author: By the Court. Hoffman, J.

text:
    The Central Bank of Brooklyn v. William Bailey Lang, George M. Wheeler and Daniel B. Safford.
    A promissory note was by its terms made payable to the makers’ own order, but they omitted to endorse it. It was delivered by the makers, as a premium note upon an open policy, to a Marine Insurance Company. That Company was authorized “to negotiate premium notes for the purpose of paying claims or otherwise, in the regular transaction of its business.” They delivered the note in suit, with others, to the plaintiffs, and had them discounted, and received the proceeds. A smai amount of risks compared with the amount of the note had been taken and premiums earned. The note was to cover premiums to be earned. There was no evidence as to the application of the proceeds of the note, by the Insurance Company.

      Meld, that the note was so negotiated by the makers, by its delivery to the Company, as to make it the same in legal effect as if payable to bearer, within the statute (1 E. S. 768, § 6.)

      Meld, that the plaintiffs were bond fide holders of the note, getting it from a Company authorized in certain cases to negotiate it, and had a right to the presumption that it was discounted for an authorized purpose.

      Meld, that the plaintiffs were entitled to recover the whole amount, whatever might be the equities or rights between the makers and the Insurance Company.
    (Before Duer and Hoffman, J.J.)
    Heard, May 6;
    decided, May 9, 1857.
    This action comes before the Court, at General Term, upon an appeal, by the defendants, from a judgment entered upon a verdict in favor of the plaintiffs

    The action is brought upon a promissory note made by the defendants, payable to their own order, dated the 25th of August, 1854, at six months, and held by the plaintiffs. It was not endorsed by the makers.
    The Reliance Mutual Insurance Company was a Corporation organized on the 20th of August, 1853, and was empowered to make Marine Insurances. The statutes then in force, bearing upon its powers, were those-passed on the 10th of April, 1849, the 25th of June, 1853, and the 13th of July, 1853. The period of the organization is admitted by counsel to be that stated.
    The complaint sets forth, that the Reliance Mutual Insurance Company was a Corporation created pursuant to the laws of the state, for the purpose of making insurance, “ and was authorized to receive premium notes, and to negotiate such notes for the purpose of paying claims, or otherwise, in the regular transaction of its business.” That the note in question was a premium note given to such Company, and was delivered to them; that such Company, in the regular transaction of its business, without observing that it was not endorsed by the makers, did endorse the same, and offered it for discount, with other negotiable paper, to the plaintiffs, who negotiated the same in the regular course of business.
    The plaintiffs took and discounted the note and paid the money in good faith.
    The answer admits, that the note was delivered to the Company on the 25th of August, 1854, as a premium note upon an open policy of insurance, that day issued by the Company to the defendants, and proceeds to set forth the grounds of defence embraced within their offer to produce testimony hereafter noticed.
    The answer, by not denying, also admits the allegations as to the authority of the Company to receive premium notes, and to negotiate them, as stated in the complaint.
    The note, being admitted by the pleadings, and produced at the trial, it was proven that it was delivered to the present plaintiffs with several other notes, and discounted by them, and the proceeds paid to such Insurance Company. The note was endorsed by its Vice-President. The discount took place on the 1st of December, 1854.
    It was also shown that a Receiver of the Company had been appointed.
    The defendants produced a book of risks, and proved that there were none other assumed by the Company on this policy, than those contained in such book. They then offered to prove that the premiums earned on the policy amounted to $300 only; that the note was for premiums to be earned, and had no other consideration; and that as to the $300, the defendants had counter claims.
    The Judge decided that such evidence would not alone constitute a defence, and was inadmissible, unless the defendants proposed to assail the position, that the plaintiff took the note before maturity, in good faith, and for full value; that the note, under the statute, had the same validity and effect against the makers as if it had been payable to bearer, it having been negotiated by the makers; and that the plaintiffs, having taken it before maturity, for value, must recover.
    To this ruling an exception was taken.
    The jury Tendered a verdict for the plaintiffs for $2,246. Judgment was entered thereupon, from which this appeal is taken.

      John S. Jenness, for appellant.

      E. C. Benedict, for respondent.

       The action was tried in November, 1856, before Mr. Justice Bosworth, and a Jury.

   By the Court. Hoffman, J.

The statute applicable to this case provides, that notes made payable to the order of the maker thereof, or of a fictitious person, shall, if negotiated by the maker, have the same effect, and be of the same validity, as against the maker, and all persons having knowledge of the facts, as if payable to bearer: (1 R. S. 768, § 5.)

This act was intended effectually to remove the difficulty in making title, when a note was drawn in favor of a fictitious person, and to treat a note in favor of the maker, unendorsed, as equivalent to one to a fictitious payee. (Plets v. Johnson, 3 Hill, 112.)

In Smith v. Lusher (5 Cowen, 711), Golden, Senator, observed: “ Often bills are made payable to and drawn upon the makers themselves; and very often bills are made payable to fictitious payees. These bills may be mere waste paper until they are negotiated; but the moment they are endorsed, they become efficient securities in the hands of the endorsees.”

And in the course of the argument, the same Senator put the question to counsel—“ What would you do with a note drawn by yourself and payable to yourself?” The answer was—“ It would be waste paper.” “ But,” replied the Senator, “ you pass it away.” The law of the statute is comprised in these brief sentences.

The Revisers observe, that the provision in question is in conformity with the existing law.

A long series of cases, commencing with Tatlock v. Harris (2 T. R. 174), settled, that a bond fide holder of a bill, drawn in favor of a fictitious person, and endorsed in that name by the drawer, might recover it against the acceptor. Where the acceptor knows the facts, the bill is, in truth, payable to bearer. (Chitty on Bills, 158, and note.)

A note drawn in favor of the maker is, in fact, drawn in favor of a fictitious payee, as far as any additional security is concerned. It should be equally treated as payable to bearer.

The note in spit, in the hands of a bona fide holder, is to be regarded precisely as if the makers had endorsed it, provided they negotiated it. And we consider that a note is negotiated within the statute, when it is delivered out by the maker for a consideration received, or agreed to be received, or delivered for circulation; and when, had it been actually endorsed, it would have possessed the character of negotiability. The note in question was certainly negotiated in this sense.

In Stevens v. Strang (2 Sandf. S. C. R. 138), a note was given by Benjamin H. Strong & Co. to the order of Ebenezer Stevens & Sons. There was no such firm in existence. It had ceased twelve years before, by the death of the father, Ebenezer. But there was a firm of Ebenezer Stevens’ Sons. Proof was allowed of the consideration of the note being a sale of brandy to the makers by the plaintiffs. It was held to be a negotiation within the statute.

In the case of Brouwer v. Hill (1 Sandf. S. C. R. 648), the Court noticed an objection, that the legal title was not in the company, the note being payable to the maker’s order, and not being endorsed, and say: “ If it were delivered to the Company as an 'operative and valid security, the title and the property in it became vested in the company.” The receiver was held entitled to recover.

And upon the point of consideration, the case of Deraismes v. The Merchants' Mu. Ins. Co. (1 Comstock, 371), is decisive. A note like the present is a statutory security, independent of consideration ; and if that was necessary, the obligation upon the company, and other circumstances, afforded ample consideration to support it.

Without entering upon the question not arising in the case, how far the contract would have been available, had the note remained in the Company’s hands, and whether it was not capable of being rescinded at any time, except for premiums earned, we are satisfied that it was negotiated within the statute. And we are also satisfied that the plaintiffs, as bona fide holders, are entitled to recover the whole amount, however small may have been the amount of risks undertaken for the makers. There is no evidence that the notes were discounted for unwarranted purposes. There is nothing to charge the plaintiffs with any knowledge of a misapplication, even if such misapplication in fact existed.

The judgment must be affirmed, with costs.


source: Caselaw Access Project

author: By the Court. Slosson, J.

license: Public Domain

text:
    George Cassard v. Elisha Hinman.
    A contract of sale for the delivery of goods on a future day is valid in law, although the goods at the date of the contract are not in the possession, nor within the control of the seller.
    Although such a contract may he valid on its face, yet, if it was the intention and understanding of the parties when it was made, that the goods should not bo delivered, but that the difference between the market price on the day of delivery and that stipulated in the contract, should he paid by one of the parties to the other, according as such market price might exceed or fall shqrt of that stipulated, the contract is not a legitimate mercantile speculation, but is a mere wager, and as such is void under the 8th section of the act “of betting and gaming ” (1 R. S. p. 662). Whether such was the intention of the parties is a question of fact, which in an action for the breach of the contract, in which, a defence under the statute is set up, must be determined by the jury upon extrinsic evidence. The admission of such proof is not a violation of the rule that forbids the introduction of parole evidence to contradict or vary the terms of a written agreement.
    Order overruling a demurrer to a defence under the statute, affirmed with costs.
    (Before Dubr, Bosworth, Hoffmah, Slossoh, and Woodruff, J. J.)
    Heard, May 9;
    decided, May 16, 1857.
    This action comes before the Court, at General Term, on an appeal by the plaintiff from an order made by Mr. Justice Hoffmann, in November, 1856, at Special Term, overruling a demurrer to a separate defence in the answer.
    The complaint set forth two contracts in writing, signed by the defendant, by each of which he agreed to sell and deliver to the plaintiff 500 barrels of new mess pork, in all the month of September, 1856, at the price of $17 per barrel. It alleged a breach of these contracts, and that the plaintiff had sustained damages to the amount of $3,000, for which sum, with interest and costs, judgment was demanded.
    The answer set up the following, as a third defence;—
    “That at the times of making the supposed contracts in the complaint contained, the defendant was not a dealer in pork, nor did he ever hold, possess, or control the pork mentioned in the supposed contracts, nor any part thereof, all which the plaintiff well knew, as the defendant is informed and believes; that it then was not the intention of the defendant to make any actual gale or delivery of pork to the plaintiff, nor was it the intention of the plaintiff actually to buy or receive any pork from the defendant, as the defendant is informed and believes; that it was the mutual design and intention of both the plaintiff and the defendant, at the making of said supposed contracts, that the same should not be specifically performed in whole or in part, but on the contrary, that at the maturity of said supposed contracts the differences between the then market value of the pork therein mentioned, and the price of the same fixed in said supposed contracts, should be paid by the one pariy to the other, as performance or satisfaction of said supposed contracts, that the market price of pork in the mofith of September, then future, was at the time of the making of said supposed contracts an unknown and contingent event and a chance, and the said supposed contracts were not actual bargains and agreements for the sale of the actual property, but were mere wagers on such future market price of pork, and on the chance of such future price, and were gambling transactions, and the defendant insists that said supposed contracts by reason of the matters in this third defence stated, were and are illegal, invalid, and void, and are contrary to the statute in such case made and provided, and repugnant to the common law.”
    To this defence the plaintiff demurred, and from the order, overruling the demurrer, the plaintiff appealed to the General Term.
    Mr. Justice Hoffman delivered an opinion, in support of his decision, which is reported in 14 How. Pr. R. P. 84.

