author:
Woodruff, J.
      Hoffman, J.

text:
    Almet Reed and Daniel R. Suydam, survivors of Henry Suydam, Jr., Plaintiffs and Respondents, v. George W. Girty, (who was impleaded with William B. Barber and James Doran,) Defendant and Appellant.
    1. The judgment of a Court in another State of the United States has no other or greater force or effect in this State, than it has in the State where it was rendered.
    2. The statutes of Missouri provide that “ all contracts which, by the common law, are joint, shall be construed as joint and several;” and, “in all cases of joint assumptions of copartners, or others, suits may be brought and prosecuted against any one or more of those who are so liable:" Held, in an action brought in this State against B., Gr., and D., to recover money paid by the plaintiffs in this State upon bills drawn by B., Gr., and D., as copartners, and accepted here by the plaintiffs without funds for the accommodation of such drawers, that a judgment for the same cause of action, recovered against B. in Missouri, is no merger of the original cause of action as against Gr. and D., and does not discharge the latter therefrom.
    3. Held, also, that, in such case — the plaintiffs having accepted from B. his bond, under seal, in compromise of such judgment, conditioned for the payment of the amount agreed upon, by installments of $500 each, for which B. gave his notes at one, two, three, four and five years respectively, with a further provision that, although satisfaction of the judgment was then entered ot record, such satisfaction thereof should not be deemed payment of the debt unless such notes should be paid at maturity, and in default of such payments the amount paid should be credited and the whole residue of the amount of such judgment should remain due, and the debt evidenced by the judgment should remain in full force until all the five notes are paid—these facts are no defense to an action in this State against Gr. and D. upon the original cause of action, although no default has been made by B. in the payment of his said notes.
    4. These propositions are deemed the necessary result of the decision in Suydam v. Barber. (18 N. Y. R., 468.)
    (Before Hoffman and Woodruff, J. J.)
    Heard, November 15th, 1859;
    decided, May 26th, 1860.
    Appeal by the defendant Girty from a judgment rendered in favor of the plaintiffs against the defendants Girty and Doran, and in favor of the defendant Barber against the plaintiffs.
    The action had been tried in this Court and the proceedings reviewed in the General Term in June, 1856, and the complaint of the plaintiffs dismissed on the grounds that, by the recovery of judgment in Missouri, in an action against Barber only, and the acceptance of his bond in compromise of the debt, and the entry of satisfaction of the judgment, the plaintiffs had lost their right of action for the original cause thereof as against Grirty and Doran. (6 Duer, 34.)
    The judgment of this Court was reversed in the Court of Appeals, and a new trial ordered. (18 N. Y. R., 468.)
    The action was again tried in this Court, before Mr. Justice Slossoh and a jury, on the 29th of June, 1859.
    ■ The plaintiffs seek to recover for money paid on their acceptances of two bills of exchange drawn on them (at New York) by the defendants (at Cincinnati and St. Louis respectively), and accepted and paid in New York by the plaintiffs, without funds, for the accommodation of the drawers. On the trial it appeared that, on the 31st of October, 1848, the plaintiffs recovered judgment, in the Court of Common Pleas in St. Louis County, Missouri, in an action against the defendant Barber alone, for the same cause of action now in question, which judgment was rendered for the sum of $6,415.10, the amount then due to the plaintiffs.
    That, afterwards, on the 5th day of June, 1852, satisfaction of the said judgment was entered in the said Court, upon the terms set forth in the following papers, the first of which was filed and the other executed by Barber and delivered to-the plaintiffs:
    “ Suydam, Reed & Co., Plaintiffs, ) ja the gt Louis Court of Common “ William B. Barber, Defendant. ) Pleas.
    “ Judgment for 6,415TW dollars, October 31st, 1848.
    “ Upon a conditional compromise made by defendant, by giving five hundred dollars cash, and five notes for five hundred dollars each, at one, two, three, four and five years from date, pursuant to the terms and conditions of a bond of this date, from William B. Barber to Suydam, Reed & Co., I, as attorney for the plaintiffs, order the said judgment in this case to be satisfied of record by order of the plaintiffs. St. Louis, June 1st, 1852.
    “ Brittok A. Hill,
    “For Eager & Hill,
    “ Att'ys of Record for Plaintiffs.”

      BOND.
    “ Know all men by these presents, that I, William B. Barber, of the city of St. Louis, am held and firmly bound unto Henry Suydam, Jr., Almet Reed and Daniel R. Suydam, in the sum of twelve thousand dollars, for the payment of which well and truly to be made to the said obligees, their heirs, executors, and administrators, I bind myself, my heirs, executors, and administrators, jointly and severally, firmly by these presents.
    “ Sealed with my seal, and dated the first day of June, A. D., 1852.
    “Whereas, the obligees, a firm under the style of Suydam, Reed & Company, obtained a judgment in the St. Louis Court of Common Pleas, against the said William B. Barber, on the thirty-first day of October, 1848, for the sum of six thousand four hundred and fifteen dollars and ten cents, which judgment is now due and unpaid.
    “ And, whereas, the said Barber has this day compromised the said judgment conditionally upon the terms that he will pay five hundred dollars in cash, and give his five notes to Suydam, Reed & Company, each for five hundred dollars, and payable with interest in one, two, three, four and five years after date; and pay each of said notes at maturity; or on failure of said Barber to pay said notes, or either of them, at maturity, then the amount paid by Barber on this conditional compromise to be credited to said Barber, on the amount due upon said judgment; and the whole of the balance due upon said judgment, to become immediately due by said Barber, to the said Suydam, Reed & Company, as if no compromise had been made. And upon the considerations herein mentioned, the said Suydam, Reed & Company, have ordered and directed the said judgment against said Barber to be satisfied upon the conditions and by virtue of this bond; but the debt evidenced by said judgment still remains in full force until all the said five notes given by the said Barber, with the interest thereon, shall be fully paid and satisfied; and the said Barber hereby acknowledges himself to be indebted unto Suydam, Reed & Company, in the amount of said judgment, with interest thereon, making in all the sum of $7,794.30, at this date, and the satisfaction of said judgment is in nowise a payment of said debt.

      “ Mow the condition of this obligation is such, that if the said Barber shall pay each of the said notes at maturity, with the interest thereon, then this obligation to be void, else to remain in full force.
    [Attest,] “ War. B. Barber. [Seal.]”
    “Britton A. Hill.”
    On the examination of a witness in relation to the settlement thus made by Barber, the defendants’ counsel put the following question:
    “ State the facts and circumstances attending the settlement ?”
    This question was objected to by the plaintiffs’ counsel and the objection was sustained, (the defendant’s counsel stating that it was his object, in putting the question, to prove that the settlement spoken of by the witness, which was the same as that referred to in the bond given in evidence, was intended by the parties to it to be in full satisfaction of the plaintiffs’ claim,) and the defendant’s counsel excepted to the ruling.
    It was then admitted by the plaintiffs’ counsel that the five hundred dollars cash, mentioned in the bond, was paid by the defendant Barber, and that all the notes therein mentioned, which became due up to the commencement of the suit, which was on the 18th day of September, 1854, were duly paid, and that after the bond aforesaid was given, and before the commencement of the suit, the defendant James Doran, paid the plaintiffs five hundred dollars, on account of their claim in this action.
    The plaintiffs then read in evidence the following provisions of a statute' of the State of Missouri: 1. All contracts which, by the common law are joint, shall be construed as joint and several. 2. In all cases of joint obligations and joint assumptions of co-partners or others, suits may be brought and prosecuted against any one or more of those who are so liable. (E. S., Mo., 1845, p. 112.)
    The defendants’ counsel insisted that upon the undisputed facts the defendants were entitled to a verdict.
    The plaintiffs’ counsel asked the Court to dismiss the complaint as to the defendant Barber or allow them to discontinue as to him, and insisted on a verdict as to the other defendants.
    The Judge refused the requests of both and instructed the jury to find a verdict in favor of the defendant Barber, and against the defendant Girty. Exceptions were duly taken.

