author: Gardiner, J.,

text:
    The Trustees of Hamilton College, appellants, vs. Alvan Stewart, respondent.

    The endowment of a literary institution is not a sufficient consideration to uphold a subscription to a fund designed for that object.
    And although there is annexed to the subscription a condition that the subscribers are not to be bound unless a given amount shall be raised, no request can be implied therefrom against the subscribers that the institution shall perform the services and incur the expenses necessary to fill up the subscription.
    Accordingly, where the defendant subscribed ¡¡800 to a fund for the payment of the salaries of the officers of Hamilton College, and a condition was annexed that the subscribers were not to be bound unless the aggregate amount of subscriptions and contributions should be $50,000; held,, that there was no consideration for the undertaking and that no action would lie upon it, although there was evidence tending to show that the whole amount had been subscribed or contributed according to the terms of the condition.
    This case was before the late court of errors, and is reported in 2 Denio, 403. After the decision of that court as there reported, the plaintiffs again brought the cause to trial at the Oneida circuit, before Gridley, Cir. Judge, in September, 1840, and by consent the facts were read to the jury from the error book upon which the cause had been argued in the court of errors. There was some additional testimony not material to the question on which the case was decided in this court. The circuit judge nonsuited the plaintiffs, and his decision was affirmed by the supreme court. The plaintiffs brought error to this court.

      C. P. Kirkland, for the plaintiffs in error.

      Luther R. Marsh, for the defendant in error.
   Gardiner, J.,

delivered the opinion of the court. The conclusive objection to the maintenance of this action is the want of consideration for the undertaking of the defendant. This is not a case of mutual promises where the undertaking of one party is the consideration for. the promise of the other. (Livingston v. Rogers, 1 Caines’ Rep. 534; Chit. Pl. 296.) This was so adjudged by the supreme court when the case was before them upon demurrer to the declaration. As I read the agreement, there is no engagement whatever upon the part of the plaintiffs, or any other person, to do or forbear to do any thing as a consideration for the promise of the defendant. The clauses in the instrument to which we are referred by the counsel for the plaintiffs, are mere conditions limiting the liability of the defendant, or designating the purpose to which his money, when paid, is to be applied. The subscribers say that they will not pay any thing unless the sum of $50,000, including their subscription, shall be invested, and the interest shall be applied to the payment of the salaries of the officers. But the corporation do not undertake that that sum shall be subscribed, or that any other person will endeavor to procure subscriptions, or that they will make the investment or appropriate the income of the fund to the purpose designated. The corporation have not executed the agreement, and there is nd evidence that they knew of its existence until after the subscription of the defendant. The first count of the declaration, which is founded upon mutual promises, is not therefore sustained by the agreement.

The second count, upon which the chief reliance is placed, seems to have been framed with a view to the suggestions of C. J. Nelson contained in his opinion attached to the case. This count proceeds upon the supposition that the agreement furnished evidence of a request to the plaintiffs by the defendant to perform certain services, in consideration of which he promised to pay them the sum of §800. If this is the true construction of the writing, the right of the plaintiffs to the subscription money is unquestionable. The cases referred to by the chief justice, and others cited upon the argument, are quite conclusive to show that the value of the services, or the amount of the consideration, is of no importance where a stipulated sum is agreed to be paid for the performance of a specific service. (Sturlyn v. Albany, Cro. Eliz. 67; Id. 469 ; 1 Sel. 32; Saund. Pl. & Ev. 147.) In looking at the contract, however, vve meet with the same difficulty, in another form, to which I have alluded in reference to the first count of the declaration. There is no request by the subscribers that the plaintiffs shall do any thing. They agree to pay the trustees of Hamilton College the sums by them severally subscribed, and then add, that we shall not be holden to pay the sum subscribed by us, unless the aggregate of our subscriptions and of contributions to this object shall, by the 1st of July, 1834, amount to §50,000,” <fcc. The trustees are made, by the subscription, the mere depositories of the money, and nothing more. If any other person had been designated, the agreement would have been as effectual for all the purposes contemplated, as in its present form. There certainly is no express request to the plaintiffs, or the trustees as their representatives, to procure subscriptions or contributions. Nor can a request be implied from the agreement. The endowment of the college was, in legal contemplation, no benefit to the subscribers. The public advantage arising from the diffusion of knowledge and the advancement of science, however important in themselves, have not been held a sufficient consideration alone to uphold an agreement of this character. (2 Pick. 580.) We cannot therefore imply a request from the beneficial nature of the services to the subscribers. Nor is it to be inferred from the object to be obtained by the subscription. The purpose, as stated by the plaintiffs in their declaration, was to endow the institution, by providing a fund for the payment of its officers.” In effect, it was to add §50,000 to the permanent funds of the college, without abstracting any thing from those already accumulated. How then are we authorized to imply a request by the subscii bevs, that the plaintiffs should, as they allege, at great labor and expense,” procure these subscriptions 1 Every dollar thus expended required an equivalent sum to be raised, in order to put the institution upon the footing contemplated by the subscribers.

In truth, when carefully examined, the agreement of the defendant amounts to a promise to give $800 on certain conditions. When these conditions are fulfilled, no matter by whom, or at whose procurement, the donor, according to the letter of his promise, is to pay. It cannot be doubted that if an individual or an association had, subsequent to the subscription of the defendant and prior to July, 1834, without the request or knowledge of the plaintiffs, invested $50,000 for the purpose mentioned in this contract, and obtained the certificate of Mr. Hunt, the letter and spirit of the conditions precedent upon which the gift depended would have been complied with. If the plaintiffs subsequently accepted the money or securities, they of course would take them subject to the trust annexed by the donors to the gift. If they declined, the money would revert, and the depositary, whoever he might be, would hold it in trust for the use of the subscribers.

