source: Caselaw Access Project

author: Selden, J.,

license: Public Domain

text:
    Manchester and Hull, Overseers of the Poor, &c., against Herrington.
    Sections 15 and 19 of title 9, ch. 20, part 1 of the Revised Statutes, imposing a penalty for selling intoxicating liquors without a license, and authorizing the overseers of the poor in each town to sue for and recover such penalty, were not repealed by the 5th section of the excise act of 1845 in towns which should vote under the provisions of the last mentioned act not to grant licenses.
    The whole period of a term or circuit is regarded as but one day, and any recovery or other action had therein will be held to relate to, and to have been had at, the first day of the circuit or term.
    Where, therefore, the term of office of one of the two overseers of the poor, plaintiffs, expired, and his successor was elected and qualified, after the commencement of the circuit at which the cause was tried, but before the trial, it was Held, that this was no ground of nonsuit, nor any objection to a recovery in the name of the plaintiffs upon the record.

      Held, further, that under 2 R. S., 474, § 100, providing against the abatement or discontinuance of suits by or against certain public officers from their removal or resignation, or the expiration of their term of office, it is optional with the parties authorized to apply for a substitution whether they will make such application or not; and that, until the successor in office or the adverse party apply for a substitution, the suit shall proceed in the names of the original parties.
    This suit was commenced in March, 1847, in the, names of David Denison and Ray Greene, then overseers of the poor of the town of Berlin, in the county of Rensselaer, to recover various penalties alleged to have been incurred by the defendant, under § 15, title 9, ch. 20, part 1 of the Revised Statutes."
    The declaration was framed in debt, pursuant to the provisions of § 10, title 6, ch. 8, part 3 of the Revised Statutes, and contained a number of counts, alleging the indebtedness .as of the-19th of March, 1847, each count concluding with a demand of $25, “ according to the provisions of § 15, title 9, ch. 20, part 1 of the Revised Statutes, entitled ‘ Of excise, and the regulation of taverns and groceries.’ ”

      The defendant pleaded: 1. Nihil debet; 2. That on the 19th day of May, 1846, the electors of the town of Berlin determined that no licenses for the sale of intoxicating liquors should be granted in said town, pursuant to the provisions of the act entitled “ An act relating to excise, and to licensing retailers of intoxicating liquors,” passed May 14th, 1845, and the act amending the same, passed February 16th, 1846.
    To this special plea the plaintiffs demurred, specifying several causes of demurrer which it is unnecessary to notice, because the plea, if defective at all, was defective in substance. The defendant joined in demurrer.
    The demurrer was decided at a term of the court held in June, 1848, in favor of the plaintiffs ; and at the same term Rodman Thomas and Daniel Babcock applied to the court to be substituted as plaintiffs in the suit, alleging that they had been elected overseers in place of Denison and Greene, whose term of service had expired, and the application was granted.
    It appeared from the bill of exceptions that the issue upon the plea of nil debet came on to be tried at the Rensselaer circuit in April, 1849 ; and upon the trial the plaintiffs proved enough to entitle them to a recovery for three penalties of $25 each, provided they were entitled to recover at all.
    On the part of the defendant it was proved that, after tne commencement of the circuit at which the cause was tried, and before- the trial, the term of office of Rodman Thomas, one of the plaintiffs upon the record, had expired, and William Taylor had been elected in his place, and had duly qualified as such.
    It was then admitted that an election had been held in the town of Berlin pursuant to the provisions of the act of 1845, and' that the decision had been against licenses by a large majority.

      The defendant thereupon moved for a nonsuit upon three grounds: 1. That the section of the Revised Statutes, for a violation of which the action was brought, was virtually repealed by the law of 1845, in respect to towns which had voted “ no license,” and that actions for penalties for selling liquors without license in such towns must be founded and could only be maintained upon § 5 of the act of 1845. 2. That while the law of 1845 continued in force, the overseers of the poor, in towns where a majority had voted “no license,” had no authority to sue for penalties for selling liquor by retail. 3. That there could be no recovery by the plaintiffs upon the record, because the term of office of one of them had expired, and his place had been filled by another.
    The circuit judge (Willard) denied the motion for a nonsuit, to which decision the counsel for the defendant excepted, and a verdict was found for the plaintiffs for the sum of $7-5.
    The record shows that the ruling of the circuit judge was sustained by the supreme court in the third district, and judgment was rendered for the plaintiffs, upon the verdict, for $291.74, damages and costs. But before the rendition of the judgment, and at the same term, the present plaintiffs, Manchester and Hull, applied to be substituted as plaintiffs, alleging that the term of office of the then plaintiffs upon the record, Babcock and Thomas, had expired, and that they the said Manchester and Hull had been elected in their places; and the application was granted.
    After judgment the defendant appealed to this court.

      Jacob Holmes for the appellant.

      A. B. Olin for the respondents.
   Selden, J.,

delivered the unanimous opinion of the court.

I am unable to discover any plausible reason for contending that the section of the Revised Statutes upon which this action is founded was repealed or suspended by the act of 1845. Section 9 of the latter act repeals all laws conflicting with its provisions: The only section of this act with which it can be claimed that the section of the Revised Statutes in question in any way conflicts is the 5th, which declares that whenever any town shall determine, pursuant to the provisions of that act, that no license shall be granted in such town, whoever shall sell by retail, &c., within the town, “ shall be liable to all the penalties imposed by title 9 of part 1, ch. 20 of the Revised Statutes,” &c. Does this clause repeal the statute referred to in it? On the contrary it perpetuates it. It is the very reverse of .a repeal. It is an express declaration that the obligation and force of the former statute should be in no way impaired by the new enactment, even in towns which should vote against licenses.

The reason given why the law of 1845 should operate as a repeal or suspension of the former law, in towns deciding against licensing, is, that otherwise persons violating the law would be subject to two penalties for the sanie offence. But it is clear that no such consequence would follow from holding that the provisions of the Revised Statutes in question continued in force. Section 5 of the act of 1845 imposes no new penalty. It merely declares that notwithstanding a town should, pursuant to its provisions, vote against licenses, the statute, imposing penalties for selling spiritous liquors by retail, should still continue in force in such town. The object of this section seems to have been' to repel, by a legislative declaration, the conclusion that a penalty for selling “ without having a license ” could not be collected in a town in which no license could be obtained. Instead of being intended to repeal the section of the Revised Statutes giving the penalty, its obvious design was to take away a possible defence to actions brought to recover that penalty; and such no doubt is its effect.

• The next objection to the recovery is that the action is not properly brought in the name of the overseers of the poor. As the act of 1845 does not expressly authorize the overseers of the poor to sue for any penalties accruing under it, it is claimed that the action can only be brought by the attorney-general. This objection, like the one just considered, rests upon the assumption that § 5 of the act of 1845 itself gives the penalty, an idea which has already been shown to be unfounded. Overseers of the poor are expressly authorized to sue for penalties incurred under the provisions of the Revised Statutes upon which this action is brought (R. S., § 19, title 9, ch. 20, part 1), and their right is ako recognized by $ 7 of the act of 1845, which provides that, “ In case the overseers of the poor shall neglect for ten days to prosecute for any penalty provided by title 9, part 1, ch. 20 of the Revised Statutes, any other person may prosecute,” &c. The answer to the previous objection, therefore, is a conclusive answer to this.

The only remaining objection is that the term of office of Rodman Thomas, one of the plaintiffs upon the record at the time of the trial, had expired and another had been elected in his place. It is expressly provided by a section of the Revised Statutes that “ No suit commenced by or against any officers named in this article (overseers of the poor being of the number) shall be abated or discontinued by the death of such officers, their removal from or resignation of their offices, or the expiration of their term of office, but the court in which any such action shall be pending shall substitute the names of the successors in such office, upon the application of such successors or of the adverse party.” (2 R. S., 474, § 100.) It has been held by the supreme court, in regard to trustees of a school district, who are also within this section, that unless the successors in office, or the adverse party, apply for a substitution, the suit should proceed in the names of the original parties. (Colegrove v. Breed, 2 Denio, 125.) It is true that case was in a justice’s court, where a substitution could not have been compelled; but I do not see that this affects the principle. A substitution might have been had in that court on the application of the successors in office of the trustees who were' parties. The case seems to have been put upon the ground that, in all cases falling within the provisions of the section in question, it is optional with the parties authorized to apply for a substitution whether they will make such application or not; and that if they do not apply, the case may continue to be prosecuted by or against the original parties. I suppose this to be the true construction of the statute.

But aside from this, it is a perfect answer to this objection that the election of the new overseer in place of Thomas occurred after the commencement of the circuit. It is a well settled doctrine of the common law that the whole period of a term or circuit is looked upon as but a single day, and everything which is done at a circuit or term is regarded as done upon the first day. This doctrine has been, recognized by several cases in our own courts. (Bennett v. Davis, 3 Cow., 68; Griswold v. Stewart, 4 Cow., 457; Nichols v. Chapman, 9 Wend., 452.)

The courts in England carried the principle so far as to hold that the statute of 17 Charles II., ch, 8, which enacted that the death of either party after verdict should not be alleged for error, applied to a case where the defendant had died on the first day of the sitting, and before the trial, in fact, of the cause. (1 Salk., 8; Jacobs v. Miniconi, 7 Term R., 31; 3 Bos. & Pull., 549.)

Our statute, however, has guarded against such a construction, in the case of a defendant who dies before verdict, by an express provision. (2 R. S., 387, § 5.) But I see no objection to applying the rale to a case like this, where one of two plaintiffs, suing in an official character, either dies or is superseded in office after the commencement of a term at which the cause is tried. The rale would be remedial in its operation, and could not by possibility work any evil. It is precisely one of those cases to which the rule, that every judicial act done at a sitting or term is to be regarded as done upon the first day of the term, was intended to apply. Upon this ground, then, as well as that before noticed, I should feel bound to overrule the objection under consideration.