      The jury then found a verdict for the plaintiffs against the defendants Girty and Doran, for the sum of $7,279.31, and a verdict in favor of the defendant Barber.
    From the judgment entered upon this verdict, the defendant Girty appealed, (Doran not having appeared in the action; whether he was served with process or not the case does not disclose.)

      James C. Carter, for the defendant (appellant).
    I. The judgment recovered in Missouri is per se, and without satisfaction, a bar to the present action.
    1. The contract upon which the action is based, was made in the State of New York, and was to be performed in that State. (Story’s Conflict of Laws, §§ 280-287, and 319, and authorities there cited; Weston v. Stoddy, 8 Martin, 93; Lewis v. Owen, 4 Barn. & Ald., 654.)
    2. The contract is, therefore, to be governed by the laws of the State of New York. (Same authorities as above cited; Burckle v. Eckhart, 3 Comst., 132.)
    3. " By the general common law, and by the law of New York, the contract (which was a contract of copartners,) is joint only, and not several, or joint and several; and it would be so by the law of any State or Government, unless some positive enactment should declare it to be otherwise. (Robertson v. Smith, 18 John., 459.)
    4. A judgment recovered, though unsatisfied, against one, or more several joint debtors, is a merger of the original cause of action, and an utter extinguishment of the liability and the debt, as between the plaintiffs and any of the joint debtors, whether made parties to the action or not, and no suit can afterwards be maintained against the latter. (Robertson v. Smith, supra; Oakley v. Aspinwall, Opinion of Bosworth, J., 1 Duer, 1; Ward v. Johnson, 13 Mass., 148; King v. Hoare, 13 Mees. & Welsb., 494; Peters v. Sanford, 1 Denio, 224; Pierce v. Kearney, 5 Hill, 82; McMaster v. Vernon, 3 Duer, 250; Olmstead v. Webster, 4 Seld., 413.)
    5. The right of action upon a joint promise cannot be extinguished or suspended as to one of the joint contractors, without being extinguished or suspended as to all. (Sunderland v. Loder,
      5 Wend., 58; Chapman v. Hatt, 11 id., 41; Robertson v. Smith, supra.)

    II. The fact that the judgment pleaded in the present case was recovered in the State of Missouri, where a statute is in force which enacts that all joint contracts shall be construed as joint and several, and that in all cases of joint obligations and joint assumptions, suits may be brought and prosecuted against any one or more of those so liable, does not take the case out of the principles and rules laid down in the foregoing propositions.
    1. The rule being that the law of another State is to be deemed and taken to be like that of our own, except so far as it is proved to be different, it is by no means clear that even in Missouri the above-mentioned statutes would be so construed as to permit a plaintiff to first treat a contract as joint and afterwards as several, or the converse.
    2. Nor is it clear that in Missouri these statutes would not be treated as affecting not merely the remedy but the nature and essence of the contract; and therefore as not applicable to a contract made like the one in question, in New York.
    3. It is, however, very clear that this action in its present form, could not be maintained in Missouri. The previous judgment against Barber would be even there an insuperable obstacle in the way of joining him as a defendant.
    4. But the conclusive arguments in support of our second point, are:

      (a.) By the Constitution of the United States, the legislation of Congress pursuant thereto, and the uniform decisions of the higher tribunals, the judgments of the Courts of the different States are in each of the States placed upon the same footing as domestic judgments, whether as mergers, as evidence, as estoppels, or as bars. (Besley v. Palmer, 1 Hill, 482; Bank of the United States v. Merchants’ Bank, 7 Gill, 416 ; Mills v. Duryee, 7 Cranch, 481; Candee v. Clark, 2 Mich., 255; Andrews v. Montgomery, 19 Johns., 162; Shumway v. Stillman, 6 Wend., 447; Constitution of U. S., Art. 4, § 1; Act of Congress, May 26th, 1790.)

      (b.) The statutes of Missouri, above referred to, in respect to the mode of redress to be pursued in her Courts can have no force, operation or effect out of that State. (Blanchard v. Russell,
      13 Mass., 4; Bank of Augusta v. Earle, 13 Pet., 519; Story’s Confl. of Laws, §§ 7, 20, 21.)
    (c.) If effect be given to the Missouri statutes here so far as to hold that the judgment would not be a bar here because it would not be so there, then effect must be given to the same statutes in every other respect, and thus the duty would be imposed upon our State of adopting and administering in her own tribunals a part of the remedial law of Missouri.

      (d.) If this extraordinary duty be really imposed upon the Courts of this State, it is one which must be performed under all circumstances, whether her law be silent as to the matter, or whether it speaks—whether it be in accordance with her notions of what her sound internal policy should be, or against them— in either case, the foreign statute must have unimpeded effect (e.) The clause in the Constitution of the United States, above referred to, gives to the judgments of our sister States full faith and credit only. The act of Congress above referred to, speaks only of faith and credit. Sound policy requires that in determining what effect the judgments of one State should have in another, regard should be had to faith and credit only, i. e., to the merits involved in the judgment, and the conclusiveness of the determination. (Bank of Alabama v. Dalton, 9 How. U. S., 528; Townsend v. Jemison, 9 id., 407; McElmoyle v. Cohen, 13 Peters, 324.)
    (f.) As to everything else, except the merits and the conclusiveness of the determination, the judgments of one State are regarded in the Courts of another simply as foreign judgments. All other peculiar incidents which may belong to a judgment through local legislation relate merely to the remedy; and nothing is clearer than that the lex fori is to govern as to everything which relates to the mode and manner of legal redress. (Townsend v. Jemison, 9 How. U. S., 407; Brengle v. M'Clellan, 7 Gill. & John., 434; Story’s Com. on the Constitution, 2d ed., § 1313.)

      (g.) In addition to the above reasons, sufficient in themselves, the following considerations may be added:
    (1.) The plaintiffs having elected their forum in Missouri, and taken a peculiar proceeding, may rightly be held to abide by the consequences of their voluntary act. (Robertson v. Smith, supra.)

      (2.) Regarding the judgment as a contract, as judgments are sometimes regarded, it is res mfer afobs acto, and cannot, therefore, bind the defendant, Girty, who was not a party to it.
    (3.) Regarding it not as a contract, but as a proceeding in invitum, which is the true view, the judgment was rendered in an action to which the defendant, Girty, was not a party, and therefore cannot affect him.
    III. The judgment recovered against Barber in Missouri was satisfied, and a judgment satisfied against two or more, whether jointly or severally liable, is a satisfaction of the debt, and so a bar to any further action.
    1. There is nothing in the record of the judgment to show that the plaintiffs in the action did not recover all that was due to them, and no evidence to the contrary was offered, nor would any have been admissible if -offered. (Hosack’s Ex’rs v. Rogers, 25 Wend., 313; Opinion of Furman, Senator.)
    2. There is nothing in the judgment record to show that the plaintiffs did not expect and intend that the judgment would have the usual effect of such judgments, namely, to discharge the other joint debtors.
    3. It is erroneous to treat the judgment and the accompanying satisfaction as a kind of collateral security having no more effect than an agreement between the parties. A judgment is the termination of a proceeding in invitum. Its effect is defined by law, and cannot be modified to suit the convenience of the parties to it, even if the intention to modify it were expressed.
    4. The effect of the satisfaction of the judgment is not changed by the execution of the bond which the plaintiff put in evidence. The bond could form no part of the record, nor can the nature of the satisfaction be changed by an exhibition of the considerations which led to it, or the manner in which it was affected. The question of intention is irrelevant.
    5. There is no similarity between the present case and that class of cases in which some collateral security is given for a debt, and where it is held that a judgment or an action upon such collateral security is not a bar to an action upon the original contract.
    6. Mor has it any resemblance to that class of cases where, by the consent or agreement of all tlm parties liable on a contract, some are relieved and the liability of others is discharged. Girty and Doran were not parties to the transaction between the plaintiffs and Barber. (Nicholson v. Revill, 4 Ad. & El., 675.)
    IV. The test question to be determined here is, whether Barber has a defense to this action. If so, it follows by necessary and inevitable consequence that the other defendants have the same defense.
    [Up to the time of the reversal in this case in the Court of Appeals, the only defendant who had been served with the summons, or who had appeared in the action, was George W. Girty. Before the new trial in this Court, the answer of the defendant Girty was so amended as to set up a new defense, namely, accord and satisfaction; and the defendant Barber appeared and put in the same defenses as the defendant Girty.]
    V. The evidence in respect to the facts and circumstances under which the settlement was made, should have been received.
    VI. The judgment of the Court of Appeals simply decided that the contract was not merged as to the defendant Girty. That Court did not consider the question whether, in an action on a joint contract where a joint contract was proved, there could be a judgment against one of the defendants, and a judgment in favor of another.
    VII. The Code has, in this respect, so far. and so far only, altered the prior law, as to permit the plaintiff, when he declares on a joint contract, and proves a several one, to recover against such of the defendants as he might have recovered against had he brought his action, originally against those severally liable, and declared on the several liability. (Parker v. Jackson, 16 Barb., 33; Brumskill v. James, 1 Kern., 294; Clafflin v. Butterly, 2 Abb., 446.)
    VIII. In the present case, the liability declared on was a joint liability. The liability proved was a joint liability; and an action could never have been brought against'any of the defendants without joining all of them.
    The judgment should be reversed, and a new trial ordered.