      James C. Carter, for plaintiff and appellant, insisted that § 8 of art. 3d, title 8, chap. 20, Part I. of the Revised Statutes, was not intended to apply, and should not be interpreted to apply, to, transactions like those presented by this record. They are not within the intent of the Statute.
    The transactions appearing on this record are, clearly, outside of the letter of the statute.
    Even if it be conceded, that this statute applies to contracts in reference to sales of merchandise, when the contract falls within its provisions, and assuming, as now contended, that the present transaction does not come within the letter of the statute, then it is insisted, that the present case does not come within the intent of the statute, even upon this large view of its intent.
    The transaction in question is not open to objection as being an attempt to evade the statute. The intent to evade, would, in such a case, be the unlawful ingredient, and should, therefore, form the gravamen of the plea. The defence, demurred to, does not allege it. A statute cannot be evaded by doing a thing which does not fall within the scope of its prohibition.
    The order appealed from should be reversed, and an order entered sustaining the demurrer, with costs.

      Charles Tracy, for defendant,
    the respondent, contended that, admitting the facts set forth in the part of the answer demurred to, the supposed contracts were, plainly, gaming contracts and wagers, and as such unlawful and void. He cited Grizewood v. Blane, 8 Eng. L. & Eq. R. 415, and 20 id.; Rourke v. Short, 34 id. 219.
   By the Court. Slosson, J.

The contract was, in itself, a good executory contract for the sale and delivery, by the defendant, of the article in question.

A party may, lawfully, contract to deliver at a future day goods of which he has not at the time, possession, (Stanton v. Small, 3 Sandf. R. 230.)

The question, in the present case, arises under the averments in the answer, “that it was not the intention of the defendant to make any actual sale or delivery of pork to the plaintiff, nor was it the intention of the plaintiff, actually, to buy or receive any pork from the defendant; that it was the mutual design of both the plaintiff and the defendant, at the making of the said supposed contracts, that the same should not be specifically performed, in whole or in part; but, on the contrary, that, at the maturity of said supposed contracts, the differences between the then market value of the pork therein mentioned, and the price of the same fixed in said supposed contracts, should be paid by the-one party to the other, as performance or satisfaction of said supposed contracts.”

The answer then avers, that the market price of pork in the then future month of September, (the period fixed in the contract for the delivery of the pork,) “being an unknown and contingent event, and a chance,” the contract was a mere wager on the future market price, and on the chance of such a future price, and a gambling transaction, contrary to the statute, and void.

The plaintiff contends, that this was a speculative contract merely, and not in the nature of a wager; and neither within the letter nor the intent of the Statute against Betting and Gaming. That the contract, on its face, contains nothing contrary to the statute, and being in writing, cannot be varied or contradicted by parol evidence of an intent, which would go to show that it was never to be performed, and that therefore the allegation of such an intent is not good in pleading, and does not raise the question of wager at all; and he further contends, that, even if this objection is not fatal,,the answer is defective, in not alleging, that the transaction was entered into with intent to evade the statute.

The rule which excludes parol evidence to contradict or vary the terms of a written instrument, applies to the construction of it only as a valid subsisting contract: but a party might always show that the instrument was void, either by reason of fraud, want of consideration, or as contravening a statute, or some express rule of the common law, or as against public policy, and for other reasons.

So infancy, coverture, or insanity may, when pleaded, be shown by parol, to avoid a written agreement.

That the answer should have alleged that the contract was entered into with intent to evade the statute, cannot be necessary, if the intent was, to do what the statute forbids, and such intent is sufficiently averred.

When the intent is to do what the statute prohibits, the adoption of a form of contract which is good on its face, necessarily shows an intent to evade the statute.

We think the averment of intent, in the present case, alleged distinctly to be that of both parties, and mutual, is sufficiently made. It is an averment of a material fact, and, therefore, admitted by the demurrer.

The question, then, is, whether the agreement thus read is within the statute against gaming, &c., and void. The Court of Common Pleas in England, in Grizewood v. Blane, 20 Eng. L. and Eq. R. 290, held, that a contract for the sale and delivery of certain railway shares, at a certain price, on a future day, was, on the finding of the jury, that it was the intention of neither party actually to buy or sell, a gambling transaction, within the statute, 8 and 9 Vict. ch. 109; by which it is enacted that “ all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void.”

Williams Justice said “there was ample evidence of a mutual understanding between the plaintiff and defendant that the contract of sale was colorable only, and if so, the transaction was avoided by the statute.”

The whole case turned on the question of the intention of the parties, as a question of fact, and the case, at the trial, was put to the jury distinctly upon that issue. Apart from that, the contract could not, it would seem, have been impeached.

In the case at bar, the intention, as admitted by the demurrer, is of equal force in its bearing upon the question in controversy, as would be a verdict on the point.

It was contended on the argument that the words in the English statute “ by way of wager,” give a broader application to it, than our own statute possesses; but to this I do not agree, nor do I see how the case of Grizewood v. Blane could have been otherwise decided, had the language of that statute been identical with our own.

The language of our own statute is fully as comprehensive, if not more so, than that of the English. It is, that, “ all wagers, bets, or stakes made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful,” and “all contracts for or on account of any money, or property, or thing in action, so wagered, bet, or staked, shall be void.”

It is much broader than our former statute, entitled “ An Act to prevent horseracing:" 1 R. Laws 223, § 5. In respect to this former statute, Justice Van Ness, in Bunn v. Riker, 4 J. R. 426, expressed his wish that, the Court had been prepared to decide that that statute had made all wagers illegal. In that case, however, it was not necessary to decide upon the construction of the statute, as it was one of betting on the result of an election, which was held void at common law.

A wager is something hazarded on the issue of some uncertain event. A bet is a wager, though a wager is not necessarily a bet.

The statute was, evidently, intended to prohibit all that, class of agreements by which money was to be lost or won, according to the event of a mere future contingency; not hazards of buying or selling in ordinary trade in reference to a supposed future condition of the market, and by the result of which money might be lost or realized; but the putting at hazard, either a certain sum ascertained; as in the case of a bet, or a sum to be determined as to its amount by the event on which its loss or gain is to depend; as in the case of an agreement to pay mere differences. The sole inducement to such an agreement, is the hope of winning that sum in the turn of the wheel of chance. It has no respect to trade, other than as an element entering into the combinations which are to affect the event, neither has it any respect to the exercise of that honest judgment in respect to the future, and that wholesome industry in the pursuit of one’s lawful business, which it is the policy of the law to encourage; but it is simply and purely a betting or staking of money on the event of a mere uncertainty, and has all the elements of a pure game of chance. Such agreements are fraught with all the evils against which the statute in question was intended to guard, and when the Court perceives that the real nature of the transaction, however unobjectionable in the form in which the parties may have seen fit to clothe it, is to do that which comes within the prohibition of the statute, it will, and as long as the statute stands on-our books, ought to look beyond the letter of the contract and refuse its aid to its enforcement.

That the statute in question was thought, by the Legislature which enacted it, comprehensive enough to embrace all contracts in which the gain or loss was intended to be dependent on an uncertainty, is evident from § 10, which, expressly, excepts from its operation, contracts of insurance, when made in good faith, and for the security or indemnity of the party insured.

A wager policy, or a policy in which the insured has no interest, and which is in effect a mere betting on the chances of a ship’s safe arrival, was, before this statute, held to be a valid contract; but the Legislature, apprehensive that the generality of the terms used in § 8, might embrace honest transactions of insurance, as well as those which were of a mere gambling description, expressly provided as above, by § 10, that insurances which were of a bona fide character, and intended as actual contracts of indemnity, should not be affected by the statute.

It is said the present transaction is analogous to that of buying and selling stocks, of which the vendor has not the possession or title, &c., and that, as the Legislature has expressly forbidden the latter, it is to be presumed, that transactions like this, were not intended to be prohibited by the act against gaming.

This maybe a true inference, so far as the contract of sale and purchase, expressed by the agreement, is concerned. On its face the contract is valid, and not within the statute. There is no statute forbidding the buying or selling of property (other than stocks) at a future time, merely because the party has not the possession or ownership of it at the time; but it does not follow that, when the contract assumes the character of a wager, it does not fall within the prohibition of the statute.

It may be said that § 7 of the Stock Jobbing Act, which expressly declares that wagers concerning the present or future price of stocks, shall be void, was useless, if section 8, of the Gaming Act, was as broad in its meaning as I contend for.

