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

text:
    George R. Halsey, Plaintiff and Respondent v. Nathaniel Jarvis, Jr., Appellant.
    1. In an action against the defendant to recover rent of premises occupied by a third person, where evidence has been given of a tonversation, on a specified day between the landlord and defendant, tending to establish a hiring by the defendant, and an agreement that such third person might occupy, and the defendant would pay the rent, it is error to exclude evidence of other cotemporaneous conversations between the landlord and defendant on the same subject.
    2. Such evidence cannot be excluded, merely because the conversations and verbal agreement offered to be proved were not had and made on the precise day on which, it is stated, the conversation already proved was had.
    (Before Boswoeth, Ch. J., and Hoffman and Hobeetson, J. J.)
    Heard December 10, 1860,
    decided December 20, 1860.
    Appeal by the defendant from a judgment.
    The action is brought to recover one quarter’s rent of the premises 44 West 28th street, the quarter commencing February 1, and ending May 1, 1859, and the premises having been occupied by Mrs. B. H. Jarvis, and not by the defendant. The plaintiff sues as assignee of the landlord, one William Wade.

    One Henry C. Place gave evidence tending to show a verbal agreement made in his presence, January 28, 1859, between plaintiffs’ assignor of the claim, and defendant, by which defendant agreed to pay the rent.
    The defendant called John McClave, and offered to prove by him conversation and a verbal agreement between plaintiffs’ assignor, and defendant, as to this quarter’s rent, and the judge excluded the evidence.
    The defendant subsequently proved by Robert B. Gather-wood that Wade, (the landlord,) in March or April, 1859, told him, “he would rather Mrs. Jarvis would remain another year, as he had Mr. Jarvis as security for the rent.” Wade remarked, “that, as Mr. Jarvis had charged him with rent of the 22d street house, he would make out a bill for this rent, and if he did not pay, he would sue him, * * he was going to assign the claim, and sue
    Jarvis, in order that he (Wade) could be a witness.” The testimony of Place, and the questions put to McClave and overruled, appear in the opinion of the court.
    The judge charged the jury (inter alia) that if they believed the testimony of the witness, Catherwood, the plaintiff could not ■ maintain this action. They found a verdict for the plaintiff. From the judgment entered on it this appeal is taken.

      C. Bainbridge Smith, for Appellant.

      Samuel Williams, for Respondent.
   By the Court. Bosworth, Ch. J.

—The complaint alleges that on or about the 28th of January, 1859, “ George Wade let and rented to the defendant,” * * the house and premises No. 44 West 28th street, New York city, for the term of three months, commencing February 1, 1859, for the sum of $200, which sum the defendant then promised to pay to Wade on the 1st of May, 1859. That it was then further agreed between them, at defendant’s request, “that the said premises should be used and occupied by one Mrs. Benjamin F. Jarvis for the term aforesaid,” and that by virtue of said agreement, she did use and occupy them during the said term; that the rent has been demanded of the defendant, and he refused to pay it; that on the 22d of November, 1859, Wade assigned the said claim to the plaintiff, and it prays judgment for $200, and interest from May 1st, 1859.

The answer puts all the material allegations of the complaint at issue.

The action was tried on the 29th of March, 1860, before Mr. -Justice Moncrief and a jury.

The plaintiff called but one witness. The testimony tended to show that on or about January, 1859, the defendant, then owning the premises in question, sold and conveyed them to Mr. Wade; and the latter sold and conveyed property in 22d street, then owned by him, to the defendant, and that Mrs. B. F. Jarvis was then occupying No. 44 West 28th street. The witness called by the plaintiff (Mr. Henry C. Place) testified that on the 28th of January, 1859, he was present at an interview between Wade and the defendant, when “Mr. Wade came to receive the deeds of No. 44 West 28th street; some relative or friend of Mr. Jarvis was in possession, and it was agreed that she should remain'there; Mr. Jarvis agreed to give Mr. Wade rent at the rate of $800 a year, for three months; Wade agreed to that; it was a verbal agreement: the tenancy was to terminate three months from 1st of February, to-wit: 1st May.” The deeds were delivered on the 28th of January, 1859.

Being cross-examined, he said: “I do not know that I can state exactly the language used; Mr. Jarvis asked Mr. Wade.to permit Mrs. Jarvis to remain for three months, stating he would pay the rent; Mr. Wade Avanted rent at the rate of $850, but it was eventually agreed to be at the rate of $800; there was not, at that time, anything else said.”

This is the whole evidence given by the plaintiff as to the fact of the defendant’s hiring the premises and promising to pay the rent.

The defendant called John McClave as a witness, who testified thus: “lam a real estate broker; I acted as broker in this transaction, for Wade principally, and somewhat for Jarvis; I was present at several interviews between Wade and Jarvis in relation to this transaction.” The witness was then asked these four questions, viz :

“Q. What was the agreement between Wade and Jarvis as to the rents accruing from these several properties, and which agreement was contingent upqn the transfer ?
“ Q. Who negotiated the transfer of the property and the details connected with it ? .
“ Q. In that negotiation, was the subject of the quarter’s rent from February to May, 1859, settled between the parties and yourself?
“ Q. Did you hear any conservation between Wade and the defendant about the rent of the quarter referred to? If so, state the language used ?”

Each of these questions, when it was put, was objected to by the plaintiff; the objection was sustained, and the decision was excepted to.

The ground of their objection is not stated, nor is the ground of either ruling stated.

The respondent, in his points, argues that the last question “was too general; it should have been definite as to time, as witness was not present when the agreement between Wade and defendant was made.”

If by this, it be meant that the testimony was properly excluded, because it did not relate to conversations occurring at the interview testified to by Mr. Place, the position is untenable. Whatever was said by Wade, in any interview between him and Jarvis, whether before, after, or on that day, was competent, if pertinent.

We think the judge could not have overruled the questions on that ground, as» he allowed the defendant subsequently to prove, by Robert B. Catherwood, conversations between himself and Wade, occurring in March or April, 1859, and also in or about June, 1859, and charged the jury that, “if they believed the testimony* of the witness Catherwood, the plaintiff could not maintain this action.”

Hence the judge can hardly be supposed to have overruled the questions, because they did not relate to conversations had at the interview on.the 28th of January, 1859, in respect to which Mr. Place had testified.

The agreement, on which the plaintiff relies, he sought to establish by evidence of a conversation between Wade and Jarvis occurring on that day, the day on which they exchanged deeds. It was a verbal agreement, whatever it may have been, and related to the property conveyed by the deed from Jarvis to Wade.

The questions put to Mr. McClave might have elicited testimony, had they been answered, which would have .satisfied the jury that the impressions of Mr. Place, as to the conversation of which he testified, were entirely inaccurate ; and that the position of the parties was such as the evidence of Catherwood tended to show it was, and thus have so far corroborated his testimony, that the jury would have believed it, and given a verdict for the defendant.

Mr. McClave had acted as broker ■ in the transaction; was present at several interviews between Wade and Jarvis in relation to it; and we must assume that he might have testified that - he negotiated the transfer and the details connected with it; and that in such negotiation “the subject of the quarter’s rent to May, 1859, was settled between the parties ” and the witness.

Such testimony was clearly competent, and should have ■been received. If it related to conversations had, or any agreement as to this quarter’s rent, made prior to January 28, 1859, then the practical question might have been, if it showed a clear and precise agreement, whether such agreement was modified on the 28th of January.

But whatever the questions which it might have raised, it is quite evident that the evidence, in connection with that which was received, might have satisfied the jury that no such agreement-was made as that which the evidence of Mr. Place, standing alone, tends to establish.

And it might have so satified them, without at all questioning the good faith of Mr. Place’s testimony. As the evidence was competent, and the court is ignorant what it would have been, it cannot assume, for the purposes of this appeal, that it would have been immaterial.