      A. J. Willard, for plaintiffs (respondents).
    I. The first exception arose upon an offer on the part of the appellants to show, by parol testimony, an intent on the part of the parties to the conditional compromise, variant from that expressed on the face of the papers. It is obvious that the bond was prepared and executed for the express purpose of fixing and witnessing the intent and meaning of the parties, and accordingly it must be allowed to have, in that respect, conclusive effect.
    II. The other exceptions present a single question, viz.: Whether, upon the whole case, as it was presented, the plaintiffs or the defendants were entitled to judgment. It was conceded that no question of fact was presented, and each party claimed an instruction, in his favor, directing the jury to render a specific verdict. Such an instruction was prayed for by the defendant Grirty, and, being refused, forms the subject of the second exception.
    1. The case, as it stands at the present time, is with certain immaterial exceptions, considered under the next subdivision, identical with that made on the former trial. Judgment, on that trial was given for the defendants. The reversal of that judgment was a declaration by the Court of Appeals that the judgment should have been for the plaintiffs instead of for the defendants. So far, then, as the testimony on the two trials was the same, the decision of the Court of Appeals must be deemed an authority for the rulings in the present case. (18 N. Y. R., 468; 6 Duer, 34.)
    2. The facts- alluded to in the foregoing subdivision, as introduced for the first time on the last trial, are enumerated and considered below.

      (a.) It was admitted “ that the judgment recovered in Missouri, of which the foregoing is the record, was the exact amount due to the plaintiffs at the time of the rendition thereof, on account of their having accepted and paid,” &c. This fact, although not directly set forth as either proved or considered on the former trial, yet it was assumed to be true, and both the opinion in this Court and the Court of Appeals proceed on such assumption.
    (6.) It was also admitted that Barber had paid $500 cash, and all the notes that had matured up to the commencement of this action. This was a fact distinctly assumed on the former trial. The bond of compromise was before the Court, and the payments and the time of their maturity were in the Case. The plaintiffs did not allege or prove a failure on the part of Barber to perform the conditions of his bond; and, accordingly, the presumption upon the case as it stood was, that Barber had complied, as far as the bond required, with its provisions.
    (c.) It was also proved that, after the date of the bond, and before the commencement of this suit, Doran paid, the plaintiffs $500. This fact, if it has any effect on the merits of this controversy beyond that of limiting the amount the plaintiffs are entitled to recover, makes for the plaintiffs, for it is a distinct admission, at least as far as Doran is concerned, that the original debt existed, notwithstanding the compromise bond.
    The judgment below should be affirmed, with costs.
   Woodruff, J.

On the first day of June, 1852, William B. Barber, one of the copartners in the defendants’ firm, executed to the plaintiffs his bond, under seal, in the penal sum of $12,000, conditioned for the payment of $3,000, in part in money, and in part according to the tenor of certain five notes therein mentioned, with a provision that, until such notes were paid, the whole debt for which the judgment therein mentioned was recovered—(that being the same debt for which this action is brought against the defendants as copartners)—should be and remain due and in full force; and in the said bond the said William B. Barber, under the same seal, acknowledges himself indebted to the plaintiff in the sum of $7,794.30. The cash payment was made, and all the notes which were payable before this action was commenced were duly paid.

It cannot be denied, I think, that, if the said Barber made' default in the payment of any of the notes, an action would lie against him upon this bond: that, according to the common law rule, and under our statute, the plaintiffs might, in such an action, take judgment on this bond for the amount of the penalty, and would be entitled to collect on execution the whole $7,794.30, or any balance due thereon.

This bond was therefore a specialty. It was executed and delivered to the plaintiff by one of three partners for the debt of the firm.

Although under the decision of the Court of Appeals, (18 N. Y. R., 468,) the recovery of the judgment in Missouri against Barber did not, by reason of the peculiar laws of that State, merge and extinguish the copartnership debt, it is nevertheless insisted .that the acceptance of the bond of Barber for the debt of the firm did so.

In Clement v. Brush, (3 John. Cas., 180,) it was distinctly held where one of two partners executed his bond for the debt of the firm, it extinguished the simple contract or partnership debt. That case was strikingly like the present in two of its prominent features. It was entirely obvious on the face of that transaction, that the creditor never intended to part with the liability of either partner. The bond was executed in the name of the firm. But the Court having first held that one partner could not bind the other by seal, and next, that the bond was a valid obligation binding the partner by whom it was signed, declared that it operated to extinguish the copartnership debt. And, again, the transaction was in another State, (Pennsylvania,) and the Court held, in the absence of evidence that by the laws of that State the bond would not have the effect stated, the rule was imperative, and the copartner discharged.

So in Tom v. Goodrich, (2 John., 213,) where a firm was liable to the United States for duties, it was held that the claim of the United States against the firm was extinguished by the giving and acceptance of the bond of one of the Copartners therefor. And the same doctrine is again distinctly recognized and approved in Waldron et al. v. Sherburne et al., (15 John., 409,) and see, also, McBride v. Hogan, (1 Wend., 335,) United States v. Astley, (3 Wash. C. C., 508,) Collyer on Partnership, (§ 481, note.)

The same doctrine is expressly recognized and affirmed in the State of Missouri, where this bond was given and received. In Settle v. Davidson, (7 Mo. R., 604,) it was held that a bond given by one of several copartners, for a debt of the firm due by simple contract, is an extinguishment of such simple contract debt, which thereby becomes the sole debt of him who executed the bond.

This deliberate judgment of the Missouri Courts, while the statute of Missouri in regard to joint and several liabilities was identical with that upon which the plaintiff relies, may properly be regarded as an authoritative exposition of the effect of their statute, and to be decisive that, notwithstanding the statute, the acceptance of the separate bond of one of two copartners for the debt of the firm extinguishes the debt and discharges the other partner—that the law in that respect is there, (notwithstanding the statute,) the same as it is in this State.

The question however remains, (if this Missouri decision be followed,) whether this bond was accepted for the copartnership debt? It may be true that one of two copartners may place in the hands of the creditor collateral securities, and even his own bond and mortgage, upon such conditions that they shall not destroy the simple contract debt. (7 Rich. So. Car. R., 114; 4 Watts, 518; 6 id., 165; 4 Dev., 460; Collyer on Partnership, 3d Am. ed., 435, note, § 481.)