This view disposes of the demurrer as well as of the questions raised upon the bilí of exceptions. The judgment of the supreme court must therefore be affirmed.

Judgment affirmed.


author: Johnson, J.,

text:
    Waddell’s Administrator against Elmendorf’s Administrators.
    The provision of the Revised Statutes with regard to the presumption of payment of prior judgments (2 R. 8., 301, §46) applies to such judgments the rule of presumption which was xin force as to sealed instruments immediately before the passing of the act, and not the new rule prescribed for sealed instruments by § 48 of the same statute.
    The presumption of payment of a judgment, recovered prior to the enactment of the Revised Statutes, may therefore be repelled otherwise than by proof of payment or of a written acknowledgment.
    Evidence showing the embarrassment and insolvency of the judgment debtor is competent as tending to rebut the presumption of payment of a judgment recovered in 1810.
    This action was commenced in the supreme court, in 1844, upon a judgment recovered in the same court on the 13th of November, 1810, for the sum of $2758.83. The parties were the administrator de bonis non of the judgment creditor, plaintiff, and the administrators of the judgment debtor, defendants. The opinion of the court and the arguments of counsel sufficiently state the questions arising upon the trial, which was had before Mr. Justice Edwards and a jury, at New-York in 1850. A verdict was then given for the plaintiff for- the amount of the judgment and interest, and' the court at general term refused a new trial upon the exceptions. (See 12 Barb., 585.) The defendants appealed to this court.

      S. Beardsley for the appellants.
    I. The judge erred in allowing proof to be given of various judgments against Lucas Elmendorf, from 1807 to 1839, in order to rebut the presumption of payment of this judgment, which was rendered in 1810.
    II. The judge erred in holding, and charging the jury, that parol acknowledgments of indebtedness would rebut the presumption of payment of this judgment; that such acknowledgments need not be in writing. (2 R. S., 301, ^ 46, 48; Laws of 1821, 245, § 4.)
    III. No evidence was admissible to repel the presumption of payment but the fact of payment of part or a written acknowledgment of indebtedness; all the other evidence received for that purpose was illegal.

      B. W. Bonney for the respondent.
    I. If presumption of payment from -lapse of time applies at all to the judgment in question in this cause, it applies in like manner as to a debt on bond or other specialty prior to 1821, and may be rebutted by proof of parol admissions of indebtedness, or proof of circumstances sufficient to satisfy a jury that payment has not in fact been made. The proof to repel such presumption is not restricted to proof of actual payments or of written acknowledgments of indebtedness. (Laws of 1821, ch. 238, §4 ; Livingstonv. Delafield, 3 Caines, 49 ; Bailey v. Jackson, 16 John., 210; Miller v. Smith’s Ex’r, 14 Wend., 188; 16 id., 425, S. C.; Jackson v. Hotchkiss, 6 Cow., 401; Oswald v. Leigh, 1 Term R., 270 ; Wanmaker’s Ex’rs v. Van Busldrk et al., Saxton’s Ch. R., 690, N. J.; 2 R." S., 398, §§ 46-8, 3d ed.; Jackson v. Pierce, 10 John., 414; Jackson v. Sackett, 7 Wend., 100 ; Morris v. Wadsworth,
      17 Wend., 103; Boardman v. Be Forest, 5 Conn., 1; Hillary V. Waller, 12 Vesey, 266.)
    II. The 47th and 48th sections of title 2, chapter 4, part 3 of the Revised Statutes, have, no application to this case. Section 47 refers only to “ every judgment and decree hereafter rendered,” and § 48 applies only to suits upon sealed instruments for the payment of money, “ after the expiration of twenty years from the time a right of action shall accrue.” In the present case, the judgment had been rendered and the right of action had, accrued before the Revised Statutes were passed. 1. It is a well settled principle of law, that statutes not expressly retrospective in terms are not to be construed to affect past transactions; and this principle applies to statutes of limitation as well as to other statútes. (Bwarris on Statutes, 680; 1 Kent's Com., 454 [7th ed., 501] ; Bash V. Van Kleeck, 7 John., 477; Watkins v. Haight, 18 id., 138 ; Fairbanks v. Wood, 17 Wend., 329 ; Johnson v. Burrell, 2 Hill, 238; Millard v. Whittaker, 5 Hill, 408; Jarvis v. Jarvis, 3 Edw. Ch. R., 462; Quackenbush v. Banks, 1 Benio, 128 ; S. C., 3 id., 594; id., 1 Comst., 129; Whitman v. Hapgood, 10 Mass., 437; Medford v. Learned, 16 id., 215; Hastings v. Lane, 15 Maine, 134; Woart v. Winniclc, 3 N. LI., 473 ; Garrett v. Boe, 1 Scammoa, 335; Robinson v. Rowan, 2 id., 499; Forsyth v. Marbury, R. M. Charlt., 324 ; Hooker v. Hooker, 10 Sm. Sf Marsh., 599; Bruce v. Schuyler, 4 Gilman-, 221; Taylor v. Harrison, 2 Bevereux, 374; Society for the Propagation of the Gospel v. Wheeler, 2 Gallis., 105.) 2. The legislature of this state, in the Revised Statutes of 1830, and in the Code of Civil Procedure, have recognized this principle, and applied it to statutes of limitation. (2 R. S., 300, § 45, 778, § 9; 3 Revisors' Reports, part 3, ch. 4, title 2, art. 4, 5, %% 47-50; Code 1848, § 66 ; id. 1852, § 73.) 3. ' The provision of the,Revised Statutes, that presumption of payment of a judgment, arising from lapse of time, may be repelled by proof of payment or written acknowledgment of indebtedness, and not otherwise, does not apply to judgments rendered prior to 1830, when the Revised Statutes took effect. (2 R. S., 300, ^ 46-8; Smith's Ex'rs v. Miller, 14 Wend., 188; Miller v. Smith's Ex'r, 16 id., 425 ; Austin v. Tompkins, 3 Sandf. S. G. R., 23.)

    III. The presiding judge correctly and properly disposed of the points presented by defendants’ counsel, and which he requested the court to charge; because, 1. The alleged presumption of payment of the judgment in question, arising from lapse of time, may be repelled by other proof than that of payment on account, or admission in writing. 2. There is in the case evidence of circumstances tending to repel the alleged presumption of,payment, and the judge correctly refused to charge the contrary.
    IV. The facts and circumstances proved in this case are abundantly sufficient to repel the alleged presumption of payment. But whether sufficient or not, was a question for the jury, and the court will not disturb their verdict thereon.
   Johnson, J.,

delivered the opinion of the court.

This is an action upon a judgment recovered November 13th, 1810, in the supreme court of this state, by the testator oi the plaintiff against the intestate whom the defendants repre sent, for $2744.40 of debt, and $14.43, damages and costs. The defence is payment, which is only sustained by the presump tion from lapse of time. To rebut that presumption, a payment of interest on the 22d July, 1818, was proved, and a verbal admission in 1835, by the defendant in the judgment, of his indebtedness thereon, together with certain other matters, which, so far as may be material, will be noticed hereafter. This suit was commenced in May, 1844. The judge at the trial charged, upon the defendants’ request, that there was no evidence of actual payment of any part of the judgment after the year 1818, nor any admission in writing of the indebtedness, from the same date. He refused to charge that the presumption of payment could only be rebutted by showing payment of the whole or part, or by an admission of indebtedness in writing, and to this refusal there was an exception.

The 4th section of ch. 238, Laws of 1821, passed April 3, 1821, provided, as to all judgments theretofore rendered in any court of record in this state, that the presumption of payment should apply, after twenty years from the passing of the act, “ in the same manner as such presumption applies to sealed instruments.” As the judgment in question had been rendered in 1810, and a payment had been made upon it in 1818, the legislature had, unquestionably, the power to subject it to the foregoing enactment. If that law had remained in force, no presumption of payment could have arisen until the expiration of twenty years from its passage. That act, however, was repealed by the general repealing act of December 10,1828, from and after the 31st day of December, 1829. On the 1st of January, 1830, ch. 4 of the 3d part of the Revised Statutes commenced and took effect as a law, under the provisions of § 8 of “An act concerning the Revised Statutes,” passed December 10, 1828. Section 46 of that chapter"(2 R. S., 301) provides that “the presumption of payment shall apply to all judgments of a court of record in this state rendered before the third day of April, one thousand eight hundred and twenty-one, and to all such judgments rendered before this chapter shall take effect as a law, in the same manner as such presumption applies to sealed instruments.” Section 48 of the same chapter provides that, “ after the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment; but such presumption may be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period.”

The question then arises, what rule of presumption is referred to in the 46th section ? Is it that prescribed by

% 48, or the rule of presumption applicable to sealed instruments before the statutory rule of § 48 took effect? This question has not been adjudicated except in the case before us. In Miller v. Smith’s Ex’rs (16 Wend., 425), which was debt brought in 1833 upon a judgment rendered in 1805, Chancellor Walworth was of opinion that § 46 could not constitutionally operate upon that judgment; and Senator Maison, who gave the only other opinion, differed from him upon that question, though both the learned gentlemen speak of the section as restoring the common law rule of presumption of payment. As, however, the question they were considering related to the existence of any rule of presumption as to payment in that case, and not to the manner in which it might be rebutted if it existed, we can hardly deem it the expression of their deliberate conclusion upon the point now under consideration. The case was decided upon another question, as to which they both agreed. On the other hand, in Henderson v. Henderson (3 Denio, 314), where to debt on a judgment rendered in 1823, a plea was put in that the right of action accrued more than twenty years before suit brought, judgment was given against the plea on the ground that the presumption was only available as evidence and could not be made the subject of a plea. Ch. J. Bronson in his opinion speaks of the presumption as one to be repelled by proof of payment of some part of the debt, or a written acknowledgment, within twenty years; evidently regarding % 46 as adopting the rule of presumption specified in % 48. The question before the court was, however, clear beyond dispute, whichever rule of presumption was applicable to the case. Such a presumption was not the subject of a plea. It was therefore not requisite that any opinion should be expressed as to which rule of presumption was adopted by § 46.