The questions were pertinent, and we must assume that the evidence would have been material. The questions pointed to the subject of this quarter’s rent, an arrangement between Wade and Jarvis in regard to it, and called for what was said between them, and the language used.

We think an error was committed in overruling the last three questions. The judgment, therefore, must be reversed, and a-new trial granted, with costs to abide the event.

Judgment accordingly.


source: Caselaw Access Project

author: By the Court. Woodruff, J.

license: Public Domain

text:
    The West River Bank, Plaintiff and Respondent v. James B. Taylor, Defendant and Appellant.
    1. Where a bill of exchange has been negotiated by the indorsement of several parties, the holder has the next day after receiving notice of dishonor, to notify any prior indorser whom he desires to charge; and each successive indorser who receives notice, has at least .one day thereafter to give notice to any antecedent indorser.
    2. This rule is not confined to holders for value. An agent or banker entrusted with a bill to obtain acceptance or payment, is entitled0 to the same time to give notice to his principal, and the principal is entitled after such notice, to the like time to notify any prior indorser as if he had received notice from the true owner, instead of his banker or agent.
    3. Where the party thus giving the notice, and the party to whom it is given, do not reside in the same town, the notice may be sent by mail.
    4. There is no rule requiring that an indorser residing in the same town as the acceptor, shall be personally notified the next day after presentment; where 'the banker, at whose instance the bill is protested, and to whom notices of protest are sent, does not reside in that town.
    6. The fact that the true owner knows that the indorser resides in the same place as the acceptor, does not, in such a case, entitle the indorser to notice on the day next after the presentment and protest.
    6. It is enough to charge him, that the true owner mails notice to him by the first mail of the day next after that on which he, in due course, receives notice of dishonor, such owner and indorser residing in different towns.-
    (Before Bosworth, Ch. J., and Woodruff and White, J. J.)
    Heard November 7,
    decided December 29, 1860.
    Appeal by the defendant, James B. Taylor, from a judgment recovered against him as the indorser, and Charles St. John, as the acceptor of a bill of exchange, which, with its indorsements,.is as follows, viz:
    $2,643.13 Robbins fy Lawrence Co'.

    Winbsor, Vt., June 21, 1856. Six months after date pay to the order of S. G. De Blois, Treasurer, twenty-six hundred and forty-three 13-100 dollars, value received, and charge to. account of the Robbins fy Lawrence Co.

    W. CURRIER, President.

      To Charles St. John, Esq., 142 Water st., New York.
    Written across the face, “ Accepted, Charles St. John."

    Endorsed, S. G. BeBlois, Treasurer.

      James B. Taylor.

    Pay R. L. Bay, Esq., Cashier, or order.
    J. E.-BUTLER, Cashier.

    The action, being at issue, was referred to the Hon. Benjamin W. Bonney, to be determined by him, as referee, who" found and reported, as matters of fact, as follows, viz :
    1. That, at the times in the complaint mentioned, the plaintiff was, and now is, a corporation, created and existing under and pursuant to the laws of the State of Vermont, situated and transacting business in the town of Jamaica, in the county of Windham, and State of Vermont.
    2. That the bill of exchange, in the complaint mentioned and described, and upon which this action is brought, was, at or about the day of its date, and at the city of New York, in the State of New York, accepted by the defendant, Charles St. John, and indorsed by the defendant, James B. Taylor, without consideration, and for the accommodation of the drawer thereof, or some person connected with said drawer.
    3. That the said bill of exchange,' so accepted by the defendant, St. John, and indorsed by the defendant, Taylor, was, soon after such acceptance and indorsement, and long before it became due, delivered by the drawer thereof, at said town of Jamaica, in Vermont, to the plaintiff, for full and valuable consideration then given and paid by the plaintiff therefor, and the plaintiff thereupon became, and ever since has been, the owner of said bill of exchange.
    4. That before said bill of exchange became due and payable, the plaintiff indorsed and delivered the same for collection, to the Eliot Bank, situated and doing business in the city of Boston, in the State of Massachusetts, and said Eliot Bank indorsed and delivered said bill to the Nassau Bank, situated and doing business in said city of New York, in the State of New York.
    5. That at the time of said acceptance and indorsement of said bill of exchange, and also when the same became due and payable, and before and afterward, both the defendant, Charles St. John, and the defendant, James B. Taylor, resided and kept, and had their respective places of business in the said city of New York, and the plaintiff, before and at the time when said bill of exchange was so indorsed and delivered to the Eliot Bank, had notice thereof.
    6. That on the twenty-fourth day of December, 1856, (when said bill of exchange became due and payable,) it' was presented by the notary public of said Nassau Bank, then the holder thereof, for collection as aforesaid, at the office or place of business in said city of New York, of the defendant, Charles St. John, in his absence from said office, and payment thereof was then and there demanded, which was refused, and said bill was thereupon protested by said notary public for non-payment.
    1. That the twenty-fifth day of December, 1856, was, by the law of the State of New York, a legal holiday, and for all purposes of protesting and giving notice of the dishonor of bills of exchange, treated, and considered as the first day of the week, commonly called Sunday.
    8. That notices of such presentment, and demand and refusal of payment of said bill of exchange, and of the protest thereof, for the Eliot Bank, and for the plaintiff and the defendant, Taylor, were by said notary of said Nassau Bank, sent by mail on the twenty-sixth day of December, 1856, from said city of New York to said Eliot Bank; and were by said Eliot Bank received at said city of Boston, on the twenty-seventh day of December, 1856.
    9. That said notices of such presentment, and demand and refusal of payment and protest of said bill of exchange for the plaintiff and for the defendant, James B. Taylor, were, by said Eliot Bank, sent by mail on said, twenty-seventh day of December, 1856, from said city of Boston to said plaintiff, at said town of Jamaica, in Vermont, and were by said plaintiff received, on or about the 29th day of December, 1856.

      IQ. That the plaintiff, by its cashier, inclosed said notice of demand and refusal of payment, and of protest of said bill of exchange, for the defendant, James B. Taylor, in a sealed envelope, addressed to said defendant Taylor, at said city of New York, and deposited the same in the United States post-office in said town of Jamaica, for transmission to the city of New York, and paid the postage thereon, before the departure of the next mail for said city of New York, after such notice was received by the plaintiff, as aforesaid.
    11. That the interest on the amount of said bill of exchange, ($2,643.13,) from the twenty-fourth day of December, 1856, when the same became due and payable to the date of this report, (24th December, 1859,) (three years,) is five hundred and fifty-five dollars and five cents, ($555.05) and the whole amount of principal and interest due upon said bill at the date of this report, together with seventy-five cents for expense of protest thereof, is three thousand one hundred and ninety-eight dollars and ninety-three cents, ($3,198.93.)
    Upon the pleadings in this action, and the facts found and above reported, the referee decided, determined and reported as conclusions of law, that the plaintiff is entitled to recover against the said defendants, and each of them, in this action, the said sum of three thousand one hundred and ninety-eight dollars and ninety-three cents, and that on filing this report, judgment be entered in favor of the plaintiff against the defendants, for said last mentioned sum, and the costs of this action.
    Judgment having been entered on the report, the defendant, James B. Taylor, appealed from it to the general term.

      E. W. Stoughton, for Appellant.
    I. When the plaintiffs sent the draft to New York for collection, they knew that Taylor resided there; and it was, therefore, their duty, upon non-payment, to have caused." notice thereof to be served upon him, either personally, or by leaving the same at his residence or place of business; and this notice should have been so served as early as the 26th of December. By reason of their failure to do this, the liability of the defendant Taylor, was discharged. (Lawrence v. Miller, 16 N. Y. R. 235 ; Cuyler v. Stevens, 4 Wend. 566 ; U. S. Bank v. Barker, 12 Wheaton, 559, 60, 61; Spencer v. Bank of Salina, 3 Hill, 520.)
    II. The only service of notice which it is claimed was ' made upon Taylor, was by mailing the same, at Jamaica, in the State of Vermont, directed to him at the city of New York, several days after the 2l7th of December. The old rule was that service, to fix the indorser, must in all cases be personal, or by leaving the same at his residence or place of business. And this is still the rule where the party to be charged resides at the place where the paper is to be presented for payment. (Ransom v. Mack, 2 Hill, 590.)
    If, therefore, the plaintiffs had been unacquainted with the residence of Taylor at the time they forwarded the bill for collection, it would have been the duty of the notary, if ignorant thereof, to have made diligent inquiry for the purpose of serving upon him, if possible; and his failure to exercise such diligence, would have made him responsible in damages to the holder for such loss as he should sustain thereby. (Ransom v. Mack, 2 Hill, 590, and cases there cited; Smedes v. Bank of Utica, 20 Johns. R. 312.)

