and promises made in-good faith; and that according to the usual course of his business, or by reason of orders received, or other arrangements made, he might reasonably expect to be able to furnish the paper he had promised.

But on the case presented by the record before us, there is no explanation or attempt at explanation.

We also think that a Jury might properly find that this suit was commenced before the affidavit was made in Hew Jersey to obtain an attachment in that State.

On that fact being found or established, the commencement of the attachment suit would be no bar to the present, either as a matter of estoppel’ or of evidence.

The judgment must be reversed and a new trial granted, with costs to abide the event.


text:
    Richard P. Spencer, Plaintiff and Respondent, v. The Rogers Locomotive and Machine Works, Defendants and Appellants.
    1. In an action in the Superior Court of the City of Hew York, against a foreign corporation, where the complaint states a cause of action of which the Court has jurisdiction, it is unnecessary to aver that the plaintiff resides within the City of Hew York.
    2. A cause of action against a foreign corporation, as indorser of a promissory note, which, by its terms, is payable in the City of Hew York, is a cause of action arising within that City; and the Superior Court has jurisdiction thereof, though the plaintiff be a non-resident.
    3. Where the complaint against the indorser of a promissory note, alleges due demand, non-payment and protest, and that the defendant had due notice of such non-payment and protest, it is sufficient, without averring notice of the demand also.
    (Before Bobworth, Oh. J., and Woodruff and White, J. J.)
    Heard, Hovember 7;
    decided, November 30, 1861.
    Appeal from a judgment on account of the frivolousness of a demurrer to the complaint. This action was by Richard P. Spencer, against The Rogers Locomotive and Machine Works, as indorsers of a promissory note.
    The substance of the complaint is stated in the opinion. The averment of dishonor and notice, was in the following words; “that at the maturity of the said note, the same was duly presented at the place of payment therein mentioned, and payment thereof demanded and refused, whereupon the same was protested for non-payment, of which non-payment and protest the defendants had due notice, but that the said note is still wholly due and unpaid.”
    The defendants demurred to the complaint; and thereupon the plaintiff moved for judgment on the ground of the frivolousness of the demurrer.
    The motion was heard before Mr. Justice Woodruff, at Chambers, on the 16th of July, 1861, who granted it, and from the judgment entered thereon, the defendants appealed to the Court at General Term.

      H. N. Beach, for defendants, (appellants.)
    I. This Court has no jurisdiction, because the complaint does not show that the action, which is against a foreign corporation, is for the recovery of a debt or damages, arising upon contract made, executed or delivered within this State, or upon a cause of action arising in this State. (Code, § 33, subd. 3.)
    1. Foreign corporations, at common law, could not be sued here, (McQueen v. The Middletown Company, 16 Johns., 7,) until the adoption of the Bevised Statutes, which allowed a resident of this State to sue them by attachment. (2 Rev. Stat., 459, § 15, Note of the Revisers to § 30, McDonough v. Phelps, 15 How. Pr. R., 376.)
    2. Jurisdiction was afterwards first conferred upon this Court. (Laws of 1849, ch. 107, p. 142 ; Laws of 1849, ch. 438, § 33, subd. 3, p. 621 ; amending Code of 1848, Laws, ch. 379, § 39, p. 504 ; Laws of 1849, ch. 438, § 427.)
    3. The amended Code of 1849 does not authorize a resident of this State to bring an action in this Court against a foreign corporation for every cause. Section 427 does not enlarge section 33. “If a particular thing be given or limited in the preceding part of the statute, this shall not be taken away or altered by any subsequent general words of the same statute.” (Bacon’s Abr., Stat., I, 2 ; Sedg. on Stat. and Cons. Law, 423.)
    4. But if it be held that the jurisdiction of the Court extends to any cause of action against a foreign corporation, irrespective of the place where it arose or the subject of it is situated, if brought by a resident plaintiff, then the complaint must show on its face, that the plaintiff is a resident of this State, or this Court will have no jurisdiction.
    The Court is created by special statute, and of local and limited powers. (In re John Jay, 5 Sand., 678 ; Delafield v. Wright, 3 Id., 747 ; Day v. U. S. Car Spring Co., 2 Duer, 608 ; Brahe v. The Pythagoras Association, 4 Id., 658.)
    It is, therefore, as to this question, an inferior Court within its own definition. (Simons v. De Bare, 4 Bosw., 554.)
    Hence there should appear in the complaint sufficient to show that it has jurisdiction. (Simons v. De Bare, supra ; Frees v. Ford, 2 Seld., 178 ; Burkcle v. Eckhart, 3 Comst., 137.)
    In this case the plaintiff must be a resident to maintain this action, under section 427 of the Code; and the complaint must show it affirmatively to give the Court jurisdiction. (House v. Cooper, 16 How., 293 ; Clason v. Corley, 5 Sandf., 454 ; S. C. affirmed, 4 Seld., 428.)
    In attachments against a foreign corporation, where the right to a writ or warrant depends on the residence of the plaintiff, it was always necessary that the fact of such residence should affirmatively appear in the affidavit. (Staples v. Fairchild, 3 Comst., 43 ; McDonough v. Phelps, 15 How., 377.) And by a parity of reason, the fact of plaintiff’s residence must be alleged in the complaint, when the cause of action shall not have arisen, or the subject of the action shall not be situated, within this State.
    H. The complaint is insufficient to constitute a cause of action; for it contains no allegation of due notice of presentment or demand.
    I. Hotice of protest is immaterial in the case of a promissory note. (Bank of Utica v. Smith, 18 Johns., 240 ; Hunt v. Maybee, 2 Seld., 269.)
    2. notice of non-payment is not sufficient. The indorser must have notice of presentment or demand, and of non-payment. (Spellman v. Weider, 5 How., 6 ; Adams v. Sherrill, 14 Id., 298 ; Pahquioque Bank v. Martin, 11 Abb., 291.)