The revisors’ note to § 46, after referring to § 4 of the act of 1821, before quoted, adds, that its language is preserved as to past judgments, and not applied to future judgments, as the next section provides for them. It is to be observed that, by § 4 of the act of 1821, the presumption of payment, as it then applied to sealed instruments, was applied to judgments rendered before its passage after twenty years from that period. The rule prescribed by § 46 departed in this particular from the act of 1821. According to its terms the twenty years commenced, not from April 3, 1821, but from the time when a suit might have been brought upon the judgment. The only particular, therefore, in which § 46 follows § 4 is in the language which refers to the presumption upon sealed instruments. These terms are identical in each section. In each the presumption is to apply “ in the same manner as such presumption applies to sealed instruments.” It is clear, therefore, that this section was intended by the revisors to refer to the common law presumption in respect to sealed instruments, and not to the modified role of presumption as to sealed instruments first prescribed by statute in § 48.

Notwithstanding the intention of the revisors is thus clear, we are not to rely upon that as controlling the construction of the terms employed in the statutes, especially in cases where the statute as enacted departs from the language of the revisors in their report. Now, the law of presumption of payment, as to rights of action upon sealed instruments for the payment of .money, was altered by § 48 in this particular alone, that the presumption could only be repelled by proof of payment of some part, or by proof of a written acknowledgment of the right of action within twenty years. This provision has been adjudged to be prospective and not retrospective. (Van Rensselaer v. Livingston, 12 Wend., 490.) It would be not a little singular if this provision, which as to its appropriate subject matter is prospective in its operation, should be held to be adopted by reference and made applicable to the cases provided for in § 46, when, if so applicable, its effect upon those cases must be retrospective. The supposition is wholly irreconcilable with the provisions of §47, which, to judgments'recovered after the Revised Statutes took effect, applies the same rule for repelling the presumption of payment which, by § 48, is applied to sealed instruments. If the effect of § 46 is to adopt that rule, it is not conceivable that the whole subject of presumption of payment as to judgments should not have been embraced in a single provision. When the legislature has made a classification of kindred subjects, and declared the rule of law applicable to the respective subjects in different terms, the presumption is that they intended them to be governed by different rules. I am therefore of opinion that § 46 does not adopt the rule as to repelling presumptions created by $ 48, and consequently that the presumption of payment referred to in § 46 is the common law presumption which was applicable to sealed instruments. The judge therefore committed no error in refusing to charge according to the request under consideration.

The only other question relates to an objection to the admissibility of certain evidence introduced on the part of the plaintiff. The evidence admitted was of judgments to the amount of $198,000 against Elmendorf, the defendant in the judgment in suit, between May 11, 1807, and January 18, 1839, one hundred and twenty-four in number, and of which only two or three were satisfied of record. The evidence was offered, as the bill of exceptions states, “ to show his embarrassments, and rebut the presumption of payment.” The defendants’ objection was “ that it was not competent evidence, and especially not competent to prove payment, nor was it written evidence of acknowledgment of indebtedness.” The special grounds of objection have been already considered and held to be untenable. If the more general question is to be deemed raised, it is a sufficient answer to say that the question is not upon the sufficiency of the evidence to rebut the presumption of payment, but only as to its bare competency. Now, „ insolvency is a sufficient answer to the presumption, if upon evidence thereof the jury find that the debt is actually unpaid. The rule was so stated by Lord Erskine, in Hillary v. Waller (12 Ves., 266). He says: “ As to a bond taken upon twenty years, the presumption is that it has been paid, and the presumption will hold unless it can be repelled; unless insolvency or a state approaching it can be shown; or that the party was, a near relation; or the absence of the party having the right to the money; or something which repels the presumption that a man is always ready to enjoy what,is his own.” (See also 1 Cow. & Hill’s Notes to Phillips, 317, and cases cited.) The circumstances proved certainly tended to prove insolvency, and were, I think, properly received in evidence. The presumption of payment being a bare legal presumption, it seems difficult to say that any facts bearing upon the condition of the parties in respect to the demand are.improper to be laid before a jury to enable them to say whether the presumption is or is not overthrown.

A new trial should not be granted, and the judgment should be affirmed.

All the judges concurred.

Judgment affirmed.


author: Denio, J.,

text:
    Ingalls and Stockman against Morgan, Executrix, &c.
    Where the agent of the judgment creditor was present at a sale, by the debtor to a third party, of certain lands on which the judgment was a lien, drew the conveyance, and was informed of the terms of the sale; and the debtor soon after delivered to such agent, as security for the judgment debt, the notes given in payment for the land conveyed, it was Held, that although there was no evidence that the judgment creditor had actual knowledge of these facts, yet she was chargeable with notice of them by reason of the notice to her agent.

      Held!, also, that the receipt of these notes by the agent of the creditor, with knowledge of their consideration, although it did not affect her lien upon the lot as security for the judgment in case it should not be otherwise satisfied, imposed on her, in equity, a duty to apply the proceeds of the notes in reduction of the judgment.

      Where a creditor has a lien upon two funds for the security of his debt, and another party has an interest in one only of the funds, without any right to resort to the other, equity will compel the creditor to satisfy his debt, if possible, out of the fund in which he alone has an‘interest.

      Held, therefore, that after such notice to the judgment creditor, she was bound in equity to retain all other property which had been delivered to her as security for the judgment, and apply its proceeds in satisfaction of the judgment, before resorting to the lands which had been so sold and paid for.
    That the judgment creditor having surrendered to her debtor, with knowledge of the above facts, certain choses in action placed in her hands as security for the judgment debt, sufficient to have satisfied the debt, the purchasers of the land were entitled to have their land discharged from the lien of the judgment.
    The creditor was therefore perpetually enjoined against selling such lands on her judgment.
    The bill in this cause was filed in the late court of chancery, and its general object was to enjoin the defendant from enforcing a judgment of the supreme court in her favor against one Austin Cross, as it respects two lots of land owned by the complainants, upon which it was a lien at law, and which she was about to sell on execution.
    The pleadings and proofs present a case substantially as follows: On the 20th day of November, 1836, Cross confessed a judgment by bond and warrant of attorney in favor of the defendant, for $20,000 of debt, besides costs. The bond was conditioned to pay $4713.98, with interest, “ and also all and every sum of money which the said Austin Cross may hereafter owe the said Nancy Morgan, for cash lent, or other responsibilities incurred by her, or for advances made.” Simultaneously with the execution of the bond and warrant, Cross and the defendant entered into an agreement in writing, by which the latter agreed to advance to Cross, from time to time as she should find it convenient, such further sum as, with the $4713.98, would make the whole debt $10,000, and they mutually agreed that the judgment should stand as collateral security for that sum and the interest; and Cross agreed, “ in order more effectually to secure the payment,” “ to turn out to said Nancy Morgan, executrix as aforesaid, good notes and bonds and mortgages, and guaranty to her the payment of the same, to the amount of ten thousand dollars, and to keep that amount in her hands at all times as collateral security for the payment of the sum of money aforesaid, with the interest thereon.” At the time of executing the bond and mortgage, or within a few days thereafter, Cross turned out and delivered to the defendant’s attorney and agent nineteen notes and bonds and mortgages against other parties, the amount payable upon which, exclusive of interest, was $6022.08; and at different times after-wards, in that and in the two following years, he also transferred to her and delivered to her said agent and attorney about fifty other similar securities, the principal moneys secured by which amounted to $9260.22. These several transfers were made in order to comply with the agreement above mentioned, and the respective amounts were to be collected and applied on the judgment. The defendant made further advances to Cross, pursuant to the arrangement, to the amount of $3447.58, of which $2716.28 was advanced before Cross conveyed the lots about which the controversy arises, and the remainder afterwards. The bond and warrant and agreement were drawn by E. W. Anns, an attorney and counselor at law, of Aurora, Cayuga county, who also entered up the judgment. He likewise received the securities referred to and made the collections; and he made the advances to Cross, and acted as the agent of Mrs. Morgan, the creditor, in the various transactions with Cross respecting the lending, securing and collecting the money, and had at all times the possession of the papers relating to it.
    On the 15th day of March, 1837, Cross sold and conveyed with warranty the two lots in controversy, which are situated at Seneca Falls, in Seneca county, to the complainant Ingalls, and Abner N. Beardsley, for $1800, and received from the purchasers their promissory notes for the purchase money, two of which were for $500 each, and the other for $800. The conveyance was drawn by Arms at his office in Aurora, and he also, a few days before, drew an executory agreement for the sale, and signed it as a subscribing witness. The three notes of Ingalls and Beardsley, given for the purchase money, were among those transferred to the defendant to apply on the judgment, as before mentioned. They were transferred either at the time the conveyance to Ingalls and Beardsley was made, or within two or three days after that time, and Arms knew when he received them that they were given for the price of the lots. One of the notes for $500 was payable ninety days from date, the other on the first day of October following, and the remaining note, for $800, on the 1st day of October, 1888. The complainant Stockman is the owner of an undivided half of the lot, under a conveyance from Beardsley. The evidence is contradictory as to what took place at the time Cross conveyed to Ingalls and Beardsley. Cross and Beardsley swore that Arms was asked if the lots were incumbered, and that he answered they were not. Arms denies, according to his recollection and belief, that he said any such thing; but he swears posi tively that he did not mention the existence of the judg ment; and the evidence shows that the purchase was made in the belief, by the purchasers, that Cross had an unincumbered title. If the securities which were transferred had been collected and applied on the judgment, it would have been satisfied without a resort to the plaintiffs’ lots, but a large portion of them were redelivered by Arms to Cross. Of the first amount of $6029.08, of notes and mortgages, a part amounting to $3196.25 were so redelivered at different times after the conveyance to Ingalls and Beardsley; and of those subsequently transferred, the amount of $2290.42 was also given up to Cross after he had conveyed the lots. Other portions of the securities had been redelivered before the conveyance of the lots, and as to others of them, it could not be ascertained whether they were given back before or after that conveyance. Those which remained in the hands of Arms were collected in part, and applied on the judgment, and some of them proved worthless. Among those given up to Cross were the two notes for $500 each, made by Ingalls and Beardsley on the purchase of the lots, which were redelivered within a fortnight after the conveyance and subsequently paid by the makers. The note for $800 was among those retained, and it was paid and applied.
    In the early part of the year 1837, Cross, who had been carrying on the business of manufacturing-leather, saddlery, and shoes, at Aurora, became embarrassed in his circumstances, and his paper to a large amount was protested at a bank, and in September of that year he assigned the greater part of his stock of leather, &c., to the Bank of Auburn. In December, 1839, the personal estate of Cross was sold on an execution on this judgment, for a small sum, and subsequently his real estate, other than these lots, was sold and applied thereon. The sale of the personal property was charged to be fraudulent and collusive, and it was claimed by the complainants that had it been conducted fairly, the amount then claimed to be due would have been realized. The evidence on the point was conflicting, and it is not necessaiy to state it. In October, 1846, the defendant procured an execution to be issued on the judgment to the sheriff of Seneca county, claiming that there was due on it the sum of $4569.28; and the complainants’ lots were advertised to be sold in November following, which was prevented by the preliminary injunction.
    The cause was heard on pleadings and proofs, at a general term held in Monroe county, in December, 1851 (before Welles, T. A. Johnson and S'elden, Justices), when a decree was made declaring that the judgment was not a lien upon the complainants’ lots, and the defendant was perpetually enjoined against proceeding to sell them thereon, and decreed to pay the complainants’ costs. The opinion was given by Mr. Justice Johnson, and proceeds upon the ground that the defendant had no right, as against the owners of the lots, to relinquish the two notes for $500, given upon the sale to Ingalls and Beardsley; that they ought to be considered as applied on the judgment; and that thus the whole value of the lots having been devoted to the discharge of the lien, it could not be considered as equitably on foot as against that property. (See 12 Barb., 578.) The defendant appealed to this court.