These remarks, if well founded, dispose of the case. The principles involved in the case are, however, of general interest, and I will therefore advert to some of the principal authorities that have been pressed upon our consideration. In McCauley v. Billinger, (20 John. R. 89,) a committee was appointed at a church meeting to receive subscriptions, and to contract for the repairs of the church in the manner set forth in the subscription. The subscription is not given, but the court held that the consideration for the defendant’s promise, was the repairing of the church. That the defendant by signing the paper, sanctioned the acts of the meeting.” According to the view of the court, it was in effect a written request to the committee to make repairs, in consideration of which the defendant undertook to pay. This is the strongest case for the plaintiffs in our reports. In the case of the Amherst Academy v. Cowles, (6 Pick. R. 427 to 438,) the action was upon a note payable to the plaintiffs, given for a subscription to a fund for the use of a college which, at the time of the subscription, had not been .incorporated. The plaintiffs were to have the property of the fund, and the management thereof according to the provisions of the constitution subscribed by the defendant, and when the institution, was incorporated, it was provided that the plaintiff should transfer to the college the whole fund and the evidences thereof. These duties were performed, and subsequently the defendant gave his note, and thereby acknowledged that he had received value, and that it was given in pursuance of his previous covenants. It was a manifest instance of services performed at the request and by the direction of the defendant, for which an action might have been sustained upon the subscription itself, independent of the note. It resembles in this particular the case of R. Society of Whitestown v. Stone, (7 John. R. 113,) which was referred to by the court in their decision. Limerick Academy v. Davis, (11 Mass. R. 114,) was an action upon a subscription very similar to the one before us. Judgment was given for the defendant. The court held “ that it was a promise to give, connected with a similar promise of others to give for the same purpose; at most it was a donation to come into operation at the will of each subscriber.” In Bridgewater Academy v. Gilbert, (2 Pick. 579,) the subscription upon which the action was brought was as follows: “ We the subscribers, being desirous that the academy edifice should be rebuilt immediately, do hereby promise to pay to the committee which may be chosen by the trustees of the B. Academy, the sum. set opposite our names for the above purpose.” The edifice was rebuilt. And the court held, that the subscription paper would not sustain the action. That providing materials upon the faith of the subscription, was not sufficient to show that the expenses were incurred at the implied request of the defendant.” If a request could not be inferred from that paper, it is impossible to say that it can be implied from the one under consideration. Indeed, all the authorities, it is believed, will be found consistent with the result to which we have been led by the terms of the agreement.

If, with C. J. Nelson, we find that the defendant agreed to pay $800 provided the plaintiffs would procure subscriptions, and should afterwards invest the money, &e.; this, according to the cases, would amount to a request to perform those services, and the defendant would be liable. With all our anxiety to sustain this contract, we do not think it susceptible of that construction. And our conclusion upon this point renders it unnecessary to examine the other objections to the action suggessed upon the argument.

Judgment affirmed.


source: Caselaw Access Project

author: Gardiner, J.

license: Public Domain

text:
    Janet Wilkes and others, appellants, vs. James Harper, and others, respondents.

    Co-legatees in no sense sustain to each other the relation of surety in respect to the testator’s debts, each being liable only in proportion to the amount of his legacy.
    One who pays a debt for which he is not personally bound, and which is not a charge upon his property, is not entitled to be subrogated to a lien which the creditor had upon the estate of the debtor.
    Legatees, whose shares of the personal estate of the testator have been wasted by the executor, have no lien upon the real estate devised to such executor to make good their loss.
    An executor, who was also a devisee and legatee, died insolvent, having wasted a large portion of the estate, and leaving unpaid a debt against the testator, and also a judgment against himself for a debt in no way connected with the estate, which judgment was a lien on his share as devisee in certain real estate of the testator. His co-devisees and legatees were his heirs at law, and as such took his share in the real estate; and having paid the whole debt against their testator, they filed their bill against the judgment creditor of the deceased executor, claiming to be substituted to the lien of the creditor whom they had paid, upon the executor’s share in such real estate, and to restrain the sale thereof by the judgment creditor; also claiming a lien thereon in consequence of the devastavit of which the executor had been guilty. Eeld, that the bill could not be sustained.
    Appeal from chancery. The appellants filed their bill in the court of chancery against the respondent, stating in substance as follows'.:.
    Charles Wilkes died in 1833, possessed of personal estate of the value of about $280,000, and also of a very large real estate, a part of which consisted of the house and lot Ho. 28 Laightstreet in the city of Hew-York. He left his widow, Jane "Wilkes, and six children, George, Hamilton, Horatio, Anne, Charlotte, the wife of lord Jeffrey of Edinburgh, and Frances, the wife of D. C. Golden, surviving him, and appointed his widow executrix, and his three sons executors of his will. By that will he bequeathed to his widow his house and lot Ho. 28 Laight-street for life, giving her the right to elect between that and another house and lot in the same street, he also gave to her the use of his furniture, plate, pictures, and carriages and horses for life. In addition to this, he gave to his executrix and executors $50,000 in trust to invest the same and pay over the interest thereof to his widow for life, with power to her to dispose of $30,000 of the capital thereof at her death by will, and the other $2'0,000 was then to sink into his residuary estate; and after giving $G000 in legacies-to his nephews and niece, he disposed of the residue of his real and personal estate among his six children in equal shares; the sons to take their shares absolutely and directly, and the share of one of the daughters was vested in his executrix and executors, to sell the same and pay the proceeds to her or her representatives. The shares of the other two daughters he devised and bequeathed to other persons as trustees in trust to sell and convert the same into money, and to invest the proceeds in permanent securities for the separate use of those two daughters respectively for life; with power to the daughters to dispose of the same by will, and in default of such disposition, then he gave the same to the heirs or assigns of such daughters forever.
    The widow and all the sons proved the will of the testator, and took out letters testamentary thereon, but they permitted Horatio Wilkes, one of their number, to have the principal control and management of the funds of the estate. Out of the funds which came to his hands he paid for debts due from, and moneys held in trust by, the testator, about $130,000, and he set apart and invested $50,000 for the legacy to the widow, in addition to the furniture, &c., specifically bequeathed to her. He also paid the legacies to the nephews and niece of the testator. Portions of the real estate had also been' sold, either by the devisees or by Horatio Wilkes, as their agent, to the amount of about $95,000; the proceeds of which sales, with the exception of $26,000, received by his brother Hamilton, came into his hands for convenience of distribution. He also received about $30,000 for the interest and income of the personal estate which had come to'his hands as one of the executors, and for rents and profits of real estate which the devisees had suffered him to collect and receive, and for interest on the proceeds of real estate in his hands for distribution. Out of these proceeds of the real and personal estate, in December, 1838, Horatio Wilkes distributed between himself and his brother George, and the trustees of his three sisters, about $100,000, in equal proportions. Hamilton Wilkes retained in his hands the $26,000, on account of his share of his father’s real and personal estate; leaving in the hands of Horatio Wilkes.bet ween $50,000 and $60,000 of the proceeds of the personal estate, and of the real estate that had been sold as a fund to pay the residue of the debts of the testator, and for future distribution among those who were entitled to the same. This sum, with the exception of $2,400, as the respondents allegedin their bill, Horatio Wilkes wasted or appropriated to his own use, previous to the recovery of the respondents’ judgment against him, in January, 1837. He also wasted or appropriated to his own use about $27,000 of the trust fund, which he had previously set apart and invested for the legacy to his mother. In January, 1837, the respondents in this suit recovered a judgment against Horatio Wilkes and two other persons, in the superior court of the city of Hew-York, for $2,838, for a debt in no way connected with the estate of the testator; which judgment became a lien Upon the legal title of Horatio Wilkes, in one-sixth of the remainder in fee of the house and lot, Ho. 28 Laight-street, devised to him by the will of his father. In March, 1840, Horatio Wilkes died unmarried and intestate, leaving his mother, his two brothers, and three sisters his only heirs at law. All his estate and property of every kind, with the exception of his interest in the Laightstreet lot, had, previous to that, been applied to the payment of his debts, leaving the judgment of the respondents in this suit and the debts due from him on account of his father’s estate unpaid. At the time of his death there also remained due from the estate of the testator, to Fanny Garnett and Harriet Garnett, a debt of about $12,500 for moneys received in trust by the testator in his lifetime, and invested by him in his own name, which fund came to the hands of the acting executor, and was wasted by him previous to the recovery of the judgment of the respondents. In May, 1840, Hamilton Wilkes applied the $2400 of the proceeds of the estate of his father which had not been wasted by the acting executor, to the payment of a part of the debt of the Misses Garnett. And being advised that the surviving executor and the executrix, and-the residuary legatees and devisees were liable to pay the balance of that debt, he paid it out of his own funds, upon his and their account, and with their assent. The respondents afterwards sued out a scire facias against one of the surviving judgment debtors, and against the assignee of the other who had been discharged under the bankrupt act, and against the brothers and sisters, and the mother of Horatio Wilkes, as his heirs at law, to revive their judgment, and have execution.thereon against the estate upon which it was a lien. The appellants, the widow and surviving children of Charles Wilkes, with the husbands and trustees of the daughters, thereupon filed their bill, stating these facts, and also stating that other claims were made against the estate of Charles Wilkes, the validity of which, however, they did not admit, and claiming the right to have the residuary real estate which was devised to Horatio by the will of his father, applied to pay the balance due to them, and the amount which Hamilton Wilkeshadpaid for them to the Misses Garnett, and any other debts of the testator which they might be compelled to pay. They also prayed for an injunction to restrain the respondents from proceeding upon the scire facias to revive their judgment, or from commencing any other suit or proceeding to enforce the lien of their judgment against the interest which Horatio Wilkes had under the will of his father in the house and lot No. 28 Laight-street. The injunction was issued accordingly, upon the certificate of one of the vide chancellors, acting as an injunction master. The chancellor, on the respondents’ motion dissolved the injunction, on the ground that there was no equity in the bill. And the complainants appealed to this court.