      F. N. Bangs, for plaintiff, (respondent.)
    I. Facts relating purely to the jurisdiction of this Court, "but not constituting a part of the cause of action, need not be averred in the complaint. If they need be averred, the residence of, or service on, the defendants, within this city, must be alleged in certain actions, which is not the practice.
    II. The complaint is only required to state the cause of action. (Code, § 142, [120,] subd. 2.)
    III. A defendant cannot demur because the complaint • fails to show jurisdiction, but only because the complaint shows that the Court has not jurisdiction.
    IV. This does not appear here. (Code, § 427, subd. 1.)
    V. An answer merely averring that defendant is a foreign corporation, would not be sufficient to defeat the action, and the same averment in the-' complaint cannot have a greater effect.
   By the Court—White, J.

The complaint in this case sets forth, that the defendants were and are a body corporate created by the Laws of the State of Hew Jersey; that on October 29th, 1860, the corporation called the-Memphis and Charleston Bailroad Company made their promissory note, bearing date at Memphis on that day, for $3,344.77, payable to the order of the defendants, six months after date, at the Bank of America," in the City of Hew York, and delivered it to the defendants, who indorsed it and delivered it so that it came to and is now held by the plaintiff; that it was duly presented for payment at the Bank of America at maturity, and payment refused, of which due notice was given to the defendants.

The defendants demurred to the complaint upon the alleged ground that it appeared upon the face of the complaint :

1. That the Court has no jurisdiction of the person of the defendants or the subject of the action.

2. That the complaint does not state facts sufficient to constitute a cause of action.

The main error upon which this demurrer is founded, is the supposition, that it is necessary in a complaint in this Court to aver jurisdiction; that is, to aver facts independent of the cause of action, the existence of which is, in certain cases, necessary to confer jurisdiction—such as, the residence of the plaintiff in an action against a foreign corporation, when neither the cause of action has arisen, nor the subject of the action is situated within the State. But this is- a mistake. Jurisdiction is presumed, unless it ' appears upon the face of the complaint that the Court has not jurisdiction of the action; that is, in the case supposed, jurisdiction is presumed unless it should be averred, or made distinctly to appear in the complaint, that the plaintiff was a non-resident.

But even if the plaintiff were a non-resident in the case before us, I think that sufficient facts appear in the complaint to give this Court jurisdiction. The action is upon a promissory note made payable at the Bank of America in the city of Hew York. Upon the demand and nonpayment, and notice to the indorser, a cause of action immediately arose, and accrued to the holder in this city. (Bank of Commerce v. Rutland and Washington R. R. Co., 10 How., 1 ; Burckle v. Eckhart, 3 Comst., 132 ; Cooper v. Earl of Waldegrave, 2 Beavan’s Rep., 282 ; Story Confl. of Laws, §§ 282-287.)

The averment of notice of non-payment and protest, which is supposed to be defective, and is relied upon in support of the second alleged ground of demurrer, is, we think, sufficient.

The judgment must therefore be affirmed, with costs.


author: By the Court—Bosworth, Ch. J,

text:
    Smith Davis and Oliver Davis, Plaintiffs and Respondents, v. Cornelius R. Duffie et al., Defendants and Appellants.
    1. Process for the commencement of an action against a convict in the State prison, may be served upon him in the prison. Although his right to sue is suspended, he may still be sued, and the suit prosecuted to judgment.
    2. The statute providing for the appointment of trustees of the estates of debtors imprisoned for crimes, (2 Rev. Stat., 15,) does not make it necessary to have trustees of the estate of an imprisoned debtor appointed, in order to foreclose a mortgage upon his property. The appointment of trustees would not dispense with the necessity of making him. a party to the action of foreclosure.
    3. The conviction, and sentence to the state prison, of a party defendant, pending the action against him, do not abate the action. Per Bosworth, Oh. J.
    4. It seems, that the delivery of a summons to the Sheriff with intent that it shall be served, if in fact served within sixty days thereafter, is equivalent to the actual commencement of the action within the meaning of the statute of limitations, although the cause of action on which the action is
    . brought accrued before the enactment of the Code of Procedure.
    (Before Bosworth, Oh. J., and Woodruef and White, J. J.)
    Heard, November 7;
    decided, November 30, 1861.
    This action was originally brought by Smith Davis and Brian Eeily, for the purpose of redeeming real property from, a mortgage and decree of foreclosure, which property the complaint alleged belonged to the plaintiff, Smith Davis, aud an interest in which he had conveyed to Eeily. Pending the action, on petition of Oliver Davis, and proof of a conveyance from Eeily to him, Oliver Davis was substituted for Eeily as a co-plaintiff with Smith Davis. The defendants were Cornelius B. Duffie, Jonas Conklin, Gerardus A. O. Van Beuren, John Erhardt, William V. Brady, Philip T. Smith, Alfred A. Valentine, Thaddeus Sherman, Jr., John W. Mitchell, Erastus 0. Benedict, executor of the last will and testament of Abner Benedict, deceased, Joseph M. Pendergast, Edgar M. Brown, John T. Wallace, Wm. M. Smith, Thaddeus Sherman, Sr., The East Elver Savings Institution and Frederick S. Schlesinger.

