author: Hoffman, J.

text:
    David Ogden, Plaintiff and Respondent, v. The New York Mutual Insurance Company, Appellants.
    1. Where, by the terms of a policy of insurance, all passage money received by the insured, (the owners of a vessel named,) for passengers on board said ship for a voyage specified, is insured; and subsequently such vessel sails on the specified voyage, with passengers who have paid passage money to the amount of $6,395; and the vessel and passengers are lost by the perils insured against; the insured is not entitled to recover without proof of other facts.
    2. He cannot recover without proof that by the contracts with such passengers, the passage money was to be refunded wholly or in part in case of a failure to deliver them at the port of destination; or unless it appears that on the facts shown to exist, the insured is liable to refund such passage money, or some part of it.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, December 14, 1858;
    decided, April 9, 1859.
    Appeal by the New York Mutual Insurance Company, the defendants, from a judgment in favor of David Ogden, the plaintiff, rendered on a trial had on the 21st of June, 1858, before Mr. Justice Pierrepont, without a jury.
    The action was commenced in June, 1857, and is brought to recover (on a policy of insurance made by the defendants.) the amount paid to the plaintiff by passengers per ship Driver, for their passage money, which ship sailed from Liverpool for New ■York, February 12th, 1856, and. has not since been heard of.
    The policy is dated January 13th, 1855, and by it the defendants insure the plaintiff, “ David Ogden, on account of whom it may concern, in case of loss to be paid to him, * * lost or not lost, at and from Liverpool to New York; on all passage money received by A. Taylor & Go., or by their agents in Liverpool, for passengers on board the ships Driver (and six other ships named) to any amount not exceeding $50,000 in the aggregate, and all risks to attach as soon as said passengers are engaged and paid for. Amount of passage money by each ship to be named to the company as soon as ascertained; * * and in case of detention by any of the perils insured against, whereby the passengers’ fare or charges becomes a charge to the underwriters, it is to be estimated at not exceeding, for first cabin passengers, $1 per day; second do., $0.50; steerage, $0.30. And when other passengers are substituted for the first, the new earnings are to be deemed salvage to the original underwriters, allowance being made for additional fare as above. This policy to be deemed continuous until otherwise directed by either party, due notice to be given. In case of any claim made, the pound sterling to be valued at five dollars, premium included.”
    The policy, in other respects, is the usual cargo policy.
    The defendants, by indorsements made from time to time on the policy, increased the amount insured under it, viz.: $25,000 July 15, 1855; $25,000 October 22, 1855; $25,000 April 25, 1856; $25,000 May 31, 1856; and $25,000 November 7, 1856; the following being part of the last indorsement, viz.: “ Risk not to attach until passengers are on board.”
    The complaint states.the making of the policy; describes it; the increased amounts of insurance; that the ship Driver sailed from Liverpool for New York, on the 12th of February, l’856, having on board 344 passengers who, before that time, had paid to A. Taylor & Go. their passage money, amounting in all to $6,395 ; that said ship, by the perils insured against, had sunk and gone to the bottom, and all the passengers had been lost, and no part of the passage money had been earned. Notice to. the Company of the sailing of said ship, and of the amount of passage money thereby; notice to the Company of the loss and furnishing proof of the same, on the 12th of February, 1857; and prays judgment for $6,395, and ihterest from the 12th of February, 1857.
    These are the only allegations of substance contained in the complaint. They were proved at the trial to be true; except that the proof of loss of the vessel and passengers consisted of evidence that neither had been heard from. It was proved that the ship, when she sailed, was “ tight, staunch, well manned, stored and provisioned for said voyage, and in all respects seaworthy.” That the plaintiff was agent of and made the insurance for the owners of the ship; that the firm of A. Taylor & Co. resided in Liverpool, and were agents for the ship Driver in February, 1856, and received the passage money paid by the passengers, amounting in all to $6,395; that the interest thereon is $605.86, making a total of $7,000.86.
    When the plaintiff rested, the defendants moved for a nonsuit on the grounds—1st, that the plaintiff had not proved facts constituting a cause of action; 2d, that the plaintiff has received the passage money and proved no loss.
    The Court denied the motion, and ordered a judgment for the plaintiff for $7,000.86. From that judgment the present appeal is taken.

      Thaddeus H. Lane, for appellants.
    I. The purpose of the policy is clearly indicated by taking all its parts together as modified by the written portions. '
    It is obviously meant to insure against, any loss of passage money if the ship should be detained or be obliged to return to port, or to seek a port of refuge; or some other contingency, should, occur by which the passengers should become a charge and expense to the ship; which charge and loss were to be made good by the -underwriters.
    I. It is well settled that the intention of the parties is to be deduced from the whole instrument, and if there is any inconsistency in a policy of insurance, the written part will control the printed words. (Jefferson Ins. Co. v. Cotheal, 7 Wend., 73-80; Howland v. Com. Ins. Co., Anth. N. P., 31.)
    II. The plaintiff admits that he has sustained no loss, but on the contrary, was paid the passage money before the vessel sailed. According to Ms construction of the policy, it would be a wager as regards passage money, he having no insurable interest. There could be no risk on passage money actually received. (1 R. S., p. 662, §§ 8, 9, 10; 2 R. S., 4th ed,, p. 72.)
    III. The plaintiff is not liable to return any portion of this passage money. The payment by the passengers was absolute, and on the condition of being taken on board; they could not, after the voyage had been commenced, have recovered any portion of it. (Gillan v. Simpkin, 4 Camp., 241; De Silvale v. Kendall, 4 Maule & Selw. R., 37.)
    1. The safe arrival of the passengers was not a condition precedent to the payment; the consideration was in receiving the passengers on board, and making due efforts to deliver them. The ship could not be compelled to refund the passage money. (Watson v. Duykinck, 3 Johns., 335.)
    2. This is the universal mercantile usage. The ship is obliged to furnish stores, provisions, &c., for the passengers, and therefore exacts payment in advance as a condition of receiving them, and. is not bound to refund the money; and in the absence of proof of any other contract, this usage must govern.
    IV. But if this were not so, and the passengers could have recovered the passage money paid, they, the passengers, are all lost, and it does not follow, neither is it averred or proved, that they left any personal representatives, or that if they had, they had any interest, such as to recover back any portion of the passage money.
    V. Even if the legal liability to refund, (if any claim against the plaintiff should ever be made,) were clear, it would not support this action. The insurance is for indemnity against the actual loss or damage, not against the possible contingency of claim and recovery

      F. B. Cutting, for respondent.
    I. The exception to the refusal to dismiss the complaint upon the general ground that the plaintiff had not shown sufficient facts to constitute a cause of action, does not permit thé plaintiff to resort to any mere formal question or defect, or to matters of minor detail, which could probably be set right if attention were called to them. The general merits only are open for discussion, and the above statement is sufficient to show them with the plaintiff. (20 Johns. R., 357; 7 Hill, 388: Merrit v. Seaman, 6 Barb. S. C. R., 330; 7 How. Pr. R., 410; 9 id., 27.)
    H. The objection-that the passage money was received, {i. e., in advance, before the voyage was commenced, the vessel having been lost and no passage performed,) raises the questions, (1st,) - whether any part of the passage money was earned by the mere commencement of a voyage never compléted ? and (2d,) whether the plaintiff must wait to be sued and compelled to return the money to the representatives of these lost passengers, before he can recover from his insurers ? And both of these questions must be answered in the negative, because,
    I. The policy itself contemplated only passage money received by the Liverpool agents, and the risk was only to attach after the money was paid to those agents; which assumes, that by the usual or known terms of such payments the ship-owner’s right or title to that money was at the risk of, or dependent upon, performance of the voyage. It was thus the assumed basis of the whole contract, that the passage money-was not earned if there was such a loss by sea perils as that the passengers could not be carried to their destination.
    2. By the loss, of course the provisions, supplies and outfits used in advance for the voyage, or provided and intended for the use of the passengers and crew, or for the wear-and tear of the vessel, were lost, and all the benefits or profits contemplated from the voyage, to the extent of the amount of passage money, were lost, unless the owners had a right to receive and retain this passage money, merely because paid in advance.
    3. Passage money is now placed upon the" same footing as freight; and is not earned without performance, although paid in advance.
    As to freight. (Phelps v. Williamson, 5 Sandf., 578; [other cases as to freight collected in 2d American Leading Cases; Hare & Wallace, notes, 604-607; 1 Blatchf. R., 354; 3d Sumn., 30, 66; 4 Wash. C. C. R., 110; 13 Mees. & Wels., 230, and note to Am. ed., 240;] Howland v. The Sarona, 1 Peters’ Adm., 126; Giles v. Brig Cynthia, id., 203-207; note; The Aberfoyle, 1 Blatchf. R., 360; The Pacific, id., 569; Watson v. Duykinck, 3 Johns. R., 335, special agreement; Detouches v. Peck, 9 id., 210;
      Wheeler v. Board, 12 id., 363; Murray v. Richards, 1 Wend. R., 58; Vanderbilt cases, 19 Barb., 222; 21 id., 26, affirmed on appeal; Samson v. Ball, 4 Dallas, 459; Cope v. Dodd, 13 Penn. St. R., 1 Harris, 33; Griggs v. Austin, 3 Pick., 20; Brown v. Harris, 2 Gray Mass. R., 359; Angell on Carriers, §§ 531, 568, &c.)
    4. The English decisions indicate that such was the law of the place where these payments were made, and that the passage money, can be there recovered back. (Mulloy v. Backer, 5 East., 316; Moffat v. East India Co., 10 id., 468; Lewis v. Marshall, 7 Mann & Grang., 729; Coppin v. Braithwait, 8 Lond. Jur., 875.)
    5. The passage money received by the agents in Liverpool, being payable back by reason of the non-performance, (arising from the perils insured against,) the money (if not actually refunded) is held in trust for the parties entitled to it. The shipowners would own the money, and be simply principals of those agents, if they performed the voyage or carried the passengers as contemplated. But if not, it was to be refunded. Then, the voyage having failed, the passengers not having been carried, the contract to carry being at an end, the money became a mere temporary deposit, belonging to the passengers or their representatives, and was in equity a trust fund; and this trust became enforceable at law in an action for money had and received for the use of the passengers. (2 Fonbl. Eq., book 2, ch. 1, § 1, note b.; 24 Wend. R., 514-518; 2 Denio, 142.)
    6. There is no propriety in the underwriters refusing to settle until proof of the actual payment back of the fund thus deposited, and not earned, belonging to passengers and held in trust for . them. They might as well refuse to pay for repairs or other losses, although incurred, and require proof that the ship owner had paid his debts occasioned by the necessity for prompt repairs or unusual expenditures, the risk of which was insured against. It is the chief object of insurance to place the ship owner promptly in funds. (Wolfe v. The Howard Ins. Co,, 1 Sandf. S. C. R., 124; S. C., affirmed, 3 Seld. R., 583.)
    7. An insurance on freight (to which passage money is analogous) has no reference to the collection of freight or to its payment, either in advance or after it is earned, but depends merely upon, the ability of the vessel to earn it. Its design is to cover an amount at risk for all the current expenses, wear and tear, &c., to the extent of the probable receipts of' a voyage independently of the mere value of a vessel as a chattel at the time of her loss; it is fixed on the amount of freight, (or passage money,) because that indicates a distinct limit and amount or valuation of an insurable interest. (Ogden v. General Mut. Ins. Co., 215-217, &c.; 1 Phill. on Ins., 133, 134, &c.; Emerigon, 707, &c.; 3 Kent’s Com., 7 ed., 337, 393.)
    The judgment should be affirmed.
   Hoffman, J.