      A. R. Dyett, for Respondent.
    I. For the purpose of demand and notice to drawer and indorsers, the Eliot Bank and Nassau Bank were hoi ders of the bill subsequent to the plaintiffs, and were only bound to notify their prior indorsers, id est—the Nassau Bank to notify the Eliot. The Eliot to notify the plaintiffs—the plaintiffs Taylor.
    And each had a day, after receiving notice, to give notice to the other in this order. This was done.
    The notary was not the plaintiff’s’ agent, but if of anybody, of the Nassau Bank, who was the holder, and for whom he was notary, and his only duty was to notify the Eliot Bank, which was the last indorser prior to the holder. This he did do by sending notice by mail to R. S. Day, Esq., cashier of that bank at Boston, and that holder notified its prior indorser, the plaintiffs, which in return notified Taylor.
    The case in 16 N. Y. Reports cited by the defendant, was entirely different from this one.
    1st. There the notary assumed to give the notice which was defective. Here he did not undertake to give notice to Taylor at all.
    2d. There the notary did not serve the notice upon the indorser at all.
    3d. The indorser in that case never got the notice. Here he did, (for Taylor does not in his answer or his evidence deny the actual receipt of the notice at some time or other).
    4th. The notary there was entrusted to give notice without any information or direction where to serve it. Here the notary was only employed to, and did merely present the bill and protest it, .handing back the bill and protest to the holder, and sending notices to the last indorser prior to the holder, leaving the latter to give notices to prior indorsers.
    5th. There the holder, having given no notice except through the notary, was compelled to adopt the act as his own, burdened with the negligence, and the court presumed the indorser had transferred the note to him, and ■that consequently he knew his residence. Thus the case stood as one where the holder, knowing the residence of the indorser, wilfully served it on another person, and the indorser never got notice.,
    Here Taylor was not our immediate indorser, and no such presumption arises. On the contrary, we prove that we received the bill from the Robbins & Lawrence Company, for which Taylor indorsed it, and we only knew that Taylor lived in New York, and nothing further, and we mailed it to New York, and Taylor got it.
    The holder may, after he gets notice of dishonor, notify the parties whom he intends to hold. (Story on bills, § 292; U. S. Bank v. Goddard, 5 Mason.)
    The rule is, that where the party entitled and required to give the notice, resides in a different place from the party sought to he charged, notice maybe by mail; the manner of service, whether by mail or personally, depending on the residence respectively of the party giving, and the party receiving the notice.
    He cited, and commented on Louisiana State Bank v. Rowel, (6 Mar. Louis. R. 506;) 2 Hill, 587 ; 20 J. R. 372; 10 J. R. 490; 5 Martin’s Rep. N. S. 359 ; Clay v. Oakley, (Id. 137;) 1 Conn. 329 ; 3 Id. 489; 1 Peters, 579; Cayuga Co. Bank v. Bennett, (5 Hill, 241 ;) Sheldon v. Benham, (4 Id. 129 ;) 2 Hill, 457; Mead v. Engs (5 Cow. 303 ;) Spencer v. Ballou, (18 N. Y. R. 327 ;) Edw. on Prom. Notes, 618, 629; Lowery v. Scott, (24 Wend. 358 ;) 13 J. R. 432 ; 5 Binney, 431 ; 3 Greenf. 233 ; 6 Metcalf, 491; and insisted that the rule stated in Mead v. Engs, ( supra,) is the true one, is established law, and applicable to the facts of this case, and that the judgment should be affirmed.
   By the Court. Woodruff, J.

—The only point presented by the counsel for the appellant is, that due notice was not given to the defendant of the dishonor of the bill of exchange indorsed by him; all other exceptions taken at the trial were waived on the argument by the appellant; and the argument is, that inasmuch as the indorser resided in the same place in which the acceptor lived, and where the bill was presented for payment, and this fact was known to the plaintiffs, who were the actual or beneficial owners of the bill, notice should have been served on the indorser personally, or by leaving it at his residence or place of business in the city of New York, as early as the second day after the presentment, (the holiday being thus duly allowed,) and that the circuitous transmission of the notice to the defendant through the bunk .at Boston, and through the plaintiffs.at Jamaica, Vermont, was not in due season to charge the defendant as indorser; and that if the plaintiffs had not known the defendant’s residence, it was, nevertheless, the duty of the notary to make diligent inquiry in New York for the purpose of serving the notice on the defendant, and the neglect of the notary to do so would have discharged the defendant, and would have made the notary responsible to the plaintiffs.

The general rule that where a bill of exchange has been negotiated by the indorsement of several parties, the holder has the next day within which to give notice of dishonor to any prior indorser whom he desires to look to for payment, and that each successive indorser who receives notice of the dishonor, has at least one day thereafter to give notice to any antecedent indorser whom he may desire to charge with the payment, is not controverted. Nor does the appellant question the rule that in such case if the party giving the notice, and the indorser whom he seeks to charge, reside in different towns, the former may send the notice by the first convenient mail of the day next after the receipt of the notice by himself.

But it is claimed that as to indorsers residing in the same town with the acceptor an exception arises, and they must be notified the next day (holiday excluded) after presentment; or at all events if the actual owner has knowledge of such residence, he cannot charge them without giving them such notice within the period last named; and that notices transmitted successively through holders for collection only, will not be in due season to charge such indorsers.

Mr. Justice Story, in his treatise on bills of exchange, having stated the general rules above referred to, says, (§ 292,) “ The benefit of this rule is not confined to holders for value—but if the bill has been transmitted to an agent or banker for the purpose of procuring the acceptance or payment of the bill, he will be entitled to the same time to give notice to his principal or customer, and to the other parties to the bill, as if he were himself the real holder, and his principal or customer were the party next entitled to notice; and the principal or customer will be entitled after such notice to the like time to communicate notice to the antecedent parties as if he received the notice from the real holder, and not from his banker or agent. In short, in all such cases the banker or agent is treated as a distinct holder.”

Mr. Chitty states thé same rule, and that it has been frequently so decided. (Chitty on Bills, 521, 522.)

Chancellor Kent, in his Commentaries, (§ 44, vol. 3 page 108,) says:—“It is sufficient for an agent to give notice to his principal of the dishonor of a bill, and he is not bound to give notice to all the prior parties; and it then becomes necessary for the principal to give the requisite notice, with due diligence, to the parties to be fixed.”