      The plaintiff, Smith Davis, being seised of the premises in controversy, on the 8th day of March, 1838, executed a mortgage thereon to Cornelius E. Duffie, one of the defendants; and having been subsequently convicted of the crime of forgery in the second degree, he was, on the 2d of September, 1839, sentenced to imprisonment in the State prison at Sing Sing for seven years, and was, on the same day, sent there, where he remained until September 2d, 1846, when his term expired.
    While so imprisoned, a suit was commenced by Duffie, before the Vice-Chancellor of the First Circuit, to foreclose such mortgage; in which action Smith Davis, his wife, and some judgment creditors, were parties.
    The subpoena was served personally on Smith Davis while in the prison, and on his keeper, on December 21st, 1839, and was made returnable the 23d of that month.
    No person appeared for him as solicitor or otherwise; a decree of foreclosure and sale of the mortgaged premises was entered by default, on December 10th, 1840, under which the same was sold at public auction by a Master in Chancery, to the said Cornelius E. Duffie, and a master’s deed therefor executed to him, May 29th, 1841. Duffie entered into possession, and he and his grantees, the other defendants herein, have been in possession thereof ever since.
    Smith Davis, after the expiration of his imprisonment, brought an action of ejectment against John Erhardt, one of the purchasers under Cornelius B. Duffie, for the recovery of the possession of the lot held by him; and in that action an opinion was delivered in the General Term of this Court in 1854, holding that the service of the subpoena on Smith Davis, while confined under sentence in State prison, was void and of no effect.
    This appears to have been the only question raised in that action, and the plaintiff prevailed.
    Other actions of ejectment were commenced by him against the defendants Conkling, Van Beuren and Mitchell, and these were tried before Mr. Justice Boswobth, who held that even if the foreclosure were void the defendants were in the position of mortgagees in possession after the conditions of the mortgage had been broken, and that the mortgagor could not maintain ejectment against them; and that the only remedy of the plaintiff, assuming the foreclosure to be void, would be an action to redeem the premises. These actions of ejectment were accordingly dismissed, without prejudice to the right of the plaintiff to bring such new action as he might be advised.
    The present action to redeem the premises from the mortgage was thereupon commenced.
    The facts in relation to the time and mode of commencing the action appear iff the opinion of the Court.
    The cause came before Hr. Justice Hoffman, at Special Term, several times, at different stages between March, 1859, and June, 1861, and his opinions so far as they relate to the questions raised upon the appeal, were to the effect that:
    First, Under the authority of the decision of the Court in Davis v. Hrhardt, the service of the subpoena upon the plaintiff, while confined in the State prison, must be treated as void; although the Chancery practice, both in England and here, was otherwise. (1 Hoffman’s Oh. Pr., 109; Phelps v. Phelps, 7 Paige, 150.)
    The decision in Davis v. Hrhardt, construing the provision of the Revised Statutes, (2 R. S., 15, article 2,) is however, express, that the service in the prison was void, and the decree of foreclosure a nullity, as to Davis.
    Second, The delivery of the summons and complaint in this suit to the Sheriff to be served, with an honest intention to have it served, was a commencement of the action, so as to save the statute of limitations. The cases of Webl) v. Pell, (1 Paige R., 564,) and Hayden v. Bucldin, (9 Paige R., 512,) are sufficient authorities, and removed my first impressions, which, as the case was not governed by the Code, were, that actual service was necessary. (See also, Pitch v. Smith, 10 Paige R., 9.)

      After a reference to state an account between the parties, judgment was accordingly ordered by Mr. Justice Hoffmajsi", allowing the plaintiffs to redeem from the defendants Duffie, Conklin, Van Beuren and Sherman; and from that judgment these defendants took the present appeal to the Court at General Term.

      H. W. Robinson, for defendant Conklin.

      Joseph H. Gray, for defendant Van Beuren.

      Eleazur Hinsdale, for defendant Duffie.