But here the bond was taken in compromise of the debt, and the payment of the notes therein mentioned would, by the plain construction of the bond, have operated to discharge Barber. It appears by the opinion of Johnson, Ch. J., and by the dissenting opinion of Mr. Justice Harris, that the effect of this bond did not escape their attention; and if not, then, whatever our own opinions might be we should hardly be warranted in holding that the defendant Girty is discharged by the giving and acceptance of this bond, (although it does not appear that the decision of the Courts of Missouri was called to their notice,) unless the case is altered by the proofs given on the last trial. In the opinion of Chief Justice Johnson, in reference to this bond, he speaks of it as a conditional compromise not shown to have been carried out. On the last trial it was admitted that all the notes which are mentioned in the condition of this bond, which became due before this action was commenced, were duly paid

I cannot, however, see how that can affect the question of Girty’s liability—it entitles him to a credit of what has been paid, and it may show that the action cannot be maintained against Barber, but if neither the recovery of the judgment nor the acceptance of the bond discharged Girty, then he is not discharged by payments on the bond of part of the amount of the debt.

I think that the decision of the Court of Appeals requires us to affirm the judgment.

Hoffman, J.

The decision of the Court of Appeals has settled the law of this, case tp be, that the. judgment obtained in Missouri against Barber, upon the joint debt, could not be set up as, a defense by the co-debtors, when sued; in this State. It did not merge, the original liability, because of the provision in the statute of Missouri, “ that all contracts which, by the common law, are joint only, shall be construed to be, joint and several.” (18 N. Y. R., 468.)

The next question in the case is, what is¡the effect of the compromise and arrangement effected, by the conditional bond— the payment of all the notes given under it as they matured — and the commencement of this action, before the next note in order of time had become due? The: original debt, as evidenced by the judgment, with interest to the date of the bond, was $7,794.30. The compromise, was for $500, paid in cash, and five notes for $500 each, payable in from one to five years.

The Chief Justice, in delivering the opinion in the Court of Appeals, adverts to this point in the following manner: “It,is difficult to see. how the mere formal satisfaction of the judgment against Barber, which appears by the cotemporaneous bond, referred:to, in the entry as the attorney’s authority to satisfy, tp, have, been founded on. no actual satisfaction or extinguishment, of the debt, but only upon a. conditional compromise not shown to have been carried out, can be available to these defendants.”

It is true, that by the proofs in the present action,, the compromise is shown to have been carried put according touts terms, by.performance, of all that was t.o be fulfilled before the commencement of this, action. Still it had, not, been executed, in full. It remained to some extent executory.

We apprehend, however, that the rule which the Court of Appeals intimates, if it does not prescribe, is, that the conditional compromise of. the judgment, and of the judgment merely against Barber, could not, as to the copartners, have any greater effect than the judgment itself. The judgment had- no operation to prevent a suit against the others upon the original demand. The conditional agreement affected and vacated the judgment; but by its very terms, the debt evidenced thereby was to remain in full force until all the notes given by Barber were fully paid; Barber acknowledging himself indebted in the amount of the said judgment. Thus the debt was not absolutely extinguished, but expressly retained, and only to be extinguished even as to Barber, by the eventual payment.

The result is, that the judgment must be affirmed.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: By the Court—Bosworth, Ch. J.

license: Public Domain

text:
    John Horspool, Plaintiff and Respondent, v. Henry Davis, Thomas Webb, Trustee, Henry S. Davis, Jessie Isabella Davis, Hamilton Jackson, and Blanche Davis, Infants, Defendants and Appellants.
    1. Where property is devised by a testator to his executors in trust, to apply the rents and profits to the support of a person named (his daughter) during her life, and after her death to the support of the children of such person during their respective minorities, and to convey to each his or her aliquot share on arriving at the age of twenty-one years, and such person subsequently marries and has issue of the marriage, the estate of her infant children in the said property cannot be divested by an order of the Court of Chancery made on a petition of the Trustee and such daughter and her husband, authorizing a mortgage of the property to raise money to improve it, unless the infants are parties to such proceeding.
    2. Unless the infants are made parties, the order authorizing the execution of the mortgage is, as to them, comm non judice; and the mortgage given in pursuance of the order is inoperative and void.
    (Before Bosworth, Ch. J., and Pierrepont and Moncrief, J. J.)
    Heard, May 7th;
    decided, June 2d, 1860.
    Appeal by the defendants from a judgment rendered ón a trial had in March, 1859, before Mr. Justice Hofeman, without a jury.
    This action is brought to foreclose two mortgages on No. 70 William street, New York, executed by Joel Platt, Trustee of the estate of Robert Steele, deceased, and Henry Davis and Isabella his wife; one to Eliza Smith, for $6,000, dated 20th June, 1839, and the other to Eliza A. Barrow, for $3,500, dated 13th July, 1839—the plaintiff claiming as assignee under assignments dated, as to the Smith mortgage, August 1, 1844, and, as to the Barrow mortgage, May 1, 1844.

      No question arose on the pleadings. The Judge found, as facts—

      First. That Robert Steele died on the 19th day of August, 1823, seized and possessed of the mortgaged premises, and leaving a will, duly executed, to pass real estate, which contained, inter alia, the clauses following, viz.:
    “I give and devise unto my executors hereinafter named and the survivors and survivor of them, and the heirs of such survivor, the lot and premises 70 William street, together with three lots on Stone street, in said city, upon trust, to rent the same, and out of the rents to keep the same in repair and insured ; then to apply the remainder of the rents to the maintenance and education of my daughter, Isabella Margaret Steele, during her minority, or until her marriage, and after she shall arrive at the age of twenty-one years or get married; then to pay the same to my said daughter, Isabella Margaret Steele, or to such person as she, by writing, shall direct to receive the same, during her natural life, for her sole and separate use, independent of any husband, so that the said Isabella Margaret Steele shall not sell, mortgage, charge, or otherwise dispose of the same in the way of anticipation, and after the death of the said Isabella Margaret Steele, leaving lawful issue, in trust to apply the said rents, issues and profits, from time to time as they shall be received and collected, to and among such issue in the same proportion as they would be entitled under the laws of this State, to take and enjoy real estate descended from her as her heirs-at-law, if she had been seized of the same and had died unmarried. And on the farther trust to apply the respective proportions of such of said issue, as may be under age, during their respective minorities, to his, her, or their maintenance and education, and to convey to each of them, on his or her arriving at the age of twenty-one years, his or her share respectively, in fee simple of the said houses and lots Nos. 16, 18, and 20 Stone street, and No. 70 William street, to such child or children, and the issue of such child or children if they be dead, his, her, or their heirs and assigns forever.”

      Second. That Joel Platt was duly appointed Trustee under the will of Robert Steele, by an order of the Court of Chancery, made on the 27th da}' of September, 1831.

      Third. That in the year 1835, Isabella Margaret Steele married the defendant, Henry Davis.

      Fourth. That immediately after May 1st, 1839, two old and dilapidated buildings standing upon the premises described in the complaint, were removed by the said Henry Davis without the authority of said Trustee, leaving the said premises vacant.

      Fifth. That before the eighth day of June, 1839, the said Davis made an agreement in writing with one James Gr. Wilson, for the erection of a building upon the said premises, and that said agreement was made in contemplation of obtaining the order hereinafter mentioned.

      Sixth. That before the said eighth day of June, the erection of the said building was commenced by'said Wilson.

      Seventh. That on the said eighth day of June, a petition was presented to the Court of Chancery by said trustee and said Davis and wife, and that upon the said petition such proceedings were had, that an order was made by said Court June 10, 1839, authorizing said Joel Platt as Trustee, to mortgage No. 70 William street, for any sum not exceeding $10,000, “ the said Trustee to keep down the interest on said mortgage debt, and also to pay all taxes and assessments, and the premiums of insurance on the building to be erected, out of the rents and profits to be derived from the said premises.” The defendants Henry Davis and Isabella Margaret Davis, who were then living and infants, were not parties to the proceedings on which said order was made. The petition stated that there were no buildings on the premises, that the Trustee had no funds with which to improve; and that the petitioners desired to raise by mortgage $10,000, or less, “for the purpose of erecting suitable buildings, so that a larger income may be derived from the said property.”