Numerous .cases may be cit.ed to the like purport. In Scott v. Lifford, (9 East. R. 347,) a bill was deposited by the owner with his bankers for collection; it was dishonored on the 4th, the bankers notified the owner on the 5th, and he notified the indorser on the 6th, and the notice was held sufficient. So in Langdale v. Trimmer, (15 East. R. 291,) the indorsee of a bill deposited it for collection with his bankers in London; it was dishonored on the 25th ; on the 26th they returned it to the owner; ’on the 27th, he put into the post a letter to his indorsee, who lived out of town. The notice was held sufficient. In Bray v. Hadwen, (5 M. & S. R. 68,) the plaintiffs, residing in the country, owning a bill payable in London, deposited it for collection with their country bankers at another place. They forwarded it to London for collection; it was dishonored at London on the 14th, and notice was "sent to the country bankers by mail, and received on the 17th. They sent notice by the post on the 18th, to the owners, (the plaintiffs.) The latter received the notice on the 20th, and they afterward forwarded notice, which, through another indorser, reached the defendant. Held sufficient notice; In Rolson v. Bennett, (2 Taunt. R. 388,) it was held that the holder of a check does not lose recourse to the drawer by depositing it with his bankers for collection, although the banker has' one day after dishonor to notify the owner, and he has another in which to notify the drawer, and so notice to the latter is postponed one day by such deposit. In Daly v. Slater, (4 Carr, & P. R. Rep. 200,) the drawer of a bill payable in London, resided at Oxford, England. The plaintiffs discounted the bill in Paris, and sent it to London to their correspondents, for collection. It was dishonored on the 6th, and the bill, on the next post day, the 8th, returned to the plaintiffs in Paris, by the London bankers, • and was received by the plaintiffs ; one of the ■ plaintiffs being in London on the 16th, instead of sending notice to the drawer at Oxford, returned the bill to the London bankers, and they sent the bill by the post of the l7th,to Oxford, where, on the morning of the 18th, the drawers were notified of the non-payment, &c. Lord Tenter den held, that - the course of sending the notices to Paris was proper, and the only doubt he expressed was, whether the plaintiffs should not, upon the receipt of notice, have, themselves, given the notice to the drawers by the post of the 16th, instead of returning the bill to their bankers, by means of which the notice was delayed one day.

In Colt v. Noble, (5 Mass. R. 167,) the plaintiffs, owners of a bill payable in London, resided at Madras—their indorser resided in the United States. The plaintiffs sent the bill to London to their agents there for collection; it was protested, and the agents returned it with notice to their principals, the plaintiffs, who, within a reasonable time after they received notice, forwarded notice to the indorser in the United S,tates. It appeared, that had the agents sent him notice from London, it would have reached his residence within three months after the protest; but,' by the circuitous mode adopted, the notice from Madras did not reach him until more than a year after - such protest, and yet ■ the notice was held sufficient to charge him in favor of the plaintiffs. The reasoning of Chief Justice Parsons is apt to the present case:

The case last cited is distinctly approved in Mead v. Engs, (5 Cowen R. 308,) where it is declared that banks who have no interest in the bill, but are mere agents to collect it, are yet, for the purpose of receiving and transmitting notices of dishonor, to be considered the real holders. It was there insisted, as it is'in this case, that the notary who protested the bill at Providence, where the acceptor resided, should have sent a notice directly to the drawer at New York, where the bill was drawn and dated. But the court held that a transmission of the notices by mail to several banks in succession, through whom it was transmitted for collection, was proper, although the notice did not reach the drawer so soon as it would had it been sent to him directly from Providence to New York. This case is binding upon us, even if the other authorities were not controlling upon this point; and this decision is reaffirmed in Howard v. Ives, (1 Hill R. 264.)

It is, therefore, to be deemed settled, that the course pursued in this case by transmitting the notices of protest to the Eliot Bank of Boston, and by that bank to the plaintiffs, and by them to the defendant, is in conformity with the general rule, and that the circumstance that the plaintiffs knew where the defendant resided when they delivered the bill for collection made no difference; for in many of the cases above cited, the owner of the bill , had the same knowledge.

Does the circumstance that the indorser (the defendant) resided in the 'city of New York, where the acceptor resided, create an exception?

If it does, then it must be upon some principle applicable to the subject, and none can be suggested unless it be that, living here, he would have received notice directly from the notary much sooner than he did receive it from the plaintiffs by mail. But, according to all the above cases, he is not discharged on that ground, for the same was true in the cases referred to.

Those cases hold that where he resides in another post-town he is not discharged, though a notice sent directly from the place of the protest would have reached him much earlier; and we can see no reason whatever for holding that if he' had lived in Brooklyn, a notice sent from "V"ermont to Brooklyn would have been sufficient; but because he lived in New York, a notice sent to New York, is not. Nor have we been able to find any case in which the place of the indorser’s residence is held material in this respect. Nor any in which just such a notice as was given in the present case has been held insufficient.

It being once established or conceded that the several banks through whom a bill is in due course of business forwarded for collection are to be regarded, for all the purposes of receiving and transmitting notices, as if they were holders for value, then they are bound to notify the antecedent indorser, to whom they respectively look for payment, and are not bound to notify any other; and each of such antecedent indorsers in his turn may notify his precedent indorser, and charge him thereby.

A case may be supposed in which the holder of a bill, in bad faith, or out of the usual course of business, may send a bill to a distance, and through a useless circuit, in such a manner as unnecessarily to delay the notice to drawer or indorser ; and in such case the useless delay voluntarily caused may perhaps discharge the indorser; as if a holder in New York of a bill payable in Newark, under pretence of forwarding it for collection, sends it to a bank in New Orleans, by whom, through various intermediate banks, it is forwarded to Newark, and the notices, by returning through the same banks to New Orleans, and thence coming to the owner in New York, are delayed some weeks or months, it may be that an indorser in New York would be held discharged by the laches or fault of the owner; but if so, the concession would have no just application to a case like the one before us, where the holder in good faith, and in due course of business, forwards the bill in accustomed channels to the place of payment.

The question whether the indorser is to be personally served with the notice, or may be served through the mail, is not determined by the fact that he resides in the place where presentment is made, but is to be tested by the inquiry, whether the party who seeks to charge him by notice, resides in the same town with the indorser; and the question within what time after presentment, must the notice be given, depends on the question, when did the party seeking to charge him, receive notice of dishonor— allowing to each intermediate holder one day, or till the next mail after receiving notice, to give it to the next preceding party.

The case of Smedes v. The Utica Bank, (20 J. R. 372,) does not conflict with these views. There, the plaintiffs in New York had sent a note to the defendants for collection. It was proved, and, in the opinion of the court, fully proved, that it was the established custom and general understanding between banks and their customers, at the place where the note was payable, for the bank to notify all the parties to the note, and the court held that the plaintiffs had a right to rely on that usage and custom, so that, as between the plaintiffs and the defendants, it was. the duty and undertaking of the latter to give notice to the indorsers; and the defendants' having neglected to give proper notice to an indorser living in the same place with the maker, were liable for such neglect. (See, Bank of Rochester v. Gray, 2 Hill R. 227 ; Spencer v. Ballou, 18 N, Y. R. 327.) There is no intimation that the rule would not have been the same in that respect, had such indorser lived in any other town. Nor was it held that, if the plaintiffs themselves, so soon as they received notice of the dishonor, had sent a notice to the indorser, he would not have been duly charged in their favor. The point was, that, having a right to rely on the giving of such notice by the defendants, and having, in that reliance, omitted themselves to notify the indorser, they had been damnified; the defendants had failed in the performance of their undertaking, and were liable.

What is said in relation to the giving of personal notice Avhen the indorser resides in the place where the demand is made, must be understood as said with reference to the already assumed or established fact, that the party whose duty it was in that case to give the notice, and who attempted to do so, resided there also; and to the other fact, that the proof left it in doubt whether the notice he served was not put into the post-office, instead of being served on the indorser at his residence or place of business.

Like observations are applicable to the case of Ransom v. Mack, (2 Hill R. 587). Bronson, Justice, undoubtedly says that the rule still prevails that, where the party sought to be charged resides in' the same place where the presentment or demand is made, the notice must be served personally, or be left at' his dwelling or place of business.. But that is said in reference to a case in which the holder at that place made the attempt to charge the indorser; and the question was, whether the notice was properly given. The question whether a distant indorser, who was duly charged by notice, might not charge such resident indorser by a notice given with due diligence through the .mail, after such distant indorser received notice, did not arise, and was not considered.