      S. Blatchford for the appellant.

      David Wright for the respondents.
   Denio, J.,

delivered the opinion of the court.

I concur in that part of the opinion delivered in the supreme court, which declares that the defendant had no right, as against the complainants, to relinquish her title to the two notes of Ingalls and Beardsley for $500 each, and that the amount of those notes ought to be considered as applied towards the satisfaction of the judgment against Cross. But if these notes were credited, in addition to all the other payments, there would still be a balance due upon the judgment, upon which the complainants’ lots might be sold if there were nothing else in the case. I am not aware of any principle which will compel a judgment creditor to relinquish his lien upon an item of real estate of the debtor, because he has sold it and paid the creditor the purchase money on account of- the judgment debt, even with knowledge, on his part, of the source from which the money was obtained. In the absence of an agreement to discharge the land conveyed in consideration of the payment, I suppose the lien would remain both in equity and at law. The transfer of the notes can scarcely be more effectual than the payment of the whole purchase price in money would have been. The defendant was bound to receive them under her agreement, as she or any other judgment creditor would have been obliged to receive the money if offered; but such payment would not of itself operate as a discharge of the lien of the judgment as to any property to which it attached.

It is therefore necessary to consider whether any of the other facts alleged and proved entitle the complainants to the decree which has been rendered. I am of opinion that after the defendant was aware that Cross had sold and conveyed the lots for a valuable consideration, and that the purchase money had been paid, she could not, without violating the equitable rights of the purchasers, return to Cross any security which he had furnished to her for the payment of her debt. The giving of negotiable notes, and the transfer of them to the defendant, was, as between the parties to this suit, equivalent to actual payment for the land; and the notes having been in fact paid before the present controversy arose, the case is precisely the same as though the purchasers had paid cash for the lots at the- time of the purchase.

It is a material inquiry whether the defendant had actual or constructive notice of the sale of the lots before the securities were given up to Cross. There is no evidence that she had personally any knowledge on the subject;' but her agent was perfectly aware of the whole transaction, and he acquired that knowledge in the course of his employment for her. When he received the notes for $1800, made by Ingalls and Beardsley, which were delivered to him as her agent, he knew that they were given for the purchase price of the two lots of land which they had bought of Cross; and he knew, moreover, that these lots were subject to the- lien of the defendant’s judgment, and that the purchase was made and the notes were given in the confidence on the part of the purchasers that Cross had an unincumbered title. This notice -is legally imputable to the defendant. Where an agent comes to the knowledge of a fact while he is concerned for the principal, this operates as constructive notice to the principal himself; for, upon general principles of policy, it must be taken for granted that the principal knows whatever the agent knows. (Story on Agency, & 140; Fitzherbert v. Mather, 1 Term R., 12; Jeffrey v. Bigelow, 13 Wend., 518; The Bank of the U. S. v. Davis, 2 Hill, 461; Fulton Bank v. The N. Y. and Sharon Canal Co., 4 Paige, 137; Norris v. Le Neve, 3 Atk., 26; Brotherton v. Hatt, 2 Vern., 574; Jennings v. Moore, id., 609; Downes v. Power, 2 Ball & B., 491; Paley on Agency, Law Lib. Ed., 262, 263, and note 1.)

The defendant therefore must be considered to have known of the circumstances attending the conveyance to Ingalls and Beardsley about the time it took place. She then had in her hands a considerable amount of collateral securities, which had been transferred to her by Cross, and she continued to receive other similar securities in that and the two following years. A part of the first parcel of notes and bonds had been given up to Cross before he had conveyed the lots. As to these the complainants have no right to complain, for, as between the parties to the judgment, the lien would not be affected by the transfer and giving back of securities. They would not operate as payment until money was actually received upon them. But she continued, after the conveyance by Cross, and with legal notice of that conveyance and of the rights of the purchasers under it, to retransfer to him the securities which he had turned out to her to secure the payment of the judgment. I collect from the schedules annexed to the answer, that notes, and bonds and mortgages were thus given up to Cross, after his conveyance and after notice thereof to the defendant, to the amount of $5486.67, without reckoning interest which had accrued on the demands. If these had been collected by the defendant, instead of being returned to Cross, they would, with the admitted payments, have largely overpaid the judgment, and nothing would have been due when the defendant attempted to sell the complainants’ lots on execution. The question therefore arises, whether this could be done and the lien still retained upon those lots, without a violation of the complainants’ equitable rights. We are of opinion that it could not. The facts present a case where the creditor has a lien upon two funds for the security of his debt, and another party has an interest in one only of these funds, without any right to resort to the other. In such a case, equity will compel the creditor to take his satisfaction out of the fund upon which he alone has an interest, so that both parties may, if possible, escape without injury. (Wright v. Nutt, 1 H. Bl., 136; Cheesebrough v. Millard, 1 John. Ch. R., 409; Stevens v. Cooper, id., 425; Hayes v. Ward, 4 id., 123; Evertson v. Booth, 19 John., 486; The York and Jersey Steamboat Ferry Co. v. The Associates of the Jersey Co., Hopk., 460; James v. Hubbard, 1 Paige, 235.) The riile in equity requiring parcels of land incumbered by a judgment or mortgage to be subjected in the inverse order of their alienation by the debtor, is a branch of this rule. ( Clowes v. Dickenson, 5 John Ch. R., 235; Gouverneur v. Lynch, 2 Paige, 300; Stuyvesant v. Hall, 2 Barb. Ch. R., 151.) When one parcel is aliened by the debtor the lien attaches primarily to that which remains in his hands, and so on as each parcel is sold; and if anything remains in the hands of the debtor when the lien comes to be enforced, that is to be first subjected to it. The rule applies equally to any other species of property. Hence it is perfectly clear that if the defendant had sought to sell the complainants’ lots on her execution, at the time when she had these moneyed securities in her hands, a court of equity would have restrained her until she had exhausted her remedy upon them, or had assigned them with the judgment to the complainants on their paying the amount. . Several examples of the application of this rule will be found in the cases already referred to. But in this case the defendant, before she attempted to sell the lots, had voluntarily disabled herself from resorting to the securities which Cross had. transferred to her, by giving them up to him; and she had done this with a knowledge of the situation of the complainants, and when she could not but have seen that the consequence of her act would be to cast the lien of her judgment upon the land which the complainants had in good faith purchased and paid for. The result, we think, is, that she has deprived herself of the right to resort to the complainants’ lots. It is analogous to the familiar case where a creditor relinquishes to a principal debtor other direct or collateral securities or remedies which he might have resorted to for the exoneration of the surety. If he does this he deprives himself of the right to resort to him. It subverts the right of subrogation to which the surety would have been entitled upon the payment of the principal debt. Although the complainants do not stand in the precise light of sureties, their condition has many points of similarity; and I do not doubt but that, if they had been compelled to pay this judgment to preserve their estate in these lots, the defendant still retaining the securities which Cross had devoted to the payment of that debt, and no one else having obtained a lien thereon, they would have been entitled to them by way of subrogation. The rule on this subject appears to have been well understood in the civil law. Potjhiek says that “ when a creditor has by his own act incapacitated himself from ceding to the surety his actions, either against the principal debtor or against the other sureties, whether because he has discharged them or because he has by his neglect allowed his demand against them to be dismissed, the surety may obtain a declaration that the demand of the creditor is inadmissible for so much as the surety might have procured by the cession of actions which the creditor has disabled himself from making.” (Treat, on Obl., 280.) In Cheesebrough v. Millard, before referred to, Chancellor Kent admitted the rule as stated in Pothieb to he well settled, and to be applicable to a case like the present, where a party had a subordinate lien upon one of the funds, which was subject to the prior lien of another party; but he was of opinion that it was essential that the party having a claim upon both funds should have been aware of the situation of the other party when he did the act complained of. “ As this rule of substitution,” he says, “ rests on the. basis of mere equity and benevolence, the creditor who’ has thus disabled himself from making it is not to be injured thereby, provided he acted without knowledge of the other’s rights, and with good faith and just intention, which is all that equity in such cases requires.” (1 John. Ch. R., 414.) It is scarcely necessary to mention that a surety, Or. a party standing in the position of a surety, has the same right' of substitution as to collateral securities furnished by the debtor, as in respect to the demand against the debtor himself. (King v. Baldwin, 2 John. Ch. R., 554; Hayes v. Ward, 4 id., 123.) In Stevens v. Cooper (supra) a mortgage had been given upon six lots of land. The mortgagor sold one of them to the complainant, subject to the payment of a proportionate part of the mortgage debt, and afterwards the owner of the mortgage released the remaining lots on receiving other security for their proportion of the mortgage debt, which security turned out to be unavailable. He then filed his bill to foreclose the mortgage against the lot sold to the complainant, for the whole amount of the debt. ' The court held that the complainant’s lot was discharged from that portion of the debt which was equitably chargeable upon the lots released. The same principle was repeated in Hayes v. Ward, already referred to. In James v. Hubbard, before cited, a judgment creditor had released a lot of land, on which the judgment was a lien, to one who had purchased it of the debtor,- and then attempted to sell another parcel which the judgment debtor had aliened at a later period. The court compelled the creditor to deduct from bis judgment an amount equal to the value of the lot released. In Depeyster v. Hildreth (2 Barb. Ch. R., 109) a judgment creditor had taken the debtor’s goods on execution, and in that condition of things another person lent the debtor money on a mortgage of his lands; Afterwards, the judgment creditor, knowing of the existence of the mortgage, withdrew his execution, and the personal property was sold on other exerations. Chancellor Walworth was of opinion that he had by that act forfeited his priority against the land.