      Man & Parsons, for defendant Sherman.
    I. The opinion of the General Term of this Court, delivered in 1854, in Smith Davis against John Erhardt, to the effect that the service of subpoena in State prison was void, ought not to be followed on this appeal.
    1. It was had in irregular proceedings.
    2. That case was evidently an amicable suit “got up” as a forerunner to forestall a deliberate decision of the controversy.
    3. The decision was made under a misapprehension as to the case of O’Brien v. Hagan, (1 Duer, 664,) and without due consideration.
    4. In similar actions which were defended in good faith, a judgment was rendered on the merits, in each, in favor of the defendants.
    5. The Chancellor in Phelps v. Phelps, (7 Paige, 150,) had not only sustained the validity of a judgment of divorce obtained upon such service, but had refused to open a default or vacate the decree, and that decision had never been previously questioned.
    II. The subpoena was served according to the practice of the Court, and was effectual to confer jurisdiction to make the decree. (Hoffman’s Ch. Pr., 109 ; 1 Barb. Ch. Pr., 50, 51 ; Hinds’ Ch. Pr., 85 ; Johnson v. Johnson, Walker’s Ch. R., (Mich.,) 309 ; Phelps v. Phelps, 7 Paige, 150.)

      1. Attainder or conviction, although it deprived the person attainted or convicted of the capacity to prosecute a “ civil right,” never was a bar to a personal action against him, nor did it affect his liability. (1 Chitty Crim. Law, 724 ; 1 Chitty on Cont., 184 ; 1 Chitty Pl, 481 ; Fost. Cr. L., 61, 63 ; Banyster v. Trussel, Cro. Eliz., 516 ; Viner Ab. “ Attainder” B, 3 ; Ramsay v. McDonald, 1 Wm. Bl, 30 ; S. C., 1 Wilson, 217 ; Dunham v. Drake, Coxe, (N. J.,) 315.)
    He might still appear by attorney and counsel. (Ramsay v. McDonald, (supra ;) Coppin v. Gunner, 2 Ld. Ray., 1573 ; Harvey v. Jacob, 1 Barn. & Ald., 159 ; Barrett v. Power, 25 Eng. L. and Eq. R., 524.)
    He cannot take advantage of his own wrong nor claim an immunity to which an honest citizen is not entitled. (Dunham v. Drake, Coxe, (N. J.,) 315.)
    The necessity and propriety of his being a party to a foreclosure suit is manifest from the fact that a reversal of his conviction would sweep from the record every consequence of a judgment against him. (Wambaugh v. Gates, 4 Seld., 138.)
    HI. The provisions of 2 R. S., 701, § 19, that sentence of imprisonment in the State prison for any term of years less than life, suspends all civil rights, does not interfere with the power of the Oourt to proceed against him.
    1. It was merely “ declaratory.” (Rev. Notes, 3 R. S., 2 ed., 835.)
    It is his rights which are suspended. (2 Petersdorf Ab., 491, “ Attainder ;” Exparte Bullock, 14 Ves. J., 452 ; 2 Leach C. C., 966 ; Bullock v. Dodds, 2 Barn. & Ald., 258 ; Roberts v. Walker, 1 Russ & Myl., 752 ; Stokes v. Holden, 1 Keen, 145 ; Webster’s Dic., “ Civil.”)
    2. He was not “ civilly dead.” (Platner v. Sherwood, 6 John. Ch. R., 120.)
    3. Hor had he forfeited by his conviction any of his property. (2 R. S., 701, § 22.)
    4. This statute does not interfere with any right of the honest citizen to prosecute the convict or his estate.
    IY. The provision of 2 R. S., 15, § 1, for the appointment of trustees of the estate of a debtor imprisoned, has no application to this case.
    1. Such proceedings were merely intended for the preservation and administration of the debtor’s estate.
    2. The statute is permissive, and not prohibitory. (Malcom v. Rogers, 5 Cow., 188 ; N. and C. Turnpike Co. v. Miller, 5 John. Ch., 101 ; Smithy. Lockwood, 13 Barb., 217.)
    3. The remedy it furnishes is merely cumulative. (Almy v. Harris, 5 John., 175 ; Colden v. Eldred, 15 Id., 220 ; Farmers’ Turnpike Co. v. Coventry, 10 Id., 389.)
    4. Until such appointment, the estate remained vested in the debtor, and he would be a necessary party, even if trustees had been appointed. (1 Daniels’ Ch. Pr., 256.)
    5. Unless the mortgagee were also a creditor, a relative of the imprisoned debtor, or of his wife, he would, under the construction claimed, be without any remedy. (Culver v. Sisson, 3 Coms., 264 ; Murray v. Smith, 1 Duer, 412.)
    6. This statute extends not only to persons convicted of felonies, (2 R. S., 702, § 30,) but also to those imprisoned in the penitentiary or county jail, for minor offenses.
    It is not confined to persons disqualified from suing, and evidently was not passed with any especial reference to such persons, but in aid of creditors and dependent relatives.
    7. The construction claimed would be unconstitutional. (Wynehamer v. The People, 13 N. Y., 387, 394.)
    Y. If the foreclosure was ineffectual, the mortgage became forfeited by the breach of condition on the default to pay the semi-annual interest on the 8th day of September, 1839, or at least ten days thereafter.
    The mortgagor’s right of redemption, and remedy in equity to be relieved from the forfeiture, by a bill to redeem, then accrued. (Merritt v. Lambert, 7 Paige, 344 ; Post v. Arnot, 2 Denio, 344.)
    Against such an action, the ten years’ limitation of suits in equity, (2 R. S., 302, § 52,) was applicable. (Elwood v. Deifendorf, 5 Barb., 399.)
    But the plaintiff* being then imprisoned on a criminal charge for a less term, than his natural life, and the disability to sue continuing while he was so imprisoned, and until September 3d, 1846, (2 R. S., 302, § 53; Id., 297, § 24, subd. 3,) the ten years began to run from that day, and the statutory limitation became perfect on the' 2d September, 1856.

