text:
    The Xenia Branch of the State Bank of Ohio, Plaintiffs (Appellants), v. James Lee and Benjamin C. Lee, Defendants (Respondents).
    1. In an answer, containing several defences, each defence, separately pleaded as a distinct defence, must he in itself complete, and must contain all that is necessary to answer the whole cause of action, or to answer that part thereof which it purports to answer.
    2. The former rule, which required each plea to be complete in itself, and to constitute a defence to the allegations to which it was addressed, has not been relaxed by the Code.
    3. These propositions do not necessarily import that, in order to avoid repetition, allegations of fact, which form a part of several defences, may not be once stated, and be thereafter incorporated in each successive defence, by appropriate words of reference, instead of repeating them at length in each.
    4. On a demurrer to an answer, on the ground that the averments therein are not sufficient to constitute a defence or counter-claim, if the Court are clear in their opinion, that the answer is defective in substance and the demurrer is well taken, they will sustain the demurrer, although the ground of their opinion is one which was not suggested nor discussed by counsel on the argument.
    5. In an action, in the nature of Trover, brought to recover the value of notes or bills of exchange from a defendant who claims title thereto through the plaintiff’s endorsement, where the plaintiff sets out the title under which the defendant claims and seeks to recover such value, by impeaching that title, the defendant may set up and affirm his own title, aver demand of payment, refusal, protest, and notice to the plaintiff of non-payment; and demand, by way of counter-claim, a judgment against the plaintiff, as indorser of such notes or bills. '
    6. Such a counter-claim is proper, both as “ arising out of the transaction, which is set forth in the complaint as the foundation of the plaintiff’s claim;” and also, as a cause of action, “ connected with the subject of the action.”
    7. The definitions of a counter-claim, in § 150 of the Code, considered; and the extension of the right beyond claims formerly set up, under the name of recoupment, also noticed.
    (Before Bosworth, Ch. J., Hoffman, Slosson, and Woodruff, J. J.)
    Heard, Oct. 23d;
    decided, Nov. 13th, 1858.

      This action, came before the General Term by appeal from an order, overruling the plaintiffs’ demurrer to the “ fifth separate defence,” contained in the defendants’ answer.
    The complaint alleged, that the defendants, about the 15th day of July, became possessed of certain six bills of exchange, (particularly described, drawn for sums amounting in all to $17,400,) under the circumstances set forth, viz.: that the said bills were drawn in Ohio, in the regular course of business, and were, at or about the respective dates thereof, regularly discounted by the plaintiffs, whereby the plaintiffs became the owners and lawful holders- thereof; that the plaintiffs indorsed the same only to facilitate the collection thereof, and thereupon transmitted the same to their agent, the Ohio life Insurance and Trust Company, at its office in Hew York: but only for collection, and payment of the proceeds to the plaintiffs, the said Trust Company not being authorized by the plaintiffs to sell, pledge, or in any manner dispose of, or use, said bills, except in collecting the sums secured thereby, respectively, for the account of the plaintiffs, and for remission to said plaintiffs.
    That the said Trust Company, before the receipt of such bills, was indebted to ■ the defendants for moneys, loaned by the latter at usurious interest; and the Company, without authority, and in violation of their duty to the plaintiffs, transferred and delivered to the said defendants the said bills of exchange, as collateral security for such usurious and precedent indebtedness; and the defendants received, and have ever since retained them, under the pretence of holding them as such collateral security, and not otherwise; that the defendants did not receive them in regular course of business in, good faith, nor for a valuable consideration; but took them, chargeable with knowledge that the same were the property of the plaintiffs, and that the Trust Company had no authority to transfer them.
    The complaint then states, that by a statute of Ohio no notes or bills discounted by any banking company shall be assignable, except for collection, or to pay or redeem its circulating notes, or to pay its other liabilities; and that the defendants had due notice thereof.
    That the plaintiffs, on the 28th August, 1857, demanded the bills from the defendants, and they refused to deliver the same, and detained, and still unlawfully detain, the same, and have converted them to their own use.
    That the bills were of the value of $17,400 when so demanded, less a rebate of the interest for the time the bills then had to run.
    It demands judgment for such sum of $17,400, with interest from the days of the maturity of the bills.
    The answer of the defendants contained, First, a general denial of the allegations in the complaint, and each and every of such allegations.
    Then “ /Second: The defendants, for a separate defence, etc., say,” etc.
    Then “ Third: And these defendants, for a separate defence, etc., say,” etc.
    Then “ Fourth: And these defendants, for a separate defence, etc., say,” etc.
    The particulars of these defences, it is unnecessary to state, since they were not demurred to.
    Then “ Fifth: And, for a separate defence to the alleged cause of action in said complaint contained, and, by way of counterclaim thereto, these defendants further say:”
    Here follow precise statements of the drawing of each of the six bills of exchange by the respective drawers thereof; the acceptance, or the waiver of acceptance, thereof; the endorsement thereof, in blank, by the payees of two thereof, and their delivery to the plaintiffs; and as to four thereof, that they were drawn, payable to the order of, and delivered to the plaintiffs; that the plaintiffs, by their cashier, acting in his official capacity, duly endorsed each of the said bills to the said Trust Company, by an endorsement, in words, “ pay Edwin Ludlow, cashier, or order”—said Ludlow then being the cashier of the said company—and duly delivered such bills to the said Trust Company, who then became the legal owners and holders thereof.
    That, before their maturity, the said Trust Company, duly endorsed, for value received, and delivered the said bills of'exchange to the defendants, who then became, and now are, the legal owners and holders thereof.
    The answer then alleges, due presentment, demand, refusal, and protest of the said bills of exchange for non-payment, and notice thereof to the plaintiffs; and that the amounts of the same respectively, with interest from the maturity thereof, and expenses, are due to the defendants thereon from the plaintiffs; for which the defendants claim judgment against the plaintiffs. And, finally, this part of the answer avers, that the bills of exchange therein described are the same instruments, etc., in the complaint mentioned.
    To that portion of the answer which is set forth, fifth, as a separate defence, the plaintiffs demurred, and assigned, as grounds of demurrer, under five different forms of expression, that the same, and the facts therein stated, are not sufficient to constitute a defence, nor a counter-claim.
    The demurrer was brought to argument at Special Term, before Mr. Justice Hoffman, and the demurrer being overruled, the plaintiffs appealed to the General Term.