To this, it is an answer to say that, in the Stock Jobbing Act, the Legislature was dealing with a single distinct mischief, and not only making void, contracts in respect to this species of property, which it did not intend to avoid in respect to any other, but providing by way of remedy, that any money paid by way of premium or difference in respect to such contract," or in pursuance of a wager, as to the present or future price of. stocks, might be recovered back. There was a propriety, therefore, in making a special enactment as to such wagers; and the Legislature may well have supposed, that in respect to all others, they were already sufficiently prohibited by section 8 of the Gaming Act.

It is impossible to read the present transaction in the light, of this answer, other than as a contract to stake a certain sum, to be ascertained by the event, on the chance of an unknown contingent event—that it had no respect to trade—that it is of the precise character with that of a betting on an election, or on any other uncertain event—that it is fraught with the very mischief which the Statute was intended to extirpate, and is, therefore, within its spirit and meaning—that it is in effect a wager, and, therefore, void.

Judgment at Special Term affirmed.


author: By the Court.

text:
    Gustavus A. Conover and John J. Conover, v. Ann Cornelia Hoffman.
    A general power to sell real estate given by will to the executors, as such, and not by their names as individuals, is not revoked by the refusal of one of them to act, but survives to, and vests in those who qualify.
    Such a power is not revoked by a codicil devising the estate to the executors in trust to make an equal division thereof among the children of the testator and their heirs. When there are no express words of revocation, the provisions in a codicil are never construed as revoking those of the will, unless they are so entirely repugnant that, to give effect to those in the codicil, those in the will must wholly fail.
    There is no such repugnancy between a power to sell and a trust or power to divide. A general power to sell given to executors, includes an authority to sell for the payment of debts; and to the execution of such a power, the rights of devisees and heirs have always been held subordinate; and the power previously given can no more be taken away by a direction to divide the estate than by a devise of the estate itself.
    When the power exists for any purpose, a iond fide purchaser is protected, no matter for what purpose the power is in fact exercised. A power to sell, and a power to divide, are so far from being incompatible, that the exercise of the former may be necessary to the proper execution of the latter; tk'at is, a sale may be necessary to enable the trustees of the power to make a just and equal division.

      Beld, in the principal case, that a purchaser from -the executors acquired a valid title, disentangled from any trust, and freed from any limitations, ¡created by the will.
    Judgment at spedial term affirmed with costs.
    (Before Boswobth & Slossoüt, J.J.)
    Heard, March 2;
    decided, May 16.
    This action was brought to compel the specific execution of a contract relative to the purchase and conveyance of real estate. The contract is set forth in the complaint, and admitted in the answer, and the defendant, as purchaser, refused to perform it, on the ground that a good title could not be given by the plaintiffs. The cause was referred to Murray Hoffman, Jun., to take the testimony and report the same, with his opinion thereon. The referee, in January, 1857, made a report, stating all the material facts of the case, and his conclusions of law therefrom. His report and opinion are in these words:—
    “ To the Judges of the Superior Court:
    “ The subscriber, to whom it was referred by an order of this Court, made on the seventh of May, 1856, to take testimony as to the validity of the plaintiffs’ title to the lands and premises described in the complaint, which are the subject of this action, and to report such testimony with his opinion thereon, reports that he has been attended by the attorneys of the plaintiffs and defendant, and has taken the testimony hereto annexed.
    “ The following opinion thereon is submitted.
    " This action was commenced on the fourth of April last, to enforce the specific performance of a contract.
    “ The complaint states that on the 26th of January, 1856, the plaintiffs entered into a contract therein set forth with the defendant, to sell to her the house and lot known as number 41 West Eighteenth street, in the city of Mew York, and on the first of April ensuing tendered to her a warranty deed, properly executed and acknowledged as required by the contract,, and demanded of her payment of the purchase money in accordance with its terms.
    “ The complaint avers that the plaintiffs have good title to the premises, free and clear from all incumbrances, and have complied with every stipulation of the said contract, but that the defendant refuses to comply with or perform the same.
    “ The answer acknowledges the contract as stated in the complaint, and that the defendant declined to receive a warranty deed in due form tendered to her, on the ground of defective title, which defect is therein stated as follows:
    “ That the title to the premises was in one James R. Smith at the time of his death, but that said Smith left a will and codicil thereto, making such dispositions of his estate that Ms executors had not the power to convey Ms real estate in fee, and make good the title thereto. That they, or some of them, made a deed to one Robert Dyson, of the premises in question, on or about the 26th of December, 1829, (through whom the plaintiffs claim;) that such conveyance was not a valid conveyance, but was made to avoid the restrictions in the codicil to the said will, and not bond fide or legal in any respect.
    “ The question thus presented for examination is, whether the premises in controversy, the title to which is admitted to have been in James R. Smith, from whom the plaintiffs claim, have been duly conveyed to them, so that they have valid title thereto.
    “ James R. Smith died in 1817.
    “ His will was made on the 23d day of January, 1817, and was" duly admitted to probate by the Surrogate of the City and County of Hew York. It is as follows:
    “First.—I desire that my body may be decently interred in the discretion of my executors.
    “Second.—I do hereby authorize my executors, hereinafter named and appointed, and the survivor and survivors of them, or such other person or persons who may lawfully obtain the right to execute this my will, in their discretion, to sell in fee simple or otherwise, according to the nature of the estate I may hold at the time of my decease, at public auction, or at private sale, the whole or any part of my said estate, real or personal, and to execute and deliver good and sufficient deeds or conveyances in the law for the same to the purchaser or purchasers thereof, his or their assigns for ever.
    “ Third.—Out of the proceeds of my said estate, after deducting all costs, charges, and expenses that my said executors may sustain, or may be put unto, my desire is that my said executors do pay, as soon as conveniently may be, all my just debts, funeral charges and expenses; and the residue of my estate, unless the same, or any part thereof, shall be otherwise disposed of by codicil or codicils to this my last will and testament, I mean shall be distributed according to the laws of the state of Hew York, in the same manner as in case I had happened to die intestate.
    “ Lastly.—I do hereby nominate, constitute and appoint Andrew Foster, John Thompson, James Boorman, my wife Hannah Smith, and Matthew St. Clair Clarke, executors of this my last will and testament.

      “ Of these executors, Andrew Foster neglected to take upon himself the execution of the will. John Thompson and Hannah Smith, the widow of the testator, being dead, the surviving executors, James Boorman and Matthew St. Clair Clarke, by a deed dated December 26th, 1829, sold and conveyed certain premises belonging to the estate of Smith, among which was the lot in question, to Robert Dyson. This conveyance recites that it was made in pursuance and by virtue of the powers of sale in the will, and purports to be made for a valuable. consideration paid by Robert Dyson. The son and three daughters of the testator, his only heirs-at-law, with the husbands of the daughters, joined in the deed ratifying and confirming the sale, and releasing all manner of right, title, and interest which any of them had in the premises.
    “Were these powers of sale properly executed and exercised in the conveyance to Dyson ? A conveyance by executors is not invalidated by the neglect or refusal of any one executor to act. (Laws of 1813, page 366.) Andrew Foster, who thus refused, is to be regarded as if not named in the will; and there is no doubt that powers thus given would continue to the survivors. The authority to sell was to his executors thereinafter named, and the survivor and survivors of them, or such other person or persons who may lawfully obtain the right to execute the will. It was given to them not by name, but in their capacity of executors. The law vests the right in the survivors. (Sugden on Powers, page 146, 4 Hill, 493.)
    The will itself continues it in them.
    As to the exercise of the power, the testimony of James Boor-man, one of the executors, (exhibit C) shows that at the time of the sale to Dyson, the estate consisted principally of vacant lots and unimproved lands, there being a claim against it of about $14,000, which there were no means of paying but by a sale. That the parties in interest under the will agreed upon a valuation of the property, and a portion was sold to Dyson at the valuation put upon it, and that such sale was fairly made, and for the full market value at the time.
    The will gives the right of disposing of the property at private sale.
    From a view of the will alone, and of the action of the executors under it, the conclusion is clear that all the interest of James R. Smith in the lot in question passed, by the conveyance to Robert Dyson.
    On the 30th of May, in the same year, the testator executed a codicil to his will, making some modifications of the dispositions of his property, which, it is contended, are repugnant to and revoke the authority to sell.
    The codicil sets out with a ratification of the will in the following terms:

      “I do hereby ratify and confirm my will in all respects, except so far as any part thereof may or shall be revoked or altered by this present codicil, and in addition to the powers granted in and to my said executors in relation to my said estate, I do now hereby authorize them to lease the same estate or any part thereof, except such as shall otherwise be disposed of in their discretion, and as They shall find the situation of my affairs require.”
    The only power given by the will being the authority to sell, we would naturally expect explicit words of revocation to withdraw powers so distinctly given and fully confirmed and enlarged; that such a sudden change of intention would be clearly and unmistakably manifested. Ho such implication will arise from any disposition in a subsequent part of the codicil which can be carried into effect consistently with the exercise of these powers, and can be reconciled with them.
    “ In examining the codicil, it is considered in the connection with the will, and the two treated as one instrument, and the intent of the testator is to be gathered from the whole; the codicil being no revocation of the will further than such revocation is particularly expressed.”