I find no mention, in the leading treatises upon the law of insurance, of a policy on passage money. Arnould, Phillips, Marshall and Park give no information upon the subject. The great work of Emerigon, the Commentaries of Par¿essus, of Pothier, and of Boulay Paty, are equally silent. These oracles of the law, foreign or domestic, utter no response to the inquiries we address to them.

It is true that we may discover in the comprehensive language of some writers, authority to embrace such an insurance. “ Everything may be insured, which by law, or by custom possessing the authority of law, is not forbidden.” (Kurike de Assecur, apud, Boulay Paty, tom. 3, p. 356.)

The Commercial Code of France, (art! 334,) has undertaken to define what may be the objects of insurance. In article 347 it excludes various subjects; but it leaves as insurable, and not thus excepted, “ everything capable of a valuation in money, and subject to the risks of navigation.” (See also Pardessus, tom. 3, art. 758.)

We find, however, in some late cases in England, that policies upon passage money have come before the courts, under- a statute of 15 and 16 "Victoria, 1852, (ch. 44.)

In the first place I shall endeavor to elicit, out of the strange attempt to adapt an old cargo policy to an insurance on passage money, the material elements and stipulations of the contract;.

The Company, on the 13th of January, 1855, agree with Mr. Ogden, on behalf of whom it may concern, that they will insure, on a voyage from Liverpool to New York, the sum of $6,395, passage money received by A. Taylor & Co., or their agents in Liverpool, for passengers onboard the ship Driver,for a premium of $191.80. By a clause in the body of the policy, the risk was not to attach until the passengers were engaged and paid for. By a subsequent clause this was modified, so that the risk was not to attach until the passengers were on board. The amount of the passage money was to be named to the Company as soon as ascertained. In case of the detention (of the vessel) by any of the perils insured against, whereby the passengers’ fare or charges became a charge to the underwriters, it was to be estimated at not exceeding, for first cabin passengers $1 per day, for second cabin passengers 50 cents per day, and for third cabin passengers 80 cents per day. When new passengers were substituted for the first, the new earnings were to be deemed salvage to the original underwriters, allowance being made for additional fare as above.

The adventure was to begin from the loading of the goods, and to endure until they were safely landed.

The perils insured against are the usual perils enumerated in a marine policy, with the general clause of all other perils, losses and misfortunes that have or shall come to the hurt or damage of such goods and merchandise, or any part thereof.

The passage money was received in Liverpool on the 12th of February, 1856, and the vessel sailed on the 12th. The amount was named, pursuant to the policy, on the 19th of March, advices no doubt having been received of the passengers being shipped.

We have, then, in this contract, these elements: that the passage money actually received by Taylor & Co., was the subject insured; that the risk commenced when the passengers who paid it were received on board; and an engagement to indemnify the assured for any loss of that passage money, or any part of it, which should be occasioned by any of the perils enumerated and insured against.

Having received the passage money, the subject insured, it is for the plaintiff to establish that he has lost it, or part of it, before he can ask restitution through this agreement of indemnity.

A positive deduction is contemplated by the policy, when, by reason of a detention on the voyage, expenses have been incurred; and, generally speaking, the actual and absolute occurrence of loss or damage by destruction or injury of the thing insured, or payment of money from such damage, is to be shown before "the indemnity can be demanded.

But it is not to be denied that if a liability is clearly fixed, if upon the facts the Court must say it exists, and if the condition of the policy plainly covers that liability as much as if it had been discharged, the amount may be recovered under an insurance. This is the rule declared in Wolfe v. The Howard Insurance Co. (1 Sandf. S. C. R., 124; S. C., 3 Seld., 583.) The duties were judicially decided to be due, and the policy provided for the estimate of the goods at their actual cash value, at the time the loss should happen. Though the duties were unpaid, it was considered that they could be included in the recovery under the policy, as much as the value of goods insured could be recovered, although not paid for.

So in Van Natta v. The Mutual Security Insurance Company, (2 Sandf. S. C. R., 490,) upon demurrer to a declaration" on a policy it was held, that the liability of a common carrier for goods destroyed by fire was an insurable interest; was covered by the general words in a policy, of its being for his account and benefit; and that an averment of a liability to pay to the owners a greater sum than that insured, was sufficient, without averring actual payment

It may be noticed, that no allegation of such a liability is found in this complaint.

Our attention has very properly been called to the analogy of the rule as to-payment of freight in advance. It is insisted that freight so paid may be recovered back, if the goods are not delivered. There can be no doubt of this being the rule under an ordinary bill of lading, for by its terms the contract is to deliver the goods, and the fulfillment of this is a condition precedent to the right to freight. (Phelps v. Williamson, 5 Sandf. S. C. R., 578; Griggs v. Austin, 3 Pick., 20.)

But of course a special agreement may control this rule, and a fair construction of special clauses may show that the parties had agreed that repayment should not necessarily follow the failure of the voyage. (Id.)

Chief Justice Kent, in Watson v. Duykinck, (3 John. R., 335,) traces the general rule in the foreign law, and notices the ordinance of the Marine and the Commentary of Valin to that effect, unless there be a special agreement varying it. The 302d article of the Code of Commerce has followed the ordinance in each particular. Freight is not due for goods lost by tempests, &e., and it must be restored if advanced, unless there is a different agreement.

Accordingly, we find, that if freight is to be paid at all events, or if' it has been paid with the clause that it shall not be repaid in case of shipwreck, (as is permitted by the 302d article of the Code of Commerce,) it may be made the subject of insurance, not by the captain or owner, who has gained it, and for whom it is no longer at risk, but by the freighter who runs the risk of losing it. (Boulay Paty, tom. 3, p. 484.) Valin, Pothier, and in substance Emerigon concur in this.

Hall v. Janson, (4 Ellis & Blackb., 500,) is in accordance with this rule, the case being precisely the converse one in its facts. The policy was on money advanced ” to the assured as owner of the ship, “ on account of the freight of the cargo loaded on board her.” It was substantially freight advanced. The ship owner must repay the amount if he failed to carry the goods, although prevented by the perils of navigation. He had therefore an insurable interest.

Yet we see that in Mansfield v. Maitland, (4 Barn. & Ald., 582,) the specialty of a charter party modified this rule. The freighters, it was held, had no insurable interest because the transaction on the bill of exchange was merely a loan to the owner of the ship, for which he had his action. But had it been expressed that the bill was in part payment of the freight, the loss of the ship would have produced a loss to the freighter of the money advanced, and he would¡have had an insurable interest.

Thus, in all these cases, the instruments containing the contract between the freighter and the ship owner were before the Court,. and on them the Court concluded that a plain, legal liability to refund pre-paid freight existed, and when that is concluded, an insurable interest in the ship owner is found, and liability thus judicially demonstrated is held sufficient, and will be so without actual payment.

In Phelps v. Williamson, (ut supra,) thé bill of lading was in proof, and was in the ordinary unconditional form to deliver the goods.

There are several American and English authorities which more directly bear upon the question of pre-paid passage money, and in which, the general doctrine is found, that such passage may be recovered back if the contract is not complied with. But in every case, what was the contract, was the very question to be determined. Upon the instruments and facts of each, the Court settles this question. When this is clearly settled and the liability is ascertained, it may, as before stated, be the ground of a recovery on a policy.

Thus, in the case of Zenobia, (1 Abb. Ad. R., 48, 80; see 86, 94,) the allegation was, that the master contracted to convey the libellant and his family to Hew York, and he paid $150 down, in part for the passage money. This allegation the Court says was proven.

In Cope v. Dodd, (1 Harr. Penn. R., 33,) the receipt given to the passenger was in evidence, and was considered as an engagement to transport 'to Liverpool. In Brown v. Harris, (2 Gray, 359,) the agreed statement of facts showed a contract by the defendant to transport the plaintiff as a passenger, in the defendant’s ship, from San Prancisco to Panama, for the sum of $50, paid in advance. It showed a failure to perform, in consequence of the wreck of the .ship, and that the passenger, was landed at a place less than half way to the port of destination, and that no offer was made to forward him.

In Howland v. The Brig Lavinia, (1 Pet. Ad. R., 121,) the learned judge says, that the same rules are to be applied to passage money as are established on the subject of freight. Ho passage money is due until the vessel arrives at her port of destination, unless otherwise agreed upon. If the passage money has been paid beforehand, it ought to be refunded. So freight on goods is not payable until delivery at the port for which they are shipped.

So in what are termed the Vanderbilt cases, the contracts were in proof and with parol evidence which was competent, were construed to mean engagements to convey the passengers through to San Prancisco. (See 19 Barb., 222; 21 id., 26; and 17 N. Y. R., 306.) In some of these cases the Court below confined the right of recovery to the passage money paid, upon the facts proven. The Court of Appeals sustained a verdict, for expenses beyond this.