      William Silliman, for the defendant Duffie, further argued:
    I. The plaintiffs are estopped from claiming the land ; for, pending adverse possession of the land, Smith conveyed to Eeily all the lands, and Eeily reconveyed to Smith all except two lots, and pending the suit conveyed those two lots to Oliver Smith. Duffie, an innocent third person, may insist that the conveyance to Eeily was valid, and the one ~by him void; and plaintiff is estopped to controvert this. (3 Rev. Stat., 5th ed., 972 ; marg. 69, § 6 ; Id. 30, marg. 739, § 167.)
    II. The Statute of Limitations affords a good defense to Duffie; and his defense is the defense of all the defendants.
    III. It was fully settled by the Court of Errors, in Wilson v. Troup, 2 Cow., 195, that a conveyance, with full covenants, by a mortgagee in possession, of parcels of the mortgaged premises, is not an assignment pro tanto of the mortgage.
    IV. Duffie held by an adverse possession; and the plaintiffs in their complaint say that there was an adverse possession.
    Y. The plaintiffs have interests entirely separate from each other, and should sue separately. The covenants required by the decree are objectionable, and might give rise to a great number of law suits. The effect of declaring the foreclosure void is, to adjudge the title to be in the plaintiffs. No deed is therefore necessary from the defendant Duffie, and this part of the judgment should be modified, so as to require only a quit claim deed at the most.
    YI. The fee of the mortgaged premises is now, as always heretofore, in this country and in England, in the mortgagee and not in the mortgagor, and the mortgagor has only an equity, to be enforced in a Court of Equity and not at law.
    The Court therefore may refuse, under the circumstances, a redemption even within the ten years, and may annex conditions, such as the payment of other debts, not secured by mortgage, &c. -
    Within this principle the Court would be perfectly justified, in this case, in holding that the limitation for commencing this action expired before this action was commenced as against Duffie, and that the “ attempt ” to commence this action did not save it.
    This action is instituted solely on the theory of taking advantage of a mere technicality. The plaintiffs slept over their possible rights for more than ten years, and now ask the Court to help them out of their difficulty, by applying a rule of equity to enable them to enforce a most inequitable claim.
    YH. The defendants should have been allowed costs.

      8. JB. Noble, for plaintiffs, (respondents.)
    I. The proceedings in the foreclosure are absolutely null and void.
    A person sentenced to the State prison for life is civilly dead; and. while in confinement in the State prison under sentence for a term of years, all his civil rights are suspended. (1 R. L., p. 411, §17 ; 2 R. S., p. 701, §§ 19, 20 ; O'Brien v. Hagan, 1 Duer, 664.)
    II. The mode of procedure in such cases is especially pointed out by statute. (2 R. S., p. 15, §§ 1, 2, 3, 4, 5 ; 1 R. L., p. 164, §§ 29, 30.)
    III. The principal question involved was finally settled so far as this Court is concerned, at the General Term.
    IY. Thus plaintiffs’ rights are the same as if Smith Davis had not been made a party to the foreclosure.
    Y. Lapse of time cannot be successfully pleaded against the plaintiffs.