      Westcott v. Cady, 5 Johns. Chy. R. 343. Hone v. Van Schaick, 3 Barb. Ch. R. 488, Williams’ Exrs., page 8.
    The provisions of the codicil, so far as it is necessary to recite the same, are as follows:
    To the widow is given a portion of the testator’s real estate for life, with the right to devise the same to his children, and to sell the same with the consent of the executors, except the homestead, and to enjoy the proceeds for her life; the executors are directed to invest and pay her the income of twenty-five thousand dollars during her life. They are then further directed to convey other portions of his real estate to certain named devisees, and to sell specified parts for the purpose of raising annuities for the objects mentioned. After making bequests, requiring about $7,00(3, the testator proceeds as follows: “All the rest, residue and remainder of my estate, of every kind and nature whatsoever, and wheresoever situate, I give, devise and bequeath unto my said executors, in trust that the same shall be equally divided among my four children, share and share alike, and to their respective heirs. My will further is, that my son James and my daughter Elizabeth shall each have the sum of fifteen hundred dollars set apart by my said executors for their support and maintenance until they arrive at the age of twenty-one ; and if that sum shall not be found sufficient, my executors shall take such further sum from their respective shares of my estate as shall be necessary, and I do hereby give the tuition, care and guardianship of my said son James and my daughter Elizabeth to my said wife. My will further is, that my son James shall not come into the full possession and enjoyment of Ms portion of my estate, until he shall arrive at the age of twenty-five years, nor shall he have the power to pawn, pledge, mortgage or dispose of in any way, the same or any part thereof, before the expiration of that time, but shall be entitled to receive the income arising from his portion between the ages of twenty-one and twenty-five. I further direct, that my daughters Janet, Hannah and Elizabeth, if she should arrive at the age of twenty-one, shall have the privilege of expending and appropriating by and with the consent of the executors, one-third part of their portion of my estate herein devised to them, in such manner as they may think proper, and over which, when so appropriated, they shall have absolute control; and the remaining two-thirds of the portions or shares of my daughters, shall be held separate and distinct, and not liable to the control, debts or engagements of either of their husbands which they now have or may hereafter have, as well those who are married as she who may hereafter marry, giving, however, to the husbands of either or all of them, in case the wife shall die first, either with or without issue, the income of said reserved part of my estate as long as he shall Eve, arising from his wife’s portion, and after Ms death then to the child or children of my said daughter so dying; and if either of my daughters shall die without lawful issue, or having issue which shall not attain the age of twenty-one years and without issue, then the share or portion of my said daughter, after the death of her husband, or if there be no husband living at her death, shall go and be divided among my other children, share and share alike, and to their issue in case of the death of either of them, share and share alike, such issue to take the portion that would have belonged to his, her, or their father or mother.”
    The foregoing are the chief provisions of the codicil. If there has been a revocation of the powers of sale, it must arise from this disposition of the residue and remainder, there being no express revocation and no other clause affording the least ground for inferring such an intent. Is this such a disposition of the estate by the testator that, (as stated by the answer), the executors had not the power to convey his real estate in fee and make good title thereto ?
    The natural signification of the language used does not lead to this conclusion.
    The will gives the authority to sell the whole or any part of the estate; the codicil ratifies and confirms the will, except so far as the same, or any part thereof, may or shall be revoked or altered thereby, and adds to the authority the right to lease also the estate or any part thereof, except such as shall be otherwise disposed of in their discretion, and as they shall find the situation of his affairs require.
    In a subsequent part of the instrument there are specific devises of certain portions of the estate, not including the lot in question, which, so far as those portions are concerned, revokes the authority and gives effect to the exception. To suppose that the testator, after renewing and extending the powers of sale over the estate, had in the same breath rendered them nugatory by otherwise disposing of the whole estate, would be a forced and unreasonable construction, while to confine the meaning of the expression “ otherwise disposed of” to those devises, would be in accordance with the principle of attempting to give effect to all the expressions and provisions of an instrument and of seeking to reconcile apparently conflicting ones.
    It is a sound rule that the dispositions of a will are not to be disturbed by a codicil further than is absolutely necessary to give it effect. (Kane v. Astor, 5 Sandford, 467.) The former interpretation would be substantially a revocation of the whole will thus ratified and confirmed, for the only object left for keeping it alive, would be the nomination of executors.
    The supposition most naturally arising from the phraseology of the disposition is, that the testator expected the residue and remainder of his estate to be a mixed fund, consisting of the real estate not disposed of by him specifically, and not sold by the executors, together with the proceeds of real estate sold by them in their discretion, and not needed for the legacies and annuities, and that these he meant to blend together for the purpose of division as the whole estate, except specified portions, had been for the general purposes of payment of debts, legacies and other charges.
    Where the words of a will, says the Chancellor in the case of Covenhoven v. Shuler, 2 Paige, 122, are capable of a twofold construction, that should be adopted most consistent with the intention as ascertained by the other provisions of the will.
    The exercise of the authority to sell as might be for the interest of the estate, is not only not inconsistent with the directions for the division of the residue into shares, but, from the testimony of Mr. Boorman, it would appear to have been necessary to carry it into effect, nor would the sale interfere with the limitations on those shares. The interests of the immediate, and the contingent rights of the executory devisees could be preserved for them more beneficially in this shape.
    Throughout the codicil there are intimations of reliance on the discretion of the executors, and of continued confidence reposed in them. The widow is allowed, with their consent, to convert the real estate devised to her into money: each daughter, with their consent, is to have the one-third part of her share, and they are empowered to take such proportion of the shares of the two younger children as they may think necessary to support and educate them.
    They are entrusted with the proceeds of portions of his real estate directed to be sold, and other sums of money, the income of which they are to devote to the purposes mentioned by the testator, and which, in the contingencies specified by him, are to become part of his residuary estate.
    There is no strong inference arising from the greater security of real estate, of an intention that the trust should attach to the land. The testator has shown in other dispositions, his confidence in the judgment «and integrity of the executors. If the devisees should lose by any change made in the estate by them, it would be because the testator has chosen to bestow it in the shape the executors might impress upon it, apparently preferring to incur what he must have considered a slight risk, for the sake of having lodged somewhere powers so advantageous in the management of the estate.
    From an examination of the other provision of the codicil, in connection with the situation of the testator’s family, and condition of his estate, additional evidence is derived of an intention to continue this authority in the executors. (Irving v. DeKay, 9 Paige, 521; Wolfe v. Van Nostrand, 2 Comstock, 436.)
    The estate was chiefly real, consisting principally of vacant lots and unimproved lands: it was largely in debt, and the testator gives annuities and legacies requiring from thirty to forty thousand dollars. These debts and bequests were a charge upon the real estate (Bench v. Byles, 4 Maddocks, 187) to pay which it would be necessary to make sales, and from the necessity would naturally be inferred the gift of the power.
    Without a sale of part of the property, his daughters, who may be presumed to be the direct objects of his bounty, and for whose maintenance and support he would be most anxious to provide, might not receive any benefit from a gift of this nature; for their shares, thus tied up, and in unproductive property, would either not vest in them at all pr only on the happening of a contingency which might not" occur for a long period of time.
    The division of such an estate into shares, and the subdivision of those shares, would be greatly facilitated by its conversion into money, or by creating from sales a fond out of which to provide for equality of partition.
    The expressions used by the testator in denying to his son till twenty-five years of age, the power to pawn, pledge or mortgage his share, and in giving to the daughters the privilege of expending and appropriating a third part of theirs, and the directions given as to holding the daughters’ shares so as not to be liable to the control, debts or engagements of their husbands, show that he must have expected his executors would sell part of his estate, it being almost entirely real.
    If it were a question of doubtfully conferred powers, the language of the will and codicil, the dispositions made by them, and the condition of the estate, are such as to strongly imply that the powers of sale were intended to be granted. The supposition becomes much stronger where the authority has been distinctly and clearly given; and not only is there no express revocation, or even intimation of a change of the testator’s purpose, but the other provisions are such as to indicate the wish to continue it, and the only disposition from which a revocation can be implied as being repugnant to the authority, can be best carried out without conflicting with it or defeating testator’s intentions.
    The position that the devise of the residue and remainder, and the limitations thereon, is repugnant to the powers of sale, and that the former, as expressing the'latest intention, is to prevail, is untenable.
    To render a subsequent provision repugnant to a previous one, the last must be entirely incompatible with the first; so that if effect be given to the last, the other must entirely fail. (Sweet v. Chase, 2 Comstock, 73.) Such, as has been seen, is not the case here: even if it were, the general intent distinctly manifested is to be carried out at the expense of the special intent.
    4 Kent’s Com. p. 597 and notes; Bradley v. Amidon, 10 Paige, 235; Covenhoven v. Shuler, 2 Paige, 122.
    If it be considered as established that the testator meant to subject the whole estate, except the land specifically given to devisees, to the control of the executors, so as to enable them to make sales for the purpose of paying debts and legacies, and of dividing the residue into shares, it would follow that the premises sold by them would be extricated from the trust; and it being undeterminable in whom the interest in the proceeds might eventually rest, to render the sales effectual they must have authority to give full receipts discharging the purchasers.
    At the time the sale was made, as stated by Mr. Boorman,