      Wm. Stanley, for plaintiffs (appellants).

      O. A. Seward, for defendants (respondents).
   By the Court. Woodruff, J.

The plaintiffs herein, by their complaint, allege the drawing of sundry bills of exchange in the State of Ohio, by various drawers; the discounting of such bills by the plaintiffs in regular course of business, whereby they became the lawful holders' and owners thereof; the endorsement of the said bills by them to the Ohio Life and Trust Company for collection, and the transmission thereof to the said company at New York, for that purpose only; the transfer and delivery of the bills to the defendants in this suit by the said company unlawfully, without authority, and in violation of its duty, and as collateral security for a precedent usurious indebtedness owing by the company to the defendants; that the Trust Company had no authority to transfer the bills; that the defendants took them, chargeable with knowledge, that the same were the property of the plaintiffs, and that the Trust Company had no authority so to transfer or deliver the same; the retention of the bills by the defendants; a demand of the same from the defendants by the plaintiffs, and a refusal to deliver them: and the plaintiffs thereupon demand judgment for the value of the bills, with interest from the maturity thereof respectively.

That portion of the defendants’ answer which is demurred to, and which is stated, fifthly, as a “separate defence,” sets forth with greater particularity the drawing of the bills, the terms thereof, and their delivery to the plaintiffs, the endorsement and delivery thereof by the plaintiffs to the Ohio Life Insurance and Trust Company, and the endorsement and delivery thereof by that company for value, to the defendants, averring, that the defendants then became, and now are, the legal owners and holders thereof.

The answer then avers the demand of payment, refusal, protest, and notice to the plaintiffs as endorsers, and claims thereupon to have judgment against the plaintiffs for the amount thereof.

The plaintiffs’ demurrer assigns for cause, that this part of the - answer does not state facts sufficient to constitute either a defence or a counter-claim.

If we are to consider this fifth and separate defence as it is pleaded, viz., as a separate defence to the action, and judge of its sufficiency as an-answer to the complaint, it is material to notice, that it does not contain any denial that the transfer by the Ohio Life and Trust Company to the defendants was without authority; that the bills were held by that company for collection only; that the transfer was in violation of the duty of that company to the plaintiffs; that the' defendants took, them chargeable with knowledge that the same were the property of the plaintiffs, and that the company had no authority so to transfer them; and, especially, that the bills were transferred to the defendants by the company as a collateral security for a precedent usurious indebtedness.