      1. As equitable owner of the premises the statute of limitations would not commence to run against them until eviction. The plaintiffs are to be deemed still in possession under their deed. (Varick v. Edwards, 11 Paige, 290 ; Borst v. Boyd, 3 Sand. Ch. R., 501 ; Astor v. Miller, 2 Paige, 68.)
    2. The defendant Sherman was a non-resident and appeared voluntarily. The plea does not, therefore, avail Mm. (Denny v. Smith, 18 N. Y. R., 567.)
    3. As to the defendant Duffie, there was a dona fide attempt made to serve the summons by delivery to the Sheriff on the 28th day of August, 1856, which is equivalent to the commencement of an action. (2 R. S., 302 § 52 ; Code § 73.)
    4. But the period of twenty years is to be taken as the limit in equity when applicable to any similar case at law. The distinction between legal and equitable actions is abolished in all civil actions, and there is concurrent jurisdiction in the Courts of Common Law and Courts of Equity. (2 R. S., p. 301, § 49 ; Code, § 69 ; 2 R. S., p. 293, § 5 ; Code, § 78.)
    At all events whether the statute be wholly inapplicable, or whether the limitation be twenty years or ten years, the action to redeem was commenced in time. (Webb v. Pell, 1 Paige, 564 ; Van Hook v. Whitlock, 3 Paige, 409 ; Hayden v. Bucklin, 9 Paige, 512 ; Fitch v. Smith, 10 Paige, 9.)
    VI. The conveyance by Smith Davis to Reily and the reconveyance by Reily to the plaintiff Oliver Davis are not in contravention of the statute against purchasing titles. (1 R. S., p. 739, § 147.)
    VII. The plaintiff being entitled to redeem, it is not, perhaps, a matter of vital importance to whom they pay the redemption money. The plaintiffs, however, acquiesce in the decision as to its distribution.
    The grantees of Duffie are undoubtedly proportionate assignees of the mortgage. His deeds carried his whole interest in the mortgage, and the rule of distribution in this case, as well as in cases of sale under foreclosure, to different purchasers, would be in the inverse order of their alienation according to the equitable rights of the different purchasers, as between themselves. (Guion v. Knapp, 6 Paige, 35 ; Gouverneur v. Lynch, 2 Paige, 300 ; Snyder v. Stafford, 11 Paige, 71.)
   By the Court—Bosworth, Ch. J,

The opinion in Davis v. Erhardt, that the decree of foreclosure in the chancery suit is void, seems to be based, in part, on the idea that 2 R. S., p. 15, (article second,) prescribes the remedy which Duffie should have pursued, and that such remedy is exclusive, and also partly on the idea that the fact that the civil rights of Davis were suspended at the time the subpoena was served on him, has a bearing upon the question of the validity of the decree. It states that this remedy “ should have been followed in order effectually to have divested the plaintiff of his equity of redemption.”

Article second of title one, chapter 5, part two of the Bevised Statutes, applies as well to a case where a debtor may be imprisoned in a county jail for a criminal offense, for any term more than one year, as to the ease in question ; and as well, therefore, to a debtor whose civil rights are not suspended, as to one whose civil rights are suspended.

If the decree of foreclosure in the chancery suit is void, it cannot be void for the reason that this article of the Bevised Statutes deprived Duffie of the right to foreclose his mortgage, and compelled him to obtain payment of it out of the proceeds of a sale to be made by the trustees as such. By 2 R. S., p. 43, § 7, sub. 7, and 2 R. S., p. 15, § 3, the trustees may either redeem a mortgage, or sell mortgaged property subject to the mortgage. Duffie’s mortgage lien was not impaired by Davis’ guilt or conviction. His right to foreclose was unaffected. And if trustees had been appointed, Davis would have been a necessary party, in order to conclude him personally by the decree. If the mortgage was foreclosed, although trustees had been appointed and made parties, Duffie would be entitled to a decree against Davis personally, in case of a deficiency, for the amount of it. If Duffie could not procure a regular and valid decree to that effect, while Davis was in prison, then it will follow that his conviction not only -■ suspended his civil rights, hut it also suspended his creditors’ rights to obtain judgment in personam, against him.

For no such judgment can be obtained, except by service of process upon him, in such manner as to give a Court jurisdiction of his person.

Trustees could represent Davis only as to his estate, for the purpose of effecting a transfer of the title to his property, and paying his debts. They are not, ex officio, his attorneys to appear and answer suits brought against him, with a view to conclude him personally by the judgments that may be rendered therein, any further than to protect them in appropriating any of his estate that may be necessary to satisfy the debts, and to sell it to make satisfaction.

If these views are correct, then Davis v. Erhardt cannot have been correctly decided, on the ground that the mortgage could not be foreclosed, nor on the idea that service of a subpoena on Davis, while in prison, is void. It can only be upheld on the ground that no valid decree could be made unless trustees of the estate had been appointed and made parties as such, to represent the mortgaged property.

Under such a construction of the statute, the same necessity would exist, if the debtor was in a county jail on conviction of a criminal offense for which he had been sentenced to imprisonment for a longer term than one year. If such a construction is to be upheld, then the fact that the debtor’s civil rights are suspended, is not an element in the decision. And the proposition must be upheld, that a debtor imprisoned in a county jail for a term exceeding one year, cannot be divested of the title to his property by any action that may be brought against him, unless trustees of his estate are first appointed, and they are parties to such action.

The statute in question was part of the Act of March 21, 1801, for “ relief against absconding and absent debtors.” (1 R. L., 157.) Section 29 of that Act provides “ that every person imprisoned in the State prison, other than persons adjudged to imprisonment for life, * * shall be deemed an absconding debtor within this Act,” and also provides for the appointment of trustees of his estate; and that any surplus left, after paying his debts, may be applied to the maintenance of his wife and children, as the Chancellor, or other officers named, shall from time to time allow.

In revising the statutes, this class of cases was provided for in a separate article of five sections. The Eevisers state, that section 29 of the Act of 1801, was enlarged “to embrace the case of persons in county jails or penitentiaries, who seem to be within its reason, and also allowing application by relatives.” The policy of the present law “ undoubtedly is, to have such estates taken care of under legal authority.” (3 R. S., p. 617, 2d ed.)