      “The assets of the estate were resolved almost or entirely into real estate, subject to a claim thereon by the estate of the widow Hannah of about $14,000. That no means existed of paying off the said claim but by a sale of portions of such real estate, nor of ascertaining the value of the residue in order to apportion it into shares in accordance with the provisions of the will of the testator, but by a sale of the whole of the same. That a portion thereof was sold to Robert Dyson, and the parties in interest became purchasers of the residue according to their respective claims on the estate.” '
    The executors were authorized to sell in their discretion, and as they should find the situation of his affairs required. If they, as appears to be the case, considered it requisite to sell for the purposes of division, under the principle of the cases of Haxtun v. Corse, 2 Barbour, 506; Drake v. Pell, 3 Edwards, 251; Arnold v. Gilbert, 5 Barbour S. C. R. 190—“that where conversion is necessary to carry out the testator’s wish and prevent injustice, sales, as far as made, worked a conversion,” the real estate sold by them would be converted into personal estate, and the distributees, when entitled, would take their shares in the proceeds of the sales as if these shares had been left to them as money.
    To these proceeds in the hands of the executors the trust for their benefit would attach, and to them alone must the parties in interest look.
    The sale to Dyson to discharge the indebtedness to the estate of the widow, the executors clearly had the right to make.
    The debts, legacies, and annuities being a charge upon the real estate, would have to be provided for and discharged before the residue and remainder could be determined and divided.
    In the case of Bradhurst v. Bradhurst, 1st Paige, p. 331, a testator, after giving his real and personal estate to executors in trust to and for the uses and purposes mentioned in the will, disposed of portions of his real estate, and then directed them to pay certain annuities, and all the rest, residue, and remainder of his real estate he gave to his grandchildren, at twenty-.one, The income of the estate was insufficient to pay all the annul: ties, and it was held that the executors were authorized to sell such part of the estate as would enable them to raise a sufficient sum to purchase the annuities. In that case the whole estate was given in trust for the purposes of the will, but the testator has in substance done the same thing in the present instance, for a charge is in effect a devise pro tanto to pay the debts and legacies. (2 Story’s Equity Jurisprudence, § 1131 and notes.) The separation of the real estate from the personal in the gift of the residue, in that case, makes it a much stronger authority in favor of the existence of the power in this.
    The power to sell for this purpose must include the right to discharge the purchaser from looking after the application of the purchase-money. Each successive purchaser of the lot in ques- ' tion could not be expected to inquire whether more of the real estate had been sold than was requisite to pay the indebtedness, or if the proceeds of that particular lot had been devoted to that purpose. (Story Equity Jur. § 1131.)
    The question has been raised as to the validity of the limitations on the shares of the daughters, whether they are not too remote as depending on an indefinite failure of issue. If they were determined to be illegal, the conveyance of the four children of the testator and the husbands of the daughters uniting with the executors would undoubtedly vest the whole estate in the purchaser; but the title, as based upon the right of the executors to sell, appears from a general survey, of the will and codicil to be so fortified and unassailable that it seems unnecessary to seek to strengthen it further, by attacking them. They can stand without conflicting with it.
    The conclusion arrived at is, that the codicil has not revoked the powers of sale given by the will; that such powers were properly exercised in the sale of the lot in question to Robert Dyson; and that by their conveyance all the right, title, and interest of James R. Smith, in and to the said premises, were vested in Dyson, who held them disentangled from any trust and unembarrassed by any limitations.
    Robert Dyson conveyed this lot with others to Matthew Saint Clair Clarke, one of the executors, and his wife, one of the daughters of the testator, by a clear, absolute conveyance, purporting to be for a good consideration paid by them. The parties to whom they conveyed took from them, not as devisees but as purchasers from Dyson, and cannot be charged with notice of any restriction. Each deed forming a link in the chain of title is an absolute conveyance and for valuable consideration, containing no suggestion of any cloud or embarrassment thereon; and by a succession of these, it has come into the hands of the plaintiffs.
    The answer of the defendant admits the title to have been in James R. Smith at his death. The Register’s searches hereto annexed show that there were no incumbrances on the premises at the commencement of this action.
    My opinion therefore is, that the plaintiffs have a valid title thereto.
    Ail which, &c.
    January 12, 1857,
    ‘‘M. Hoffman, Jun.”
    Upon the coming in of this Report, the action was heard at' Special Term in February, 1857. Mr. J. Duer, before whom it was heard, gave judgment as follows:

      “ This cause came on to be heard upon the complaint, answer, order of reference and opinion of the Referee appointed in the action; and after hearing Mr. Edwards Pierrepont, of counsel for the plaintiffs, and Mr. Edward Hoffman, of counsel for the defendant, and due deliberation being had by the Court:
    It is ordered and adjudged, that the defendant perform specf fically her contract set forth in the complaint and admitted by the answer. That she receive and accept the deed tendered by the plaintiffs of the premises in question; and that she pay unto the plaintiffs the sum of twelve thousand dollars, with interest from the first day of April, 1856. That she execute and deliver to the plaintiffs her bond, secured by mortgage upon the said premises, payable as in the said contract specified, to wit: one thousand dollars on the first day of April, 1857; one thousand dollars on the first day of April, 1858; and twelve hundred and fifty dollars on the first day of April, 1859; with interest on said several sums until paid, to be computed from the first day of April, 1856, and payable half yearly; said mortgage to be a subsequent lien to a mortgage for ten thousand dollars, to be executed by the said defendant.
    And it is farther ordered and adjudged; that the defendant pay the costs of this action, taxed with allowance at $326 18, unto the plaintiffs.”

      From this judgment the defendant appealed to the General Term.

      E. Hoffman, for the defendant.

      Edwards Pierrepont, for the plaintiff.
   By the Court.

We are entirely satisfied with the Report of the Referee in this ease, and with the reasons that he has so folly and ably given in support of his decision. We observe, in addition, that, so far from there being any incompatibility between a power to sell and a power to divide, the exercise of the former may, frequently, be necessary to that of the latter, that is; a sale of portions of the estate may be necessary to enable the trustees of the power to make a just and equal division of the whole, and hence, when a power to sell is not expressly given, its existence, as incidental to that of a division, may reasonably be implied.


author: By the Court. Woodruff, J.

text:
    Charles D. Fredericks and others v. Constant Mayer and another.
    -Whether an injunction may rightfully be issued to restrain a defendant from working, pendente lite, for any other person than the plaintiff, in violation of a contract with the plaintiff, is, upon-the authorities, a doubtful question, but the precedents in this State seem to be against the exercise of the power. Admitting, however, that the power of granting such an injunction, pendente lite, exists, it is certain that its exercise must, in many cases, be a harsh and oppressive proceeding, since it may deprive the defendant of his only means of gaining a subsistence or of supporting his family during the continuance of a litigation that may last for months or years.
    There are certain rules that ought to govern a Court of Equity in the exercise of its summary, and in a degree arbitrary, power of granting injunctions, and these rules forbid the exercise of the power where it will operate oppressively or work an immediate injury, or when the right of the plaintiff is doubtful, or the facts are not clearly ascertained. An injunction should not be issued unless the right is clear, and it will not be awarded in doubtful cases, nor in new ones not coming within established principles.
    These views ought to govern the Court even upon a final hearing: Much more should they be deemed controlling when the application is for an injunction pendente lite, and the grounds of the application are controverted and the facts are involved in serious doubt.

      Seld, that the plaintiff, upon the papers before the Court, had failed to establish a case that could warrant the issuing of an injunction in the present stage of the action. Neither the right, nor the facts upon which he relied, were clearly established.
    Order denying injunction affirmed with costs.
    (Before Düeb, Boswobth, Hoepmau and Woodbubt, J.J.)
    Heard, May 9;
    decided, May 16, 1857.
    This action comes before the Court, at General Term, on an appeal by the plaintiffs from an order made on the 9th of March, 1857, by Mr. Justice Hoffman, dissolving a temporary injunction, and denying a motion for its continuance pendente lite.

    The following are the material facts of the case, as collected from the pleadings and the affidavits of the parties.
    The bill of complaint was filed to restrain the defendant, Mayer, from painting photographic likenesses, &c., for any person or persons other than the plaintiffs, and to recover damages for his alleged breach of contract with the plaintiffs to work for them.
    It alleges that the plaintiffs are partners, carrying on business together as photographists in Paris, under the firm name of Fredericks, Penebert & Le Blanc, and in the city of New York, under the name of Charles D. Fredericks, and that as such copartners they entered into a contract with the defendant, Mayer, on the 2d day of June, 1855, at the city of Paris, whereby they agreed to pay his expenses to New York, and to employ him there for the term of three years, at a salary named, and that he agreed to work as an artist, painting, &c., “ for the house of New York,” and “not to work for any other house or person during the term of the contract, excepting Fredericks, Penebert & Le Blanc,” and that he would proceed to New York, and place him? self at the disposition of Mr. Fredericks for the said term of three years.
    That the defendant, Mayer, in pursuance of the said contract, came to New York and entered into the service of the plaintiffs, and remained in their service, under the direction of the said Fredericks, until about the first of September, 1856, when he left their service and entered into the service of the defendant, Gurney, for whom he is now performing similar work, &c., and that the defendant, Gurney, when Mayer went into Ms employ, knew of the existence of the contract between the plaintiffs and Mayer.
    The defendant, Mayer, by affidavit, admits the making of the contract, but denies that it was performed on the part of the plaintiffs, or that he, in fact, ever entered into their service; on the contrary, he states that on his arrival in Mew York he found that he had been deceived,—that he then found that the plaintiffs had no “house” in this city, and that said firm had no existence here—but that the defendant, Fredericks, had previously entered into partnership with the defendant, Gurney, under the name of Fredericks & Gurney, who were carrying on the business, and that he would not have left Paris but for his reliance upon the representations and his belief that the plaintiffs had an established house in Mew York,—that being wholly dependent upon his profession for support, and his family and parents dependent upon him, and the plaintiffs not employing, nor offering to employ him, he entered into the employ of the firm of Gurney & Fredericks, and continued to work for them (for upwards of one year) until their partnership was dissolved, about the 1st of August, 1856, and received his salary solely from them.
    That after the dissolution of the firm of Gurney & Fredericks, he entered into an agreement with Gurney to work for him, and is satisfied of the ability of Gurney to pay Ms salary, which it is absolutely necessary that he should receive regularly for the support of himself and his parents, and that he does not feel satisfied of the solvency of the said Fredericks.
    The defendant, Gurney, by Ms affidavit, states that eighteen months prior to the contract with Mayer he entered into partnership with Fredericks, and that the other plaintiffs were not engaged in business with him.
    That he advanced to Fredericks, for the use of the firm, five hundred dollars, on Fredericks’ representation that that sum was necessary, to be deposited in Paris, as security, to engage artists for the partnership to color photographs, and also advanced the money to pay the artists’ expenses to this country, and that Mayer, and other artists came to this country and entered into the employment of the firm of Gurney & Fredericks, and that he supposed the contracts were made with them in the name of the firm of Gurney & Fredericks, but the contracts being in French he could not read them, and, in fact, he says he did not see them till shortly before the dissolution of that firm-.
    That the plaintiffs never had any place of business in Hew York until after such dissolution; That Fredericks was bound by their agreement of co-partnership to give his undivided attention to the business of their firm, and he avers that the contracts in question were drawn wrongfully, and with intent to defraud him, in the name of the plaintiffs; that Mayer was, in fact, always in the employ of Gurney & Fredericks, who paid his expenses to this country, and his salary.
    Both Mayer and Gurney also refer to an agreement, or consent, signed by Gurney and by Fredericks, giving Mayer permission to go to Philadelphia (where he worked for the firm of Fredericks, Penebert & Germon), to return whenever they, Gurney & Fredericks, should desire it, and stipulating that “the contract between Mr. Mayer and ourselves will not be affected by this absence.” Under this permission Mayer was absent about one month.
    The plaintiff, Fredericks, to repel these affidavits, states that the plaintiffs, Fredericks, Penebert & Le Blanc, never had any connection with Gurney, nor were co-partners with him, but that as between him and Penebert and Le Blanc he accounted for one-half of his share of the profits of the business of Gurney & Fredericks; He does not allege that the plaintiffs, in any other manner, had any house or place of business in Hew York.
    He does not deny that the money was advanced, as stated by the defendant, Gurney, and that the artists entered into the employment of the firm of Gurney & Fredericks, and continued in their employment until the dissolution of that firm.
    Various other facts of minor importance are stated in the affidavits of the parties, and other affidavits read on the motion, and in many particulars there is direct conflict between the affidavits produced, and particularly upon the question whether Gurney knew, during the continuance of the partnership, and when the artists entered into their employment, in whose names the contracts were drawn; and as against the defendant, Gurney, the plaintiff, Fredericks, insists that he was to produce the artists and allow them to work for Gurney & Fredericks, while they continued together, and that, having the disposal of them himself, he has a right to retain them in his own service.