      W. M. Evarts, for the appellants.
    I. The bill claims an equitable lien in favor of the complainant, Hamilton Wilkes, upon the estate of Charles Wilkes, devised to Horatio Wilkes and of which Horatio died seized, on account of a debt of the testator, paid in solido by said Hamilton, and to which said Horatio’s share of the testator’s estate is bound to contribute; and that such equitable lien is superior to the lien at laiv of the defendants’ judgment. (1.) The lands devised were liable to contribute ratably to the payment of this debt of the testator. (2 R. S. 369 to 372, §§ 26, 28 to 32, 36 to 48, 52, 53, 60.) (2.) The payment of this debt in solido by one of the devisees, entitles him to be subrogated to all the rights, remedies and liens which the creditor had, before such payment, upon or against the testator’s estate in the hands of the other devisees, for their contributory share towards the payment of the testator’s debt. (1 Slor. Eq. § 499; Cuyler v. Ensworth, 6 Paige, 32 ; Eddy v. Traver, id. 521; Schermerhorn v. Barhydt, 9 id. 28, 42, 43, 47 ; Buchan v. Sumner, 2 Barb. Ch. Rep. 165.) (3.) The rights and liens of such creditor of the testator, and therefore of such subrogated devisee, are paramount and superior to any lien which any individual creditor of any other devisee can obtain upon the devised estate in the possession of bis debtor. (In re Howe, 1 Paige, 128 ; Morris v. Mowatt, 2 id. 586; Kiersted v. Avery, 4 id. 9; 2 Star. Eq. § 1228; Finch v. Earl of Winchelsea, 1 P. Wms. 278 ; 4 Kent's Com. 154.) (4.) At the time of the payment by Hamilton Wilkes, the share of Horatio in the house in Laight-street had descended to his brothers and sisters, and they were liable in respect to that share, to make good to the creditors of Charles Wilkes, the contributory share of Horatio as the devisee of Charles Wilkes, to the payment of such testator’s debt. The payment by Hamilton was a payment by them all, and as it included Horatio’s contributory share, they have an equitable lien upon his share of the testator’s property for their indemnity. (5.) The payment by Hamilton Wilkes thus made' after the death of Horatio, and with the knowledge and assent of his heirs and administrator, as including Horatio’s contributory share, (if necessary to sustain the equity claims against Horatio’s share of his father’s estate,) entitles Hamilton Wilkes to be considered the equitable assignee of the Misses Garnett’s claim. (6.) The complainant, Hamilton Wilkes, therefore, has an equitable lien to the amount of $2200, or thereabouts, with interest, upon Horatio’s estate in remainder in one-sixth of the house in Laight-street, superior to the lien at law of the defendant’s judgment.
    II. The bill sets forth that Horatio Wilkes was the sole acting executor (though others qualified) of the estate of Charles Wilkes; that there were abundant assets of said estate in his hands to pay all the debts of the same; that Horatio was guilty of a devastavit before the recovery of the defendant’s judgment; and upon an accounting made up between him and his father’s estate, as of Jan. 1, 1840, he was found to be indebted to his father’s estate in the sum of $59,112.26, upon such devastavit so committed prior to the recovery of the defendant’s judgment. (1.) The- co-devisees of Horatio, as against him are entitled to have the real estate which was devised to him by his father subjected to the payment of the debts of the estate of Charles Wilkes, before they shall be called upon to contribute, and they would have an equitable lien to that effect upon Horatio’s share of his father’s estate in his hands, or in the hands of his heirs or devisees. (2.) A judgment creditor’s lien upon the property of his debtor is always subject to every superior equitable lien upon the same, whether latent or otherwise.
    III. The co-devisees of Horatio have also an equitable lien upon their testator’s estate in the hands of Horatio to make good the whole sum of $59,112.26 and interest from January 1,1840, lost to them by reason of the devastavit of Horatio, and if there were no debts of the estate of the testator to be provided for, the co-devisees of Horatio would have a better lien upon his estate derived from their testator, than any individual creditor of Horatio could have. (1.) Horatio will be deemed to have taken his full share of the testator’s estate in the sum which he wasted, and any devised property found in his possession after the devastavit will be treated as a residuum of the testator’s estate for distribution among the other devisees. (2.) The equitable claims of the creditors and co-devisees of Horatio were fixed anterior to the recovery of the defendant’s judgment, and are therefore prior in time, as well as superior in equity.