It is quite obvious, that if these bills were transferred to the defendants, in fraud of the rights of the true owners, (the plaintiffs,) and only to secure an antecedent debt, the defendants are not entitled tb retain them as against the plaintiffs, nor can they make a title, so acquired, the foundation of any claim to recover the amount thereof from the plaintiffs, under the endorsement by the latter.

And it is equally clear, that if the bills were so transferred in fraud of the plaintiffs’ rights, but to secure to the defendants a usurious demand claimed by them of the Trust Company, the defendants have no title to retain them from the plaintiffs, nor to found a counter-claim thereon.

And so, if the averment, that they took them chargeable with, knowledge that the same were the property of the plaintiffs, and that the Trust Company had no authority to transfer them, may be regarded as a statement of a fact, then their title to retain the bills, and their title to set them up as a counter-claim equally fail.

The answer, in this case, it is true, contains a denial of the allegations of the said complaint, and each and every of the said allegations. This is the “ first” defence set up in the answer. If this may be referred to, and be made to spell out the fifth defence, then it is not true, that the allegations above referred to are not denied. But it is equally true, that if, in determining the sufficiency of the fifth defence, we are to take the first defence to be true, then the defendants have no title—for the counter-claim rests upon the very same transfer to the defendants which the complaint alleges, and which this first defence denies; and if no such transfers were made, or if no such bills were drawn as the' complaint alleges, then,'whether the plaintiffs have any title to recover or not, it is clear, that the defendants have no counterclaim.

This palpable conflict of allegations, if it shows nothing else, illustrates the impropriety and inconsistency of attempting to sustain one defence pleaded separately, by incorporating therein another distinct defence, containing averments partly consistent and partly inconsistent therewith, and which, if taken to be wholly true, would destroy the defence sought to be aided.

Other considerations, however, which seem to us to be quite conclusive, forbid the attempt thus to bolster up a defence separately pleaded, and affirm the true rule to be, that each defence so separately pleaded, must be in itself complete, and must contain all that is necessary to answer the whole cause of action—or to answer that part thereof which it purports to answer.

Section 150 of the Code permits a defendant to set forth, by answer, as many defences and counter-claims as he may have, whether legal, or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished.

This language, of itself, imports, that when more than one defence or counter-claim is interposed, each must be a sufficient defence or counter-claim, to answer that cause of action to which it is addressed; or, where the cause of action can be divided, then to answer a part thereof. The provision in this respect, is even more explicit and guarded than the similar language in the Revised Statutes, which permitted “ the defendant in any action, to plead as many several matters as he shall think necessary for his defence.” (2 Rev. Stat. 352, [§ 9,] 27.)

The requirement to state them separately, imports that these separate statements are not to be parts of a defence. Unless they are legally complete and sufficient, they are not defences— and if it is necessary to their completeness, to refer to, and include part of what is alleged as another distinct defence, then they are not separately stated.

This is made still more clear by section 153, which permits the plaintiff to "demur to one or more of such defences or counterclaims, and reply to the residue of the counter-claims.” The reason for requiring a separate statement of each defence or counter-claim here becomes apparent. It is not merely, that the pleading may be thereby presented in an orderly form, and be more intelligible, but that the plaintiff may address his demurrer specifically to any one of the separate statements set up as such defence or counter-claim, and allege its insufficiency.

It is unnecessary to do more than refer to the familiar .rule under our former system, that required each plea to be complete in itself, and to constitute a complete defence to the allegations to which it was addressed. (1 Chit. Pl 511; Nevins v. Keeler, 6 J. R. 63 ; Spencer v. Southwick, 11 J. R. 593; Hallett v. Holmes, 18 J. R. 28; Van Ness v. Hamilton, 19 J. R. 349.) The same reasqn now exists; and there is nothing in the language of the Code indicating that the rule is now relaxed, but as already intimated, the contrary is plainly involved in the provisions of the Code itself.

How far it may be competent for a defendant, for the purpose of avoiding repetition, to aver once for all, certain facts alike applicable to each of several defences or counter-claims, and having averred them, either in. one of his distinct and separate statements of a defence, etc. or by way of introduction to all, to thereafter, in his subsequent separate statements, refer intelligibly and distinctly to them, so as by reference to clearly include them in each, it is unnecessary to consider—no such attempt is made in the present case.

These views inevitably lead to the conclusion that the fifth “separate defence” here demurred to is insufficient. It contains no denials of the allegations in the complaint above enumerated, nor any averments inconsistent therewith. These allegations must, therefore, for the purposes of this demurrer, be taken as admitted.