      A. R. Dyett, for plaintiffs,
    relied principally on Lumley v. Wagner¡ 13 Eng. L. & Eq. R. 252.

      F. Howland, for defendants,
    cited the cases in our own Courts, 4 Paige, 264. 2 Edw. Oh. R. 529; 1 Barb. S. C R. 315 as proving that the Court had no power to grant an injunction.
   By the Court. Woodruff, J.

The question argued at some length before us on this appeal is, whether the Court will interfere by injunction to restrain a breach of a contract for personal services of the description mentioned in the complaint.

Although it is conceded that the Court cannot, by its decree, compel an artist to employ his skill in his art for the plaintiffs’ benefit, it is nevertheless insisted, that where the contracting artist has agreed that he will not work for any other person, the Court will do all that it can to enforce performance by enjoining the artist not to work for any other than the plaintiffs. Various authorities are referred to, as showing the validity of such an agreement, and in support of the authority and duty of the Court to interfere by injunction. The case of Lumley v. Wagner, (1 De Gex, McNaughten & Gordon, 604; 13 Law & Eq. R. 252,) is mainly relied upon, with the cases therein cited.

On the other hand, it is insisted that an injunction should not issue to restrain a defendant from rendering services to another, when it is clear that the court cannot, by its decree, compel a performance of the affirmative covenant to work for the plaintiffs. That the injunction is only granted as auxiliary to the execution of the decree, and where the decree can itself be enforced; and that the Court will not attempt to compel the specific performance of an agreement to render personal services, but will leave the party; complaining of a breach, to his remedy at law. And to these points, Morris v. Coleman (18 Ves. 437), Clarke v. Price (2 Wils. Ch’y R. 157), Kemble v. Kean (6 Sim. R. 333), and Baldwin v. Soc. for Diffusing Useful Knowledge (9 Sim. R. 393)—in England: and De Rivafinoli v. Corsetti (9 Paige, 264), Hamblin v. Dinneford (2 Edw. Ch. R. 529, and Sanquirico v. Benedetti (1 Barb. S. C. R. 315)—in this State, are cited.

Although the precedents in this State, so often as the question has arisen here, seem to be against the plaintiff, we do not think it necessary, and it is therefore, in this stage of the cause, perhaps improper to decide this question.

The appeal may be disposed of upon the grounds which appear in substance to have governed the decision of the motion at the Special Term.

The motion is for an injunction pendente lite. It is a harsh and, may be, an oppressive exercise of the power of the Court, operating to deprive the defendant of the means of gaining a subsistence, and of the ability to support his family, while the litigation is going on, which may continue many months, and in a case in which the right of the plaintiffs is denied.

The frequency of applications for injunctions, pendente lite, and, I may add, the facility with which they are obtained, may properly induce us to recur to some familiar rules which ought to govern the Court in the exercise of its summary and, in a degree, arbitrary power; it should be guarded by a most cautious discretion, forbidding its exercise when it will operate oppressively or work immediate injury, or where the right of the plaintiff is doubtful, or the facts are not clearly ascertained. It has been well said, that “ there is no power, the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or is more dangerous in a doubtful case, than the issuing of an injunction. It is the strong arm of Equity, which ought never to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, * * * and it will not be awarded in doubtful cases, nor in new ones not coming within well-established principles.” (Mr. Justice Baldwin in 1 Bald. Cir. Ct. R. 218; note to 2 Story’s Eq. Jur. § 959 b.)

These views should govern the Court on a final hearing, and with all the proofs necessary to a final decree before them. Much more should they control us on an application for an injunction pendente lite, while the grounds of the application are controverted, and the facts involved in serious doubt. Even in the case relied upon by the plaintiffs’ counsel it will be seen, by a recurrence to the case then before the Court, it Was deemed that there was no doubt of the rights of the parties upon the evidence.

However, then, the present case may hereafter appear, when the proofs shall be produced upon the trial, and whether the Court may or may not be brought to conclude that an injunction may be issued to restrain the breach of the defendant’s covenant not to work for any other than the plaintiffs, it must suffice for the purposes of this appeal to say, that the papers before us do not establish such a case as warrants the granting of this summary and harsh remedy in the present stage of the action. Neither the right nor the facts are clearly established in the plaintiffs’ favor.

Without entering into any minute detail in regard to the various matters wherein the affidavits are conflicting) we think that if the balance of evidence does not establish, it creates a strong probability, that the contract with Mayer was itself a fraud upon him, in holding out that the plaintiffs had a house or firm in New York, and were carrying on business here, and that he was to have employment with them in such firm, when, in fact, no such firm existed here, and Fredericks was already in partnership here with another, (the defendant, Gurney,) and therefore that the agreement did not bind Mayer at all. And if it be suggested, that, by the contract, Mayer placed himself at the disposal of the plaintiff Fredericks, the answer is furnished by the contract itself which limits that disposal to working for the plaintiffs’ house in New York. And if the acts of the parties, Fredericks and Mayer, may be regarded as showing that working for Gurney and Fredericks was within the purview of the contract, as mutually understood and intended, it is answered, plausibly, at least, that Gurney & Fredericks, being the only house in New York in which either of the plaintiffs had any interest, placing the defendant, Mayer, with them, maybe regarded as a practical exposition of the contract, designating that house as the house in New York for whom he was to work in New York; and therefore, that upon the dissolution of that firm, the obligation ceased, because he could work for them no longer. This exposition of the contract finds strong support in the paper signed by Fredericks himself, in which the contract is distinctly recognised as a contract between Mayer and Gurney & Fredericks, very clearly indicating, that, whether in their names or not, it was a contract for their benefit.

The doubts in favor of the defendant, Gurney, are even greater. It is not denied that the "firm of Gurney & Fredericks existed long before the contracts with the artists were made; that Gurney advanced the five hundred dollars to secure the employment of the artists; that he paid their expenses to this country; that they entered into the employment of the firm and so continued until the dissolution, and were paid by the firm. Although there is contradiction on the subject, we are not satisfied that the making of these contracts with the artists, in other names than that of the firm, was with his knowledge or assent. H, in this respect, there was not a purposed deception, it at least appears that the contracts were for the benefit of the firm, and were so treated and so regarded, by both Fredericks and Gurney, until their interests became hostile, and Fredericks was about to establish a rival business. The inference from the papers before us is by no means slight nor feeble, that the whole enterprise of bringing the artists to this country originated with Gurney & Fredericks ; and, the whole advance being made by Gurney on their account, with the expenses resulting from the enterprise, that the engagement with the artists, as between Gurney and Fredericks, was for the sole benefit of that firm, and therefore subject to the usual incidents of a dissolution of the firm, in which case Fredericks could not equitably claim any exclusive interest in the contracts, or sole control over the employees.

I am aware that there are many statements, on the behalf of the plaintiffs, that are relied upon as weakening the inferences above intimated, and that there are many particulars in which there is a conflict of evidence; but the general result, in its influence upon our minds, is sufficiently indicated by what has been said. In this statement, it is not designed to say that these views, so favorable to the defendants, are decisively established. It is enough to say that upon the merits, the plaintiffs’ case is involved in great doubt, and, I may add, that the scale seems to incline in the defendants’ favor.

After what has been suggested, in regard to the propriety of granting an injunction under such circumstances, it only remains to add, that we think the discretion of the Court at special term was wisely exercised, and that the order appealed from must be affirmed.