      S. A. Foot, for the respondents.
    I. The personal assets of Charles Wilkes, the testator, being not only sufficient, but vastly more than sufficient to pay all his debts; and notwithstanding the large amount wasted by Horatio Wilkes, his son and acting executor, there yet remaining unwasted and actually applied to the payment of the testator’s debts and distributed among his legatees, specific and residuary, sufficient to pay all his debts—and no creditor of the testator, after due proceedings before the proper surrogate’s court, or at law, having been unable to collect his debt, or any part thereof, from the personal representatives of the testator, or from his next of kin or legatees—neither the appellants, nor any-creditor of the testator, nor any person standing in the place of and having the rights of such creditor, has any claim, legal or equitable, on the real estate devised by .the testator to his son, Horatio Wilkes. (2 R. S. 3d ed. 547, § 33 ; id. 550, § 60. See also id. 548, § 36 Gere v. Clark, 6 Hill, 350; Butts v. Genung, 5 Paige, 254; Schermerhorn v. Barhydt, id. 28.)
    II. The debt or demand which the appellants had against Horatio Wilkes in his lifetime, and have since his death against his representatives* by reason of his wasting a large amount of the testator’s estate, however legal and just, constitutes no equitable lien on his real estate, whether acquired by devise from the testator or otherwise, especially to the prejudice of the lien of the respondents by virtue of their j udgment.
   Gardiner, J.

The complainants are the legatees and devisees of Charles Wilkes, the testator, and some of them the heirs at law of Horatio Wilkes, his executor, who died intestate. As legatees of Charles Wilkes they in no sense sustained to their co-legatee Horatio, or to each other, the relation of surety in respect to the debt of the Misses Garnett, or any other demand against the estate of their testator. According to the revised statutes, 452, section 28, “ The whole amount which a creditor of the testator shall be entitled to recover, shall be apportioned among the legatees in proportion to the respective amounts of their several legacies, and such proportion only shall be recovered of each legatee.” The judgment prescribed by the 30th section is to the same effect. Their liability as devisees in respect to the real estate was in like manner several, and limited by the estate, interest, or right devised to them by the testator. (2 R. S. § 32.) The complainants were therefore sejiarately liable for their respective proportions, and the payment of Horatio’s share by the other legatees, if at his request, would have been money advanced for his use; and if voluntarily made without his assent, it would impose no obligation, either legal or equitable, upon him or his representatives.

The same remark is applicable to that portion of the estate of Charles Wilkes which came to the hands of Horatio as executor, either with or without the assent of the complainants, and which was wasted by him. In either case, Horatio would have become the debtor of his co-legatees or devisees respectively for their distributive shares of the testator’s property. But this would give them no lien either at law or in equity upon the real estate devised to Horatio. We agree fully with the chancellor, that there was nothing in the nature of an equitable hypothecation by Horatio of his interest as devisee in the real estate of his father as a security for the faithful performance of his trust as executor.

It is urged by the counsel for the appellants, that at the time of the payment by Hamilton Wilkes of the Garnett debt, as stated in the bill, the share of Horatio in the house in Laightstreet had descended to his brothers and sisters, and they were liable in respect to that share to make good to the creditors of Charles Wilkes the contributory share of Horatio as devisee of Charles Wilkes to the payment of his debt; that the payment by Hamilton was a payment by them all; and as it included Horatio’s contributory share, they Lad an equitable lien upon his share of the testator’s property for their indemnity. The complainants, it must be remembered, are the widow and surviving children of Charles Wilkes, and the husbands and trustees of the daughters. The bill states that the Garnetts demanded payment of their debt from the estate of Charles Wilkes. It alleges that they were advised that they were liable in respect of any estate or moneys received from Charles Wilkes ; not in respect of the estate which descended to a part of them from one of his devisees. And being so advised, Hamilton Wilkes thereupon paid the debt with his own money, under an agreement with all the complainants that it should be considered a payment in behalf of the estate of Charles Wilkes. They then insist that Hamilton Wilkes ought to be subrogated to the right of the Garnetts to the extent of $2,200, the contributory share of Horatio, and that the former has a lien for that amount paramount to the personal creditors of the latter. The payment was therefore on account of the presumed liability of the complainants as legatees and devisees of Charles Wilkes; and their promise of repayment-was in the same character. Hence the claim that Hamilton should be substituted in place of the Garnetts, and paid the contributory share of Horatio, is in behalf of all the complainants as legatees and devisees of " Charles, and not in behalf of the heirs of Horatio "Wilkes. The whole frame of the bill is therefore inconsistent with the idea now suggested for the first timo, that the money was advanced to the Garnetts by Hamilton, at the request of his co-heirs in respect to his and their liability as the heirs of their brother.

And, in the second place, the complainants who were heirs at law of Horatio Wilkes, were in that character liable for all his debts to the extent of the real estate inherited by them. (2 R. S. 452, § 82.) In order to retain the property they were bound to pay both the contributory share of Horatio for the Garnett debt, and the judgmenthf the defendants.

The bill is silent as to the value of Horatio’s interest in the Laight-street property. For aught we can say, it may have-been sufficient to discharge both demands. The most that the heirs of Horatio can claim is, that they have paid a debt of their ancestor which was preferred to that of the appellees by the equity of the statute. (2 R. S. 455, § 48.)

But if the residue of the real estate, after deducting the contributory share of Horatio to the Garnett debt-, was sufficient to pay the judgment of the appellees or any part of it, they ought not to have been restrained by injunction from obtaining satisfaction pro' tanto.

The decree of the chancellor must be affirmed.

Decree affirmed.


author: Johnson, J.

text:
    Mathews and others, appellants, vs. Aikin, respondent.