The same learned justice afterward, in Sheldon v. Benham, (4 Hill R. 129,) recognizes the rule that, where the indorser and the party seeking to charge him reside in different places, the indorser may be charged through the mail; and also that notice being sent by the bank who holds a note for collection to the last indorser, he has the same day he receives the notice, and the day next ensuing, in which to notify prior indorsers; and in the case of the Cayuga County Bankv. Bennett, (5 Hill R. 241,) only states, when considered in reference to the circumstances of that case, that a holder, seeking to charge, in his own favor, an indorser residing in the same town with himself, cannot give notice by depositing in the post-office.

The case .of Lawrence v. Miller (16 N. Y. R. 235) did not raise any such question as is now under consideration. The plaintiff there was the holder of the note at its maturity, and employed a notary to demand payment and give notice of dishonor. The only notice given was not properly served, and the court held that, on the question of due diligence, the notary was the mere servant of the holder, and the question was the same as it would have been had the holder in person, with all the information and means of knowledge he possessed, given the notice.

The authorities referred to seem to us to establish conclusively, and without any conflict of opinion, the sufficiency of the notice given in this case, to charge the defendant as indorser; and, as there is no exception relied upon but that which raised the question we have considered, we have no alternative but to affirm the judgment. The decision of the referee was not erroneous.

Judgment affirmed, with costs.


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    Charles B. Tappan, Plaintiff and Respondent v. Harriet E. Butler, Defendant and Appellant.
    1. The facts, that real estate was conveyed to a married woman, October 10, 1849, and that the consideration therefor was paid by the husband, that a judgment was recovered against the husband, May 27,1847, for $144.84, and that in October, 1851, another judgment for $514.51 was recovered against the husband for a debt contracted in 1847, do not, of themselves and alone, justify the conclusion that such conveyance is void as against a person becoming a creditor of the husband in February, 1859.
    2. By Statute, (§ 4 of title 3, chap. 7, part 2, R. S.,) the question of fraudulent intent, in all cases arising under it, is one of fact and not of law, and no conveyance shall be adjudged fraudulent as against creditors, * * .solely on the ground that it was not founded on a valuable consideration.
    3. By sections 51 and 52 (1 R. S. 728), it is declared that, where a grant is made to one person for a valuable consideration paid by another, the title shall vest in the person named as alienee in the deed, subject only to tlio qualification that the deed shall be presumed fraudulent as against those who are at that time creditors of the person paying the consideration, and if a fraudulent intent bo not disproved, a trust shall result in favor of such or editors, “to the extent that may be necessary to satisfy their just demands.”
    4. When, in addition to proof that the husband paid the consideration for the deed, and was at the time indebted, other facts are proved for the purpose of showing that the conveyance was procured and consideration paid with an actual intent to defraud—as that improvements were subsequently made on the premises, and the payments therefor were made by the husband, it is error to exclude proof that such improvements were paid for by moneys raised by mortgaging the property, and that the wife delivered the moneys to the husband to be so paid and applied by" him, on her account and as her agent.

      5. The fact that the husband, executed such mortgage with the wife, does not estop her from giving such evidence.
    ’ 6. The Statutes.in relation to the property of married women, passed in 1848 and 1849, are not material to such a case. They do not affect the question, whether the deed to the wife was, or was not fraudulent.
    7. Where the wife is admitted as a witness in her own behalf against the objection of the plaintiff that she is an incompetent witness, and is permitted to testify, and evidence of material facts offered to be given by her is excluded on the ground that it is immaterial, a judgment against her will he reversed.
    8. In such a case, the question whether she was a competent witness will not be considered; but, for all the purposes of the appeal, the decision admitting her as competent, will be treated as correct.
    (Before Boswoeth, Oh. J., and Woodbtot and White, J. J.)
    Heard November 8,
    decided December 29, 1860.
    Appeal by Harriet E. Butler from a’ judgment in an action in which she and her husband, Thomas Butler, are defendants, and Charles B. Tappan is plaintiff.
    The action was brought in June, 1859, for the purpose of charging certain lots of ground which were conveyed, October 10, 1849, by George S. Howland and wife to Harriet E. Butler, wife of Thomas Butler, and upon which buildings were subsequently erected, with the payment of a certain judgment for $563.65 recovered February 21, 1859, by one Ostrander against Thomas Butler, the husband, and assigned to the plaintiff, and for the appoint-' ment of a receiver to collect the rents and profits thereof, upon the ground that the lots were purchased with the money of the husband, and the improvements erected thereon were paid for by him, and the whole was in truth his property, but conveyed to and held by her fraudulently and with intent to defraud the creditors of the husband.
    It is not necessary to state the pleadings, further than to say that the answer of the wife was sufficient to raise the whole question whether the plaintiff was entitled to have payment of the judgment out of the property.
    The action was tried before Mr. Justice Hoffman, at special term, on the 20th day of March, 1860, and he decided, and by the judgment he adjudged, that the conveyance of the lots of land and premises procured by Thomas Butler to be made to the appellant, Harriet, and paid for and improved by the said Thomas, is a voluntary conveyance, procured by him to hinder, delay and defraud his creditors, and is void as against his creditors, and as against the plaintiff as assignee of a judgment against him; * * * and that a receiver be appointed, and that such receiver take possession of the real estate and buildings thereon, and of the rents, issues and profits, and that the tenants attorn to him; and that out of such rents, &c., he pay the judgment to the plaintiff.
    On the trial, proof was given to show, and the judge found, in substance, the following facts, viz:
    On the 27th of May, 1847, George W. Niles recovered a judgment against the husband, Thomas Butler, for $141.84, on which an execution was issued and returned unsatisfied.
    In 1848 and 1.849, the said Thomas Butler lent and advanced $3,000, or upwards, upon notes of George S. Howland, which were not paid at maturity, and, on the 10th of October, 1849, he consented to accept in payment of the notes a conveyance, which he directed to be made to Harriet, his wife, and which Howland and wife executed to her, conveying three lots of ground in the city of New York, now in question.
    On the llt'h day of October, 1851, Benjamin P. Jones als'o recovered a judgment for $514.51 against the said Thomas Butler, for a debt contracted by him in 1847, on which an execution was issued and returned unsatisfied.
    In the year 1849, and onward through the years 1853 and. 1854, buildings were erected upon the said lots, and the judge found as facts that they were ereóted by Thomas Butler; that all the purchases of materials, the employment of workmen, and the superintendence of the work and the payments, were made by him, and that he contracted debts for materials which still remain unpaid.
    That when he procured the conveyance to be made, and up to the time when the judgment held by the plaintiff was recovered, he was indebted and continued indebted and contracting debts, and that he has always used and managed the property as his own, without interference or assertion of right on the part of his wife.
    Thereafter, on the 21st day of February, 1859, one Ostrander recovered a"judgment against Thomas Butler for $563.65, upon which the execution was returned unsatisfied, and which was assigned to the plaintiff, and is the foundation of this action.
    And the judge held that the consideration of the conveyance came from Thomas Butler, and the improvements were made by him, that it was a voluntary conveyance to his wife, that it was fraudulent and done with intent to hinder, delay and defraud creditors.
    That the wife could not hold the property by virtue of the act of April 11th, 1849, but that Thomas Butler “must take his interest in it as tenant by the curtesy, and the same is subject to the satisfaction of the plaintiff’s claim.”
    On the trial, the indebtedness of Howland to Thomas Butler, and the conveyance of the lots to his wife upon that consideration and by his direction, were proved without contradiction. The plaintiff then called witnesses, and proved by one that he sold lumber to Thomas Butler in 1853, and was paid by him therefor about $600, though Mrs. Butler, he said, may have paid him some of the money; that the lumber was used on the premises; by another, that he, in 1853, flagged the street at the premises, and was employed and paid by Thomas Butler a little over $300 ; by another, that he did the brick work in 1853, amounting to about $400, and was employed and paid a part of the amount by Thomas Butler, and his claim to the residue he had sold; by another, that he did a small amount of carpenter’s work on the-premises in 1853 or 1854, under a contract made with Thomas Butler, and Butler paid him; and by still another, that he is a stone cutter, and worked on the premises in 1854, and onwards for two or three years, employed and in part paid by him, but about $300 is still unpaid; he has received Butler’s notes for the amount. The proof tended to show that Butler superintended the work, but also that Mrs. Butler was there, and that she resided on the premises as early as 1854.
    On the part of the defendant, it iras admitted that there were two mortgages on the premises, both executed by Butler and his wife, one made in 1849 for $2,500, and one made in 1853 for $1,500.
    The defendant’s counsel then called as a witness, on her own behalf, Harriet E. Butler, the defendant.
    The plaintiff objected to the defendant, Harriet E. Butler, being examined as a witness on her own behalf, as she is the wife of Thomas Butler, a co-defendant in the action. The objection was overruled by the court, and the plaintiff duly excepted to such ruling.
    The defendant, Harriet E. Butler, was then sworn as a witness in her behalf, and testified thus :
    “ Thomas Butler and myself united in two mortgages, one in 1849 for $2,500, the other in 1853 for $1,500, on this property. The moneys so raised were paid to Mr. Butler.”
    The defendant then offered to prove that these moneys were applied to the payment of the constructions in evidence, which testimony being objected to by the plaintiff as immaterial, the court refused to admit it, and thereupon the defendant’s counsel excepted.
    Question.—To what were these moneys applied?
    Objected to ; objection sustained; exception taken.
    Erom the judgment entered as above stated, the defendant, Harriet E. Butler, appealed to the general term.