In Watson v. Duykinck, (3 John. R., 335,) the paper given by the sloop owner'was, “that in consideration of $100, to be paid immediately, he would suffer the plaintiff to proceed in the sloop as a passenger on the voyage, and to load on board for transportation merchandise to the value of $600.” The money was paid. The vessel was wrecked on her voyage, and the action was to recover back the money. A usage in New York not to refund passage money, if the voyage is begun, was found by a special verdict. The Court decided, however, upon the contract itself, that the action would not lie.

The following English cases will show how entirely dependent upon the particular provisions and terms of the contract between the parties, or upon established usage, is the question of a responsibility to refund passage money paid in advance. (Moffat v. The East India Eng. Co., 10 East., 468; Gillan v. Simpkin, 4 Camp., 241; Yates v. Duff, 3 Car. & Payne, 369; Saunders v Drew, 3 Barn. & Adol., 445; De Silvale v. Kendall, 4 Maul. & Selw., 37.)

I deduce from my examination of the authorities, that when indemnity is sought under a policy, for the loss of the subject insured, not absolutely incurred or actually borne, but contingent and resting upon a liability which will give it practical effect; that liability must be shown to be inevitable, as the necessary result of the law upon the agreement of the parties and the facts of the ease. The question of liability in the present instance will be, in all probability, controlled by the receipt given to the passengers by the agents in Liverpool. That receipt, or any other contract between the parties there made would show whether, under any of the authorities cited, the money was to be refunded under the circumstances which have here occurred. It is to be observed, also, that the complaint does not even aver that the contract was to transport the passengers to New York; only that the vessel was bound to New York, and had on board 344 passengers. I apprehend there would be little difficulty in showing the form and nature of the receipts or agreements which were given; although, of course, they were delivered to the passengers.

Thus the plaintiff has, neither by means of the contracts, by means of any other evidence, nor even by his own allegation, shown or asserted an engagement for the absolute conveyance of the passengers from Liverpool to New York, nor his unconditional responsibility to refund this passage money, if the passen. gers were not carried there, and I think the duty to do this, before he can call upon the underwriters rested with him. I think that he has not done it even upon his complaint, and certainly not upon his evidence. His liability is at this moment not merely contingent in point of fact, but wholly uncertain and undetermined in point of law.

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

Moncrief, J., concurred in the conclusion, that the judgment should be reversed; Pierrepont, J., dissented.

Judgment reversed, and a new trial granted.


source: Caselaw Access Project

author:
Slosson, J.
      Pierrepont, J. (Dissenting.)

license: Public Domain

text:
    Olyphant & Son, Plaintiffs and Appellants, v. G. W. Atwood, Defendant and Respondent.
    1. Where the drawee of a bill, at the time it was drawn and accepted, though a citizen of the United States, resided in England, and continued to reside there until after its maturity, and while so continuing to reside there became bankrupt after the maturity of such bill, and thereupon applied for and obtained his discharge, under the bankrupt laws of that country, from all debts due by him when he became bankrupt, it was held, that his liability as such acceptor was thereby discharged, notwithstanding such bill, when it was accepted, was owned by a citizen and resident of the United States, and thence continued to be so owned, until after such discharge was obtained.
    (Before Slosson, Woodruff and Pierrepont, J. J.)
    Heard, October 6th, 1858;
    decided, April 9th, 1859.
    This is an'appeal by the plaintiffs, (surviving members of the firm of Olyphant & Son,) from a judgment in favor of the defendant, rendered upon a demurrer to the defendant’s answer.
    The complaint is upon a bill of exchange, dated New York, August 12th, 1847, and drawn there by Edward J. Mann on the defendant, George W. Atwood, for £1,500, payable sixty days after sight, to the drawer’s own order. The bill names no place of payment, and is directed “to George W.' Atwood, 14 America Square, London.”
    The bill was indorsed and delivered by the drawer, in New York, to Olyphant & Co., (the plaintiffs,) who then were and since have been citizens of the United States, resident in New York.
    The defendant, when the bill was drawn and was accepted by him, was a citizen of the United States, but resided in England, in the kingdom of Great Britain, and continued to reside there until after he obtained a discharge from all his debts under the bankrupt laws of that country, on the 23d of August, 1848. The defendant’s acceptance of the bill is in these words, viz.:
    “August 80,1847.
    “Accepted, payable at Messrs. Glynn & Co’s.
    “ Geo. W. Atwood.”
    The plaintiffs demurred to the defendant’s answer, and the demurrer, presented the question whether such bankrupt discharge, it having been obtained according to the laws of England, and being by such laws a discharge “from all debts due by him when he became bankrupt,” was a bar to an action by these plaintiffs against the defendant, as such acceptor. The defendant became a bankrupt in April, 1848. Chief Justice Oaklet, before whom the demurrer was argued at Special Term, gave judgment for the defendant, and from that judgment the present appeal is taken.

      Clarence A. Seward, for appellants (the plaintiffs),
    Contended that the bankrupt laws of England have no extraterritorial force, and cannot here operate to discharge a citizen of this State or of Great Britain from his indebtedness to a citizen, and resident of this State, and cited, inter alia. (Baker v. Wheaton, 5 Mass., 509; Ogden v. Saunders, 12 Wheat., 213; Boyle v, Zacharie, 6 Peters, 348; Holmes v. Remsen, 20 J. R., 229; Braynard v. Marshall, 8 Pick., 194; Springer v. Foster, 2 Story, 383; Savoye v. Marsh, 10 Metc., 594; Fiske v. Foster, id., 597; Cook v. Moffatt, 5 How., (U. S.,) 295; Donnelly v. Corbett, 3 Seld., 500; 3 Story’s Com. on Const., 256; Prentiss v. Savage, 13 Mass., 20;
      Tappan v. Poor, 15 id., 490; Harrison v. Sterry, 5 Cranch, 289; Abraham v. Plestoro, 3 Wend., 538; Johnson v. Hunt, 23 id., 87; Hoyt v. Thompson, 1 Seld., 352.)
    A. P. Mann, for respondent (the defendant),
    Insisted, that the construction, effect and obligation of a contract, are to be determined by the law of the place where the contract was made and to be performed. That the contract of this defendant was made and-was to be performed in England. That a discharge which is valid by the law of the place where •the contract was made, is valid everywhere. (He cited Story’s Conf. L., §§ 331-335; Kent’s Com., 459, 3d ed.; Potter v. Brown, 5 East., 124; May et al. v. Breed, 7 Cush., 15; Vezy v. McHenry, 29 Me. R., 212 ; Mather v. Bush, 16 J. R., 233; Sherrill v. Hopkins., 1 Cow. R., 103, 107; Mather v. Bush, 16 John., 233; Blanchard v. Russell, 13 Mass., 16, &c.; Burrows v. Jemims, 2 Strange, 633; 2 Bell’s Com., 689, and also several of the cases relied on by the appellants.)
   Slosson, J.

The question is, whether a discharge, under the English bankrupt law, of a debt contracted and payable in England, and by a person residing there, due to a citizen of this State, can be pleaded in bar to an action upon it in the Courts of this State.

The effect of an assignment under the English bankrupt laws, as operating a transfer of the debts, moneys and property due to or belonging to the bankrupt situated in this country, has been the subject of frequent discussion; and it may now be considered as settled in this State, if not in most of the other States of the TJnipn, that while, by comity, the assignees in bankruptcy are allowed to sue in our Courts in order to recover claims or property due or belonging to the bankrupt within our own territory, they do not acquire, by the assignment itself, a lien on such debts or property so as to entitle them to a priority over a resident creditor who has attached the same subsequently to such assignment, and before the assignee has asserted his claim to the property by a resort to legal process in our own Courts.

As respects property of the bankrupt found within our own jurisdiction, the law gives the preference to resident creditors, if they first assert their title. The assignees are considered as standing in the shoes of the bankrupt, having no better rights and subject to the equities to which he is subject; and when permitted to sue here, they do so as representatives of the bankrupt, and not as assignees having an absolute right as against all the world, and they are subject to our laws in respect to the remedy. The assignment in bankruptcy, being statutory, or by virtue of an act of the Legislature, and not voluntary, has no extra-territorial operation, at least in passing the title to the bankrupt’s property beyond the country where the law was passed. It may entitle the assignee to sue here, but, as I have already said, it is by comity' only, and the assignee, when he comes here, has no better title to the property located here than the bankrupt had; so that, if a creditor of the bankrupt has already attached the property, the foreign assignee is remediless. If no such attachment has intervened, there is no difficulty in the assignee acquiring, bv such remedies as the law prescribes, a lien which shall be paramount to any which a resident creditor can afterwards acquire. The State regulates the subject of property found within its limits; and while, by courtesy, it permits foreign assignees in bankruptcy to sue here, it will not give them, by virtue of a mere statutory assignment which can have no extra-territorial operation, a preference in respect to such property over the claims, first asserted, of our own resident citizens.- This is not repudiating or denying any efficacy to the foreign law: it is merely limiting the boundaries of that comity by which the assignees under the law are permitted to act in our Courts in asserting their claims by virtue of it to property of the bankrupt found within the jurisdiction of the Court. It places the assignees on an equal footing with the resident creditors of the bankrupt, and then gives to the one who acquires the first lien, by attachment or other process under our laws, the priority. It is merely asserting that, by virtue of the assignment itself, the foreign assignee does not acquire a priority of title to property of the bankrupt within- our territory over a domestic creditor who has, by due process of our own laws, acquired a lien upon it, before the assignee has asserted his claim in our Courts. The law, which thus permits the domestic creditor to acquire a lien on the personal property of, or debts due, the bankrupt within our own limits, over the title created by the assignment in bankruptcy, creates, it is true,, an exception to, or limitation of the rule which is true in general, to wit, that personal property, as to its transmission and disposition, is governed by the law of the domicil of the owner; but it is- an exception created by our own law as against a foreign law which we are not bound to recognize, and in favor of our own citizens and for their special protection. (Story’s Conf. Laws, §§ 410, 412; Holmes v. Remsen, 20 J. R, 229.)

The case of Holmes v. Remsen was fully recognized and sanctioned by the Court of Appeals in Hoyt v. Thompson, (1 Seld., 340, 341,) and the case of Abraham v. Plestoro, (3 Wend., 358,) was held not to have authoritatively established a different doctrine.