Order affirmed;


text:
    A. Healy and J. Reddington, Executors of N. Gilman, deceased, v. W. W. Gilman.
    A bank check, in the hands of the drawer, paid by him, is not evidence, per se, of a debt due to him from the payee; but when it is shown that the Check was in fact lent to the payee, it may be read in evidence to prove the amount of the loan. A draft, in the hands of an acceptor, and paid by him, is not evidence of a debt due to him from the drawer; but on the contrary, the presumption of law is, that the draft was drawn against funds of the drawer, then in his hands. In order to charge the drawer of a bank check, it is not necessary to show presentment for payment and refusal, if it is proved that, at the time, he had no funds in the bank upon which the check was drawn. When an account has been rendered to a defendant which, on the trial, he refuses to produce, and which, it appears, was transcribed from the ledger of the plaintiffs, the account in the ledger is good secondary evidence. But when no reason is shown for not producing the ledger, a copy of the account taken from the ledger cannot be received, as it is plainly not the best secondary evidence which, the plaintiffs had it in their power, to give. The American eases have established that there are grades in secondary evidence, and the true rule deducible from them is, Undoubtedly, that laid down by Mr. GreenIieae; namely, “That, if from the nature of the case itself it is manifest that a more satisfactory kind of secondary evidence exists the parly will be required to produce it, but when the nature of the case does not disclose the existence of such better evidence, the objector must prove its existence, and must also prove that it was known to the other party in season to have been produced on the trial.”
    The referee in this cause, overruling the objection of the counsel for the defendant, had admitted in evidence a copy of an account, taken from a ledger, admitted to be in the possession of the plaintiffs, as proof of the contents of an account which, it was alleged, had been rendered to the defendant.

      &élct¡ that the evidence ought not to have been received, and that, for this error, the judgment upon the report of the referee must be reversed, and a new trial ordered. Costs to abide event.
    (Before Düer, Bosworth, and Siossoir, J. J.)
    Heard, March 9;
    decided, May 16, 1857.
    This action comes before the Court at General Term, on an appeal by the defendant from a Judgment at Special Term, entered upon the Report of a referee, in favor of the plaintiffs. The judgment, including costs, was for $24,709 78.
    The following is the report of the referee:
    To the Justices of the Superior Court of the City of New York:
    In pursuance of an order of this Honorable Court, made in the above entitled action, bearing date on the 3d day of November, 1855, by which it was ordered that the issues joined in this action be referred to me, the subscriber, to hear and decide the same, and report thereon to this Court, I, James Maurice, Referee as aforesaid, respectfully report:
    That I have been attended on the reference under the above recited order, at my office, No. 67 Wall Street, in the City of Hew York, by the counsel for the plaintiffs and defendant, respectively, and have heard and considered their proofs and allegations; I do further find and report the following facts:
    That Nathaniel Gilman and Nathaniel Gilman, Junior, were copartners in business, under the firm of Nathaniel Gilman and Son.
    That the partnership of Nathaniel Gilman and Son had various dealings and business transactions with the defendant, commencing on or about the tenth day of December, 1846, and continuing until on or about the thirtieth day of November, 1852.
    That the first transaction was a loan of the sum of six hundred dollars, on December 10th, 1846, by the firm to the defendant, and that ah the subsequent transactions (except a sale of leather, August 28, 1848, amounting to $34 91, by the firm to the defendant,) were loans or advances of money by the firm to the defendant, or for his use, at his request, and credits of sums received in various amounts, at different times, from the defendant or from the avails of negotiable paper transferred by him to the firm, or collections by the firm of amounts due on sales made by defendant, of leather, belonging to him.
    That the items composing these different credits are contained in the account current annexed to the complaint in this action, and that independently of the admissions in said complaint, no proof whatever in support of such credit items was produced to or made before me.
    That the debit items in said account current, (except balances for interest,) were established by proof, and the credit items, by the said admissions in the plaintiffs’ complaint.
    That Nathaniel Gilman, Junior, died on or about the 17th day of February, 1853, leaving a last will and testament, whereby he appointed the plaintiffs (and another person who did not qualify,) his executors; and that letters testamentary were granted to the plaintiffs on or about the 10th day of March, 1853.
    That an account current was rendered to the defendant by the said Nathaniel Gilman, as such surviving partner, in the' month of March or April, 1853; that the account so rendered, corresponded with the said account annexed to the plaintiffs’ complaint, except in one credit item in defendant’s favor, amounting to $672 71, due November 4,1852, which item was not contained in the account then rendered to said defendant; that the defendant afterwards, on the same day the account was rendered, and on two other occasions shortly thereafter, disputed the correctness of such account in general terms, but did not at any time specify or point out any particular item or items which he thought wrong, except once, when he made a specific objection to a single item; that the defendant was mistaken in respect to the item objected to by him, and the account in this particular was correct; and that no objection was made by the defendant at any time to the mode in which the interest is reckoned and computed in such account.
    That the account rendered (including the credit item omitted from it) exhibited a balance due from the defendant on the 28th day of February, 1853, to the firm of N. Gilman and Son, of nineteen thousand four hundred and thirteen dollars and ninety-one cents.
    That Nathaniel Gilman, surviving partner of such firm, on or about the ninth day of July, 1855, duly sold, assigned, transferred, and set over unto the plaintiffs the demand in controversy in this action, and that the said plaintiffs are now the lawful owners thereof.
    Upon these facts, I am of opinion and do find and report that the plaintiffs are entitled to judgment against the defendant for the said sum of nineteen thousand four hundred and thirty-one dollars and ninety-one cents, with lawful interest thereon, from the twenty-eighth day of February, 1853, and which amounts in the aggregate at the date of this report to the sum of twenty-three thousand seven hundred and ninety-two dollars and twenty-one cents, and are also entitled to their costs in this action, including a suitable allowance.
    All which is respectfully submitted.
    Dated New York, May 12th, 1856.
    James Maurice,
    Sole Referee.
    To this report and decision, the counsel for the defendant duly excepted, It is not necessary to state at large the evidence before the referee. It will be sufficient to state the exceptions that were taken by the defendant’s counsel, in the course of the trial, and which were argued and decided upon this appeal.
    The plaintiffs having called upon the defendant to produce an account rendered to him, and the same not being produced, a witness for the plaintiffs testified as follows. “ I have drawn off a copy of the account, as it now appears in the books of N. Gilman & Son, this is it : (witness produced a paper writing.) It is a true copy from the books of N. Gilman & Son. I believe it to be an exact copy of the account defendant received, and had in his hands, with the exception of one item; both accounts were made from the same account in the ledger; that item is a credit item of net sales of 397 sides of leather, amounting to $672.71, due Nov. 4th, 1852. It is not dated; that item was omitted, on account of its not being posted in the ledger at that time. I have not a doubt that this account is a copy of the one rendered.” Thereupon plaintiffs’ counsel offered in evidence the paper writing so produced by the witness. The counsel for the defendant objected to the admission of the same, on the ground that it was not the best secondary evidence, which it was in the power of the plaintiffs to produce.
    The referee decided that the said paper writing was admissible, to which decision the defendants’ counsel duly excepted. When the plaintiffs rested, the defendants’ counsel made the following motions, each of which was denied by the referee, and to each decision the defendants’ counsel duly excepted.
    1. A motion to strike out, as not supported by evidence, all the items, to prove which, checks of Nathaniel Gilman & Son had been produced without explanation,
    2. A motion to strike out, as not supported by evidence, all the items, to prove which, checks of the defendant had been produced.
    3. A motion to strike out, as not supported by evidence, all the items, to prove which, drafts drawn by defendant on N. Gilman & Son had been produced.
    4. A motion to strike out, as not supported by proof, all the items of interest.
    5. A motion to strike out, all evidence, as to the account alleged to have been rendered to defendant.
    6. A motion to strike out, as not supported by evidence, all items, as to which, no evidence had been adduced, other than the alleged rendering of said account.

      E. West, for the defendant, appellant,
    contended that the finding of the referee upon the facts, was not supported by the evidence, and that all the exceptions taken on the trial, ought to have been allowed.

      E. H. Owen, for the plaintiff, respondent,
    insisted that the report and decision of the referee, were in all respects correct, and that the judgment below, ought to be affirmed with costs.
   By the Court. Slosson, J.

The action is brought to recover a balance of account alleged to be due from the defendant, to the late firm of N. Gilman & Son, which was dissolved by the death of N. Gilman, Jr., to whose executors, the present plaintiffs, the claim was assigned by the surviving partner of the house.

The referee to whom the case was referred, has reported a balance, including interest to the date of his report, of $23,792 21.

The transactions between the parties extend over a period, from December, 1846, to February, 1853, at which time N. Gilman, Jr., died. These consisted of loans made by the firm to the defendant, of sales of leather consigned by him to them, and of the discount, by the firm, of notes held by him. Such discounts appear to have been made by checks. No loans appear to have been made by the defendant to the firm.

Soon after the dissolution of the firm, an account was rendered, by the surviving partner to the defendant, setting out the entire transactions between the parties, from December, 1846, to February, 1853, and it was claimed, at the trial, that this account had been acquiesced in, and that it had the effect of an account stated.

The plaintiffs do not seem to have relied upon this as wholly sufficient to establish the case, for, in addition to the evidence of the rendering of the account, they attempted to establish a great portion of the debit items of it, by independent proof.

The witness, to prove these items, was a Mr. M'Clellan, who had been a book-keeper in the firm up to 1850, and then, after an absence of nearly three years, returned to its employ, where he continued to the period of its dissolution.