      Eighth. That in pursuance of said order of June 10th, 1839, the bonds and mortgages in question were executed, acknowledged and delivered.

      Ninth. That $6,000 was advanced and lent to said Trustee by Eliza Smith upon the bond and mortgage executed to her, and that $3,500 was advanced and lent by Eliza A. Barrow upon the bond and mortgage executed to her.

      Tenth. That the said moneys so advanced and lent, were under the control of Joel Platt, the said Trustee, who allowed the whole of said moneys to be received by the defendant Henry Davis, and that this fact was known to the plaintiff herein at the time when said mortgages were executed.

      Eleventh. That the building described in the complaint, was not paid for in whole or in part by said moneys, but was paid for by merchandise, securities and other moneys belonging to the said Henry Davis, substituted in the place of those received by him of the Trustee, who permitted him to expend the same thereon. That the said building was erected in compliance with the said order, was a valuable improvement of the said premises, and was of a substantial and permanent character, and that inasmuch as the said premises were vacant, the erection of the said building was indispensable to provide income therefrom and a necessary improvement.

      Twelfth. That the plaintiff is now the holder of the said bonds and mortgages under assignments thereof, in due from.

      Thirteenth. That at the time of the execution of said bonds and mortgages, only two children had been born of the marriage of the said Henry Davis and Isabella Margaret Steele, namely: the defendants Henry Steele Davis and Jessie Isabella Davis, who were then infants.

      Fourteenth. That two children have since been born of the said marriage, namely: the defendants Hamilton Jackson Davis and Blanche Davis.

      Fifteenth. That the defendant Thomas Webb was duly appointed Trustee under the will of the said Robert Steele, by a decree of the Court of Chancery, made on the 21st day of June, 1847, and duly qualified as such Trustee.

      Sixteenth. That Isabella Margaret Davis died in the month of October, 1851.
    That the sum of $15,067.28 is now due upon the bonds and mortgages set up in the complaint.
    And upon the said conclusions of fact so found, the said Court decided, as matters of law,
    That the order of the said Court of Chancery authorized the execution of the said mortgages, and the said mortgages themselves were valid and obligatory, and that the plaintiff, as the assignee thereof, was entitled to a judgment of foreclosure thereof, &c.

      Judgment was entered accordingly declaring, among other things, that the defendants be forever barred and foreclosed of all right, &c., in the said premises or any part thereof.
    Erom that judgment the Trustee, Thomas Webb, and the defendants Henry Steele Davis, Hamilton Jackson Davis, Jessie Isabella Davis and Blanche Davis appealed to the General Term.

      M. S. Bidwell, for appellants.
    I. The title of the plaintiff is not derived from any conveyance or act of these defendants: the onus of proving that he has a right to have their interest barred and extinguished, rests upon him. He must prove this right clearly: if it remains doubtful, he will not be entitled to judgment against them.
    II. The Trustee under the will of Robert Steele did not take an estate in fee, but an estate for the life of the testator’s daughter, Isabella Margaret (Steele) Davis, and a contingent term, determinable, as to her children severally, if they should survive her, when they respectively attained the age of twenty-one years. (Baker v. Lorillard, 4 Comst., 257, 269, 270; Nodine v. Greenfield, 7 Paige, 548; Doe v. Provoost, 4 John., 61; Cochran v. Van Surlay, 20 Wend., 374.)
    The rule as to vesting of estates in such cases is the same in equity as at law. (Adams’ Eq., 49, [52 Law Lib., N. S.;] Burton’s Real Prop., 419, [7 id.;] 4 Kent’s Com., 302, 303; 2 Bl. Com., 337.)
    But the estate devised to the children was a legal estate, and not a mere equitable interest. (Nicoll v. Walworth, 4 Denio, 385, 388, 389, and the authorities there cited.)
    The authority or direction to the Trustee to convey the property to the children did not, of itself, confer on the Trustee a fee. (Doe d. Player v. Nicholls, 1 B. & C., 336; 2 D. & R., 480.)
    It was the intention of the testator, apparent on the face of the will, that the children should then become the absolute owners of the property in fee.
    If, however, upon common-law principles, the estate of the trustee was a fee-simple, and the interests of the children of the testator’s daughter were merely equitable, yet, by force and operation of the statute, the estate of the Trustee would terminate when those children, surviving their mother, should become of the age of twenty-one years, and they would then severally have a legal estate of the same quality and duration as their respective beneficial interests.
    III. The plaintiff’s title depends on the validity and effect of the order of the Vice-Chancellor, of 10th June, 1839, and the subsequent proceedings under it.
    1. That order did not enable the Trustee, Joel Platt, to give a mortgage, by which the interests of the children could be bound.

      (a.) The Court of Chancery has no inherent original jurisdiction to direct the sale or disposition of the real estate of an infant.
    Its jurisdiction, in cases of this kind, rests altogether upon the statutes authorizing the sale or disposition of the real estates of infants. (2 R. S., 195, § 176; Rogers v. Dill, 6 Hill, 415; Williamson v. Berry, 8 How. U. S. R., 556; 20 How. Pr. R., 427-431.)
    (b.) Ever since 1815, this power has been restricted by the terms of the statute to cases where such sale or disposition does not contravene the provisions of the will or conveyance by which the estate was devised or granted to the infant. (Laws of 1815, ch. 106; 2 R. S., 195, § 176.)
    (c.) The order directed the Trustee to execute mortgages, in plain contravention of the will of Robert Steele, and was therefore void under this law.
    (d) The application for the order should have been made by the next friend or guardian of the infants. (2 R. S., p. 179, § 170.)
    No one else was authorized to make it.
    The application from persons so authorized was necessary to give the Court jurisdiction of the case. But there was no such application.
    The Court, therefore, had no jurisdiction of the case.
    On this account the order was void.
    (e.) The statute requires also, that on such an application the Court shall appoint a guardian of the infant in relation to the application. (2 R. S., p. 194, § 171.)
    The appointment of a guardian is necessary to give the Court jurisdiction of the infant; without it, the order of the Court is void. (Bloom v. Burdick, 1 Hill, 130, 139; Schneider v. McFarland, 2 Comst., 459.)
    No guardian for the infants was appointed.
    On this account the order was void.

      It is quite clear that the order cannot be sustained under the statute.
    II. If, however, the estates of the children are to be deemed mere equitable estates, yet the Vice-Chancellor had no power to order a sale or disposition of them, except in the mode prescribed by the statute. (2 R. S., 194, 195.)
    (a.) The statute is not in its terms confined to the legal estates of an infant.
    The expression “ real estate ” (unless qualified by the context,) when used in a statute, is a generic term which comprehends equitable as well as legal estates.
    The reason and policy of the statute are applicable to equitable as well as legal estates.

      (b.) The power of the Court of Chancery in England over infants was not a part of, or derived from, its general jurisdiction 'as a court of equity.
    No such power was ever exercised or claimed by the Court of Exchequer, although, until quite recently, that Court possessed the same equity powers as the Court of Chancery. (Bl. Com., 426, 427.)
    It is not a power which a court of equity possesses by virtue of its general jurisdiction. (2 Story’s Eq. Jur., §§ 1328, 1330.)
    In England, the King, as pater patriae, is entitled to the care and custody of infants; this is a royal prerogative; this power is delegated to the Court of Chancery, which, in the exercise of it, represents the King as parens patriae. (McPherson on Infants, 101; 2 Story’s Eq. Jur., §§ 1333, 1334.)
    (c.). Equitable estates are as distinctly recognized and as well established as legal estates. They have, in equity, all the attributes and qualities of legal estates. (4 Kent’s Com., 302, 303 ; 2 Bl. Com., 337; 1 Sand. on Uses, 269, et seq.; Burgess v. Wheat, 1 Eden’s R., 223, 224.)
    Upon general principles, therefore, the Court of Chancery has no more right to dispose of them than of legal estates. (Adams’ Eq., 284, 285; 52 Law Lib., [N. S.;] Furlam v. Sanders, Bac. Abr. Uses and Trusts, [E 8,] cited Hill on Trustees, last ed., 317.)