We are not unmindful of the circumstance that the arguments addressed to us in support of the demurrer upon this appeal did not embrace the objections to the answer which have thus far been considered; and the suggestion may naturally arise, that the Court are not called upon to seek out defects in the answer to which counsel have not called their attention. This may sometimes be so, where the objections relate to matters which are formal merely, or which would be cured by a trial and verdict upon the very right of the matter. But we are not willing in this cause to enter a deliberate judgment, which on the record, pronounces this defence a sufficient defence, when "we are clear that it is wholly defective and insufficient. Indeed, it is very far from clear that by so doing we should not injure the very party in whose favor we should so pronounce judgment; for should that judgment become the subject of review in the court of last resort, it must, we think, be pronounced erroneous, and be reversed. And we do not see how that Court could be informed what arguments were urged here, or that we did not decide, on all grounds, that the defence was sufficiently pleaded.

The reasons given are therefore decisive of the present appeal, and we might dismiss the subject without disposing of the question actually argued; but the parties have come to the discussion of this appeal for the purpose of testing the defendants’ right to set up the matters contained in this answer as a counter-claim. There is little doubt that the defendants will amend the answer by inserting in the fifth defence the matters of denial, which are already contained in other parts of the answer, and which, if inserted in the fifth defence, would relieve it from the objections which have been noticed. And if we refrain from the expression of an opinion upon the main question, we probably only put the " parties to the expense and delay of coming here again, upon a fresh demurrer and new appeal, to argue again the very question already fully and ably argued on this occasion. Under such circumstances, we think they are now entitled to our views upon that question.

Indeed, if we have considered that question, and are of opinion that such a counter-claim is not to be allowed, it may be pertinently asked, why should the Court consider, at all, the defects in the answer which have above been pointed out ?

The great question in controversy then-,, is, in an action, in the nature of trover, by a plaintiff who 'has endorsed notes or bills of exchange, brought to recover the value thereof, from a defendant in whose possession they are, and who claims title thereto through the plaintiff’s endorsement, can the defendant set up title in himself, demand of payment, protest, and notice, and ask, by way of counter-claim, a judgment against the plaintiff as endorser?

By § 150 of the Code, subd. 1 and 2, the counter-claim which the defendant may set up in his answer may be 1st, “a cause of action' arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the actionand 2d, “ in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.”

This division of the section shows that there may be a counterclaim when the action itself does not arise on contract—for the second clause is expressly confined to actions arising upon contract, -and allows a counter-claim in such cases of any other cause of action, also arising on contract; and this may embrace, probably, all cases heretofore denominated “set off,” legal or equitable, and any other legal or equitable demand, liquidated or unliquidated, whether within the proper definition of set off or not, if it arise on contract. (Gleason v. Moen, 2 Duer, 642.)

The first sub-division would therefore be unmeaning, as a separate definition, if it neither contemplated cases in which the action was not brought on the contract itself, in the sense in which, those words are ordinarily used, nor counter-claims which did not themselves arise on contract.

This first subdivision, by its terms, assumes that the plaintiff's complaint may set. forth as the foundation of the action, a “ contract,” or a “transaction.”

The legislature, in using both words, must be assumed to have designed that each should have a meaning; and in our judgment, their construction should be according to the natural and ordinary signification of the terms.

In this sense, every contract may be said to be a transaction; but every transaction is not a contract.

Again, the second sub-division having provided for all counterclaims arising on contract, in all actions arising on contract, no cases can be supposed, to which the first sub-division can be applied, unless it be one of three classes, viz:

1st. In actions, in which a contract is stated as the foundation of the plaintiff’s claim, counter-claims, which arise out of the same contract, or—

2d. In actions in which some transaction, not being a contract, is set forth as the foundation of the plaintiff’s claim, counterclaims, which arise out of the same transaction, or—

3d. In actions, in which either a contract, or a transaction which is not a contract, is set forth as the foundation of the plaintiff’s claim, counter-claims, which neither arise out of the same contract, nor out of the same transaction, but which are connected with the subject of the action.

Whether this analysis of the first sub-division makes its import more clear, or will aid in its application to particular cases, we will not affirm; but we think it is plainly a true distribution .of the language of the section, and a necessary reading of the sub-division, if all its terms are to have any meaning.