It will thus be seen, that under the limitation of a preference in favor of the domestic creditor who first attaches the bankrupt’s property within our own jurisdiction, the foreign law is recognized in our courts, and the question which we are called to pass upon by this demurrer, is, how far we shall recognize a discharge of the debt itself under a foreign bankrupt law, when sued upon in this State.

The decision of this question is in no wise affected by the exceptional rule in favor of the domestic creditor above stated, nor is an argument against our recognition of the validity of such discharge, to be drawn from the discrimination thus made in favor of our own creditors. It depends upon the application of the rule, admitted to be of universal force where the common law prevails, that the law of the place of the contract where it is made and to be performed, is the law of the contract itself. Much ingenuity has been expended in discussing the theory of this rule, in cases where the place of the contract is different from that of the forum in which the action is brought, some founding the rule upon the idea of an implied assent to be bound by it, as a part of the contract, on the part of all the parties to it, and others holding that the law binds by its own force, without the aid of an assent of the parties express or implied. Those who maintain the first of these views, admit that, for all purposes of giving construction and operation to the contract, the parties may well be assumed to have assented to the laws which prevail in respect to it where the contract was made, but that it is absurd to suppose that the parties could have assented to the operation of a law which should, against their will, dissolve the contract itself, and of this opinion was the Court of Appeals in Donnelly v. Corbett. (3 Seld., 506.) It is, in my judgment, unnecessary to resort to any such presumption of assent on the part of the creditor to be bound by a law which discharges the contract. The true rule is, that the law of the place of-the contract absolutely governs it, propria vigore, in all respects; it not only gives it life and determines the extent of its obligation, but prescribes the mode of its execution and how it may, and in certain contingencies shall, be satisfied. The principle is well expressed by Chief Justice Parker, in Blanchard v. Russel, (13 Mass., 4,) and quoted and adopted by Chief Justice Shaw, in May v. Breed. (7 Cush., 36.) “We think,” he says, “ it may be assumed as a rule affecting all personal contracts, that they are subject to all the consequences attached to contraéis of a similar nature by the laws of the country where they are made, if the contracting party* is a subject of or resident in that country where it is entered into and no provision is introduced to refer it to the laws of any other country.”

Chief Justice Shaw, in the case last cited, thus expresses it: “The principle is this, that the law of the place of the contract, which may be called the law of the contract, gives it its character, makes it what it is, fixes its limits and obligation, fixing the time when it shall commence, how it shall be executed or satisfied, and how it shall be terminated and discharged; when, therefore, such a contract is discharged by force of the same law which gave it its origin and .effect, it is extinguished, and no longer exists as a contract,” and he adds: “ The law under which such discharge is obtained can hardly be said (when invoked as a defense in a suit upon the contract in another country) to have an extra-territorial operation; it operates within the country where the contract was made in .fixing its character and • lCgal effect, which, upon the happening of the contemplated contingency, put an end alike to its obligation and to its execution.”

I can add nothing to the force or precision of this exposition of the principle of the rule in question. It was enunciated in a case identical in every essential particular with the present one, and the foreign discharge was held to be a perfect bar.

The same principle is recognized and adopted in England, in its application to a discharge obtained in this country, Lord El-LENBOROUG-h distinctly asserting that,- “ What is a discharge of a, debt in the country where it was contracted, is a discharge of it everywhere.” (Potter v. Brown, 5 East., 124.)

It was also recognized and adopted in this State, in the case of Hicks v. Brown, (12 J. R., 142,) in which a discharge, under the insolvent laws of Louisiana, of a drawer of a bill of exchange residing in New Orleans, and who drew the bill there in favor of the plaintiff, a citizen of another State, upon a party also a citizen of another State, and which bill was protested for nonacceptance, was held, in a suit upon the bill in this State, to be a perfect bar, on the principle of the lex loci.

No reference appears to have been made in this case, to the prohibition against the passage of laws by the several States impairing the obligation'of contracts, as affecting the question.

In Sherrill v. Hopkins, (1 Cow., 103,) the Supreme Court of this State fully recognized, adopted and enforced the same rule, holding an insolvent’s discharge, under the laws of this State, to be a perfect- defense, the contract having been made here, notwithstanding the plaintiff, the creditor, was not at the time of making of said contract, a citizen of this State. “ The rule upon this subject,” said Justice Sutherland, “is, that the law of the • place where the contract is made is to control it, unless it appear upon the face of the contract that it was to be performed at some other place, or was made with reference to the laws of some other place, and the reason of the rule is, not the allegiance due.from the contracting parties to the government where the contract is made or is to be executed, but the supposed reference which every contract has to the laws of the State or country where it is made or is to be executed, whether the parties are citizens of -that State or country or not.”

The elementary writers expressly affirm the same rule,' and hold that the discharge of the debtor under the bankrupt laws of the country where the contract was made, is a good discharge in every other country, and pleadable in bar. (2 Kent’s Com., 7th ed., p. 574, marg. 459; Story’s Conf. Laws, § 335.)

The case of Donnelly v. Corbett, (3 Seld., 500,) does not conflict with this rule; for, in that case, the original contract was made in Hew York, and that was held to be the place of the contract, though the maker lived in South Carolina, and the note was payable there. A discharge under the insolvent laws of the latter State could not, therefore, be said to be in pursuance of a law of the place of contract. Besides, that case was decided, in part, at least, upon the principle that, as respects the plaintiff, a citizen of Hew York, the insolvent laws of another State discharging the obligation of the contract were .invalid under the Constitution of the United States. Unless the case of Donnelly v. Corbett is to be considered as establishing the doctrine that the Courts of this State are to treat as wholly inoperative all extra-territorial bankrupt or insolvent laws as against creditors residing in the State and suing here, I can see no reason in that decision for holding that we are not to give to the bankrupt laws of England, as operating upon the contract itself, all the force and effect which any other law of the place of the contract, and applicable to it, would have, notwithstanding some observations of the Court in announcing its decision in that case, I do not understand it to go to any such length. It was unnecessary to the decision that it should go that length. It was a case arising under our own laws and the Constitution of the United States. Cases arising between citizens of different States, on contracts made within the United States, and in which the validity of insolvent laws, operating on the contract, depends on the application of the constitutional prohibition before referred to, are not in pari materia with cases arising under the English bankrupt laws; and no argument can be drawn from the doctrine which must control such cases, against the binding force and effect of a discharge under .the latter laws. (Story’s Conf. Laws, § 341.)

Upon both authority and principle, I hold that the contract now in question was affected by the bankrupt laws in force in England at the time it was made, as much as by any law of that country regulating its force or giving it construction, or determining the mode or time of its payment; notwithstanding these laws- do, in certain contingencies, and on certain conditions, put a final end to the contract itself. The discharge in this case is a perfect bar to the action.

Woodbuff, J., concurred.

Pierrepont, J. (Dissenting.)

This ease presents but a single question. The intimate commercial relations existing between England and this country make that question one of much practical importance. The question is whether a citizen of New York residing in England, who accepts a bill of exchange payable there, drawn upon him by a merchant of New York, and after such acceptance obtains a discharge in English bankruptcy, of which the holder of the bill had no notice, can, on his return to New York, plead such discharge in bar of a suit brought,by the New York holder" of the bill.

Four years after the United States had achieved their independence, Lord Thurlow was told that in America the interest of the assignees, under the English bankrupt law was not regarded, and he observed with surprise that “ he had no idea of any country refusing to take notice of the rights of the assignees under their laws, and he believed every country on earth would do it besides.” (Ex parte Blake, 1 Cox, 398.)

Lord Hardwick, (in Pipon v. Pipon, Amb. R., 25; Thomas v. Watkins, 2 Ves., 35;) Lord Mansfield, (in Balentine v. Golding, 1 Cook’s Bankrupt Laws, 487; Wadham v. Marlows, 1 H. Bl., 437, note; 8 East., 314;) Lord Camden, (in Jollet v. Deponthieu, 1 H. Bl., 132, note;) Lord Kenton, (in Hunter v. Potts, 4 Term. R., 182;) Lord Ch. Clifford, (in Neal v. Cottingham, 1 H. Bl., 132, note;) Lord Thurlow, (in Ex parte Blake, 1 Cox, 398;) Lord Loughborough, (in Sill v. Worswick, 1 H. Bl., 665-691;) Lord Ellenborough, (in 5 East., 131;) and Lord Eldon, (in Selkrig v. Davis, 2 Dow., 230; 2 Rose, 292, in House of Lords, A. D. 1814;) all held that, as regards personal property, the lex domicilii, is to govern, and not the lex rei sitae; while each of them virtually, and some of them explicitly decided that an assignment in bankruptcy must be considered a voluntary assignment, and for valuable consideration, and that it conveyed the personal property to the assignees absolutely, and as against attaching creditors in foreign countries. And in the case of Sill v. Worsioich, Lord Loughborough observed, that it was a clear proposition, not only of the law of England but of every country in the world where law had the semblance of science, that personal property had no locality and was subject to the law which governs the person, both with respect to the disposition of it and to the transmission of it, either by succession or the act of the party.

Following these high authorities, Chancellor Kent held, (in Holmes v. Remsen, 4 J. Ch. R., 460,) that a debtor in England owing a house in New York, as well as creditors in England, being declared a bankrupt in England, and his estate being duly assigned, that the English assignees took the bankrupt’s property wherever situated, and that me attaching creditor in New York acquired no rights in the bankrupt’s personal estate seized in New York subsequent to the bankruptcy. But this opinion of the Chancellor was soon after questioned in a suit at law between the same parties, (20 Johns. R., 254;) and within a few years after it became and has continued to be the settled law of this country that the lex loci rei sites prevails over the lex domicilii with regard to the rule of preferences in case of insolvents’ estates; and that the laws of other governments have no force beyond their own territorial limits, and can have no operation in other states except upon a principle of comity; and that no prior assignment in bankruptcy, under a foreign law, will be permitted to prevail against a subsequent attachment, by an American creditor, of the bankrupt’s effects found here. (Greenwood v. Curtis, 6 Mass. R., 378; Oliver v. Townes, 14 Martin’s R., 99; Milne v. Moreton, 6 Binney’s R., 353; Ingraham v. Geyer, 13 Mass. R., 146; Ogden v. Saunders, 12 Wheat., 213; Abraham v. Plestoro, 3 Wend. R., 538; Hoyt v. Thompson, 1 Seld., 340.)