      (d.) Assuming, however, that the disposal of an infant’s equitable estate was within the jurisdiction of the Court of Chancery,
      jet that jurisdiction could be exercised only in those particular cases where the Court has acquired jurisdiction of the cause, and the parties by the institution of a regular suit. The Court of Chancery cannot even appoint a Receiver of an infant’s property upon petition. (Ex parte Whitfield, 2 Atk., 315; Ex parte Mountfort, 15 Ves., 445.)
    Much less can it acquire jurisdiction to order a sale or mortgage of real estate upon a mere petition. (Williamson v. Barry, 8 How. U. S. R., 533.)
    At all events, the Court must acquire jurisdiction of this cause, if not by regular suit, at least by petition, and must acquire jurisdiction of the person of the infant by the appointment of a guardian ad litem to represent him and take care of his interests. (Bloom v. Burdick, 1 Hill, 130, 139.)
    This would be in effect a suit. (Schneider v. McFarland, 2 Comst., 463.)
    The necessity of his having an opportunity to be heard in person or by a guardian before he can be deprived of his estate, stands upon first principles and does not require to be established by the authority of adjudged cases. It is a fundamental principle of jurisprudence that, until a Court has acquired jurisdiction of a person, its acts are, as to such person, a nullity. They cannot bind, him or his property. (Bloom v. Burdick, 1 Hill, 130, 139; Rex v. University of Cambridge, [Dr. Bentley’s case,] 1 Str., 557, 566, 567; Chase v. Hathaway, 14 Mass., 222, 224, 225.)

      William Curtis Noyes, for respondent.
    I. By the will of Robert Steele, deceased, his daughter,. Mrs. Davis, was entitled, through the Trustee, to the rents and profits of the premises for her life; and the mortgages, having been executed by the husband and. herself, jointly with the Trustee, were unquestionably good as to her, to the extent of her interest.
    II. The Trustees under the will took the legal estate: for the benefit, of Mrs. Steele and her children and their issue; and, in default of such issue, for the sons of the testator and their issue.
    1. The devise is to them “and the survivors or survivor of them, and the heirs of such survivor.”
    2. So it is “ upon trust to rent the same, and out of the rents to keep the same in. repair and insured, then to. apply the remainder of the rents to the maintenance of my daughter Isabella during her minority and until her marriage; and after she shall arrive at the age of twenty-one years, or get married, then to pay the same to my said daughter, or to such person as she shall direct to receive the same, during her natural life, for her sole and separate use, independent of any husband, so that the said Isabella shall not sell, mortgage, charge, or otherwise dispose of the same in the way of anticipation.”
    3. So, after her death, leaving issue, in trust, to apply the rents, &c., from time to time as they shall be received and collected, to and among such issue in the same proportions as they would be entitled to as heirs if she had been seized of the same and had died unmarried; but on this further trust, to apply the respective proportions of such issue as may be under age, during their minorities, to their maintenance and education.
    4. To convey to each, on his or her arriving at age, his or her share, in fee simple, “ to such child or children, and the issue of any such child or children, if they be dead, his, her, or their heirs and assigns forever;” and,
    5. In case Isabella should die without issue, then, upon the further trust, to convey the same to his sons; their heirs and assigns, forever, on attaining thirty; and, if either of them be dead, then to convey his share to-and among the issue, &c.
    III. The intent of the devise is clearly to vest the legal estate in the Trustees, and to exclude any of the beneficiaries from any right of control over the property; and the words employed are eminently fit and proper to attain that result by legal means.
    1. The devise is in trust.
    2. So upon each devise over the continuation of the trust is declared in express terms.
    3. The direction “ to rent” the premises, equivalent to a power to lease and demise, requires a legal estate to support the demise, and to sustain the reversion from time to time, and make new leases.
    4. So the clause against anticipation.
    5. So the clauses requiring the application of the rents from time to time to repairs and taxes, and then to the maintenance of Isabella, and to that of her children during their minorities, show such intent; and are, besides, good as active trusts under

      the Revised Statutes, (1 R. S., p. 728, § 55,) also requiring the legal estate to enable the Trustees to execute them.
    6. So the express direction to apply the rents and profits among the issue of Isabella, as her heirs, in the same proportions as “ if she had been seized."

    7. So the other express provision, that in certain contingencies they should “ convey,” and should convey in fee simple to the .parties entitled, all assuming the legal title in the trustees, and not in any of the beneficiaries.
    8. The well-settled rule is, that trustees take exactly that quantity of interest in the estate which the purposes of the trust require (Hill on Trustees, 2d ed., p. 239, and cases there cited); and, inasmuch as they were to rent the premises, and apply the rents and profits to the maintenance of Isabella, and also to that of her children during their minorities, they must take a fee to enable them to do so.
    The case of Greason v. Keteltas, (17 N. Y. R., 491,) and the other cases cited by Judge Hoffman, are deemed conclusive on this point. (Booth v. Field, 2 B. & Adol., 561; Pitcher v. Carter, 4 Sand. Ch. R., 1.)
    IV. The interests of the infants in the premises being purely equitable, it was competent for the Court of Chancery, in the exercise of its general jurisdiction, to authorize the Trustee to mortgage it for the purpose of improving the premises and making them more productive.
    1. This rule is well settled in this State. (Hedges v. Riker, 5 Johns. Ch. R., 163; Cochran v. Van Surlay, 20 Wend., 375, per Walworth, Chancellor; id., 379, per Verplanck, Senator; McPherson on Infants, 295, L. L., [N. S.] vol. 25; Umblely v. Kirk, 1, [P. Cooper,] 254; Huger v. Huger, 3 Dess., 18; Pitcher v. Carter, supra; Greason v. Keteltas, supra.)

      2. It makes no difference in applying the rule, that some limitations of the equitable estate may possibly be changed. (Platt v. Sprigg, 2 Vern., 303; Frenin v. Charlton, 1 Eq. Ca. Ab., 386, pt. 4; Bassett v. Clapham, 1 P. Will, 358; Winnington v. Foley, id., 536; 2 Seld., 567; 3 Sand., 531.)
    3. Nor does section 65 of the article of the Revised Statutes, in regard to uses and trusts, affect the question, as that relates only to the legal title. (1 R. S., 730; Revisors’ Notes, 3 R. S., 2d ed., p. 586 ; Cochran v. Van Surlay, supra.)

      V. Even without an order of the Court of Chancery, a Trustee to whom the legal estate is devised, burdened with the duty of repairs and maintenance, may make repairs, even to the addition of new buildings; and if adjudged reasonable, and such as the Court would have directed, will be allowed for them in passing his accounts. (Hill on Trustees, 2d ed., 429, and cases there cited; McPherson on Infants, 295.)
    VI. The money loaned upon the mortgages was advanced in good faith, relying upon the order of the Court, and the mortgages executed in pursuance of it, was actually received by the Trustee, and the lenders were not bound to see to its application, nor are they in any way affected, even if it was misapplied by him, which is denied. (1 R. S., p. 730, § 66; Hoonoomanpers & Gandy v. Mussumat Babone Munrey Kooneveree, 6 Moore’s In. Ap., 393; Archey v. Hudson, 7 Beav., 551.)
    VII. The moneys loaned were, however, substantially applied by the Trustee and his agent, Davis, to the erection of a building upon the premises, as contemplated by the order of the Court of Chancery, and the immediate devisee" of the equitable estate in the premises, and her children have had the full benefit of it, and the defense now set up is unjust and inequitable.
    The judgment should be affirmed, with costs.
   By the Court—Bosworth, Ch. J.