1st. What, then, is meant by the clause, which “ in actions in which a contract is set forth in the complaint, as the foundation of the plaintiff’s claim, permits the defendant to counter-claim a cause of action arising out of the same contract.”

At the first view, this would seem to provide for a case also covered by the second sub-division.’ But a moment’s reflection suggests, that we had, when the Code was enacted, been familiar with a class of actions in which, though a contract was the substantial foundation of the plaintiff’s claim, the action was not brought on the contract, but on the duty which the law created. Actions, which were formerly called ex delicto quasi ex contractu, were of this class: e. g. actions on the case against common,carriers, or against inn-keepers, in which the plaintiff might declare, on the contract, in the form of assumpsit, or on the duty, in the form of case ex delicto.

And other actions on the case may, perhaps, furnish examples that would illustrate what is meant by the clause above recited: e. g. an action on the case for a false warranty—a form of action formerly used instead of declaring on the warranty as a contract.

In these and similar cases, it may not be altogether inaccurate to say, that a contract may be the foundation of the plaintiff’s claim, although the action does not arise on the contract.

And in all such cases, a counter-claim, whether it be a cause of action legal or equitable, arising out of the same contract, may be set up by the defendant.

2d. But, secondly, the subdivision authorizes, in actions in which a transaction, not being a contract, is set forth as the foundation of the plaintiffs’ claim, counter-claims which arise out of the same transaction. This, we think, includes the case before us. What other legal or equitable counter-claims it also includes, it is unnecessary now to inquire.

The “ transaction” here in question, may either include the history of the bills of exchange in question, so far as the title of the plaintiffs or defendants depends upon that history, or the “ transaction” may, perhaps, be confined to the manner and circumstances of the transfer to the defendants.

In the first view of the meaning of that word, “the transaction set forth in this complaint as the foundation of the plaintiffs’ claim,” consists of those facts which are alleged as showing the plaintiffs’ title to the bills; their delivery by the plaintiffs for a special purpose, to the Trust Company; the transfer by the Trust Company to the defendants; and their assertion of right to detain, or their actual detention thereof.

All these concur to establish the defendants’ counter-claim, and are an essential part thereof. In a just sense, the counter-claim arises out of them.

The difference between the parties consists, not in a denial by the defendants that the transaction relied upon by the plaintiffs took place; but both admit, and in fact assert, that it occurred. One of the parties connects with it certain particulars, which, if established, establish the plaintiffs’ right to recover the bills or their value. The other connects with the transaction certain other particulars, which, if established, not only refute the plaintiffs’ claim, but establish the defendants’ right to recover from the plaintiffs the amount of the bills.

The parties differ about the accessory facts only, and when upon the trial, the very truth of the matter is ascertained, the actual transaction (which the plaintiffs set forth as the foundation of their claim, and which the defendants set forth as that out of which their claim arises,) will be developed, and one or the other will be seen to be, by reason of that transaction, entitled.

The transaction is then single and entire, and it is either a just foundation of the plaintiffs’ claim, or it entitles the defendants to what they claim from the plaintiffs.

The particulars about which the parties now differ, modify the legal effect which the leading facts will have upon the rights of the parties, and point the transaction favorably to the one or to the other. Some facts enter into the plaintiffs’ case, which, of course, do not enter into the defendants’ case, and vice versa. But from the nature of the subject, this must always be so. The Legislature were not so absurd as to mean that the defendant might counter-claim, when the very facts alleged by him, with all their particulars, were identical with those alleged by the plaintiff. For if to constitute his counter-claim, no other facts or particulars were necessary than the plaintiff had himself stated, there would be no occasion for the defendant to answer at all. He should go to trial on the complaint itself.

If, therefore, the transaction set forth in the complaint of the plaintiffs as the foundation of the plaintiffs’ claim be here regarded as embracing the history of the bills, their drawing, transfer to the plaintiffs, their endorsement to the Trust Company, and the transfer by the latter to the defendants, then the defendants’ counter-claim arises out of the same transaction. Each party, however, insisting upon certain accessory facts or particulars which make the transaction create a right in the one or the other, as the case may be. And when the actual transaction finally appears, then it will he certain that this same transaction is either a legal foundation for the plaintiffs’ claim, or out of it arises a cause of action in favor of the defendants against the plaintiffs.

So, if the transaction set forth as the foundation of the plaintiffs’ claim, be regarded as more narrow, and as being the transfer of the bills by the Trust Company to the defendants, then, as before, the defendants’ counter-claim arises out of the same transaction, to wit, that transfer.