The doctrine is founded on the most obvious principles of equity, and the present case is a suitable one for its application. As soon as the defendant’s agent became aware that the complainants had advanced their money, or given their negotiable paper, for a portion of the land bound by the judgment, it was his duty and the duty of his principal so to manage the securities in his hands, and those which the debtor afterwards furnished, as to save the complainants from loss if it could be done without hazarding his collection of the judgment. Instead of doing so, she suffered the debtor to take and convert these securities, which were amply sufficient to have paid the judgment, to his own use. After this it would be eminently inequitable and unjust to allow her to sell the complainants’ land. I think, also, that the proper disposition was made of the costs.

The decree of the supreme court should be affirmed, but without costs in this court.

All the judges concurred.

Judgment accordingly.


text:
    Robinson, survivor, &c., against Stewart.
    A positive denial of fraud in an answer in chancery will not prevail against admissions in the same answer of facts which show that the transaction was fraudulent.
    Where an aged father conveyed to his son all his property, real and personal, in part in consideration of an unliquidated indebtedness to the son for several years’ labor in the management of his farm, and in part to provide for his and his wife’s future support, the son promising orally to pay the father’s debts, supposed to amount to a specified sum, but making no provision for a contingent claim not yet due, and the consideration being altogether much less than the value of the farm, it was Held, that such conveyance was fraudulent and void as against creditors.

      A creditor at large at the time of a conveyance of lands fraudulent as against creditors, having no specific lien on the lands, is only entitled to share ratably with other creditors in their proceeds when sold under his decree.
    The grantee of lands for an inadequate consideration, having paid certain debts of the grantor in part consideration for the conveyance, is entitled to take the place of the creditors as to such debts,'and to share accordingly in the proceeds of the lands when sold in accordance with the player of a creditor’s bill.
    Where part of the consideration in such conveyance was an unascertained indebtedness due the grantee for several years’ services in conducting the farm conveyed, it was Held, that the grantee was entitled, upon the sale of the land as above, to stand as a creditor to the amount due him for services, with interest from the date of the conveyance, but not from the end of each year’s services.
    The grantee of lands by a fraudulent conveyance, upon the sale of such lands in a creditor’s suit, is not accountable to the creditors at large for the rents and profits prior to the time when a receiver is appointed.
    On the 22d of October, 1841, Rufus Scofield gave to the firm of Seymour, Ward & Co., of Albany, his note for $1327, payable one year from date, and endorsed by William Stewart, of Milo, Yates county, and one Pelton. Stewart at this time was the owner of two lots of land; one a farm of about forty acres, on which he resided, and the other a wood lot containing fourteen acres, in the town of Barrington in the same county. The value of this land, which was all the real estate Stewart owned, was about $2000.
    On the 15th of January, 1842, William Stewart conveyed to George D. Stewart, his son and the defendant in this suit, the two lots of land before mentioned; the deed for the fourteen acre lot purporting to be for the consideration of $300, and the other for that of $2000. . The father at the same time transferred to the defendant all the farming imple ments and other personal property' then upon the farm, amounting in value to about $326. The actual consideration for these transfers consisted in an oral promise from the son to pay the debts of the father, then supposed to amount to about $400; the defendant’s three notes for $100 each, payable in four, five and six years with interest, which were to be given to the three little sisters of the defendant, and with the understanding and agreement that in case the debts which the son had assumed to pay “ should exceed $400, the amount of such excess should be divided and allowed as payments on the said notesand lastly, an indenture of lease, bearing date the same day with the conveyances, from the defendant to William Stewart and wife for their lives or the life of the survivor of them, for the yearly rent of six cents if demanded. On the 21st of February following, William Stewart released to the defendant his claim on the wood lot for the consideration of one dollar; and on the 9th of August in the same year he died intestate.
    Upon the maturity of the note made by Scofield to Seymour, Ward & Co., and endorsed by Pelton and William Stewart, payment was demanded and refused, and notice duly given to Pelton, “ and also to the heirs at law of the said William Stewart, deceased.” In December following, Robert M. Seymour and the plaintiff Robinson, as surviving partners of the firm named as payees, recovered a judgment upon the note against Scofield and Pelton, upon which judgment execution was issued and returned unsatisfied, both defendants being insolvent.
    In August, 1843, after an application by Seymour and Robinson for administration on the estate of William Stewart, his son, the defendant, came forward and obtained letters from the surrogate of Yates county, and soon after filed an inventoíy of his father’s personal estate, valued therein at $135.23. On rendering his account as administrator, in April, 1846, after deducting expenses, &c., a balance appeared of $75.42, which was allowed to the widow by the surrogate’s decree, under the act of 1842, leaving no assets of the intestate to apply upon the debt of Seymour, Ward & Co., which had been duly presented and established. Seymour and Robinson, therefore, in August, 1846, filed their bill in this cause against George D. Stewart, charging that the two conveyances to the defendant from his father were fraudulent and void as against the complainants, and praying for a sale of the lands, and an account of the rents, issues and profits thereof from the date of the conveyances. Seymour died after the commencement of the suit, which was prosecuted in the name of the survivor.
    The answer of the defendant alleges a parol agreement between Ms father and himself about the time he came of age, which was some five years previous to the conveyances, that if he would stay and manage the farm and take care of the family, his father would convey to him the land at some future time; which agreement he claimed to have been consummated by the conveyances in question. It insists that he was a purchaser in good faith and for an adequate consideration ; and shows that at the time of the conveyances he was unaware of the existence of the note to the plaintiffs, but that all the remaining debts of his father, which he then assumed to pay, he had since that time in fact paid; and that the amount of such debts was $742.17.
    No proofs were taken, and the cause was heard upon the pleadings and a stipulation between the parties, at a general term in the seventh district, before Justices Maynard, T. A. Johnson and Selden, and a decree made setting aside the conveyances, in accordance with the prayer of the bill, and ordering the sale of the premises and the appointment of a receiver. The decree further declared that the complainants were entitled to be paid their debt against William Stewart, deceased, fro rata with his other creditors who should come in and prove their debts; and that the defendant was entitled to be subrogated to any debts of his father paid by him from his own means, or otherwise than from the personal property which he had received from his father, and from the rents and profits of the real estate. A reference was also ordered to ascertain the debts of William Stewart at his death, and what of them had been paid by the defendant from his own means; and also the rents and profits of the real estate since the death of William Stewart and of his wife (who died in June, 1847), and which had not been applied to the payment of the debts of the deceased.
    The referee appointed under this decree reported that the defendant had paid debts of William Stewart, amounting, with interest from the time of payment, to $1098.27; that personal property received from his father had been applied by him to the payment of such debts, amounting in value, with interest from the date of its transfer, to $87.17; that $121 with interest still remained unpaid, which was owing by William Stewart to another creditor at his death; that the amount due from William Stewart to the defendant for services, from the time the latter came of age to the date of the conveyances, mating annual rests and computing the interest thereon to the latter date, then deducting the value of personal property transferred by William Stewart, and casting interest on the balance to the date of the report, was $1067.53 ; and that the value of the rents and profits from the death of Mrs. Stewart to the date of the report was $190. This report was affirmed at special and general terms.
    The complainant appealed to this court from the original decree and from the orders of affirmance; and the defendant appealed from the final judgment in the action. The grounds of the appeals are indicated in the opinion.