The five sections composing this article, except the alterations above noted, are in substance the same as § 29 of the Act of 1801. Ho effect is suggested as con tern- ° plated by the alterations made, other than is before stated.

If a mortgagor absconded who had not committed any crime, no one would contend that the statute of 1801, or the existing statute, would make it indispensable to appoint trustees, in order to collect the mortgage debt by a foreclosure of the mortgage. And under the Act of 1801, a person in the State prison was declared to be an absconding debtor, for the purpose of taking the proceedings authorized by it.

The statute as imperatively prescribes the proceedings which it authorizes, as the only remedy against an absconding debtor, as it does against an imprisoned debtor convicted for crime. And it is difficult to perceive in what way the present statute impairs or affects any right of a mortgagee to foreclose the mortgage against such a debtor, without the appointment of trustees, which existed under the Act of 1801.

In Maddock’s Chancery Practice, (vol. 2, p. 200,) Hoffman’s, (vol. 1, p. 109,) and Barbour’s, (vol. 1, pp. 50, 51,) it is stated that service upon the keeper of a prison will be ordered to be good service upon a prisoner in his custody.

The Court of Chancery, in cases not provided for by statute, by settled practice or written rules, exercised the power of declaring what kind of service of a subpoena should be a substitute for personal service, when personal service could not be made, and give jurisdiction of the person.

And the Chancellor, in Phelps v. Phelps, (7 Paige, 150,) decided that service upon a convict in the State prison was regular, the decision being made on an appeal from the order of a Vice-Chancellor.

Davis was not only a proper but he was a necessary party to the foreclosure suit, and he was regularly served with the subpoena according to the settled practice of the Court of Chancery, and an express adjudication of the Chancellor upon the very point.

Chitty, in treating of the meaning and effect of attainder, says: “ That this situation of civiliter mortuus is never allowed to protect him from the claims of private individuals, or the necessities of public justice; so that, though he can bring no action against another, he may be sued and execution may be taken out against Mm.” (Chit. Cr. L., vol. 1, p. 725.)

See Ramsden v. Macdonald, (1 Wilson, 217 ;) Wright v. Simpson, (6 Vesey, 734, 735 ;) Foster’s C. L., 63, and the Chancellor’s opinion in Plainer v. Shenvood, (6 J. Ch. R., 130, 131,)

Harvey v. Jacob, (1 B. & Ald., 159,) and Barrett v. Power, (25 Eng. L. & Eq. R., 524,) show that an action may be prosecuted to judgment, notwithstanding the plaintiff therein may have been convicted of felony after it was commenced. But it does not follow from those cases that it can he so prosecuted solely for his benefit, or that he has any right to bring an action while the term of his sentence is unexpired. (Bullock v. Dodds, 2 B. & Ald., 259-278 ; Bullock, ex parte, 14 Vesey, 465, 466 ; Roberts v. Walker, 1 Russ. & Mylne, 752.)

But the decisions are uniform, that although his right to prosecute an action is suspended and his property is forfeited, he may be sued and the suit against him may be prosecuted to judgment.

The grounds on which I think Davis v. Erhardt is erroneous, are: That article two of the Bevised Statutes, (supra,) does not prescribe an exclusive remedy for these cases, where it authorizes the appointment of trustees of an imprisoned debtor convicted of a criminal offense, (Malcom v. Rogers, 5 Cow., 188 ; Almy v. Harris, 5, J. R., 175,) nor make it essential to a regular and valid decree of foreclosure that trustees of the estate of the debtor should be appointed and made parties to the suit.

That service of the subpoena on Davis was regular, and the estate which he had before his conviction not having been divested by it, the decree, and a regular sale under it, transferred title to the purchaser.

That the statute which suspends his civil rights was passed for his punishment, and not to interpose any obstacle in the way of a creditor’s enforcing a specific lien on his property according to the usual practice of the Court.

If, while an action at law was pending against him, he had been convicted of a State prison offense, and had been in prison under his sentence when judgment was obtained, the judgment would be neither irregular nor void, and his real estate might be sold by virtue of an execution issued upon such judgment.

O'Brien v. Hagan, (1 Duer., 664,) to the effect that conviction and sentence of a plaintiff, abate his action, does not conflict with this view.

In Davis v. Erhardt, according to the opinion of Mr. Justice Campbell, it was decided that the decree of foreclosure was void, and that ejectment would lie at the suit of Davis, against Buffie’s grantees of the mortgaged premises. •

As a matter of judicial history relating to these proceedings, it may be observed that Davis subsequently brought ejectment suits against several if not all of such grantees, and judgment was given for the defendants on the ground that assuming the decree to be void, such an action would not lie. Those judgments were pronounced on the authority of Jackson v. Minkler et al., (10 J. R., 480 ;) Jackson v. Bowen, (7 Cow., 13,) and other cases. Those decisions were acquiesced in and the present action was subsequently brought. The history of Davis v. Erhardt, according to Justice Hoffmae’s researches, as stated in his opinions, shows that it was heard at a General Term, held in February, 1854, before Justices Dube, Campbell and Slossoe.