      C. A. JYichols, for Appellant.

      F. II. B. Bryan, for Respondent.
   By the Court. Woodruff, J.

—The rights of the cred-tors of Thomas Butler, to obtain payment out of the property described in the complaint herein, may perhaps depend upon the time when their debts were contracted. At all events, it may be material to consider the title of the defendant, his wife, in two aspects.

First, what rights did she acquire by the deed to her, and how far did the circumstance, that her husband paid the consideration money subject the property to the payment of his debts; and second, how is her title and the rights of subsequent creditors affected by the proofs that her husband subsequently improved the property by the erection of buildings thereon, and the other circumstances which led the judge at special term to conclude that the whole was an arrangement made to defraud creditors.

We observe then, in the first instance, that if no other proofs had been given, except that the husband paid the consideration, and that the land was conveyed to his wife, the conveyance would not necessarily have been void, as to subsequent creditors of the husband.

In order therefore, to show that the conveyance was a part of a scheme actually fraudulent, and still further carried out by the further appropriation of the husband’s property to its improvement and enhancement in value by the erection of buildings thereon, the plaintiff gave evidence tending to show that Thomas Butler, the husband, employed masons, carpenters, and others to erect houses on the lots, and that he paid them, with the exception of one instance, in which it appeared that payment of a small amount has not yet been made, and another in which it does not appear, whether the whole is paid or not. To rebut the inference of fraud, which might result from this proof, it was offered to be shown on behalf of the wife, that, having received the title to the lots, she mortgaged them to raise money, and she was permitted to show this. It was then further offered to be proved, that the money so raised, was taken by her husband for the purpose of paying the cost of the improvements, and was by him actually paid out to the masons, carpenters and others, for their work and materials used in the erection of the buildings, and this evidence was rejected. We think it quite plain, that the evidence given by the plaintiff, that Thomas Butler paid for the erection of the buildings was given, received and acted upon by the judge, as the findings of fact indicate for the purpose of establishing, continued fraud on the part of Thomas Butler, in expending money for the improvement of land which had been conveyed to his wife, and'to establish that the whole was a scheme to defraud his creditors, as well those who were such when the conveyance was made, as also those who were subsequent.

Such evidence was material, or- it was not; if it was material, and tended to show such fraud, it was certainly competent for the defendant to rebut it by counter proofs, or to explain it by proofs which showed that the transaction was.consistent with an honest intent in the mating of those improvements.

If, therefore, the decision of the case in any degree depended upon inferences drawn from what was done by Butler after the conveyance of the lots to his wife, the testimony she offered, which would have shown (we must assume) that the subsequent improvements were made exclusively with money raised by her by mortgaging the property, was material and proper; and this is clearly so, when offered to rebut inferences sought by the plaintiff to be raised from the circumstance that her husband paid the money to the builders. The plaintiff by that proof opened the question, and when he had proved that the husband made the payments, he could not legally object td proof, that the money so paid by the husband, was raised by her mortgage on the lots themselves; nor did the fact, that the husband united in the mortgage, alter the case in this respect. The lender might well at 'that period have declined taking a mortgage executed by a wife, without her husband joining therein to signify his assent thereto.

It is sought to justify the exclusion of this evidence on the ground, that the wife by whom the testimony was proposed to be given, was incompetent to testify when her husband was a party to the suit.

It is sufficient to say of this, that the proof offered, was not rejected upon any such ground. The objection made by the counsel was, that the proof was immaterial, and that objection was sustained. The wife was permitted to testify. The judge, in opposition to the plaintiff’s objection, held her a competent witness, and permitted her to testify to the mating of the mortgages, and that the moneys raised thereby, were paid to her husband. The defendant was permitted to go so far in her proof, and was then stopped, i. e., she was permitted to state facts just sufficient to strengthen her adversary’s claim, that the property was practically treated as her husband’s property, and the moneys raised by mortgaging the same were paid to him, and then when she proposed to remove from these circumstances, the appearance of fraud by showing that the husband only received the moneys, in order to pay them out for her benefit, by paying for the improvements, which would be consistent with her ownership of the lots as her separate estate, she was prevented on the ground, that such proof was immaterial.

The suggestion that she was herself not a competent witness, will not avail the respondent for another reason. The defendant, for the purposes of the case on this appeal, has a right to assume that the ruling of the court, permitting her to testify, was correct. Had it been ruled otherwise, she would have had an opportunity to except, and would have had a right to except, and present that question for review on appeal. She having been received, is entitled now to insist that the testimony she offered, ought to have been received, if it was material, and would have been competent, had another witness been called to prove the same facts, for there is now no pretence, that if she was competent to testify generally in the cause, there was anything in the particular fact sought to be proved, which, on . any ground of special privilege or violation of confidence between husband and wife, required its exclusion.

And still further, if the exclusion had not been placed upon the specific ground that the proof was immaterial, the defendant might have called other witnesses to establish the facts proposed to be proved.

Again, it is suggested that the exclusion of the proof offered, has done no possible injury to the defendant, since, if the facts offered to be proved, were in the fullest manner conceded, it could not possibly have affected the result; the court must still have found the fraud established, and that the plaintiff was entitled to satisfaction out of the property.

If that conclusion is the necessary result of the clear proof, that the purchase of the lots was with the husband’s property, without any consideration of the subsequent conduct of the parties and their dealing in respect thereto, there would be some force in this suggestion. But so far as the case rests at all upon the idea of actual fraud; or upon the claim, that the husband used and improved the property as, his own, it is impossible to say that, had it appeared that (the lots having been conveyed to the wife) the moneys raised for their improvement, were raised for her, and expended for her benefit, and that her husband contributed nothing; such proof would not have affected the conclusion of fact, that the purchase and the improvement of the property were an intended actual fraud upon the plaintiff, and other creditors of the husband. The proof would have furnished an explanation of the circumstance that he paid the bills, which was quite consistant with the claim that all that was done after the conveyance of the lots to the wife, was perfectly honest and fair towards all the world, his creditors subsequent to such conveyance included.

We are, therefore, brought to the inquiry whether, upon the clear proof that the consideration for the conveyance of the lots proceeded from the husband solely, and the further proof, that he at that time owed a judgment to George W. Niles, for $141.84, (May 22, 1841,) and another debt to Benjamin P. Jones, on which a judgment was recovered two years afterwards for $514.51, the court were bound to determine, that the conveyance-to the wife was fraudulant and void as to the plaintiff, a subsequent creditor of the husband, by judgment recovered nearly ten years after such conveyance was made ?