The circumstance, that the defendants have to superadd an allégation of demand, protest, and notice to the plaintiffs, as endorsers, does not alter the case. This added fact is only a means of showing how the defendants’ cause of action arises out of the transaction relied upon, and is made complete or consummate.

3d. If it were more doubtful than it seems to us to be, that the counter-claim in this case arises out of the same transaction on which the plaintiffs’ claim is founded, we should still think it clear that the defendants’ counter-claim might be set up. The third clause in the analysis above made of the first sub-division of the 150th section of the code, very clearly allows it.

The present is a case in which the counter-claim is directly and immediately “ connected with the subject of the action.”

The subject of the action is either the right to the possession of the bills of exchange in controversy, or it is the bills of exchange themselves. The defendants’ counter-claim is not only connected with, but is inseparable from either or both.

The object of the action is damages; but the subject is, the bills of exchange, or the right to their possession. If the plaintiffs show themselves -entitled to these bills, they must recover damages. If the defendants show themselves entitled, then they are in a condition to assert their right to have the amount thereof from the plaintiffs. The plaintiffs’ claim and the defendants’ counter-claim, are, then, connected with the subject matter which is to be enquired into in this action, and the investigation of the subject will determine whether the plaintiffs are entitled to the bills, or to their value as damages; or, the defendants are entitled to hold them, with recourse to the plaintiffs as endorsers.

And this suggests the propriety.and wisdom of the provision of the code under consideration, and the reason which induced its enactment. After the question upon which the right of the plaintiffs to have these bills of exchange, has been fully investigated and determined in favor of the defendants, there would seem no sensible reason for turning the defendants over to a new suit to recover against these plaintiffs, as endorsers, with all the additional expense and delay which such new action might involve, and in which, also, the title of these defendants might be again put in issue.

It is plausibly argued, that the counter-claims provided for in the first subdivision of section 150, embrace only what was formerly called ‘ recoupment,’ and that recoupment implied an admission of the plaintiffs’ claim, and sought an abatement therefrom, either to the extinguishment of a part or the whole thereof. Such was no doubt the character of recoupment; it implied that the plaintiffs’ claim was to be allowed, but that another cause of action was to be satisfied out of it. (Nichols v. Dusenbury, 2 Com. 286; Vasseur v. Livingston, 3 Kern. 257; Batterman v. Pierce, 3 Hill, 171.)

But now the definition of counter claim must be considered in connection with section 274 of the code, which authorizes the Court, in the same action, to grant to the defendant any affirmative relief to which he may be entitled.

This opens to the defendant the full right to assert his claim to any relief, legal or equitable, to which upon the facts alleged in his answer he would be entitled had he prosecuted his cross action.

It permits the defendant, therefore, to set up in answer to an action on a note or bond, facts which show not only that he ought not to be required to pay the note or bond sued upon, but that the note or bond ought to be given up to be cancelled; or, in the language of Mr. Js. Bosworth, in Gleason v. Moen, (2 Duer, 642,) it permits the defendant to ask any equitable relief to which he is entitled against a legal demand which formerly could only be had by filing a bill in Chancery; and also the affirmative relief which, in equity suits, could be had only by a cross bill. And for the same reason it must be held to permit the defendant to have relief, in its nature strictly legal, if it arises out of the very matter or subject which the plaintiffs claim brings under investigation. (Ogden v. Coddington, 2 E. D. Smith, p. 326-7.)

Again, the right of the plaintiff to claim, and the right of the defendant to counter-claim, upon any given or supposed facts in controversy, must, we think, be reciprocal.

Kow, suppose the defendants were plaintiffs, setting up their title to the bills of exchange in question, and claiming to recover the amount of these bills from the Xenia Bank, (the present plaintiffs,) as endorsers. It could not for a moment be doubted that the then defendants (the present plaintiffs) could under this same first sub-division of the 150th section, set up in answer the very facts which they have in this complaint alleged and pray as " a counter-claim, that these bills be delivered up to them as their own property. Their claim would arise out of the same transaction, and would be connected with the subject of the action.

It seems to us to follow inevitably, that the principle is the same when, as now, the Xenia Bank are prosecuting the defendants. In either case there is one controversy involving the same transaction, and the rights which arise out of that transaction— one contest relating to and connected with the same subject— and it may properly determine the whole right of the parties reciprocally. And we think that it was the intention of the Legislature to permit such settlement of the whole matter in dispute, in one action.