Are the mortgages in question operative and.valid as against the infant children of Henry Davis and Isabella M. Steele his wife ?

Those of them, who were in esse, when the petition of Joel Platt, Trustee, and of Davis and wife was presented to the Court of Chancery, were not parties to that proceeding. In that pro- " ceeding the Court of Chancery had no jurisdiction of their persons ; no one was appointed or assumed to represent them, in it.

The mortgages were not made, nor was power to make them asked, for the purpose of so improving the estate that it would produce a fund, for their support.

The observations of the Chancellor, in Cochran v. Van Surlay, (20 Wend., 373-376,) furnish no warrant for holding the mortgages valid as against the infants.

The proceedings in the Court of Chancery were not taken under article 7, of title 2, of chapter 1, part 3, 2 Revised Statutes.

In Hedges v. Riker, (5 J. C. R., 163,) the proceeding was by bill, and the infants were parties to the suit. The Court, therefore, had jurisdiction of the persons of all the parties sought to be affected by the decree, as well as of the subject-matter of the suit.

In Pitcher v. Carter, (4 Sand. Ch. R., 1,) the petition for leave to mortgage, attempted to make a case showing that such a course “ was necessary and proper for the support and maintenance of Mrs. Artois and her infant children, and the education of the latter; ” prayed “that a guardian should be appointed for the infants, to join in the execution of the mortgage,” and the order entered on the coming in of the report of a master made thereon, “ directed the mortgage or mortgages to be executed by Artois and wife, by Clason as Trustee, and also by Clason on behalf of the infants, and that the same should bind and be an incumbrance upon the several estates which those parties had in and to the premises,” &c., &c.

That case is clearly distinguishable from the present. In that the infants were parties to the proceeding to obtain authority to mortgage; and that authority was sought, avowedly, to provide for the support and education of the infants, as well as for the benefit of Mrs. Artois, and the order made attempted to provide for the payment, (in part at least,) of the mortgage, out of the income of the improvements to be made with the money, the mortgage was given to secure.

In the present case, these facts do not exist—

What the Court said of its power over the equitable estate of infants in Hedges v. Riker, and in Pitcher v. Carter, was said of its power in cases to which the infants were parties, and in which it was proposed to affect their title for their benefit, and in which, therefore, it had jurisdiction of their persons, as well as of the subject-matter of the suit or proceeding.

The opinion of the Court at Special Term, states that the case was decided in favor of the plaintiff on the ground, that Pitcher v. Carter, (supra,) was in point, and was an authority sustaining the validity of the mortgages in question.

But I think the distinctions already stated between that case and the present must have been overlooked; and that if these mortgages are to be upheld as valid and obligatory against the infants, then it must be conceded that the rule that a judgment, decree, or order, cannot affect strangers to it, has no application to infants ; and that infants who most need protection are not entitled to it, or to be heard upon the question whether their equitable interests shall be mortgaged or alienated, as an essential prerequisite to a valid mortgage or conveyance of them.

In my opinion the order giving authority to mortgage, and the mortgages in question executed in pursuance of it, are inoperative and void as against the children of Isabella M. Davis. (Cowen & Hill’s & Edwards’ Notes, vol. 2, pp. 6, 60, and cases there cited.)

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

Ordered accordingly.


author: By the Court—Moncrief, J.

text:
    Milton St. John, Plaintiff and Respondent, v. John P. Roberts and Sylvester Lay, Defendants and Appellants.
    1. Where a note, of §595.80, made by C. A. W., payable to the order of B., and indorsed by him and one L., being the property of B., is, after it has matured and been protested, sold, together with a collateral note, by an auctioneer at public auction, and the auctioneer, at the time of the sale, holds up the note and says, “Note for $595.80, of Charles A. Waterbury, with collateral attached, for the benefit of. whom it may concern," and stated “ that the note, with collateral, is sold for whom it may concern," and the said indorsements of B. and L. are neither read nor mentioned, the purchaser at such sale will not thereby acquire the liability of B. and L., as fixed indorsers thereof.
    2. Such a transaction is a sale of the note, and the liability of the maker thereof, and of the said collateral note, and of nothing more.
    3. Even if the delivery of the note, thus indorsed, to the purchaser, is equivalent to the indorsing of a note on reissuing it after its maturity, the defendants could not be held as indorsers without a due subsequent demand of payment, and notice to them if payment should be refused.
    (Before Bosworth, Ch. J., and Pierrepont and Moncrief, J. J.)
    Heard, May 15th;
    decided, June 2d, 1860.

      A CASE upon questions of law arising at the trial, and there ordered to be first heard at the General Term.
    The suit is by the plaintiff as indorsee, and against the defendants as indorsers, of a note which, with its indorsements, is in the words following, viz.:
    ‘‘$595.80. Hew York, January 21, 1856.
    “ Thirty days after date I promise to pay to John P. Roberts, or order, five hundred and ninety-five TW dollars, for value received, at my office, Ho. 8 Wall street, Hew York, having deposited with him, as collateral security, my own note, dated Sept. 15, 1855, for $1,000, indorsed by Bayard Clarke, with authority to sell the same at the Brokers’ Board, or at public or private. sale, or otherwise, at his option, on the non-performance of this promise, without notice; and with authority to use, transfer or hypothecate the same at his option, he being required, on payment or tender of the amount loaned, and interest, to return said note.
    “ C. A. Waterbury.”
    Indorsed,
    “John P. Roberts, “ Sylvester Lay.”
    It was admitted by the counsel of the plaintiff and defendants that the note in suit was given for money loaned to Charles A. Waterbury, the maker of the note, and for services rendered by Mr. Lay, one of the defendants in this action, for said Waterbury.
    It was proved that, just prior to the maturity of the note, Roberts indorsed it and sent it to Lay for collection, and that Lay indorsed it and deposited in his Bank for collection, and; not being paid at maturity, it was protested. Roberts then sent his check to Lay to take up the note. He did so; and Roberts, then owning the note, requested Lay to procure the note, and the collateral for $1,000, made by Waterbury and indorsed by one Bayard Clarke, to be sold at auction. Lay took the note and collateral to A. H. Hicolay, auctioneer, who advertised them for sale, and sold them on the 13th of March, 1856.

      At the sale, “ the note and collateral were sold together: the auctioneer held up the paper, and said, 1 Note for $595 T%\, of Charles A. Waterbury, with collateral attached, for the benefit of whom it may concern,’ and stated that the fióte collateral was by C. A. Waterbury and indorsed by Bayard Clarke, and stated that the note, with collateral, was sold for whom it might concern, and asked for bids; the indorsements on the back of the note in suit were not read, nor mentioned: the bidding then commenced, and the note was struck off for $500.”
    • At the time of the sale, there was a protest annexed to the note, but no certificate that notice of protest had been served on either of the indorsers. Payment of the note was not demanded of Waterbury after this sale before suit brought; nor was any notice of any claim against either defendant presented to or served upon him. This suit was commenced about the 8th of June, 1857, and was tried before Mr. Justice Woodruff and a jury November 16, 1858.
    When the testimony was closed the defendants’ counsel “admitted that there is no fact in dispute,” but they insisted that the defendants were entitled to a verdict, and to an instruction to that effect, and thereupon, by consent of counsel of the respective parties, the Court directed a verdict for the plaintiff for the amount of the note and interest, and that the case be first heard at the General Term, with leave to the General Term to set aside the verdict and order a dismissal of the complaint, if of the opinion that the defendants were entitled to that relief. The jury found a verdict of $708.17 for the plaintiff. The case now comes before the General Term on these facts and this stipulation.