      S. A. Foot for the plaintiff.

      S. Beardsley for the defendant.
   Denio, J.,

delivered the opinion of the court.

1. The defendant’s counsel insists that the plaintiff is not shown to be a creditor of William Stewart. The argument in that respect is based upon the idea that enough is not stated in t1..' bill to show that sufficient notice of the dishonor of the - jte, on which the deceased was an endorser, was given. The note fell due after the death of William Stewart, and the statement is that notice was given to the heirs at law of the deceased. There had been no administration granted at that time, and the next of kin and the heirs at law were the same persons. But it is a sufficient answer to this objection that the plaintiff’s debt was admitted in unqualified terms in the answer.

2. It is said that the decree is wrong in setting aside the deed of January 15th, 1842. The answer is on oath, and denies in terms any fraudulent intent, and states the circumstances under which these conveyances were executed. There is a replication filed, but there are no proofs,- except a stipulation as to some facts which are not very material. It is a familiar rule that a positive denial of fraud in an answer will not prevail against admissions, in the same pleading, of facts which show that the transaction was fraudulent. (Jackson v. Hart, 11 Wend.., 343, 349, per Savage, Ch. J.) The conveyances to the defendant, taking his own statement of the circumstances under which they were given, and of the consideration, cannot be sustained as against the creditors of the grantor. William Stewart was indebted, at the time they were executed, without taking into the account the plaintiff’s debt, which had not then become absolute against him, and without reckoning interest on his debts, about $1400; and his whole personal property was only about $270. Without reference, therefore, to the endorsement, his affairs were in an embarrassed state, and if that debt should come upon him he was hopelessly insolvent. In this state of things, he conveyed his property, real and personal, worth about $2300, to his son, the defendant, a young man wholly without property; and the defendant at the same time gave to his father and mother a lease for their lives and the life of the survivor, reserving a nominal rent. The answer states that the lease was designed to be in the nature of a mortgage, to secure the support and maintenance of the father and mother; but even a responsive answer cannot overthrow the evidence furnished by writings under the signature of the defendant, executed at the time of the transaction. (1 Greenl. Ev., § 258; United States v. Wood, 14 Peters, 430, 442; Clark v. Van Riemsdyk, 9 Cranch, 160.) It is true he agreed with his father-to pay his debts in and about Penn Yan, but this'was not evidenced by any written contract, and it is not shown to have come to the knowledge of his creditors. He also gave his father his notes for $300, but it was part of the arrangement that they should be given to his sisters, and to this extent the conveyance of the fourteen acres was intended to be a gift to the family of William Stewart, which the defendant assisted in consummating. The agreement stated to have been made about the time the defendant came of age will not sustain the conveyances. 1. It did not embrace the personal property, and yet that was given to the son when the land was conveyed. 2. The time when the land was to be conveyed was not mentioned; but as the consideration was the care of his parents during their lives, and it would not, therefore, be fully earned.until their death, it was testamentary in its intention, and did not contemplate a conveyance which should leave the creditors of his father unpaid. The defendant, it is true, was a creditor for his labor at the time the conveyances were made, and to the extent of his debt might have been lawfully preferred; but it was fraudulent as to other creditors for him to receive conveyances of all the debtor’s property to the amount which has been mentioned, while the debt did not exceed one-third of the value of the property. (Butler v. Stoddard, 7 Paige, 163; S. C. in error, 20 Wend., 507.)

Upon the defendant’s statement in his answer it was parcel of the consideration of the conveyances that he should continue to support his father and mother during their lives. This presents the case of a debtor providing for his own future maintenance and support out of his property, which by law belongs to his creditors to the extent of their debts. It need scarcely be said that such an arrangement could -never.be upheld against his creditors. (Goodrich v. Downs, 6 Hill, 438; Barney v. Griffin, 2 Comst., 365.)

3. The remaining questions arise upon the appeal of the complainant, and' relate to the details of the decree. The case does not present any question respecting the conveyances standing as a security for the defendant’s claims against the grantor.- It is not upon that doctrine that the defendant and the other creditors are allowed to participate in the fund to arise out of the sale of the land by the receiver.'' The complainant had not acquired any lien at law, not having obtained any judgment against William Stewart, and was not therefore entitled to a priority over the other creditors. Equity only requires that the fund should be distributed among the creditors pro rata. It is entirely equitable that the defendant should be substituted in the place of the creditors whose debts he has paid. Although the conveyances were void as to creditors they were valid between the parties; and according to the statement in the answer, these debts were to be paid by the defendant as a consideration in part for the conveyances. The complainants have not been injured by the payments made by the defendant, for all they could claim under the circumstances would be their proportionate share of the avails of the property. So ás to the- defendant’s own debt for labor. The conveyances being pronounced, void from the beginning, at the instance and upon the prayer of the complainant, he cannot set up that they extinguished the defendant’s demand. It is like the case of an usurious obligation of a higher nature substituted for a prior legal one. In such cases, if the debtor procures the' one tainted with usury to be set aside, the one for. which it was substituted becomes available; though, while the usurious security remains on foot, the other is deemed to be' extinguished. (Hughes v. Wheeler, 8 Cow., 77; Rice v. Welling, 5 Wend., 595; Vilas v. Jones, 1 Comst., 274, Bronson and Jewett, Js.; La Farge v. Herter, 5 Seld., 241.)

The complainant suggests that though , the court below ordered an account of the rents and profits of the real estate to be taken by the referee, and such account was taken, showing the defendant to have received $190 on that account after the expiration of the life lease, yet the decree makes no application of this sum towards the debts or any of them. The facts seem to ■ be as stated. But the question then arises, whether the complainant was entitled to an account of the rents and profits. I think he was not. As, before remarked, he had no lien, and the conveyances were valid between the parties. .The remedy of the complainant was to procure the land to be sold, and the proceeds to be applied towards the debts. But'until such sale, or at least until the conveyance to the receiver, I know of no principle upon which the defendant could be compelled to account for the rents and profits to creditors at large of the defendant’s grantor. If the grantor had lived, and the land had been sold on execution against him, the creditor would have had no right to the rents and profits until the conveyance by the sheriff. I think, therefore, the decree is right in this respect. If the. defendant has continued in possession under the receiver, the creditors may perhaps have the benefit of these rents' when the receiver’s accounts come to be adjusted in the court below.

The value of the personal property was correctly applied towards the defendant’s debt, as of January 15, 1842, the time when it came to his hands. The referee has allowed the defendant interest upon the amount of each year’s labor, from the end of the year in which it was earned to the time of the conveyance, and then, after deducting the value of the purchased property, has reckoned interest on the balance until the date of the report. The demand being, wholly unliquidated, interest should not have been allowed prior to the conveyances. (Raid v. Rensselaer Glass Factory, 3 Cow., 393; Doyle v. St. James’ Church, 7 Wend., 178.) The deceased attempted to pay this debt by the conveyances, by means of the property conveyed, on the 15th of January, 1842. From that time I think the defendant was entitled-to interest. The decree must be modified in this' respect. In all the other particulars it should be affirmed.

Edwards, J., was in favor of modifying the decree below, so as to *give the defendant a lien on the lands for the amount advanced by him.

Gardiner, Oh. J., and Selden, J., not having heard the argument, took no part in the decision.

Judges Johnson, Rugóles, Allen and Parker concurred in the above opinion.

Judgment accordingly.


author: W. F. Allen, J.

text:
    Cobb against Titus.
    Where two persons exchange with each other notes of equal amounts, for the purpose of raising money by a sale of the notes, each note is a valid consideration for the other, and a sale of either, at a discount greater than seven per cent, does not render it usurious in the hands of the purchaser.
    Where T, as an inducement to C to purchase the note of a third person, adds his own name upon the face of the note as “ security,” and the purchase is made by C at a discount greater than seven per cent, such transaction is not usurious, and T is liable to 0 for the amount paid for the note, with interest.
    Although the contract in such case is for the payment by the surety of the whole amount secured to be paid by the note, the courts will go behind the contract and limit the liability of the surety to the amount paid, with interest.
    This action was brought upon a promissory note in the words following:

      “ For value received, I promise to pay Robert Titus or bearer one hundred and ten dollars, at the Onondaga County Bank, by the first day of September next, with use.
    “ Francis P. Viele.
    “ O. W. Titus, Security.”
    [Endorsed] “ Robt. Titus.”
    The note was given by Viele to Robert Titus in exchange for his note of the same date and amount, and the exchange was made to enable the payees respectively to raise money. The payee of this note applied to the plaintiff to purchase it, who agreed to do so if the payee would endorse it, and procure the defendant, 0. W. Titus, to endorse or sign it as security. Robert Titús thereupon procured the defendant to sign, and he endorsed the note, and. the plaintiff became the purchaser for ninety-five dollars. The defendant insisted that the note had no valid inception as against him until the transfer thereof to the plaintiff, and that the transaction was usurious and his undertaking void. The .referee reported in favor of the plaintiff, against the defendant, for the amount actually advanced, with interest, deducting prior payments. The plaintiff took judgment against Viele, who did not defend, for the whole amount of the note, and against the defendant, O. W. Titus, for the amount reported by the referee, and the latter appealed from the judgment against him. The supreme court in the fifth district affirmed the judgment, the following opinion being delivered by
   W. F. Allen, J.