It has long been settled that a discharge under a State law is no bar to a suit on a contract existing when the law was passed, nor to an action by a citizen of another State in the Courts of the United States, or of any other State than that where the discharge was obtained. The discharge under a State law will not discharge a debt due to a citizen of another State. (Sturges v. Crowninshield, 4 Wheat., 122; Ogden v. Saunders, 12 Wheat., 213; Cook v. Moffat, 5 How. U. S., 295; Braynard v. Marshall, 8 Pick., 194; Baker v. Wheaton, 5 Mass., 509; Savoye v. Marsh, 10 Metc., 594; Hoyt v. Thompson, 1 Seld., 340; Donnelly v. Corbett, 3 id., 500.)

In'the case of Donnelly v. Oorbett, reported in the 3d of Selden, Corbett, a resident of South Carolina, purchased goods of Donnelly in New York, and gave his note at eight months, payable at the Bank of South Carolina, in Charleston. The notes being dishonored, the plaintiff brought suit in the Court of South Carolina and recovered judgment. Subsequently Corbett obtained a discharge from his debts under the insolvent laws of South Carolina.

The plaintiff afterwards commenced suit upon the judgment, in the Supreme Court of this State, and the defendant pleaded his dischargethe Court of Appeals held that the -discharge was no bar to the action, although the debtor had been discharged under the laws of South Carolina where he had always resided; the very place designated in the contract for its performance, and although the insolvent laws under which the discharge was obtained were in full force at, and long prior to, the date of the contract.

The precise question now before us was decided in 1851, by Chief Justice Shaw, of the Supreme Court of Massachusetts, in the case of May v. Breed, (7 Cush., 15,) giving full effect to the English discharge against a Massachusetts creditor. The well considered opinion of this very able and eminent Judge demands a careful and most respectful consideration.

The learned Judge adopting the language of another, says:

“ Thus if an American merchant becomes the creditor of an English merchant in England, and the English merchant becomes bankrupt and obtains a certificate of discharge, the American merchant will be concluded by such certificate, for it is reasonable to suppose that both parties knew of the existence of the bankrupt laws of England, and the contract must be presumed to have been made- with reference to those laws.”

The learned Judge (at p. 37) further says: “ The ground upon ■which the principle is placed, is this, that the law of the place of the contract, which may be called the law of the contract, gives it its character, makes it what it is, fixes its limits and obligations, fixes the time when it shall commence, how it shall be executed or satisfied, and how it shall be terminated and discharged; when, therefore, such contract is discharged by force of the same law which gave it its origin and effect, it is extinguished and no longer exists as a contract.”

This reasoning, though sound in general, seems not strictly applicable to the particular case under discussion.

The obligation of the English trader to pay the New York merchant his just debt, which, by accepting the draft, he promises to pay, does not rest upon English statutes. Its origin is ancient as commerce, and existed long before the passage of the English bankrupt act. It is not, therefore, “ sought to be discharged by force of the same law which gave it its origin and effect.”

The theory seems to be, that a discharge in bankruptcy derives some part of its-efficacy, at least, from the contract of the parties.

An absolute discharge from an honest debt, without the creditor’s assent, is an act of high sovereignty, which overrides all contract, and proceeds against the creditor purely in invitum. The idea that it rests in any manner upon contract, in the language of Judge Gardiner,- “ scarcely deserves the credit of plausibility.” (Donnelly v. Corbett, 3 Seld., 500.)

There is no doubt that acceptances are deemed contracts in the country where they are made, and the payments are regulated by the laws thereof. But, in my judgment, the bankrupt acts of England in no possible, manner enter into the contract of acceptance of a foreign bill of exchange. Those laws have nothing whatever to do with the “ validity, nature, obligations or interpretation of such contract.” The acceptance may justly be considered as made with reference to the English law relating to bills of exchange; and, if the acceptance is invalid or void under the English law, it cannot be enforced here. But the original invalidity of the contract is a widely different thing from á discharge, (by mere force of a local statute,) of a just' and valid obligation.

In the language of Chief Justice Parker, “ We must' look beyond the law regulating the interpretation of a contract to find the grounds upon which it may be discharged.” (Blanchard v. Russell, 13 Mass., 1.)

We are to consider what effect is to be given to this act of foreign sovereignty, by which one of our own citizens is to be deprived of a debt admitted to be justly due.

Upon the principle of comity alone, we are asked to give full force to the discharge which is pleaded.

We have already seen that if the present defendant were a citizen of Kew Jersey, pleading a like discharge under the laws of that State, his defense would be of no validity. It is urged, however, that the Constitution of the United States interposes to deprive the citizen of Kew Jersey of such defense, while that instrument cannot operate to restrain the Parliament of Great Britain from passing such bankrupt laws as they please; and that, by the comity of nations, our Courts must give full effect to the English bankrupt act, while they disregard similar laws of all the sister States; that though the framers of the Constitution of the American Union regarded such laws as so unjust that they forbid their passage by the different States, yet comity requires that our Courts shall give full force to. this foreign discharge, which, if obtained under the laws of New Jersey, would be totally disregarded. That is to say, the same defense, (which, if interposed by a merchant of Hoboken, we must reject,) is to operate with full power when pleaded by a trader of Venice or Vienna.

This leads us to a consideration .of what this comity is, which is invoked for such high ends, and to which Chief Justice Shaw, in the case above cited, gives all the efficacy which the defendant here claims.

It seems to reach something beyond the “ golden rule,” and requires us, out of courtesy, to respect those foreign laws as sacred, which, if made in our own confederacy, we deem to be unjust. It claims to shield the citizen who has become a bankrupt trader in London from the payment of his just debts, while it refuses any such protection to the same citizen when he has become a bankrupt trader in Charleston.

The learned Lord Chancellors, above cited, in alluding to the rights of assignees in bankruptcy, speak like Englishmen full of reverence for English laws; but whenever a debtor in England invokes the foreign law to relieve him from his debt, these same Judges invariably discriminate, and respect or disregard the foreign law according as they deem such law equitable or unjust; and although they assert that full force is given to an assignment in English bankruptcy, “ wherever justice prevails or law has the semblance of science,” yet Lord Ellenborough, in the case of Potter v. Brown, (5 East., 124,) cited by the defendant here, laid it down as a doctrine long settled, and, as he expresses it, “laid up among the acknowledged rules of jurisprudence,” that when foreign laws clash with the rights of British subjects, the foreign laws are to yield.

The recognition of foreign statute laws at all has never had any other basis than that of mere comity; and whether the courtesy should be extended or not, has uniformly, in England, been ■left to the discretion of the Judges as the cases arose.

One case, among many, will suffice to illustrate the English, rule upon this subject.

A Dane, named Wolff, became a trader in England, and was finally naturalized. Oxholm, a subject of the King óf Denmark, residing in Copenhagen, became indebted to Wolff in upwards of £2,100, to recover which, a suit was commenced in the Courts of Denmark against Oxholm. Pending the action, a war broke out between England and Denmark; and in September, 1807, the Danish government passed a law requiring all persons to render an account of all debts due English subjects, directing the same to be paid into the treasury of Denmark, and provided that in case any one concealed the debt, he should be proceeded against by the officers of the Exchequer.

As the case was in Court, there could be no concealment, and Oxholm was compelled to pay the debt, and did actually pay it into the treasury of Denmark in 1812. In 1814 Oxholm came to England, and was there arrested by the assignees of Wolff for this very debt. He pleaded compulsory payment under the laws of his own country. The cause was decided by Lord Ellenborough in 1818, and Oxholm was obliged to pay the money over again, which he had long before been compelled to pay by force of the laws of Denmark. (Wolff v. Oxholm, 6 Maul. & Selw., 92.)

Lord Ellenborough suggests a doubt whether' the law of Denmark was not in conflict with the law of nations. That the Danish law was in conformity with international law will be found as early as Yattel, (Vattel, lib. 2, ch. 18, §§ 342, 343, 344;) and as late as the case of Brown v. The United States, reported in the 8th of Cranch, (8 Cranch, 110.)

The defendant has cited two cases, one from the Maine Reports and the other from East’s Reports, which he claims are analogous. Examination will show them to be different. In the case of Very v. McHenry, (29 Maine, 212,) the plaintiff went to New Brunswick, and there performed labor; which was the foundation of the claim. The defendant was discharged in New Brunswick, and the Court in Maine gave effect to the discharge.

In Patter v. Brown, (5 East., 129,) a merchant in Baltimore drew a bill upon another in England. The bill was protested for non-acceptance; the drawer was discharged under the American bankrupt act of 1799, and the discharge was held to be a bar in England.

In deciding that case, Lord ELLENBOKOtrGH very justly observed: “We always import, together with their persons, the existing relations of foreigners, as between themselves, according to the laws of their own countries; except, indeed, whore those laws clash with the rights of our own subjects here.” This, in my .judgment, expresses the true doctrine, and will be found in conformity with the settled law both of England and America.

We recognize-the rights of foreign assignees under a voluntary assignment; though the Courts of New Jersey seem to have denied even that.

But we do not regard any statutory assignment as voluntary.

By comity, we permit English assignees in bankruptcy, and trustees under insolvent laws of the several States, to prosecute claims in our Courts, and to recover the property of the foreign insolvent, except where the rights of our own citizens are brought in competition, in which case the foreign claimant, under foreign laws, must yield. (Prentis v. Savage, 13 Mass., 20; Story’s Conf. Laws, § 348; Bank of Augusta v. Earle, 13 Peters, 520; Hoyt v. Thompson, 1 Seld., 340; Bard v. Poole, 2 Kern., 505; Penniman v. Meigs, 9 J. R., 325; Abraham v. Plestoro, 3 Wend., 539; Holmes v. Remsen, 20 J. R., 265.)

Let us see whether the relations between a drawer and holder of a bill in New York and the acceptor in London are altogether foreign, so that, when the acceptor comes to New York, we can be said to have “ imported, together with the person, all the existing relations.”

When a merchant in New York draws upon his banker in London, the theory is that the banker has the funds of the drawer; and when the banker accepts the draft, he admits that he has such funds.