To a large number of the items proved by him, no objection is made, but in respect to others the evidence is objected to, as incompetent or insufficient. The evidence in respect to these latter items consists, first, of the checks of the firm to the order of, and endorsed by the defendant, covering nearly $9,000, in amount, and extending over a period, from December 20, 1850, to September 27, 1851; second, two drafts drawn by the defendant on the firm, amounting together, to $1,000; and third, two checks of the defendant, amounting together, to $2,320. There is then a series of charges, of over $2,000 in amount, of which the only, or principal evidence, is the account rendered.

In respect to the checks of the firm, it is objected that they are, in themselves, no evidence of money loaned, but only of money paid, and that the presumption is, that they were paid in discharge of a debt. A check is certainly not evidence in itself of a loan, but under certain circumstances it may be good evidence for that purpose, and we should be disposed to think, were there no other question in the case, that the referee, under the evidence, was justified in considering them proof to this point.

In respect to the second objection, that of the admissibility of the defendant’s drafts on the firm, as evidence of a debt on his part, we are clear, that it is well taken. Apart from the account rendered, these drafts furnish no evidence of an indebtedness.

The presumption is, that they were drawn on funds, in the hands of the firm, belonging to the defendant.

It would appear from the account, that the firm had received leather for sale, from the defendant, at different times, as there are credits on account of such sales. In the account, if properly made up, these drafts would be proper debits; but standing by themselves, they furnish no evidence of debt against the defendant.

In respect to the two checks drawn by the defendant, it is objected, that there is no proof that they had been presented for payment and that payment was refused. We think it a sufficient answer to this, that the defendant kept no bank account at the period when these checks were drawn.

The principal piece of evidence on the part of the plaintiffs, however, and on which they chiefly rely to sustain their case, is the fact, that an account was rendered to the defendant in the spring of 1853, immediately after the dissolution of the firm, by the death of N. Gilman, Jr., in which, as is claimed, the defendant acquiesced.

It appears that the firm had been in the habit of rendering yearly accounts to their customers, and as I should infer from the evidence, to the defendant, in which interest was included.

At the period referred to, a statement of the entire account was transcribed from the ledger, covering the whole period of the parties’ transactions with each other, and rendered to the defendant.

Three questions are raised in respect to this account. First, as to the proof of the account itself; second, as to the defendant’s acquiescence in it; and third, as to the liability of the defendant for interest, charged in it.

The first is the material question, in the view we take of the case.

The defendant being called upon, on the trial, to produce the original account rendered, declined to do so, and the clerk who made out the original account from the ledger, of which it was a mere transcript, then produced another transcript from the ledger, of the same account, which he appears to have drawn off for the purposes of the trial; and the same was offered as evidence of the contents of the account which had been rendered. The witness swore it was a true copy from the books, and he had not a doubt that it was a correct copy of the one rendered, with the exception of one item of credit, which did not appear in the account rendered; because the item had not been then posted in the ledger. The ledger was not in court, nor was any offer made to produce it in lieu of the copy, nor was the copy read, on the ground of convenience, with an offer to produce the book for the purpose of comparison, or as a substitute for the copy, with an offer to produce that, if required. But the new transcript was offered as, in itself, competent evidence of the contents of the original account, after the refusal of the defendant to produce the latter.

It was objected to, on the ground, that it was not the best secondary evidence which it was in the party’s power to produce ; but it was admitted under an exception to the ruling.

I do not mean to contend that' there are any arbitrary or inflexible degrees of secondary evidence, rendering it necessary for a party, who is driven to that description of proof, to show affirmatively, in every instance, that there is no higher degree within his power, than the one he offers; but I think it may be safely said, that where it appears in the very offer, or from the nature of the case itself,,or from the circumstances attending the offer, that the party has better and more reliable evidence at hand, and equally within his power, he shall not be permitted to resort to the inferior degree first. As a general principle, the law requires the best evidence within the party’s power to produce; and I see no reason why this rule should not equally apply to secondary as to primary proof. There is this difference, it is true, between the two classes of proof: primary proof is necessarily single in its character, while all below it, admits of a wider range, and the fact may be established by a variety of evidence, as, for example, the contents of a lost paper may be established by a sworn copy made at the time, or by a rough draft, or by mere recollection; but it does not follow that all distinction between these kinds of proof is to be disregarded, and that they are all on a level, and it will hardly be contended, I think, that a witness would be allowed to prove the contents of a lost paper by recollection, when he had in his pocket a sworn, or even an unsworn copy made by him at the time the paper in question was written. In the U. S. v. Britton (2 Mason, 464), where the contents of a bank check—for the alteration of which the defendant had been indicted for forgery—was proved. by the recollection of a witness, the original check having been destroyed by the defendant, Judge Story held, that the rule was universal, both in criminal and civil proceedings, that the best evidence was to be produced which the nature of the case admitted of, and that if an original instrument was lost, or in the possession of the adverse party, and he refused to produce it, an examined copy, if such existed and could be found, was the next best evidence, and must be produced; but if no such copy existed, then the contents of the paper might be proved by witnesses who had seen and read it, and could speak pointedly and clearly to its tenor and contents.

In Hilts v. Colvin (14 J. R. 182) a witness for the plaintiff was objected to as incompetent, on the ground that he had been convicted of a felony, and the proof of the conviction was by the parol testimony of a witness, after it had been shown that the office of the clerk, in which the record of conviction would have been found on file, had been burned down and its contents destroyed. It was objected to the admission of the proof, that by statute, the District-Attorney was required to certify a transcript of every conviction to the Court of Exchequer at the next term, there to remain on record, and that this transcript should be produced, as better evidence than the mere parol testimony of the witness. The Judge admitted the evidence and excluded the plaintiff’s witness, in consequence of which he was non-suited. The Court above reversed the judgment, on the ground that the transcript, which must be intended to be remaining in the Court of Exchequer, was “ higher proof, in the power of the party, than that given in the Court below.”

In a note to § 84 of 1 Grreenleaf on Ev., the author says, that the result of the American cases seems to establish the rule to be, that “ if, from the nature of the case itself, it is manifest that a more satisfactory kind of secondary evidence exists, the party will be required to produce it; but where the nature of the case does not, of itself, disclose the existence of such better evidence, the objector must not only prove its existence, but must also prove that it was known to the other party, in season to have been produced at the trial.”

There are several admitted grades of proof in respect to the contents of a lost'deed, as first, a counterpart, if there be one; if no counterpart, then a compared copy.;' and if no copy, then ah abstract or parole evidence; and it seems that evidence of a mere copy:would not be admitted, until it had been shown that the counterpart could not be produced,: . (Starkie Ev., Part 2, 354-5; 2 Atk. 71.).

Where the proof offered is of the same grade, the distinction of degrees ceases, as where the contents of a lost letter, of which no copy exists, is to be. proved by the mere recollection of witnesses, the testimony of one who had read and remembered the contents, is as good as that of one who wrote the letter. (Ditto, ditto, 357.)

In England, the rule as to. secondary proof, seems. of late years to have been much relaxed. .In Brown v. Woodman, 6 C. & P. 206, it was ruled at Nisi Prius, by Parke, Justice, that there were no degrees of secondary evidence, and he allowed the contents of a letter, which the defendant had written to the plaintiff, .and which the plaintiff declined to produce under a notice, to be proved by the oral testimony of a witness, though the defendant had kept a copy of the letter-; but, he said, if there had been a duplicate original, it might have been different.

■ ■ In the case at bar, the evidence offered, is not a compared copy of the account rendered, or a duplicate of that account (in either of which respects, the book from .which it was taken may well be regarded, and which would be the" next best evidence to the original itself); but it is a copy of such copy. In swearing to such last transcript,, therefore, as a correct copy of the account rendered, the witness is, in reality, swearing only to the . accuracy of it, as a transcript from the book, or, argumentatively, as a copy of the account rendered, because the latter was also taken from the book. ' . ■

We think it would be dangerous to hold such evidence admissible. If in the case, of a lost deed the party should attempt to prove its contents by producing a copy of a counterpart, or of an examined copy of the deed," and'which copy so offered he had made for the purposes of the trial, while the examined copy, or counterpart itself was admitted to be in his possession, and could be produced, would he be allowed to do it? Clearly not. Is there any difference in principle in the case of a party refusing to produce, on notice, an original paper, of less solemnity than a deed ? Does such refusal justify a looser land of secondary evidence, on the part of the party calling for its production, than in the case of a lost instrument ? Is it difficult to perceive why. It is said the party who refuses to produce the original, cannot complain that the other resorts to evidence of an inferior nature to that which he has it in his power to produce, because, having the original in his possession, he has the means of correcting any defect in the proof—but this will not always hold good; for it often happens that the original is not produced, because the party called on to produce it, may not have the actual possession or control of it at the time, or may have good and proper reasons for not producing it. The law can look only to the end to be attained, and that is, the truth, by the best and most reliable testimony.

However satisfactory the evidence may have been to the referee, we think in face of the admitted fact that better evidence was present, and might have been resorted to, the transcript from, the ledger, should not have been admitted as evidence of the contents of the account rendered.

This will render a new trial necessary.

It is unnecessary to express any opinion upon the question; how far the evidence sustains the finding of the referee, that the defendant acquiesced in the account as rendered—but it may be proper to say, on the question of interest, that it appearing to have been the practice of the firm to make up annual accounts, charging interest, and this custom known to the defendant during his dealings with them, and it farther appearing, though not, I admit, very clearly, that annual accounts, made up in this manner, were rendered to the defendant, and there being no evidence of his ever having objected to the charge of interest, it is a reasonable presumption that he dealt with the firm, on the understanding that he was to pay interest, and assented to it. (Esterly v. Cole, 3 Com. 502.)

There should be a new trial, costs to abide event.