The referee has found that the transaction was in good faith a sale of the note of Viele by Robert Titus to the plaintiff, and that it was not a device and cover for usury. The only question is, therefore, whether the undertaking and agreement of the defendant was, under the circumstances established, per se usurious and void. The note of Viele, given in exchange for the note of Robert Titus, was given upon a valid consideration, and was an available instrument in the hands of'the latter; and a purchase of it at a discount would not have been usurious. The purchaser would hold it as a valid security for the full amount against the maker. (Rice v. Mather, 3 Wend., 62; Dowe v. Schutt, 2 Denio, 621; Powell v. Waters, 8 Cow., 669; Cameron v. Chappell, 24 Wend., 94.) An endorsement or guaranty of the absolute payment of the note by the maker at maturity, would not convert the sale of the note into a loan of money upon the security of the note and fender the transaction usurious. In such case the endorsér or guarantor, would only be' liable for the amount actually paid for tíre note, with interest thereon. (Munn v. The Commission Company, 15 John., 44; Braman v. Hess, 13 id., 52; Rapelye v. Anderson, 4 Hill, 472; Brown v. Mett, 7 John., 361; Cram v. Hendricks, 7 Wend., 569; Mazuzan v. Mead, 21 id., 285.) In the cases cited, the courts have gone behind the contracts of the parties and have received evidence of the consideration of the agreements, in order to limit the liability bfthe contracting parties and uphold the transaction. The contract in each of the cases was upon its face for the payment by the endorser, guarantor, or security of the whole amount secured to bé paid by the instrument negotiated, but the courts held that the recovery should nevertheless be limited to the amount actually paid as a consideration for the undertaking; thus, to some extent varying the terms of the contracts. Some of these cases have not been entirely satisfactory to the profession, but they have been decided by the court of last" resort and are obligatory upon all inferior tribunals.

Applying the principles upon which these decisions proceed to this case, the" obligation of the defendant must, under the finding of the referee upon the - question of fact, be held to be free from the taint of usury. The note is, in'form, the joint and several promissory note of the defendant and Yiele, and the makers might have been sued jointly or severally thereon. (Story on Prom. Notes, § 57.) The plaintiff has by his proceedings in this action elected to proceed against the defendant as a several maker. Whether the proceedings have been entirely regular it is not important to decide, as no obj ection is made to the practice adopted. As before said, the referee has found that the transaction was, in good faith, a sale of the note of Yiele, and that the undertaking of the defendant was collateral to that of Yiele. Had he endorsed the note at the request of Robert Titus, under these circumstances, his endorsement would have been valid. So, had he signed an agreement by which he had guaranteed the payment of the note at maturity, it would not have been usurious, but would have been a valid agreement, to the amount paid for the note, with interest thereon. (Mazuzan v. Mead, supra.) The fact that he was a surety for the seller of the note, and the consideration of the transfer and of his undertaking was paid to another and not to himself, would not affect his liability. (Rapelye v. Anderson, 4 Hill, 472.) In the case cited, the assignor of a bond and mortgage for an amount less than the amount secured to be paid thereon, gave a bond with security in a penalty double the amount of the bond and mortgage, conditioned for the payment by the mortgagor of the whole amount thereof, and this was held to be a valid obligation, and the obligors liable thereon, but only to the amount actually advanced for the bond and mortgage. If in that it was proper, notwithstanding the form of the obligation, to go behind the instrument and ascertain the consideration, with the view to limit the liability of the obligors and uphold the transaction, it must be proper to do so in the case of a simple contract. In this case, the defendant, instead of endorsing the note, as in Cram v. Hendricks, or guaranteeing the payment thereof, either by his simple contract, as in Mazuzan v. Mead, or by his bond, as in Rapelye v. Anderson, has signed his name as “ security” to the note of Yiele, and thus become a joint and several maker thereof, and apparently liable, for the amount specified therein, but really liable, within the cases, only for the amount actually advanced by the plaintiff. This was the extent of his liability, and if so all pretence of usury vanishes. The note is none the less the several note of Viele, and valid as such, because the defendant has subscribed his name to it as surety and thus become collaterally liable for its payment. A difficulty might arise in treating it as a joint note, but that is obviated in this case. It was in effect the transfer of the severaLnote of Yiele, and the giving by the defendant of his several note to secure its payment; and of such a transaction usury cannot be predicated. No matter what form the transaction may assume, or in what way the party may bind himself, if. the obligation is assumed upon the transfer of an instrument, valid at the time of the transfer in the hands of the assignee, the liability is limited to the amount actually paid, if the cases referred to are to be regarded as law. (Mumford v. Am. Life Ins. and Trust Co., 4 Comst., 463.) If they are to be reviewed and reversed, or limited in their application, it must be done by a higher tribunal.

The defendant again appealed to this court, and after argument by J. W. Loomis for the appellant, and J. Huger for the respondent, all the judges agreed that the judgment should be affirmed, for the reasons given by Allen, J., below.

Judgment affirmed.


author: Edwards, J.

text:
    Spencer against Ayrault.
    Where the equity of redemption is conveyed to the mortgagee, with an express written agreement between the parties that the deed shall not operate as a merger of the mortgage except at the election of the mortgagee, equity will preserve the two estates distinct, unless the mortgagee appear to have elected that they should be merged.
    A mortgage given for a just debt is not rendered fraudulent as against creditors by including in it interest on the debt not collectable at law, where the allowance of interest is just and equitable.

      Bill in equity for the foreclosure of a mortgage executed to the plaintiff, Samuel Spencer, by his father, Samuel W. Spencer, to secure the payment of $1362.08 due from the mortgagor, and to indemnify the plaintiff against a promissory note for $200, signed by him as surety for the mortgagor. The defendant, Allen Ayrault, was made a party as a judgment creditor of the mortgagor. Six years after the date of the mortgage, in December, 1845, the mortgagor and his wife executed to the -plaintiff a quit-claim deed of the mortgaged premises, which were worth about $1200. At the same time with the giving of the quit-claim deed the Spencers, father and son, entered into an agreement under seal, by which, after reciting the execution of the mortgage and the deed, it was expressly agreed that the object of the deed was to release to the plaintiff the equity of redemption of Samuel W. Spencer and his wife-in the mortgaged premises; and that the deed was not to operate as a merger of the title of the mortgagee under, and by virtue of the mortgage, ‘ ‘ only at the election of the said Samuel.” It was not. shown that the plaintiff had ever elected that it should so operate.
    At the time the mortgage in suit was executed, the plaintiff and the mortgagor came to a settlement of their accounts, and found the amount for which it was given due to the plaintiff. This amount was obtained by adding interest upon every item of the account, which extended over a period of nearly fourteen years, from the date of the item to the day of settlement. Upon this ground, claiming that the mortgage was fraudulent against creditors, and upon the ground that the mortgage was merged in the subsequent title by quit-claim deed, Ayrault defended. A decree of foreclosure and sale was granted, and affirmed on appeal by the supreme court in the seventh district. Ayrault then appealed to this court.

      J. Wood, Jr., for the appellant.

      Orlando Hastings for the respondent.
   Edwards, J.

This action was brought for the foreclosure of a mortgage, executed to the plaintiff by his'father, Samuel W. Spencer, on the 16th of December, 1839. It appears from the case that on the 20th of December, 1845, the father, conveyed, the mortgaged premises to the plaintiff by a quitclaim deed. The. counsel for the defendant contends that this caused a merger of the mortgage. It is a well settled rule that'when a greater and a less estate meet in the ..same person equity will- preserve them distinct, provided there is an express or implied intent to do so. (Compton v. Oxenden, 2 Ves., Jr., 264; 4 Bro. Ch. Ca., 403; James v. Morey, 2 Cow., 246.) In this case it appears that simultaneously with the execution of the quit-claim deed the parties executed an instrument in writing, under their hands and seals, in which they declare that the deed shall not operate as a merger of the title to. the .plaintiff under and by virtue of the mortgage to him, except at his election, and there is nothing in the case which shows that .he elected to merge, the incumbrance in the equity of redemption.

The next ground of defence is, that the mortgage was made with an intent to hinder, delay and defraud creditors-In order to establish this the defendant called the plaintiff as a witness, who produced an account containing the items of indebtedness which made up the principal sum secured by the mortgage. The correctness of the charges was positively and unequivocally sworn to, and, except as to one item, there was no testimony offered for the purpose of impugning the accuracy of the statement of the witness. The defendant’s counsel, however, contended that there was inherent evidence of the incorrectness of the account, from the fact that it ran through a number of years, and that it had not been kept in writing. It will be seen, by reference to the account, that the articles mentioned in it are of such a character as the plaintiff may be supposed to have required, and'the amounts charged are reasonable. -The whole account consists of but twelve items, and they are such as might be easily carried in the memory. Again, it was an account between father and son, commencing and continued in a spirit of kindness and accommodation, and with a feeling of mutual confidence between the parties. It is not surprising that under these circumstances the parties should have omitted that caution, both as to the vouchers given and entries made, which is generally used in business transactions between strangers, and such an omission is not sufficient to overcome the positive testimony of the defendant’s own witness.

But is said that the allowance of interest shows a fraudulent interest. In my judgment it is not absolutely necessary to the bona Jides of such an allowance that the charge should be of such a character that it might be recovered in a suit brought by a creditor against his debtor. Interest is always chargeable where there is either an express or implied agreement to pay it. (Meech v. Smith, 7 Wend., 315.) And there are many dealings amongst men in which interest is habitually charged and paid, when it could not be claimed on the ground of strict legal right. These transactions are regarded as fair and just as between the parties, and they cannot be considered fraudulent as to others. Such, in my opinion, is the. character of this transaction.