    The right of a surety to be subrogated, on payment of the debt, to the securities held by the creditor, does not dep end upon contract, but rests upon principles of justice and equity.
    A. owed a debt to B., who was indebted to 0. At the request of B., and in pursuance of an arrangement between B. and 0 , A. executed a bond and mortgage for the amount of his debt, directly to 0. The complainant D., on the solicitation of B., but without any request from the mortgagor, guarantied the payment of the bond. The holder of the bond and mortgage, who had also become the owner of the equity of redemption under a junior mortgage, sued D. upon his guaranty and compelled him to pay the debt. Held, on bill filed by D., that he was entitled by substitution to the benefit of the mortgage for his indemnity.
    Whore real estate is encumbered by two mortgages, and the holder of the junior one forecloses and purchases in the property, the presumption is that be bids to the value of the equity of redemption only; and the land becomes from thenceforth the primary fund for the payment of the debt secured by the senior mortgage.
    Appeal from the supreme court in equity. Abraham Aikin filed his bill in the court of chancery before the vice chancellor of the seventh circuit, against John Mathews and Oliver Orcutt, who appeared and defended, and against Edward Aikin, Avho suffered the bill to be taken as confessed. The case, so far as material to be stated, upon pleadings and proofs tvas as follows: On or before the 22d of November, 1837, Edward Aikin, Avho was the son of the complainant, executed to James Hasbrook a bond secured by mortgage on certain real estate, bearing date December 6,1856, conditioned for the payment of $1300 in six equal annual instalments. At the time of the execution of the bond and mortgage, Edward Aikin was indebted to one Theodore Wood in the amount thereof, and Wood being also indebted to Hasbrook, procured the bond and mortgage to be executed -directly to him. At the time or soon after the bond and mortgage Avere given, the complainant, at the solicitation of said Wood and Hasbrook, executed upon the bond á sealed guaranty of the payment thereof. There Avas no evi dence that the complainant executed the guaranty at the desire or request of Edward Aikin, the mortgagor. Edward Aikin Avas examined as a Avitness for the complainant, and on cross-examination testified that he advised his father not to sign the guaranty, informing him that he Avas under no obligation to procure a guaranty.
    On the 27th of August, 1841, the said Edward Aikin executed to the defendant John MatheAvs a mortgage upon the same premises, conditioned to pay the sum of $663.36. The mortgage to Hasbrook had been previously recorded, and Mathews had also actual notice of the existence thereof. On the 11th of February, 1843, Mathexvs having caused his mortgage to be foreclosed in clianceiy, purchased the premises at master’s sale under the decree for the sum of $500, and procured the master’s deed to himself.. After such purchase, and on the 26th of April, 1843, the personal representatives of James Hasbrook (who had died) assigned the bond and mortgage first above mentioned to the defendant Oliver Orcutt. The consideration for this assignment was paid by Mathews, and such -assignment was made in trust for him and for his benefit only.' Immediately afterwards, Mathexvs caused an action at law to be commenced, in the name of Hasbrook’s representatives, against the complainant upon the aforesaid guaranty, and recovered judgment against him for the sum of $370.76, the amount of the last instalment due upon the bond and mortgage, the other instalments having been previously paid. The complainant thereupon tendered the amount recovered against him, and demanded that Orcutt assign the bond and mortgage to him. This was refused; and the complainant then paid absolutely the sum, and demanded an assignment. This was also refused. At the commencement of this suit, the defendant Mathews was in possession of the premises under his purchase at the master’s sale above mentioned. Edward Aikin was insolvent, The complainant claimed by the bill to be subrogated to the rights of Orcutt or Mathews as the holder of the bond and mortgage for the purpose of reimbursing to himself the sum collected of him by suit on the guaranty; and the prayer of the bill was that such right of subrogation might be declared, and that the premises might be sold, &c.
    The vice chancellor decreed in favor of the complainant according to the prayer of the bill. The defendants appealed to the chancellor, and the cause then became vested in the supreme court organized under the new constitution; and that court, sitting in the fifth district, affirmed the decree of the vice chancellor. The defendants appealed to this court.

      B. D. Boxon, for the appellants.
    When a third person volunteers to guarantee the payment of a bond and mortgage after its execution and delivery, with or without a consideration passing to him from the holder, and especially when he so guarantees against the express desire and advice of the mortgagor and obligor, he cannot, by paying the amount secured by the bond and mortgage, make the mortgagor his debtor, and recover against him for money paid; nor does he, by such officious guarantee, acquire the character of a surety, so that, after paymentby him of the demand,he can aslc to be subrogated or substituted to all the rights and remedies of the mortgagee or holder of the mortgage. Such payment extinguishes the debt and the security; and the guarantor has no claim cither at law or equity to be repaid. (Com. on Cont. 452; id. ed. of 1809, 151; Child v. Morley, 8 T. R. 613 ; Exall v. Partridge, id. 310; 3 John. 431; 10 id. 361; 14 id. 88 ; Star. Eg. § 499 b, and note 3 to p. 477 ; Copis v. Middleton, 1 Tur. & Russ. 228; Hodgson v. Shaw, 3 Mylne & Keene, 190, 1, 2; Sandford v. McLean, 3 Paige, 122; Fink v. Mashfy, 8 Watts, 384; 4 Barb. Eq. Dig. 672, § 13.)
    . Geo. E. Comstock, for the respondent.
    The complainant as a mere surety is entitled to be substituted to all the rights of the holder of the bond and mortgage, for the purpose of enforcing the mortgage lien for the sum collected of him, in the same manner that the holder of the ’bond and mortgage might have done. (1 Story's Eg. §§ 327, 499, 501, 502 ; 1 John. Ch. 409 ; 4 id. 545.; 2 id. 554; 6 Paige, 521; 10 id. 445.)
    This right of substitution is. not affected by the consideration urged on the other side, that Abraham Aikin did not execute the guaranty at the request of Edward Aikin. The right of substitution does not depend upon any express or implied contract between the principal and surety; but it rests upon principles of equity wholly independent of contract. It results from the relation which the surety and the creditor hold to each other,, and from the equitable obligation of the principal to pay the debt. (Deering v. The Earl of Winchelsea, 2 B. & P. 270; Norton v. Coons, 3 Denio, 130 ; Story's Eq. § 493; § 499 and note; Hodgson v. Shaw, 3 Mylne & Keene, 190, 1, 2, per Ld. Brougham; Sir Samuel Romilly arguendo, 14 Ves. 159; 2 John. Ch. Rep. 561, 562 ; 4 id. 130, 131, 132.) The following instances may also be put as illustrations of the doctrine that the right of substitution does not depend upon contract. (1.) A junior mortgagee who pays off a senior mortgage is entitled to be substituted. (4 John. Ch. 370; 2 Cowen, 118; 9 id. 409 ; 3 Wend. 412; 5 Hill, 280.) (2.) Where two parcels of real estate owned by different persons are covered by one mortgage, and one of the owners ought to pay it; if the other is obliged to pay it, he is entitled to be substituted to the lien. (3.) A mortgagor who sells subject to the mortgage, and is obliged to pay by suit on the bond, is entitled to this right. (10 Paige, 595.) (4.) In the case of a vendor’s lien, if the vendor resorts to the personal assets of a decedent, the creditors and legatees are entitled to take his place. (2 Story's Eg. 1227.) (5.) When one creditor has a lien on two funds, and another only on one; if the first creditor resorts to the fund on which the other has a lien, the latter takes his right in the other fund by substitution. (1 Story's Eg. 633, 637.)
    It does not at all alter the case that the defendant Mathews has acquired title to the premises under a junior mortgage given to himself. Such a title is subject to the senior mortgage and to the right of the surety, who has paid the mortgage, to be subrogated. Mathews had also both actual and constructive notice of the senior mortgage, when he took his mortgage and when' he purchased at the sale under it. Further; when Mathews purchased the equity of redemption under the junior mortgage, the premises became the primary fund for the payment of the debt, even as against Edward Aikin, the mortgagor, and when the bond and mortgage were afterwards purchased in by Mathews, and the assignment taken to Orcutt in trust for him, the debt became in equity extinguished. (7 Paige, 248 ; 2 John. Ch. 125 ; 10 Paige, 503, 249.)
   Johnson, J.