The fact that Judge Dube did not report the decision, I regard as evidence that he came to doubt its accuracy, and not that the omission resulted from his conviction that the decision was unimportant.

If the opinion delivered furnished any evidence that the ease had received that full consideration which these learned Judges were accustomed to bestow, and that their judgment was pronounced after having their attention directed to the views presented on this appeal, I should follow it, on the ground that one General Term should not overrule the decision of another for no other cause than a mere difference of opinion.

But I do not think it can be regarded as such a decision, and if thought to be clearly erroneous, it should not be followed.

The appellant’s Counsel, on the argument of this appeal, presented a certified copy of the minutes of the clerk, on the trial of Davis v. Erhardt, which states that the action was tried before Mr. Justice Campbell “without a Jury,” and “judgment.for the plaintiff by consent of the parties, subject to the opinion of the Court at General Term, and to be heard there in the first instance,” is the clerk’s entry showing how the cause was disposed of at the trial.

The case in Davis v. Erhardt, before the General Term, concludes by stating, “ whereupon, the testimony being closed, and it being conceded by the Counsel of the respective parties, that they desired the Court to pass upon the question put in issue by the pleadings, whether the service of the subpoena in the foreclosure suit, upon the plaintiff, in prison under sentence for a term of years, was good and sufficient to divest him of his property, and to bar and forever foreclose his equity of redemption in the mortgaged premises, a verdict was taken for the plaintiff, subject to the opinion of the Court at General Term.” These papers were furnished, as certified copies of the affidavits in Harvey v. Jacob were furnished on the argument of Barrett v. Power, (25 Eng. L. and Eq., 525,) to show what the case was which was presented to the General Term in Davis v. Erhardt, and how it arose.

They indicate, though not by any means conclusively, that it was not so litigated as to secure that degree of attention which so important a question required. We think the decision should not be allowed to control us, and as we deem it clearly erroneous, a new trial must be granted.

If these views are correct, the questions raised by Duffle and Sherman, as to the statute of limitations, become immaterial. We have, nevertheless, examined those questions, and think that the decision of them presents no ground for reversing the judgment.

Davis’ term of imprisonment expired on the 2d of September, 1846, and he was then discharged. His disability to sue was then removed. On the 28th of August, 1856, he issued to the Sheriff of Hew York a summons in this action, directed to all the defendants, with the intent to have it served. The findings of fact do not state when it was served on either defendant.

The case states as facts, that the summons and complaint was served on the 28th of that month on Jonas Conklin; on the 29th on G. A. 0. Yan Beuren; on the 10th of September, 1856, on O. E. Duffie; and‘that on the 12th of said September, T. Sherman, Jr., voluntarily appeared.

These are the only parties who have appealed. The plea of the statute of limitations as pleaded by Duffie and Sherman is, that the plaintiff’s cause of action accrued on the 9th of September, 1838, when he was free from imprisonment and disability, and that this suit was not commenced within ten years from that date. It is found that he was convicted on the 2d of September, 1839. The bond, the payment of which was secured by the mortgage, was dated the 8th of March, 1838, and was conditioned to pay $1,000 on or before the 8th of March, 1840, with interest semi-annually on the 8th days of September and March in each year, and also provided that if default be made in the payment of interest for ten days after it became payable, the principal should, at the option of Duffie, be due and payable immediately thereafter. He filed his bill to foreclose on the 13th of December, 1839. Giving full effect to his power of election, that is the earliest day that the principal can be said to have become due.

By 2 R. S., 301, § 52, it was enough to prevent the statute of limitations being a bar, that the bill was filed within ten years after the disability of Davis was removed; and followed by diligent efforts made in good faith to serve the subpoena.

When the complaint in this action was filed does not appear. But the case states that it was served on two of the defendants in August, 1856.

The just construction of section 73, [66] of the Oode, to the effect that “this title shall not extend to actions already commenced, or to cases where the right of action has already accrued,” is, -that the time for commencing such actions shall be regulated by pre-existing law, and not be affected by that title. But it does not mean that the provisions of that title as to what shall be the commencement of a suit, shall not apply. The Oode abolished a capias ad respondendum, and a subpoena to appear and answer, and substituted the service of a summons, as a commencement of a suit, for the proceedings previously taken both at law and in equity to effect that result.

A compliance with section 99, [79,] is as effectual to commence an action, as the filing of a bill and issuing of a subpoena within the .ten years, followed with diligent efforts to serve the latter, were, under the Bevised Statutes. In the latter case, the statute would not be a bar, merely because the subpoena could not have been served until a few days after the ten years had expired.

If the decree in the foreclosure suit was utterly void, the judgment in this action should not be reversed, on the mere ground that the statute of limitations is a bar.

For other reasons already stated, the judgment must be reversed and a new trial granted, with costs to abide the event.