Unless the court was bound so to hold, then, as has already been shown, there was error in rejecting proofs which tended to rebut the evidence of actual fraudulent intent in the transaction, and remove the grounds of suspicion by explaining the circumstances out of which it arose.

What then is the consequence of the proof above stated, independent of any proof of an actual intent to defraud creditors ?

In the first place, it must be treated as a voluntary conveyance, as between the husband and wife, procured by the husband on payment by him of the consideration.

In Reade Administrator v. Livingston, (3 Johns. Ch. 481,) it was held by Chancellor Kent, that a voluntary settlement made by a husband on his wife after marriage, is presumed fraudulent as against creditors to whom the husband is then indebted, and that as to them such presumption is conclusive, and cannot be repelled by proofs. But as to subsequent creditors, the learned Chancellor intimates an inclination, that such presumption may be rebutted, and if not rebutted, such settlement may be impeached by them also, without any other proof, than the fact that the husband was indebted to other parties at the time. He cites numerous cases to show that a voluntary conveyance will be valid as against subsequent creditors, if shown to be made in good faith, and without fraudulent intent.

The case of Seward v. Jackson, (8 Cow. 406, 422, 435, 437, &c.,) in the court of errors, is distinct to the point, that as to subsequent creditors, a voluntary conveyance js not necessarily fraudulent, Stebbins, Senator, says, a subsequent creditor must show actual fraud. In the case of Seward v. Jackson, the authorities are collected and reviewed at great length.

The Revised Statutes subsequently enacted, contain a provision which meets the question very distinctly. In view of the cases above referred to, and that of Verplanck v. Sterry, (12 J. R. 535, 555,) the revisers were of opinion, that the question how far a voluntary conveyance was to be deemed fraudulent, was in this State undecided, and also that the decisions of the courts of England, by whom it had been held fraudulent as matter of law, were erroneous. They therefore recommended, and the Legislature adopted, section 4, of title 3, chapter 1, of part second of the Revised Statutes, (vol. 2, p. 131) which, being a part of the chapter relating to fraudulent conveyances and assignments of property real and personal, enacts that, “ the question of fraudulent intent in all cases arising under the provisions- of this chapter, shall be • deemed a question of fact, and not of law; nor shall any conveyance or charge be adjudged fraudulent, as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration.” (See Revisers7 notes to this section, 3R. S., 2d ed. p. 658.)

And the case of Carpenter v. Roe, (10 N. Y. R, [6 Seld.] 227,) proceeds upon the ground that the proof of fraudulent intent was ample, and the conveyance therefore void.

These cases, and the express provision of the Statute forbid us to say, that as to subsequent creditors, the conveyance in question was necessarily' fraudulent. The validity of the conveyance as to this plaintiff, depended upon the whole proof in the cause, bearing on the question of fraud, and this again, brings us to the conclusion that the proofs rejected ought to have been received; they were in their nature competent and material, because they bore upon that question, and we are not at liberty to say, that if they had been received, they would not have influenced the court in passing upon the question of actual fraud as one of fact, to be decided upon all of the evidence.

This case, however, by no means rests here. The effect of a conveyance which is to be deemed voluntary, not between the parties thereto, grantor and grantee,' but only between the grantee and one who pays the consideration money, is itself specifically declared by another provision of the Revised Statutes, that has a very important, if not conclusive bearing on this case, which the counsel for the defendant has urged upon our attention.

Sections 51 and 52 of article 2, title 2, chapter 1, part 2, (1 Revised Statutes, 128,) provide in terms (§51) that “where a grant for a valuable consideration shall be made to one person, and the consideration therefore shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as alienee in such conveyance, subject only to the provisions of the next section. This abrogated the former doctrine of resulting trusts in such cases. And (§ 52) “Every such conveyance shall be presumed fraudulent as against the creditors at that time of the. person paying the consideration; and where a fraudulent intent is not disproved, a trust shall result in favor of such creditors, to the extent that may be necessary to satisfy their just demands.” (See Wait v. Day, 4 Denio, 439 ; Brewsters. Power, 10 Paige, 562 ; Garfield v. Hatmaker, 15 N. Y. R. 475.)

These sections describe the present case, and declare that even as to existing creditors, such a conveyance shall only be presumptively fraudulent; that presumption may be rebutted, and the fraudulent intent disproved; and as to subsequent creditors, such a conveyance is not fraudulent but perfectly valid and effectual to vest the title in the grantee. Such a conveyance is always, under this Statute, as between the grantee and the person paying the consideration, voluntary," in precisely the sense in which the conveyance here was voluntary as between the husband and wife. And although voluntary in that sense, and notwithstanding it is made while the person paying the consideration is indebted, still it is only fraudulent as to those who are creditors at that time, and only to the extent necessary to satisfy their just demands.

The result is, that neither the fact that the husband, Thomas Butler, paid the consideration of the conveyance of the lots in question, to his wife; nor the further fact that he was indebted at the time to the two creditors above mentioned, is sufficient to warrant the court in adjudging the conveyance fraudulent as to the plaintiff, a subsequent creditor of the husband.

There is some plausibility in the proposition that the sections of the Statute last referred to, will forbid an impeachment of the conveyance by subsequent creditor when a debtor pays the consideration, even by showing an actual intent to defraud them; and that in such case they, having trusted the husband after the conveyance to his wife, cannot . be said to have given credit to the land, but relied, and voluntarily relied, upon the husband’s personal responsibility.

It is not necessary in this case to say, that where, with a view to subsequent indebtedness, or the possible results of future enterprises or speculations, and to secure his property from application to debts to be contracted and defeat their recovery, a person invests his money in lands, and causes the conveyance to be made to a third'person, (whether his wife or any other,) the subsequent creditors cannot impeach the conveyance and recover their debts out of the property. There is no such finding of fact in this case, nor any equivalent finding; and again as before, if any such claim was made on the' trial, the proofs which were rejected were material as tending to remove any ground for such a conclusion or suspicion.

We do not perceive that the provisions of the acts in relation to the property of married women, passed in 1848 and 1849, are material to this case. The question whether the conveyance is fraudulent or not, is not affected by those Statutes. If, at the time of the conveyance of the lots to the defendant, (appellant,) that conveyance was not fraudulent and void as to subsequent creditors of her husband; and we have shown that the mere facts that he paid the consideration and was at that time indebted, did not make it so; then as to such subsequent creditors, it became her separate property, and we perceive no reason why she might not convey it by way of mortgage, to raise money to improve it. Nor would the circumstance that her husband assisted, by acting as her agent, in directing the erections and disbursing the moneys, impair her title.

Anri it is proper to add, that if a debt was contracted in making the improvements which remains now unpaid, it does not at all show that the appellant’s title is fraudulent. If that creditor can make a proper case entitling him to payment out of the property, as for money expended, or work, labor, or materials furnished for the improvement of the appellant’s separate property, the court, as a court of equity, may protect him without any impeachment of her title, but in a proceeding in affirmance thereof.

For these reasons, we think the judgment must be reversed and a new trial ordered, with costs to abide the event.