It is a general and well established principle of equity, that a surety, or a party who stands in the situation of a surety, is entitled to be subrogated to all the rights and remedies of the creditor whose debt he is compelled to pay, as to any fund, lien, or equity which the creditor had against any other person or property on account of such debt. The general doctrine, as a rule of equity, is not controverted on the part of the appellants, but is fully conceded. It is insisted, however, by their counsel, that the guarantor in this instance did not become such at the request of the debtor ; that as to the debtor, he was a mere volunteer, having no remedy over against him, and never acquiring the character of a surety so as to be entitled to subrogation to the rights and remedies of the creditor.

The objection.seems somewhat narrow and technical when addressed to a court of equity whose peculiar province is to mete out substantial justice where the'.more restricted powers ofthe common law fail in its administration. But it leads us to examine carefully into the grounds and principles upon which the right of subrogation rests. Does it rest upon the foundation of a contract binding in a court of law between the debtor and his surety ? In other words; does it turn substantially upon the question whether or not the surety who has paid the debt to the creditor has a remedy over, on his contract, against the principal debtor for money paid in an action at law ? or does it not rest rather upon the broader and deeper foundations of natural justice and moral obligation ? Chancellor Kent says, in Hays v. Ward, (4 John. Ch. 130,) “This doctrine does riot belong merely to the civil law system. It is equally a well settled principle in the English law that a surety-will be entitled to every remedy which, the principal debtor has, to enforce every security, and to stand in the place of the creditor, and have those securities transferred to him, and to avail himself .of those securities against the debtor. This right 'stands not upon contract, but upon the same principle of natural justice upon which one surety is entitled to contribution against another.” Lord Brougham, in Hodgson v. Shaw, (3 Mylne & Keene, 183,) said : “ The rule here is undoubted, and is founded on the plainest principles of natural reason and justice, that the surety paying off a debt shall stand in the place of the creditor, and have all the rights which he has for the purpose of obtaining his reimbursement. It is scarcely possible to put this right of substitution too high ; .and the right results more from equity than from contract or quasi contract unless in so far as the known equity may be supposed to be imported into any transaction, and so to raise a contract by implication.” Sir Samuel Bomilly, in his argument in Craythorne v. Swinborne, (14 Ves. 159,) stated the rule to be, that, “ a surety will be entitled to every remedy which the creditor has against the principal debtor to enforce every security by all means of payment, to stand in the place of the creditor not only through the medium of contract but even by means of securities entered into without the knowledge of the surety, having a right to have those securities transferred to him, though there was no stipulation for that, and to avail himself of all those securities against the debtor.” And this exposition of the rule was fully sanctioned by Lord Eldon in giving judgment in that case..

The equity is certainly as strong, and it seems‘to me somewhat stronger in favor of substitution, as against the creditor at least, than it is between sureties for contribution where one has paid the whole debt, and it has been likened to the case of contribution between sureties. As between them the rule in equity is clear that the ground of relief does not stand upon any notion of mutual contract express or implied, but arises from principles of equity independent of contract. Story's Eq. § 493, and notes, where the authorities are all collected. This is also substantially the rule in courts of law. (Norton v. Coons, 3 Denio, 130.) In that case the circumstances under which the defendant became co-surety were 'such as to repel the presumption of any promise to make contribution. But the court held that his being a surety on the same contract without qualification in terms vms sufficient to fix his obligation to contribute, and that for the purposes of giving the plaintiffs a remedy the court would presume a promise. A promise was therefore imputed where none confessedly existed, in order to provide a remedy for the party where there was no doubt as to the legal liability; and the legal liability in such cases springs from the equitable obligation ; the law courts having borrowed their jurisdiction in these particular cases from the courts of equity. In the present case it seems to me, if it were necessary, a court of equity ought to imply a promise on the part of the creditor to subrogate the surety to all his rights and remedies, in case he resorted to the latter for payment of the debt upon his guarantee. The equitable obligation resting him to do so seems to me most manifest.

It is true, the case shows that the principal debtor informed the guarantor that he was under no promise or obligation to give security, which seems to have been insisted upon by the creditor, and that he advised his father not to give the guaranty. There is nothing, however, in the case to show that the debtor did not' subsequently assent to it, even at the time the guaranty was executed, or that the money was not paid at his express request afterwards. But the case does show that the guaranty was executed at the repeated and urgent solicitations of Wood, the original creditor, and of Hasbrook, to whom Wood proposed to transfer the debt, and to whom, by arrangement between them, the bond and mortgage were executed. As to the creditor Mathews, therefore, who now stands in the place of Hasbrook, Abraham Áikin was not a voluntary surety for the debt of his son, but became so at his express request, or that of the mortgagee under whom he claims, and it seems to me, after Mathews has pursued Abraham Aikin to judgment and fixed his liability as surety for his son in a court of law, it does not lie with him to turn round and say he is a mere volunteer in assuming the obligation and paying the money, and therefore not entitled to the rights and privileges of a surety. The creditor should not be permitted in a court of equity to question the rights of the surety after the obligation has been incurred at his request, and he has fixed the character upon him by suit and judgment in a court of law. As to him at least, Aikin, the father, was surety for the debt of the son, and was compelled to pay that debt, or a portion of it; and it is immaterial as to the creditor what the state of the case is, or the legal rights are, as between the principal debtor and the surety. There is no reason why the creditor should set up a defence for the debtor. It is sufficient for him that he has received his debt of the surety to create the obligation on his part to surrender to the surety the securities in his hands. He is not to litigate the rights of the debtor, and set up defences for the latter which he, peradventure, might be too honest and conscientious to set up against the securities in the hands of á surety who had paid his debt for him.

It might be different if the debtor himself was here urging this defence,' and especially if he was able to show that the surety entered into the obligation, not only against his wish or request, but for some purpose of fraud or oppression, or to make him his debtor against his will, or, as suggested by the appellant’s counsel, to compel him to pay a debt to which, as between him and the creditor, he had a good defence at law. In such cases a court of equity would not lend the surety its aid, as he would not come before it with clean hands. But this is no such case. The principal debtor is here made a party, and suffers the bill to be taken as confessed against him. He sets up no such defence, nor does he pretend that he is not liable, or that he is not under both a legal and a moral obligation to his surety to repay the money which the latter has advanced for him. Indeed,, he expressly swears that his father was a mere security for him for the payment of the bond, without receiving any consideration for becoming such surety. It is true he also testifies that he advised his father not to sign the guaranty, but it is obvious to iny mind that this was in reference to a claim made by the Creditor upon the debtor, that he was under some obligation to give some additional security. This appears to me quite evident from the appellant’s answer and the course of the examination. It is sufficient, however, as I apprehend, that the debtor sets up no defence of the kind, and, although a party, admits the validity of the respondent’s claim and would not afterwards be heard to allege it was illegal or invalid. Could the appellant Mathews be permitted to set up a defence so ungracious as against a surety whom he has compelled to pay his debt, he would be bound in order to make it complete to show, as I think, that the principal debtor resisted the surety’s claim, and that the securities in the hands of the latter would be worth, less, inasmuch as he could never enforce them against such principal. Otherwise the court would intend that the principal was willing to do what equity required him to perform.