      Dan Marvin, for plaintiff.
    I. The questions to be decided are purely questions of law upon the undisputed facts; that is, upon the facts admitted by the pleadings and proved upon the trial, without any respect or reference to the questions or offers of evidence put or made by the defendants, and which were excluded by the Judge upon the trial, and upon such undisputed facts the Court is to pronounce the proper judgment.
    II. The plaintiff, when he had read the note and indorsements in evidence, and the proof of protest and notice, and had proved the amount due on the note, had made out a case, on which he was entitled to judgment.
    He had proved, by proof and necessary presumption of law:
    .. 1. That he was the owner and holder of the note for a valuable consideration as purchaser.
    2. That the whole amount of principal stated in the note, with interest, was due thereon.
    3. That the liability of the defendants, as indorsers, had been fixed by the notice and protest.
    4. That the note had been protested at the request of the Corn Exchange Bank.
    By presumption of law, that he had received the note from the Corn Exchange Bank, and that the further negotiation of the note, mentioned in the complaint, was from the bank to the plaintiff.
    III. It was not necessary for the plaintiff, after purchasing the note, to have it protested, or the indorsers notified a second time.
    ' The note had already been protested, and the liability of the indorsers fixed, and the protest and notice inured to the benefit of all subsequent holders. (Williams v. Matthews, 3 Cow., 252; Edw. on Bills and Notes, pp. 258, 494; Story on Bills, § 304; Chapman v. Keane, 3 Ad. & EL, 193; S. G, 30 Eng. Com. Law, 69; Wilson v. Swabey, 2 id., 283.)
    IV. When a bill or note is circulated after maturity, it is only necessary to protest it, and notify the indorsers in the following cases:
    . 1. When there has been no protest and notice at the maturity of the note.
    2. When the indorsements are made subsequent to the maturity of the note, and that fact appears upon the face of the indorsements, or is known to the holder.
    In all the reported cases, the indorsement was made subsequent to the maturity of the bill or note. (Leavitt v. Putnam, 3 Comst., 494, and cases cited.)
    V. The plaintiff, as holder, had no notice by whom the note was sold.
    He found, upon inspection and inquiry, that the note had been protested and the indorsers fixed.

      He was not bound to protest the note again, unless he had been notified by the indorsers that they were the parties who were putting the note again in circulation.
    There was nothing on the face of the note to give him that information.
    VI. The want of a second protest and notice could not by any possibility prejudice either of the defendants, and the want of it, therefore, cannot discharge them.
    The plaintiff is entitled to judgment.

      W. Stanley, for defendants.
    I. The defendants have not become liable upon the note by reissuing it to the plaintiff, inasmuch as since such reissue it has not been presented to the maker for payment, and notice of its non-payment given to them.
    They were not liable to any person on the note before it was reissued.
    The contract which they made by such reissue after its maturity, was a new one, entirely independent of any contract that existed prior to that time, and it was that they would pay it if the maker, on demand, did not.
    Thus, it has been repeatedly held, that where a party indorses and transfers a note after its payment at maturity, it is in substance a bill drawn by the indorser upon the maker of the note, payable on demand to the indorsee. In legal form, it is a promise to pay the note to the indorsee, if the maker fail to pay it on demand, and due notice be given of such non-payment. (Leavitt v. Putnam, 1 Sand. S. C. R., pp. 205, 203; 3 Comst., 494; Berry v. Robinson, 9 Johns., 121; Van Hoesen v. Van Alstyn, 3 Wend., 75; Edwards on Bills, 261, 287, 288.)
    It can make no difference in principle whether the name of the indorsee was upon the note before maturity, if the indorser was not charged before maturity, or whether the name be written on it after maturity at the time of its reissue. (Edwards on Bills, p. 286; Marvin v. McCullum, 20 Johns., 288.)
    The contract in either case arises at the time of the reissue when the note is delivered. (Parsons on Mercantile Law, p. 85, and many cases cited in note 2.)

      This is very distinctly shown by contrasting the legal effect of accepting and indorsing. Thus, it is said, in Wilde v. Sheridan, (11 Eng. Law and Eq., 380,) where an acceptance was written on a bill in London, and the bill delivered to the payee in Norwich, and the question was, at which place the bill was accepted, it was held, per Coleridge, J., that the acceptance of a bill, though revocable at any time before delivery, is, if unrevoked, complete as soon as written on the bill, and the contract is made in that place where the bill is accepted, not where it is issued. The purpose of an indorsement is to pass the property in a bill, and that purpose is not effected until a real or constructive delivery. But the acceptor has no property in the bill, either before or after an acceptance. He must be supposed to receive the drawer’s paper, and on it to write his promises, without thereby in any way altering the property in the bill.
    II. An indorser of a note taken up by himself cannot reissue it after maturity, so as to bind any one, if it would have the effect of prejudicing any subsequent party upon it. (Beck v. Robley, 1 H. Bl., 89, n. a.; Callow v. Lawrence, 3 M. & S., 95; Guild v. Eager, 17 Mass., 615; Havens v. Huntington, 1 Cow., 387; Hopkins v. Farwell, 32 N. H., 425; Price v. Sharp, 2 Ired., 417; Ballard v. Greenleaf, 24 Maine, 336.)
    It is clear that Roberts owned the note at maturity and took it up. He could not, therefore, reissue it so as to bind Lay, if he intended so to do, and all parties on the note are discharged.
    III. The transfer of the note conveyed only the interest which the owner had in it, and did not create a new and original liability.
    IV. A purchaser of a note at auction, after maturity, is not a holder in the regular and usual course of business, and he takes it subject to all legal defenses. If Lay issued it, he could not recover of Roberts, neither could any subsequent party.
    V. The suit is an after-thought and a mere speculation. The purchaser at the auction sale knew that the omission to strike off the names of the defendants was a mere accident.
   By the Court—Moncrief, J.

At the time Nicolay was employed as auctioneer to sell the note in question, neither Lay nor Roberts was liable, as indorser of it, to any person.

Had Nicolay then owned the note and had he transferred it as owner, (Lay & Roberts not being liable as indorsees,) the plaintiff, as purchaser of it from Nicolay, could not maintain an action against either indorser.

Being transferred after it was due, the indorsee would take it subject to all defenses existing in favor of the indorser or maker.

Nicolay did not sell it claiming to be the owner of it. He stated that he sold it “ for whom it might concern.” That was enough to induce an inquiry for the name of the principal or owner for whom the sale was made; if knowledge of that fact would affect the purchaser’s rights.

Nicolay did not profess to offer for sale a note on which the defendants were liable as indorsers, or which was to be indorsed by them on transferring it. But the thing offered for sale, as announced and described at the time, was a “ note for $595.80 of Charles A. Waterbury with collateral attached.” That fairly imports as I think, an offer to sell a note made by Waterbury, secured by the collateral attached to it and nothing more.

If Lay, instead of Nicolay, had made the sale, and had said, I offer to sell for Mr. Roberts or for myself and Roberts, a note (exhibiting it) of Charles A. Waterbury with collateral attached, and the plaintiff had then bought, I think it quite clear that a sale thus made would not, by the terms or fair import of such a contract, impose upon Lay or Roberts any liability as guarantor or indorser.

The sale having been made by Nicolay as an auctioneer, and having, at the time, been declared to be made for the benefit of whom it may concern, the plaintiff’s rights are not greater than they would have been, in the case last supposed.

If a delivery of the note, with the names of Lay & Roberts upon it as indorsers, is to be regarded of the same effect, as if they had written their names thereon, on delivering it to the plaintiff, then a subsequent demand of payment of the maker, and in case of non-payment notice thereof to the defendants, would be necessary, to maintain an action against them as indorsers of a note, indorsed after its maturity. (Leavitt v. Putnam, 1 Sand. S. C. R., 203; 3 Comst., 494.) No such demand has been made.

In either view the defendants are not liable. Under the stipulation made at the trial and stated in the case, the verdict must be set aside and the complaint dismissed.