A Liverpool merchant, through his agent here, purchases a thousand barrels of flour in New York, and ships it to England; nothing is said about the time of payment; the seller draws upon the buyer at three days’ sight; the bill is accepted, payable in London.

An English traveler in America borrows a thousand dollars of his friend in Hew York, and gives no voucher. On his return to England, the friend in Hew York draws upon the returned traveler, who accepts the bill, payable in Liverpool. In each case, the acceptor is in England, and the contract of acceptance is made in England; but the debt arose in America. The obligation existed before' the acceptance; and in every case, (the contrary not appearing,) the acceptor admits that he owed to the drawer the amount of the bill accepted.

In the cases put, the original debt was contracted in America, and not in England; and in no case of acceptance of a foreign bill are we compelled to assume, without evidence, that the obligation which moved the acceptance originated in the country of the acceptor.

In these supposed cases, one of flour purchased and the other of money borrowed in America by a British subject, the acceptances go to protest, the debtor obtains a discharge in English bankruptcy, and returns to Hew York; and, in bar of suit brought, pleads such discharge. Are we called upon, by the comity of nations, to allow his plea? Are all the relations of debtor and creditor existing between the Englishman and the American, foreign ? And have we 11 imported all those relations ?” It is quite certain that the original obligation was not foreign 'and not imported; and (in judgment of law) there being no evidence to the contrary, an acceptor of a foreign bill admits, by his acceptance, an existing obligation due to the drawer.

I, at least, cannot assent to extend a higher courtesy towards the statutes of Austria or England than towards the laws of our sister States; and I am persuaded, after no little investigation, that the settled law of England, (notwithstanding some dicta of her Chancellors,) is now, and has long been, in harmony with these views.

I think the order overruling the demurrer should be reversed, with leave to the defendant to answer over in twenty days, upon payment of costs of the demurrer and of this appeal.

Judgment affirmed.

       See Robinson’s Practice, vol. 1, p. 89, ch. xviii, Title, “Effect of discharge under insolvent or bankrupt law.” See, also, Smith v. Gardner, ante, p. 54.


author:
Hoffman, J.
      Bosworth, Ch. J. (Dissenting.)

text:
    Wm. J. Forbes, Plaintiff and Respondent, v. Edgar Logan, Receiver, impleaded with Robert and Thomas Waller, Defendant and Appellant.
    1. A creditor’s suit, by a judgment creditor having an execution thereon returned unsatisfied, to set aside an assignment as fraudulent, and reach the property assigned, can be maintained,, notwithstanding the summons and complaint in it, and an injunction granted thereon, were served on the sixtieth day after the receipt by the Sheriff of such execution to be executed, and the execution was actually returned by the request of the plaintiff’s attorney on the seventh day after its receipt by the Sheriff, and the complaint was verified and such injunction was granted on that alone, on the fifty-fourth day after such execution was so received. (Per Hoffman and Moncrief, J. J.)
    2. Held, (by Bosworth, Ch. J., dissenting,) that such an action cannot be brought until after the return day of the execution has passed; that such was the settled rule before the Code, and that the Code has not abrogated it; and that especially should it be enforced when the action is commenced before the return day, upon a return procured to be made, within seven days after the execution was issued, by the written request of the attorney issuing it.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, January 7;
    decided, April 9, 1859.
    This is an appeal from a judgment setting aside an assignment executed by Robert Waller to Thomas Waller, Hovember 28, 1855, as being fraudulent and void, as against the creditors of the assignor. The appeal is taken on behalf of Logan, the receiver, who was made a defendant by the supplemental complaint. Logan had, on the 28th of Hovember, 1856, been appointed Receiver of the assigned properly, in a suit brought by other creditors of the assignor to procure the removal of the assignee, and the appointment of a Receiver in his place and stead, to execute the said assignment, and dispose of said property according to its provisions. The original action of the plaintiff, Forbes, was brought by him as a judgment creditor of the assignor, after execution had been issued thereon and returned unsatisfied in the manner hereafter stated. Subsequently the Receiver, Logan, was directed to be made a party by supplemental complaint, and this being done, he put in an answer to the original and supplemental complaint. The cause being at issue as to all the parties, was tried at Special Term before Mr. Justice Slosson, without a jury, in January, 1858, who- directed a judgment to be entered in favor of the plaintiff, from which the present appeal is taken.
    In relation to the judgment and execution of the plaintiff against the assignor, the Judge found as follows:
    “ That the plaintiff recovered against the said Eobert Waller the judgment stated in the complaint,- for the amount, and at the time therein alleged, which was duly docketed, as stated in said complaint, and which judgment was recovered upon an indebtedness existing at the time of the execution of said assignment.” (The complaint alleged the recovery, on the 2d of June, 1856, of a judgment in the Supreme Court, in favor of the plaintiff, against Eobert Waller, for $5,764.47.) “ That execution was issued upon said judgment on the 2d June, 1856, to the Sheriff of the city and county of Hew York, which execution was returned by said Sheriff, with the return of1 no property’ indorsed, on the ninth of June, 1856, and that the same was so returned by the request of the plaintiff, by his attorney, in writing, which written request is set forth in the Case; that the plaintiff’s attorney applied at the Sheriff’s office, to Mr. Ludlow, the assistant of Deputy Sheriff Wilson, in whose hands the said execution was, to return the execution, and that said Ludlow informed said attorney that he and said Wilson had investigated and ascertained there was no property of the defendant on which they would levy without the Sheriff being indemnified. That said Ludlow had not gone personally to the stor.e in Cedar street, (the assign- or’s place of business,) or to any other place, to levy on goods, nor had any Sheriff’s jury been called to try the title to any property. That no levy was made under said execution on any property, and that personal property not exempt from execution, and purporting to be assigned by said assignment^ was in the store Ho. Cedar street, which had been occupied by said Eobert Waller prior to the execution and delivery of said assignment, during the time that said execution was in the hands of the said Sheriff.”
    The letter or written request of the plaintiff’s attorney is as follows;

      “SUPREME COURT.
    “ William J. Forbes

      v.

    “Robert Waller.
    “ To John Orser, Esq., Sheriff of the city and county of New ■ York:
    “ Sir—Please return the execution in the above entitled cause, delivered to you on the 2d of June, 1856, immediately, as there is probably no personal or real estate belonging to the defendant in your county, out of which the amount or any portion of the same can be made.
    “Dated New York, 5th June, 1856.
    “Yours, &c.,
    “F. R. Sherman,
    .“Plaintiff’s Attorney, 74 Wall street.”
    The Judge states the various facts which he found, and on which he held that the assignment was fraudulent, and intended to hinder, delay and defraud creditors.
    He found, as a conclusion of law, “ that the plaintiff could maintain the action, notwithstanding the return of the execution, at the written request of his attorney, seven days after its delivery to the Sheriff,, under the facts above found.”
    The assignment comprised all the goods, chattels, and merchandise, bills and notes, choses in action, accounts and demands and other property, whether real or personal, of the assignor, (the same purporting to be set forth in the schedule annexed to said assignment.) That schedule enumerated cash, goods, debts, unsettled cla,ims, and “ all other property, claim, and interest, of any kind whatsoever, and wheresoever situated, belonging to said Robert Waller,” as being the property so assigned.
    • The material part of the judgment appealed from is as follows: “ That the assignment of the defendant, Robert Waller, is fraudulent and void as against the plaintiff; that the plaintiff recover out of the assigned estate, or the proceeds thereof, in the hands of the Receiver, the sum of. $5,764.47, the amount of the judgment, with interest and costs, or so much thereof as the funds in his hands will pay, after deducting his commissions.”

      The Case shows that the original complaint herein was' verified on the 25th of July, 1856; and that on such complaint and on that alone, the plaintiff applied to a Judge of the Court on the 26th, and obtained an injunction against the defendants, and that said complaint, injunction and the summons were served on the defendants therein on the 1st of August, 1856, and these facts are stated in the supplemental complaint.
    That Logan was appointed Receiver as aforesaid on the 28th of November, 1856, after the action upon the original complaint was at issue, and on that day Robert and Thomas Waller transferred and delivered the assigned property to Logan, as such Receiver.
    Exceptions were duly taken to the conclusions of law embraced in the final decision of the Judge. Some exceptions were also taken to various decisions made during the progress of the trial, which are not here noticed, as they are not discussed in the opinions delivered at General Term. Those which are discussed, are so stated in the opinion of Mr. Justice Hoffman, as to render fiirther details unnecessary.

      J. Larocque, for appellant.

      F. R. Sherman, for respondent.
   Hoffman, J.

The first question is, whether the plaintiff is in a position to sustain this action in consequence of the direction of his attorney to return the execution within seven days, and its actual return within that time. ,

There are certain facts in the case, besides those noticed by the Judge, of no little consequence.

On the 2d day of June, 1856, the judgment was entered and docketed. On the same day the execution was tested and delivered to the Sheriff. This was returned on the 9th day of June unsatisfied, in pursuance of the written direction of the attorney, dated the 5th, (and before stated at length.)

The counsel for the Receiver produced this testimony.

The original action was commenced to set aside the assignment in question, by service of a summons with the complaint, on the 1st day of August, 1856. The complaint was sworn to on the 25th day of July, and on the 26th day of July, a preliminary order for an injunction was allowed with an order to show cause on the 4th day of August.

The original and supplemental complaint stated the issuing and due return of the execution, so that no objection appeared on their face; and the answers of the assignor and assignee by not denying, admitted all the allegations of the complaint on this subject. The Receiver, in his answer to the supplemental complaint, stated a want of knowledge or information, and controverted these among other allegations. The Receiver, it should be noticed, was appointed in a suit brought by one Dickinson, as a creditor under the assignment, to remove the assignee and distribute the fund. .That suit was commenced in May, 1856, and an injunction allowed on the 9th of that month, restraining the assignee and assignor from any interference with the property, and on the 18th day.of October, 1856, an order of reference to appoint a Receiver was made, and on the 28th day of November, 1856, the Receiver was duly appointed. Liberty to bring him into this suit by supplemental complaint was granted by an order made on the 20th day of March, 1857. •

The assignment purported to transfer the whole property, real and personal, of the assignor.