But in addition to the general reasons against the creditor’s resisting the claim of the surety to be subrogated, especially when the debtor makes no objection,there is I think in this case a particular reason why the appellant Mathews should not be heard to interpose such an objection. The case shows that he held a junior mortgage unon the same premises which he took with, full knowledge of the existence of the present mortgage as an incumbrance upon the premises and subject to it; and that before he became the purchaser of the mortgage in question through Orcutt his trustee, he had foreclosed such junior mortgage and become himself the purchaser of the equity of redemption. At the time therefore that he became the assignee of the present mortgage he was the owner of the premises subject to this mortgage, and held them as a fund for the payment of this debt. (McKinstry v. Curtis, 10 Paige, 503; Russel v. Allen, id. 249; Cox v. Wheeler, 7 id. 248; Tice v. Annin, 2 John. Ch. 125.) It presents therefore the case of a creditor with the fund pledged for the payment of the debt iirhis hand, under circumstances which make it an equitable satisfaction of the debt, collecting the debt over again out of the surety, and then refusing to surrender the fund to him. The legal-presumption is that Mathews, when he purchased the premises at the sale under his junior mortgage, only bid to the valúe of the equity of redemption, and he must be adjudged to hold them subsequently as a fund for the satisfaction of the prior incumbrance. And he might have been restrained in equity from proceeding to collect the debt afterwards from the mortgagor, or in case the latter had paid it, he would have been entitled to have the mortgage foreclosed upon the premises for his benefit—within the principle of the cases last above cited.

At the time Abraham Aikin was sued upon his guaranty he was ignorant that the assignment of the securities had been made to Orcutt as a mere trustee for Mathews, who was already the owner of the premises. And unless I greatly mistake the case, it exhibits strong marks of contrivance on the part of Mathews to discharge the premises from the incumbrance of the mortgage at the expense of Abraham Aikin. It seems to me quite clear, from the facts of this case, that the defence ought not to prevail.

But upon the general doctrine of subrogation, I agree fully with the learned j udge who delivered the opinion of the supreme court, that the right of the surety to demand of the creditor whose debt he has paid, the securities he holds against the principal debtor and to stand in his shoes, does not depend at all upon any request or contract on the part of the debtor with the surety, but grows rather out of the relations existing between the surety and the creditor, and is founded not upon any contract, express or implied, but springs from the most obvious principles of natural justice. And if it were true that the surety in such a case as this could maintain no action at law against his principal for the money paid, I agree with the supreme court that it would furnish a still stronger case for subrogation. A court of equity would never presume that the principal would interpose such a defence. If the creditor has insisted upon the surety’s discharging his obligations and liabilities, as such, and fastened the character upon him by a judgment, he cannot, after receiving from him his debt, turn round and deny him the rights of a surety. The creditor must then fulfil his obligation to the surety, and leave the latter and his principal to adjust or litigate their rights or claims as they may see fit. There is no hardship in this. The surety might have filed his bill and compelled Mathews to collect the debt out of his principal through the mortgage before resorting to him. And in such a proceeding Mathews might with the same propriety have set up as a defence that the surety was a mere volunteer and could have no redress against his principal, and ought not to insist upon his proceeding against the principal in the first instance. The injustice of the defence might be a little more apparent in that case, but none the more real. Had Abraham Aikin owned the mortgage and assigned it to Mathews or to his trustee with his guaranty upon it at his request, no one, I apprehend, would pretend that Aikin, upon payment on his guarantee, would not be entitled to have the mortgage again from the creditor. How is his equity weakened by the consideration that to enable Wood the mortgagee to sell it to Hasbrook he, at the request of both Hasbrook and Wood, became the guarantor ? It seems to me to be considerably strengthened by the fact that he derived no benefit from the transfer—especially as a doubt has been raised as to his remedy over at law for money paid against the mortgagor. If Hasbrook would have been bound to sur render to Wood, had he been the guarantor and made payment, I do not see why he is not, to the representative of Aikin, who became guarantor for the benefit and. at the request of both Wood and Hasbrook.

Decree affirmed.


author: Bronson, J.

text:
    Langley and Langley vs. Warner.
    To render an appeal effectual for any purpose, an undertaking to pay costs and damages, pursuant to the 283d section of the code of procedure, must be executed. An undertaking under the 284th section to pay the sum recovered in the court below and all damages awarded on the appeal, although necessary in order to stay proceedings in the cases mentioned in that section, will not sustain the appeal. .
    The court cannot amend an undertaking without the consent of the sureties.
    On the 27th of September last Langley and Langley, as plaintiffs, recovered a judgment against Warner in the superior court of the city of New-York for $185.19. On the 2oth of October following, Warner gave notice of an appeal, and an undertaking was executed in pursuance of the 281th section of the code of procedure ; but there was no such undertaking as is required by the 283d section: and on that ground,

      J. Edwards, for the respondents, moved to dismiss the appeal.

      A. Dean, for the appellant.
   Bronson, J.

. To render an appeal effectual for any purpose, there must be an undertaking that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars. (Code, § 283.) When the judgment is for the payment of money, and a stay of execution is desired, the sureties must go further! and undertake that the appellant will pay the amount of the judgment, so far as it shall be affirmed, and all damages which shall be awarded against the appellant on the appeal. (§ 284.) The undertaking in this case conforms to this section ; and as there is an agreement to pay “ all damages,” the word “ damages ” in the preceding section is fully satisfied, and something more. But there is no agreement to pay costs, as the 283d section’ requires; and without that, the appeal was not effectual for any purpose.

The appellant asks leave to amend the undertaking. If it had been a bond, and the obligors had applied, we should have had power to allow an amendment. (2 R. S. 556, § 34.) But the instrument is not a bond, and the sureties have not applied. The court cannot amend a contract without the consent of the parties to it. The 149th section of the code of procedure authorizes the court to amend pleadings and proceedings in certain specified cases; but I think it clear that this case is not among the number. Whether upon common law principles we could not allow a new undertaking to be filed nunc pro tunc, I do not think it necessary to inquire; for in my judgment a court of review ought not to encourage appeals, and no special reason is shown for allowing an amendment in this case. If delay is not the object, and the appellant really desires to obtain the judgment of this court, he can bring a new appeal.