We are, therefore, constrained to say, that whatever doubts have been heretofore expressed upon the question, whether a defendant could set up, as a counter-claim, a cause of action at law, which could not before the Code have been set up in his plea by way of recoupment, those doubts are not warranted.

Our conclusion is, therefore, upon the question which alone was argued upon this appeal, that the defendant was at liberty to set up as a counter-claim, the liability of these plaintiffs as endorsers of the bills of exchange in question, and his title to recover against them as such endorsers.

But for the reasons first above stated, the defence herein demurred to is defective and insufficient, and upon that ground the order appealed from must be reversed, and the demurrer be sustained, with costs of the demurrer at Special Term, to the plaintiffs, to abide the event of the suit, but with leave to the defendants to amend within twenty days—and without costs on this appeal to either party.

Ordered accordingly.


source: Caselaw Access Project

author: Moncrief, J.

license: Public Domain

text:
    A. & F. Miles v. A. Clarke.
    1. An attorney is disqualified from becoming bail in a civil action.

      % Special bail cannot be treated as a nullity, merely because they are practising attorneys; but that fact is sufficient to require their rejection, if their exclusion is insisted upon.
    3. Section 194 of the Code is merely declaratory of the practice in respect to bail, existing at the time the Code was enacted. It prescribes the qualifications essential to sufficient bail, but does not affect the rule by which various classes of persons were disqualified, although residents and freeholders and worth the requisite sum.
    4. The rule and its exceptions, are as consistent with each other since, as they were prior to the Code, and § 469 retains the pre-existing practice which is not inconsistent with the provisions of the Code.
    (At Chambers,
    June 14th, 1859;
    before Mourcnm?, J.)
    An order was made under section 179 of the Code, by which the Sheriff was required to arrest the defendant, and hold him to bail. On being arrested, he executed an undertaking, with two sureties, in the prescribed form. The sureties were excepted to, and notice was given that they would justify. They appeared at the time and place named, and were examined. From their examination, it appeared that they were practising attorneys and counsellors of the court. Thereupon the plaintiffs’ counsel insisted, that they should be rejected on that ground. The question, whether attorneys were disqualified from becoming special bail since the Code took effect, was fully argued by the counsel for the respective parties.

      Wm. Allen Butler for plaintiffs.

      D. P. Hall for defendant.
   Moncrief, J.

The defendant, having been arrested under one of the subdivisions' of § 179 of the Code, tenders an undertaking under § 187. Upon an examination of the sureties, it appears that they are practising attornies and counsellors of this Court.

The counsel for the plaintiffs objects to them as disqualified and incompetent on that ground, and (citing 7 Abb. 73; 15 Johns. 535) contends that the bail should be rejected. The note under § 187 of the Code cites authorities as decisive on the point.

Upon a careful examination of all the authorities, it will be found that the practice arose from the rule of the Court of King’s Bench, (in 1654, 6 Geo. II. § 1; 1 Henry Blackstone, 76; Laing v. Cundale,) whereby “ It was ordered by the Lord Chief Justice and the rest of the Justices of that court, that from and after the last day of the (Michaelmas) term, no attorney of that or any other court, or any person practising as such, shall be bail in any suit or action depending in that court.” This rule was intended to protect and benefit the attornies, (and subsequently was extended to their articled clerks.) (Cowp. 828; 2 East, 182.)

Graham, in his practice, (2d edition, p. 80,) says: “ attornies are inadmissible as bail, because of the desire of the courts to protect them from the importunities of their clients,” and cites 15 Johns. 535 ; 1 Wen. 35.

An attorney, becoming bail, could not be treated as a nullity; it was necessary to except to the bail, and oppose it upon the ground that the rule excluded him. (2 East, 181-2; 1 Taunton, 162.)

In 15 Johns. 536, the Court say, “The rule of the Court of King’s Bench was cited, and as there appeared to be good reason for the rule, it was approved and adopted ; and the attorney in that case was held to be not good bail.” (See also 1 Legal Obs. 714.)

It is indisputable that an attorney was not good bail up to the time of the passage of the Code. The same reason still exists to exclude him which led to the adoption of the rule in England, nearly three centuries since, and to its approval'and adoption in this State in 1818, (15 Johns.) and the constant recognition thereof, with but one or two recorded instances of attack-against its enforcement. While the abstract right of an attorney otherwise qualified to become bail may exist, there may be said to be • a greater necessity, at the present time, to continue the rule than at any former period. The hardship it may occasion, in some 1 instances, like the present, is more than outweighed by the benefit conferred upon those for whose protection it was created.