The next charge which is objected to is that which is made for the use of the clothing works at Mount Morris. It was clearly proved that the mortgagor had the use of the plaintiff’s share in the factory, but it is contended that the amount charged for such use is too high. The plaintiff in his testimony states that his father was to give him what he could afford for the use of the factory, which, at the time of the settlement, he said, was $150 a year. The defendant called another witness, who estimated the yearly value at a much less sum. If the question before us were simply as to the yearly value of the plaintiff’s interest in the premises, I should think that the amount agreed upon between the parties was too high. The question, however, is not whether the charge is too high, but whether it is. fraudulent. It is stated in the supplemental bill, and admitted in the defendant’s answer, that the value of the mortgaged premises was not over $1200, and the whole account, as made up at the time when the mortgage was executed, amounted to $1502.08; so that it was not necessary for the parties to make the charges as high as- they did in order to cover the whole value of the property mortgaged. I do not think that the evidence upon this branch of the case warrants the conclusion that the parties acted with a fraudulent intent.

The judgment of the court below should be affirmed.

Gardiner, Ch. J., and Selden, Allen and Parker, Js., concurred.

Johnson and Rugóles, Js., dissented.

Denio,’J., having been counsel in the case, took no part in the decision.

Judgment affirmed.


author: Gray, J.

text:
    Moore against Meacham.
    In an action by a merchant, charging the defendant with having fraudulently obtained a suit of sheathing copper for a ship by purchasing it in the name of ship-owners from whom he had no authority, an entry in the books of the merchant, made, at the conclusion of the bargain, by a clerk who was present and heard it, is not evidence in favor of the plaintiff to show that the sale was made to the ship-owners, and not to the defendant personally.
    Declarations of the plaintiff, made after the bargain and before the delivery of the copper, to a third person from whom he obtained a part of it to make up a deficiency in his own stock, are not admissible in favor of the plaintiff for the like purpose.
    Declarations, to become evidence as part of the res gestes, must accompany the act which they are supposed to characterize, and must so harmonize with it as to he obviously a part of the same transaction.
    The direct evidence of the contract leaving it doubtful whether the sale was made to the defendant personally or to the ship-owners, evidence in behalf of the defendant that he was, at the time of the sale in good credit, was held admissible in support of his claim that the purchase was made on his own account.

      Where the language of a contract leaves its meaning doubtful, evidence of extrinsic facts is admissible to aid in removing the doubt.
    The court cannot be required in its charge to the jury to express an opinion upon a question of fact.
    This was an action of trespass on the case. The first count in the declaration was for obtaining from the plaintiff á quantity of sheathing copper, by false and fraudulent representations that the defendant was the authorized agent of the ship Thomas Williams and owners, to charge her and them with the price, whereby the plaintiff was induced to sell and deliver the copper, and afterwards to sue one of the owners for the price, in which action the plaintiff was defeated by the defendant’s testimony that he had no authority, and so lost the expenses of that suit in addition to the value of the copper. ■ There was also a count ie bonis asportatis, for taking and carrying away the copper, and a count in trover for converting it.
    The cause was tried before Hon. Samuel Jones, chief justice of the superior court of New-York, and a jury. It appeared that in April, 1842, the defendant, being a commission merchant, known to be agent for several ships, and reputed to be agent for several whaling ships of Hew London and Stonington, applied to the plaintiff to buy a suit of sheathing copper for a vessel. The bargain was made in the presence of the plaintiff’s clerk, with the understanding that the copper was wanted for the ship Thomas Williams, lying at Stonington, and was shipped, by the defendant’s direction, to C. P. Williams, Stonington, who was agent for that ship and others. At the conclusion of the bargain, the plaintiff’s clerk made an entry of the transaction in his book, headed as follows:
    “ Ship Thomas Williams and owners, “ Greo. L. Meacham, Dr.,
    (Date.)
    “ Bought of John A. Moore.”

      This entry being offered in evidence by the plaintiff, was admitted by the court as evidence only of the fact that such entry had been made, and not that the copper was sold as alleged in the declaration. To this ruling the plaintiff excepted; and other exceptions were taken by him upon the trial, as stated in the opinion of this court.
    The jury found for the defendant; and judgment upon their verdict being affirmed, on writ of error, by the supreme court in the first district, the plaintiff appealed to this court.

      H. S. Dodge for the appellant.

      B. F. Butler for the respondent.
   Gray, J.

The first question presented is upon the exception taken by the plaintiff’s counsel to the decision of the judge, in refusing to permit an entry made in the plaintiff’s books to be read as evidence of the fact that the copper there charged had been sold to the ship Thomas Williams and owner's. This entry was not made by the plaintiff, but by his clerk, who testified that the bargain was made between the plaintiff and defendant in his presence. In such case the party is not entitled to the benefit of his books as evidence. He had a clerk who heard the bargain and made the entry. Whether the entiy was justified by the facts must depend upon the clerk’s recollection and other evidence of the bargain. The question before the jury was, whether or not the bargain made warranted the entry. But it was claimed as a part of the res gestee, and as such was permitted to be read to the jury as evidence of the mere fact that such an entry was made. Of this ruling the plaintiff ^id no reason to complain. The entry was neither the act nor the declaration of the plaintiff made at the time, but that of Ms clerk, who was upon the stand to assign the reasons why the entry was thus made.

The plaintiff also excepted to the ruling of the judge in refusing to permit him to prove that on the day the copper in question was delivered, and before it was delivered, he, not having a fall assortment out of which to supply the order, applied to another house for it, and proposed to give the notes he was to receive without recourse to him; and assigned as a reason that he had sold the copper to the defendant as agent of the ship Thomas Williams, and that her owners were rich, and liable for the amount of the notes. This evidence was also claimed a,s a part of the res gestee. The general rule is that declarations, to become a part of the res gestee, must accompany the act which they are supposed to characterize, and must so harmonize as to be obviously one transaction. (Enos v. Tuttle, 3 Conn., 250.) The object of the declarations offered was to show what the bargain was. The bargain and the performance of it were distinct transactions. By the bargain, which was completed before the declarations offered were made, the rights of the parties had become fixed, so far as they could be affécted by a parol agreement. It was clearly not competent to allow the party to prove his declarations while performing or endeavoring to perform his agreement, for the purpose of characterizing the agreement itself. It was at most an offer to prove the plaintiff’s construction of the effect of language used between him and the defendant in making the bargain, after it was closed, and when the party to be affected by it was not present. In the case of Fellowes v. Williamson (1 Moody & Malk., 306), the declarations of the plaintiff, though made five months after the recommendation, were made at the time of bargaining, and were offered to show that the goods were furnished upon the strength of the recommendation; and in Allen v. Duncan (11 Pick., 308), the declaration was made for the purpose of correcting a mistake upon the first information received that it had been made. The declaration in that case being against the interest of the party making it, having the effect to make him solely responsible instead of being jointly liable with another, and being followed by the act of paying the debt, was held admissible. No such feature is presented in this case. The declaration here offered was hot against the interest of the party making it, nor followed by any act against his interest in confirmation of its truth.

The next exception arises upon the admission of proof that the defendant’s credit at the time of the sale of the copper was good. An important question in the case was, to whom did the plaintiff give credit for the copper, to the defendant or to Williams ? If the defendant had been irresponsible at the time, it certainly would have contributed much to strengthen the argument that the credit was not given to him. His good credit would have the effect to keep the attention of the jury upon what he said and did at the time of the sale, for the purpose of determining from what passed at the time to whom the credit was in fact given. The parties differed in relation to the true interpretation that should be given to their language while bargaining. In such case, extrinsic facts are frequently resorted to to aid in the interpretation of language susceptible of more than one construction, and are competent for that purpose. (French v. Carhart, 1 Comst., 96.) The only object of the evidence objected to was to hold the attention of the jury to the language used, that from it alone they might determine to whom the credit was given. This they were bound to do without the evidence of the good credit of the defendant, there being no other extrinsic facts to be repelled by the proof of the defendant’s responsibility. The evidence may, therefore, have been immaterial. The fact, however, that the defendant proved that which the law,. without proof to the contrary, would presume to exist, is no ground of error.

At the conclusion of the judge’s charge, the plaintiff’s counsel requested him to charge “that the representations and conduct of the defendant were sufficient to induce the plaintiff to suppose he was selling to the ship; that if the defendant perceived the plaintiff had received that impression, and stood by and allowed' him to remain under that impression without undeceiving him, the defendant was chargeable as for a suppression of truth, in the same manner as if he had made a fraudulent representation.” This the judge declined to do, stating that the substance of this request was contained in his charge. To this refusal to charge as requested the plaintiff’s counsel excepted. This is the only exception properly taken to the charge or refusal to charge. The judge was clearly right in declining to charge the jury that the representations and conduct of the defendant were sufficient to induce the plaintiff to suppose he was selling to the ship. A judge is not required to express an opinion, much less to charge, as to a belief, when, as in this case, the evidence would not warrant a peremptory ruling of the point in favor of the party seeking to establish it. Whether the defendant’s representations and conduct were sufficient to induce the plaintiff to suppose he was selling to the ship, was a question of fact to be solved by the jury upon a fair consideration of the evidence, and was so considered'by the judge, who fairly submitted the question to them. The residue of the request had been covered by that portion of the charge in which the jury were instructed “ that if the defendant intended to indicate that he was acting for the owners of the ship, or to lead or allow the plaintiff to believe the ship-owners to be exclusively or conjointly responsible with him for the price of the copper, he was chargeable for fraud.”

The judgment should be affirmed.

Judgment affirmed.