Appeal dismissed.

       The motions in this and the three following cases were made and decided in January, 1849.


text:
    Rice vs. Floyd.
    A final judgment was rendered in the supreme court in May, 1848, before tho code took effect. After the code took effect, an appeal was brought according to its provisions. Held, that the judgment could be reviewed only by writ of error according to the old law. Appeal dismissed.

      A. B. Ketcham, for the respondent, moved to dismiss the appeal. Floyd sued Bice before a justice of the peace, in August, 1847, and judgment was rendered for the defendant. On certiorari, the common pleas reversed the judgment. Bice then brought a writ of error, and the supreme court in May last affirmed the judgment of the C. P. Bice appealed to this court in November last, in the form and manner prescribed by the code.

      N. Hill, Jr. for the appellant, opposed the motion.
   Bronson, J.

The judgment of the supreme court was rendered before the code of procedure took effect; and we have already held, that the review should have been sought under the old law, and not under the new, which has nothing to do with the case. (Mayor of N. Y. v. Schermerhorn, ante, p. 426; Spalding v. Kingsland, id. 429.) But as it has been suggested that those cases do not necessarily decide the precise point made by this motion, and as it is possible that we may-have fallen into an error in the first essay at expounding the new system, I have been induced to re-examine the -question; and am confirmed in the first opinion.

The 271st section of the code abolishes the old mode of reviewing judgments and decrees, and substitutes the new machinery in its place. But the section relates only to actions commenced after the code took effect; (§ 8;) which was the first day of July last; (§ 891;) and this action was both commenced and ended before that time.

This brings us to the 2d section of the supplemental code, which took effect at the same time with the code; (§ 18;) and by which the provisions of the code, contained in the 271st and certain other sections, were applied to future proceedings in suits pending when the code took effect. This suit was not pending on the first of July—it had been terminated in the preceding May; and of course there has been no proceeding in the suit since the first day of July to be reviewed. Thus far it is entirely clear that the code says nothing about this case. The third subdivision of the 2d section, which speaks of the 271st and certain other sections in connection with -the review of judgments and decrees “ from which no writ of error or appeal shall have been already taken,” furnishes ground for an inference in favor of applying the specified sections to the review of judgments rendered before the first of July, as well as those which should be rendered after that day. But the third and all the other subdivisions of the section, are subordinate to, and qualified by, the general clause at the beginning ; and if the language was as explicit one way in the subdivision, as it is the other way in the general clause, the latter would prevail; because it is the superior or most important part of the section. It- is the trunk on which all the branches depend. And" the case is still stronger when we reflect that the inferior clause of the section furnishes nothing more than an inference, while the superior or general clause has express and unequivocal words, limiting the application of the section to proceedings after the first of July in suits pending on that day. We think the question has been properly settled, and that the code has nothing to do with the case. If a review of the judgment is desired, it must be had by writ of error, and not by appeal. The 11th section of the code does not stand in the way, for it only affects determinations “hereafter made;” that is to say, made after the code took effect.

Appeal dismissed.


text:
    Tilley vs. Phillips.
    o appeal will lie to this court from a decision of the supreme court granting or refusing a new trial on bill of exceptions, where such decision was made after the first day of July, 1848, when the code of procedure took effect; although the suit may have been commenced prior to that time.
    Phillips sued Tilley in the supreme court, and was non-suited on the trial in November, 1846. The plaintiff took a bill of exceptions, upon the argument of which the supreme court granted a new trial in November last. From that decision the defendant, Tilley, appealed to this court, by giving notice of the appeal and executing an undertaking pursuant to the code of procedure. (§§ 275, 284.) The undertaking was not in the form of a bond.

      3. P. Hunt, for the respondent, moved to dismiss the appeal.

      3. Z. 3ayner, for the appellant.
   Bronson, J.

The judiciary act of December, 1847, gave an' appeal from the decision of the supreme court in granting or refusing a new trial on a bill of exceptions. (Stat. 1847, p. 639, §§ 5 to 10.) If that provision was still in force, the defendant should have followed it, and given a bond on bringing the appeal; (§ 7.) But that is not the only difficulty. The decision appealed from was made after the code of procedure took effect, and after the right of appeal in such cases was at an end. The 11th section of the code (see also § 282) gives this court jurisdiction upon appeal in certain specified cases, “ and nc otherand the order appealed from is not among the specified cases. The provisions of the judiciary act of 1847 giving the appeal are inconsistent with the 11th section of the code, and are consequently repealed. (Code, § 388.) This point was, in effect, decided at the last November term. (Grover v. Coon, ante, p. 536. See also Selden v. Vermilya, id. 534.) The appeal must be dismissed; but as it was brought since the code took effect, we cannot give costs of the motion to the moving party. (Code, § 270. And see Lyme v. Ward, ante, p. 531.)

Appeal dismissed.


text:
    Clickman vs. Clickman.
    Motion papers should be entitled in this court, notwithstanding § 214 of the code declaring that “the title of the action shall not be changed in consequence of an appeal” Papers not so entitled cannot be read.
    J. J. Tyler, for the respondent,
    moved to dismiss an appeal. Judgment for the plaintiff, Lawrence Clickman, was entered on the 22d of July last; and on the 19th of August following, the defendant gave notice of an appeal. The appellant had not caused the return to be filed; nor had he furnished copies of the case.

      N. mil, Jim., for the appellant,
    objected that the affidavit on. which the motion was founded, and the notice of motion, both mentioned the wrong court. They began thus: “Supreme court. Lawrence Clickman 2d, respondent, v. Frederick Click-man, appellant,” when they should have stated the proceeding to be in the court of appeals.

      Tyler, in reply, said the entitling of the papers was right, according to the 274th section of the code of procedure.
   Bronson, J.

The section referred to declares, that after an appeal the parties shall be known as appellant and respondent; “ but the title of the action shall not be changed in consequence of the appeal.” This goes only to “the title of the action,” and not to the name or style of the court; and clearly these papers should have mentioned the proceeding as being in the court of appeals, instead of the supreme court. True, the notice states that a motion will be made in the court of appeals; but the notice is given in the supreme court, and as would be proper if the motion was intended to be made in that court.

The court may amend pleadings and proceedings; (Code, § 149 ;) but this cannot extend to an affidavit.

In certain cases, an affidavit may be good without a title, or with a defective title. (§ 367.) But this provision relates, I suppose, to the naming of the parties, and not to the name of the court in which the matter is pending, or the proceeding is to be had. And besides, this section does not help the notice.

The papers are not sufficient, and the motion must be denied on that ground.

Motion denied.

[Remainder of December cases in the next volume.]