An action, like the present, to set aside an alleged fraudulent transfer of property, may be brought by the judgment creditor, notwithstanding the provisions as to supplementary proceedings, and the method of redress thus given. The old rules and principles of the Court of Chancery must afford the guide, although the Code may be resorted to for aid and explanation. If there is anything hostile to the former course of proceedings, the Code would control.

It may be useful, first, to advert to the rules which at different periods prevailed as to the issuing and return of an execution. It will aid our examination,- and in some respects it becomes important.

By the common law, the Sheriff was not obliged to return a writ of execution until he was ruled'so to do. (Watson on Sheriffs, 63; id., 198; Cheasely v. Barnes, 10 East’s R., 72.) There was an exception in case of an elegit. (See, also, 6 East’s R., 550.)

By our statute, (1 R. S., 1813, 318,) two common days of return were established.

Process issued in term might be tested any day in that term, and be made returnable any day in that term, or the next term. If issued in vacation, it might be tested in any previous term, and be made returnable on any day in the next term.

The Revised Statutes of 1830 adopted the same provision, with some others, as to the duration of the terms, and as respects the issuing test and return of process, not necessary to be noticed. (2 R. S., 197, §§ 4, 5, 6.)

It was the law under these provisions, that the Sheriff was bound to return the writ on the return day without being ruled, and he might be sued in trespass on the case, or be liable to an attachment or amerciament for neglect.

By the general rule of law, also, the Sheriff could not execute a writ after the return day, though he might perfect proceedings commenced before. (Vail v. Lewis, 4 Johns. R., 450.) A return and a new writ, or perhaps a continuance on the roll merely, was necessary. (Devoe v. Elliott, 2 Caines’ R., 243; see The Mayor, &c., v. Evertson, 1 Cow. R., 36.)

This system continued until the statute of May the 14th, 1840. By that, a fi. fa. might be tested and issued at any time after the expiration of thirty days from the entry of the judgment; and such writ shall be made returnable sixty days after the receipt thereof by the Sheriff or other officer.” (Sess. L., 1840, p. 334, § 24.)

This appears to bear the construction that the writ could not be returned before the end of the sixty days. I do not know whether this point has been decided. -

By the Code, (§ 290,) the execution “ shall be returnable within sixty days after its receipt by the officer,- to the clerk with whom the judgment is filed.”

It is well settled under this provision,- that the execution may be returned at any time within the sixty days, so as to warrant proceedings under section 292' of the Code. Collusion or fraud may be shown, and will defeat the proceeding. (Engle v. Bonneau, 2 Sandf. S. C. R., 679, and cases; 1 Code R., 107; Morange v. Edwards, 1 E. D. Smith R., 414; Livingston v. Cleaveland, 5 How. R., 396; Jones v. Porter, 6 id., 286.)

In Livingston v. Gleaveland,' (supra,) the subject was fully examined ; Mr. Justice Mason delivering the opinion of the Court. Cassidy v. Meacham, (3 Paige R., 311,) and Williams v. Hoge boom, (8 Paige R., 469,) were admitted to have settled the rule in Chancery before the Code, that a bill could not be filed until after the return day, although the execution had been returned before. The statute and law, before the act of 1840, and the rule under that act were examined, and the distinction taken upon the language of sections 289 and 290 of the Code, that now the Sheriff may legally return the execution within the sixty days whenever he has made diligent search for property, and become satisfied that the defendant has not property to satisfy the same or any part thereof. It is to be presumed that the Sheriff has done his duty in searching for property, when he has made his return nulla bona.

The case of Jones v. Porter, (supra,) was before Mr. Justice Parker, at Special Term. It is very strong upon this point.

Judge Rowley, the County Judge, in Messenger v. Fish, (1 Code R., 106,) stated the reasons for such a construction of the Code with much force.

It is to be .deduced from these cases, that when nothing appears but the fact of a return directed to be made by the plaintiff or his attorney, the inference is that the Sheriff was not left to his proper efforts to collect the amount, but that the intervention with his duty was from some improper or vexatious motive. But, under these decisions, jurisdiction would appear tobe acquired, whether the execution is returned before or after the end of the sixty days. The defendant has no longer the absolute right to say that this extraordinary remedy may not be resorted to until the full period given by the law for him to pay the debt under an execution has elapsed, or until efforts to collect it by the legal process have proved ineffectual for that period. The time is no longer absolutely given him, when the Sheriff is authorized by law, on his own responsibility, to abridge it.

Thus, it seems to me, that an official, voluntary return by the Sheriff, before the end of the sixty days, may be treated as a compliance with what the statute deems it essential to establish— that the legal remedy has been exhausted. He subjects himself to a liability for a false return, in case property could be shown which might have been reached, and acts at his peril.

This course of reasoning may justly be regarded as of little weight when the plaintiff, or his attorney, has directed the return of the execution, and promptly, upon its being issued. The theory upon which an action like the present proceeds, must always be regarded.

While an execution is in the hands of a Sheriff, all leviable personal property is affected by its lien, under and by force of the statute. While it was in life, a bill to set aside a fraudulent transfer, which interferes with the levy, might be sustained, because the lien existed. But if the execution is returned the lien was lost, and the right to sustain the action, apart from statutory provision, was also lost. (McElwain v. Willis, 9 Wend. R., 548; Weed v. Pierce, 9 Cow. R., 728; Watrous v. Lathrop, 4 Sandf. S. C. R., 700; Cuyler v. Moreland, 6 Paige R., 273; Crippen v. Hudson, 3 Kern. R., 161; Bishop v. Halsey, 3 Abbott R., 400.)

But it was equally clear, that a bill in equity, to reach equitable interests and choses. in action, could not be filed until after execution returned unsatisfied; and then the authorities before referred to, settled that the creditor must wait until the return day, which the law had prescribed, had passed,

. The anomaly might then apparently exist, that, if the execution was returned, leviable property could not be touched; and, if it was not returned, equitable interests could not be reached. The relief, where a fraudulent transfer comprised both,, would seem imperfect.

The Revised Statutes met this difficulty by providing that after execution returned unsatisfied, property of every description, whether it could have been taken on execution or not, might be applied to the demand. (2 R. S., 174, § 42.)

Thus, then, the relief which was to be given to a creditor failing- to realize his demand, at law by the usual process, was given, with these restrictions, and upon the condition of these rules being observed by him.

There is one view in which the case presents a very close point. This action was not commenced until the 1st day of August. The filing of the bill under the old Chancery system was not the commencement of an action, but only the service of a subpoena, or a hona fide attempt to serve it. (1 Paige R., 564; 10 id., 1.) Sections 99 and 127 appear to be decisive of the same rule under the Code. The fact that an injunction order Was obtained on the 26th day of July, which was served with the summons and complaint, does not appear to me to affect this view of the case. It is true that by section 139 of the Code, the Court is deemed to have jurisdiction of a case, and to have control of the subsequent proceedings, from the allowance of a provisional remedy, as well as from service of a summons. But as to the parties, an injunction would be inoperative until served, and an attachment until levied.

By the 290th section, the writ is to be returnable within sixty days after its receipt by the Sheriff.

Whatever might be the rule upon the exclusion or inclusion of the day of the delivery of the writ; under the Revised Statutes, and cases upon the subject generally, (1 R. S., 605; 8 Barb. R., 384,) the Code has prescribed a definite rule which must govern the present case.

By section 407, the time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last. . If the last day be Sunday it shall be excluded.

Then the sixty days allowed for the return of this writ ended on the 1st day of August, and the suit was commenced on the 1st day of August.

Had the action been commenced on the 2d day of the month, I apprehend that by the strictest rule it would have been sustained, and I do not think the fact of the attorney’s procuring or directing a premature return would have varied the case.

It appears to have been admitted, that a Sheriff might have returned an execution on the morning of the return day, and would not be liable, although he might subsequently have executed the writ, provided he had used due diligence before. (Henmann v. Borden, 10 Wend. R., 367.) We are warranted in presuming that the action was commenced after the actual return on the last day.

The proposition upon which I think the present action can be maintained is this, that although an execution has been returned at the direct instigation of the plaintiff or his attorney, yet if the action be to set aside- a fraudulent assignment, and is not commenced until after, or on the actual return day, it can be sustained; and further, that in the present instance, this conclusion is greatly strengthened by the fact, that at the time of the delivery of the execution, and through the whole period of the sixty days, the assignor, (the debtor,) and the assignee were under an injunction prohibiting their application of any property-to the payment of the creditors’ demands.

I forbear to enter upon the consideration of other cases in which the right to sustain such an action may exist, without these circumstances, even where the attorney has interfered. Without at all saying, nothing will suffice but what is found in the present case, I think there is sufficient here.

2. The learned Judge has found as matter of fact that the assignment was not accompanied by an immediate delivery, or followed by any actual or continued change of possession of the assigned property, but was made with intent to hinder, delay, and defraud the creditors of the said Eobert Waller.

We are not able to say that this result is wrong upon the evidence. On the contrary the circumstances of possession, control, contracts, and negotiations of the assignor which have been proved, appear to us to warrant it.

8. There are some exceptions to the ruling of the Judge during the trial which require observation.

As to the objection by the Eeceiver to the question, whether the object of the assignor was not to prevent sacrifices in making the assignment? He could have been asked by the defendant in support of the assignment, whether he intended to defraud creditors. (4 Kern. R., 568.) Much more may he be asked as to his intentions and objects, by the adverse party.

The other question which the defendant asked, and the Court rejected, was, whether there was any agreement between the assignor and the assignee, that he (the assignor) was to continue in possession of the property ? (To the decision excluding an answer to this question, the appellant excepted.)

It may be that this ought to have been allowed. But when the fact of an actual continuance in possession is made out by competent evidence, the fact whether there was or was not a prior agreement for it, seems immaterial.

I think the judgment should be affirmed.

Moncrief, J., concurred

Bosworth, Ch. J. (Dissenting.)

It was settled law, prior to the Code, that a creditor’s bill, to reach the choses in action of the judgment debtor, could not be filed, until an execution had been issued and returned unsatisfied. And although an execution had been so issued and in fact returned, such a bill could not be filed until after the return day of the execution was passed. (McElwain v. Willis, 9 Wend., 548; Crippen v. Hudson, 3 Kern., 161.)