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    The East River Bank, Plaintiff and Respondent v. Archibald G. Rogers, Defendant and Appellant.
    1. Where a defendant, hy a valid written guaranty, undertakes, unconditionally, to pay a sum loaned on the security thereof to a third person, on his failure to pay within a stipulated time from the date of the guaranty, and after thirty days’ notice of the principal’s default, it is not essential to a right of action that payment was demanded of the principal.
    2. It is enough that the principal failed to pay, and that the defendant was notified of the default thirty days before suit brought.
    3. Where the complaint, in an action on such a guaranty, alleges a loan on the day of its date, to the person and of the amount thereby authorized and on the security of such guaranty, non-payment of it by the principal and due and proper notice of such failure to the defendant more than thirty days before suit brought, and the answer denies none of these allegations, except by averring that the only notice given óf such default, and the only demand of payment made of the defendant, are contained in a written notice served on him, which he sets forth, and which states that a note made by said borrower on the day of the date of said guaranty, and for the alleged amount payable to the plaintiff at the time stipulated hy the guaranty, and “ secured by him” (the defendant,) is protested for non-payment, and that the plaintiff looks to him for payment thereof, and by also averring that when said notice was served, his guaranty was shown to him, and he was asked if the signature to it was his, to which he assented, and replied “ that he did not owe the plaintiff anything;” such answer does not raise a material issue, as it does not allege that the defendant did not understand the notice so served, when served, as a notice of the non-payment of the sum alleged, (and by not being denied,) admitted to have been loaned on the faith and security of said guaranty, and on the day of its date.
    4. The indebtedness of the plaintiff to the defendant's principal, in a sum equal to or greater than the sum loaned, cannot he set-off, or availed of as a counter-claim, by such guarantor in an action against him, the principal not being alleged to be insolvent.
    6. In a suit by a plaintiff, with which the defendant has contracted as being a corporate body, the plaintiff cannot be required to prove the fact of its incorporation, merely because the defendant states in his answer that he “ is informed and believes” the plaintiff is not a corporation.
    6. On an appeal from a judgment rendered against a defendant on account of the frivolousness of his answer, the question is, whether the judgment is right on the merits of the case made by the pleadings, and not whether the answer is frivolous.

    (Before Boswoeth, Oh. J., and Woodruff and White, J. J.)
    Submitted November 7,
    decided December 29, 1860.
    Appeal by the defendant from a judgment rendered against him on a motion before Mr. Justice Woodruff therefor, made on account of the frivolousness of the answer.
    The complaint alleges that the defendant, on the 4th of February, 1860, made an agreement and guaranty, in writing, with the plaintiffs and sets forth a copy of it. This recites that the plaintiff is “ah incorporated institution, doing business in the city of New York,” and has* agreed to loan $1,000 to George K. Chase on the execution and delivery of the defendant’s guarantyto become answerable for the repayment thereof, with interest, sixty days from that date, and that the plaintiff has advanced and loaned that sum to Chase simultaneously with the delivery of such guaranty, and by it the defendant promises that if Chase should fail to repay that sum, with interest, within the sixty days, “that then, and in such case, the defendant will become answerable to the plaintiffs for such repayment, after thirty days’ notice of such default.” The complaint then alleges the making of the loan of $1,000 on the day of the date of the agreement, and simultaneously with the delivery of it to the plaintiffs; the failure of Chase to pay any part of the loan within the sixty days; “ due and proper notice ” of such default to the defendant more than thirty days before suit brought; demand of payment of Chase, and his refusal to pay anything; due performance of conditions on the part of the plaintiffs, that the $1,000 and interest from February 4, 1860, is wholly due and unpaid, and prays judgment therefor. The action was commenced May 18th, 1860.
    The defendant, in his answer,

      First. Avers “that he is informed and believes that no demand of payment, whatever, was ever made” of Chase.

      Second. He alleges that he never received any notice of the default of Chase, and that no demand of payment was ever made of him, except such as are contained in a notice served on him April 9th, 1860, and reading thus, viz:
    “New York, April 9, 1860.
    “ Please to take notice that a promissory note made by George K. Chase for 1,000 dollars, dated New York, Feb. 4, 1860, payable 60 days after date, to the East River Bank or order, secured by you, is protested for non-payment, and that the holders look to you for the payment thereof.
    “Your ob’t serv’t,
    “FRANCIS S. BANKS,
    “ Notary Public.

    I! To A. G. Rogers, Esq.,
    “ Í8 Broadway.”
    That when said notice was served on him, his said guaranty was shown to him, and he was asked if the signature to it was his, to which he assented, and replied “that he did not owe the bank anything.” There has been no performance by the plaintiffs of the conditions on their part, and no refusal on his part to pay, except as above state.

      Third. “That he is informed and believes "that plaintiffs were indebted to the firm of George E. Chase ¿f Company (composed of said Chase and William H. Beebe) when this suit was brought, in the sum of $5,000, for that amount of moneys deposited with the plaintiffs by that firm; that said Beebe, on the 16th of May, 1860, sold and assigned to George K. Chase such indebtedness, to the extent of one-half thereof, and all his interest therein. That Chase thereby became, and now is, the owner of the whole of said indebtedness, and the plaintiffs now justly owe him that sum by reason of its being so deposited with them and remaining in their hands. That, before this suit was commenced, Chase notified the defendant not to pay anything to the plaintiffs, and -forbade, and continues to forbid him from paying anything to them.

      Fourth. “ That he is informed and believes the plaintiffs are not an incorporation, or an incorporated association, and have no right or authority to use, or sue in a corporate name, and that they or he is not a natural person.”
    Judgment having been given for the plaintiffs on account of the frivolousness of the answer, the defendant appealed to the general term. The case was submitted on printed points.
    v2. G. Rogers, Appellant, in person.

      Francis S. Banks, for Respondent.
   By the Court. Bosworth, Ch. J.

—The defendant promised, unconditionally, that if Chase failed to pay the loan, with interest, within sixty days from the date of the promise, he would pay it after thirty days’ notice of such default. A demand of the principal need not be made before bringing suit against the defendant. (Mann v. Eckford, 15 Wend. 508.) The answer does not deny that Chase failed to pay within the sixty days. (Douglass v. Howland, 24 Wend. 48 ; Whitney v. Groot, Id. 82 ; Smith v. Dann, 6 Hill, 543 ; Curtis v. Brown, 2 Barb. 51.)

The complaint alleges, and the answer, by not denying it, admits that the plaintiffs, on the security of the defendant's guaranty, loaned to Chase $1,000 on the 4th of February, 1860, and that on the 9th of April, 1860, the defendant received written notice that Chase had failed to pay his note for the $1,000, and that the plaintiffs looked to him, as such guarantor, for payment thereof.

The answer does not suggest that the note named in the notice was not given for the loan, but, on the contrary, avers that at the time such notice was served, his guaranty was exhibited to him. And besides, the notice served, states that the note is “'secured” by the defendant. Assuming the note to have been given for the sum loaned, 1 and the answer does not deny it, the notice was sufficient.

The fact that the plaintiffs were indebted to George K. Chase when this suit was commenced, in a sum exceeding the amount of the note, is not a discharge of the defendant’s liability.

The demand in favor of Chase does not belong to the defendant, and he cannot set it off in this action. (La Fargo v. Halsey, 1 Bosw. 171.)

The fact that Chase forbade the defendant to perform his contract, neither discharges it, nor affects the defendant’s liability by reason of it.

The defendant’s written guaranty recites, that “the East River Bank ” is “ an incorporated institution,” and the fact “that he is informed and believes the plaintiffs are not an incorporation,” though averred in his answer, does not amount to a plea “that the plaintiffs are not a corporation.” (2 R. S. 458, § 3.)

If the defendant desired to litigate that question, he should have pleaded the fact expressly. (The Bank of Genesee v. the Patchin Bank, 3 Kern. 309 ; The Union Mu. Ins. Co. v. Osgood & Allen, 1 Duer, 707.)

The answer does not allege it to be true, in point of fact, that the plaintiffs are not a corporation. It states that the defendant “ is informed and believes ” that they are not. Proof that he was so informed, and believed the information to be true, would establish the truth of his “ fourth ” allegation, or head of his answer, but would not subject the plaintiffs to the necessity of proving that his information was erroneous and his belief unfounded.

But the defendant, in his printed points, does not suggest that this part of his answer raises a material issue.

The question on this appeal is, whether the judgment is right on the merits; whether the answer contains a defense, by stating new matter constituting one, or by putting material allegations of the complaint at issue, and not whether the answer is frivolous. (Griswold v. Laverty, 12 Leg. Ob. vol. 12, 316.)

The judgment must be affirmed.

Ordered accordingly.