That such a bill could hot be filed until after the return day of the execution, was decided in Cassidy v. Meacham, (3 Paige, 311,) and the rule was re-asserted in Williams v. Hogeboom, (8 id., 469.)

In Crippen v. Hudson, (supra,) it was declared that the rule since the'Code, is the same as it was before the Code was enacted. The preexisting practice not. inconsistent with the Code, is by the Code continued in force. (Code, § 469.) •

In the present case, the execution was issued on the 2d of June, 1856, and returned on the 9th of the same month, and this action was so far commenced on the 25th of July, 1856, the fifty-third day after the execution was issued, that the complaint was verified on that day. An injunction was granted on the 26th, and these papers and the summons were served on the 1st of August, 1856, the sixtieth day after the execution was received by the Sheriff.

By the Code, an execution is “ returnable within sixty days after its receipt by the officer ” to whom it is directed. (Code, § 290.)

This action, as a creditor’s suit to reach property not liable to be levied upon by an execution, cannot be maintained. It was commenced before the return day of the execution; • and the execution was actually returned within seven days after it was issued, at the written request of the attorney of the plaintiff in such execution.

Can it be sustained, as a suit by a judgment creditor, who, at the time it was commenced, had a specific lien upon the property which he seeks to reach; to remove, through the aid of a court of equity, a fraudulent obstruction interposed by the debtor to the executionof process by which, but for such fraudulent obstruction, the property might be levied upon and sold ? Whether the property which the creditor seeks to reach be real or personal, .if the latter be property leviable by execution, it is essential to his right to institute a suit to remove a fraudulent transfer of it, that he has “ obtained a lien on such property.”

If it be real, he must have a judgment docketed, which would be a legal lien, if the fraudulent transfer had not been made. If it be personal, he must have issued an execution and have had a levy made on the property; either an actual levy, or a constructive one, by having placed the execution in the Sheriff’s hands to be executed. (McElwain v. Willis, supra; Greenwood v. Brodhead, 8 Barb., 593-597; approved by the Court of Appeals, in Crippen v. Hudson, 3 Kern, 161.)

If it be settled that an execution must be issued to the Sheriff to be levied, to create a right to institute such a suit, it would seem to be illogical to hold that the creditor may procure his execution to be immediately returned, and then commence such a suit.

The moment the execution is so returned, the creditor ceases to have any lien, either actual or constructive, on such personal property. And if the existence of the 'lien is essential to the right of action, it would seem to follow, that the plaintiff had no right of action in respect to such property, when this suit was commenced. It is quite clear, that any other creditor, by levying on the property in question, {i. e., on such of it as could be taken upon execution,) between the actual return of the plaintiff’s execution and the appointment of a Receiver, would hold the property in preference to this plaintiff.

If another creditor, by levying an execution before the appointment of a Receiver, can wholly defeat the action, that fact would furnish a strong argument against assuming jurisdiction over it.

In McElwain v. Willis, (9 Wend., 561,) Mr. Justice Kelson said, that “ the property out of which the judgment creditor is seeking to satisfy his debt, must be subject to the judgment if real, and to execution if personal property. The jurisdiction of the Court rests upon the right or title to the- property in question, acquired by the proceeding at law upon the judgment or execution, and. consequently the return of the latter by the officer is not only not essential, but would be fatal to the relief sought.”

In the same case, Senator Tracy said, “ the plaintiff must show that he ■ has issued an execution into the county where the property is situated, and obtained a specific lien thereon, by the actual or constructive levy of the Sheriff.” As the aid of the Court is sought to enforce a legal lien, “ it is indispensable it should appear from, the bill that this legal' lien then exists.” (Id., 568, 569.)

This rule is stated in terms as explicit, in Greenwood v. Brodhead, (8 Barb., 597,) and in Crippen v. Hudson. (3 Kern., 167.)

For these reasons, I think the action cannot be maintained to reach personal property, in its nature liable to be taken upon an execution, or the choses in action of the judgment debtor.

The assignment in question includes only these two kinds of property, viz., leviable personal property and choses in action. The judgment appealed from, does not profess to affect any other property.

It is true, that the Code allows proceedings supplementary to execution to be instituted, when the execution has been actually returned unsatisfied, although the return day has not elapsed. (§ 292.)

And there would seem to be no reason for not allowing an action to be commenced, when the right to institute such proceedings is perfect.

But in all cases in which they have been instituted in this Court before the return day of the execution, this Court has discharged them on its being made to appear that the execution had been prematurely returned at the request of the plaintiff's attorney. The Court requires a return by the Sheriff, made in the discharge of his duty, upon his own responsibility, and will not grant an order under section 292 of the Code, before the return day of the execution, when the return has been procured by the attorney.

If that practice, (which is supposed to be in harmony with the rule which requires a creditor to exhaust his remedy at law before going into a court of equity,) be correct, then the Code has not, (even by implication,) so changed the preexisting practice, as to authorize a creditor’s suit to reach choses in action, to be instituted before the return- day of the execution, when its earlier return has been procured by the interference of the attorney.

If the rule, as uniformly stated and applied, that to reach leviable personal property it is essential to give jurisdiction that the plaintiff has obtained a lien upon it, existing when the action is commenced, is to be adhered to; then the present action cannot _ be maintained, in so far as it respects such property, as the plaintiff lJhad ho such hen when it was commenced.

I think, that the “return day ” of an execution issued under the Code is as certain, in fact and in law, as one issued under chapter 386 of the Laws of 1840. By section 24 of the latter act, (Laws of 1840, p. 334,) “ writs of fieri facias ” * * “ shall be made returnable sixty days from the receipt thereof by the Sheriff or other officer to whom the same shall be directed.”

By section 290 of the Code, “ the execution shall be returnable within sixty days after its receipt by the officer, to the clerk with whom the record of judgment is filed.”

Under the act of 1840, the execution, in the body of it, declared that it was returnable sixty days from its receipt by the Sheriff, lender the Code, an execution, by section 289, need not declare in the body of it when it is returnable. The return day is declared by a general statute, viz., Code, section 290. •

The return day of a writ, is that on which, by law, it is declared to be “ returnable.”

If not returned on or before the sixtieth day after its receipt, the officer may be sued in case. (2 R. S., 440, § 77; 4 Sand., 67; 3 Seld., 550.)

He cannot be sued or attached for not returning it at an earlier day. (Rule 6 of the Rules 1854, and Rule 8 of the Rules of 1858.)

The execution in this case, is made by law “ returnable ” within sixty days after it was received by the Sheriff. He is required by statute to indorse on it the date of its receipt by him. The Sheriff, if he returns it before the sixtieth day after its receipt by him, returns it at his peril. He cannot be compelled to return it, nor be sued for not returning it sooner. It continues in force during the sixty days after its receipt, and may be levied as well on the sixtieth day after, as on the day of its receipt.

. Its return day is as fixed and certain under, as before the Code.

“Returnable” “sixty days from” its receipt, and “within sixty days after its receipt,” mean the same thing.

The Code does not say, that the Sheriff may return it at any time within sixty days after its receipt; but, on the contrary, fixes its return day, by declaring when it shall be “returnable.”

A writ can have but one return day, and that is the day on which, by its terms or by general law, it is made “ returnable."

I think, therefore, that under the act of 1840, and under the Code, the return day of an execution is as certain in intendment of law, as of on"e issued prior to the act of 1840.

And that a return of an execution (issued under the Code) within seven days after its receipt by the Sheriff, on the request of the plaintiff’s attorney, no more exhausts a creditor’s remedies at law, than an equally prompt return, by the like interference, of an execution issued under the act of 1840, or before that act was passed.

If the practice, which is understood to be observed by the Courts generally, that proceedings supplementary to execution cannot be upheld, if instituted before the return day of the execution, when such earlier return has been procured by the interference of the attorney, be in harmony with a correct interpretation of section 292 of the Code, then it would seem to follow that this action was commenced before it could have been commenced under the law as it was prior to the Code, and before there was any right to commence it under the Code, even conceding the former practice to be so far modified by the Code that the right to bring a suit is perfect, whenever the right to institute proceedings under section 292 is absolute.

For all practical purposes, this action was commenced as early as the 26th of July, 1856.

The plaintiff then appeared in Court with his verified complaint, and upon that alone applied for and obtained an injunction. Without the presentation of a complaint on the application for an injunction, none could have been granted. (Code, § 219.)

From the granting of that, the Court acquired jurisdiction of the action and of the proceedings therein, (§ 139,) for certain purposes, though not an effectual jurisdiction (for all purposes) of the persons of the defendants, until the summons had been served, or they had voluntarily appeared.

If, on the 27th of June, the defendants, with knowledge that the injunction had been granted and of its contents, had disposed of the property in question with intent to evade it, and expecting immunity from the fact that the summons had not then been served, it is by no means clear that they could not have been punished for a contempt. (The People v. Sturtevant, 5 Seld., 277, 278; The People v. Compton et al., 1 Duer, 553, and cases cited at the foot of that page.)

The right to maintain this action is opposed, therefore, by the facts: 1st. That the execution was returned in seven days after it was issued, and “ was so returned by the request óf the'plaintiff, by his attorney, in writing.” Ho attempt was made to execute it.

2d. On the 26th of July, 1856, the plaintiff applied to a Judge of the Court for and obtained an. injunction in this action, that being the fifty-fourth day after execution issued, and six days before its return day. The injunction was granted on a complaint in this action which was verified on the previous day.

3d. The summons, complaint and injunction were served on the 1st of August, the return day of the execution. That being done, it cannot be denied that certain proceedings were taken in the action before the return day of the writ, and that the whole proceedings are based upon a return made by the Sheriff, not in the responsible discharge óf and according to his convictions of his official duty, but upon the written request of the plaintiff, which would be an answer to an action brought by the-latter for a false return.

Under such circumstances, I think the action cannot be maintained without overruling adjudged cases; either as an action to reach leviable property on which the plaintiff had a legal lien, when it was commenced, or as a creditor’s suit to reach choses in action, after the issuing and due return of an execution unsatisfied,

Entertaining these views, and not feeling at liberty to disregard established practice which section 469 of the Code continues in force, I think the judgment should be reversed and a new trial granted.

■Judgment affirmed.