§ 194 of the Code, which prescribes the qualifications of bail is, in substance, like the pre-existing rule—and, in my opinion, was desigued to be merely declaratory of the established practice, and not to introduce a new rule.

It is quite evident that every person cannot be accepted as bail who is a resident and freeholder, within this State, and worth the requisite amount of property.

A married woman, a minor, or a consul of a foreign government, a plaintiff cannot be required to accept as bail.

It s not an unjust construction of § 194, that it merely declares the affirmative qualifications essential to sufficient bail, without affecting the established practice which disqualifies certain persons from being made bail, against the objection of the plaintiff, although they may, independent of these disqualifying facts, be admissible as bail.

As it is evident that every person who would fully meet all she demands of the mere language of § 194, cannot become bail, it is, in my opinion, a proper construction to hold that there is nothing in it inconsistent with the settled practice which rejected attornies, officers of the court, and persons permanently or temporarily privileged; and that § 469 retains' that practice, and continues it in force.

The objection must, therefore, be sustained, and the sureties rejected as not good bail.

l


author: Pierrepoxt, J.

text:
    Seth C. Keyes v. William Moultrie and Thomas Palmer.
    1. Where a person, desiring to borrow money, applies for a loan to one who has, at the time, no money, but who has an accepted bill of exchange which can be discounted at the legal rate, and the holder of such bill, solely with a view to accommodate the applicant, consents to procure the bill to be discounted, and permit him to use the proceeds until the bill matures, the latter agreeing to pay the face of such bill at its maturity; and thereupon, in pursuance of such arrangement, the holder of the bill procures it to be discounted at the legal rate, and pays over to such applicant a part only of such proceeds, but all that he then desires to receive, and holds the residue until the maturity of the bill, subject to the call of such borrower; and the borrower, at the time of receiving the money, gives his note, payable when such discounted bill matures, for the sum so received and the sum paid on discounting said bill, such note is not usurious, although the sum included in it for the discount of the bill amounts to more than legal interest on the sum actually received by the person for whose benefit and accommodation the bill was procured to be discounted, there not having been any intention of the borrower to pay, or of the lender to reserve, more than seven per cent interest on the sum loaned.
    2. The terms of the contract entitled the borrower to the use of the whole proceeds of the bill until its maturity; it was not the lender’s fault that he did not have the use of the whole proceeds, and the lender should not be deprived of -the benefit of the contract because he held a part of the proceeds subject to the call of the borrower, instead of the borrower’s holding them without any occasion to use them, or without making actual use of them until the maturity of the draft.

      3. Although such a transaction will be held usurious when it is shown to have been intended as a shift or device to evade the statute, and to reserve more than seven per cent on the amount actually intended to be, and, in fact, loaned, yet, when the transaction was, in the honest intent of the parties, such as the terms of such a contract import, it will not be held usurious because the borrower did not take and use the whole proceeds of the discounted bill, he having no occasion to use the whole proceeds, and they being held for him, and at all times subject to his order during the period for which, by the terms of the contract, he was entitled to use them.
    (Before Hoffman, Slosson and Pierrepont, J. J.)
    Heard, April 5th;
    decided, April 10th, 1858.
    This is an appeal, "by the plaintiff, from a judgment dismissing his complaint with costs. The action was tried in June, 1857, before Mr. Justice Hoffman, without a jury.
    The complaint sought to recover a judgment against the defendants, as joint makers of a note, for $1,015, dated October 6th, 1856, payable to their own order, fifteen days after its date, and alleged to have been indorsed by them in blank, and to have been delivered by them to the plaintiff for money loaned by him to them, on which it was alleged only $800 had been paid. It prayed, as further relief, on allegations contained therein, that the defendant Moultrie should execute and deliver to the plaintiff his bond and his mortgage of certain described real estate as security for the payment of so much of said note as remained unpaid, and that he should be, in the meantime, enjoined from disposing of or incumbering the real estate, which it was sought to compel him to mortgage to the plaintiff.
    The allegations of the complaint are stated more in detail in 1 JBosw. H., 629.
    It does not appear, from the printed case, that the defendant Palmer was either served with the summons or appeared in the action.
    Moultrie put in an answer, in which he stated, among other things, that on or about the 3d of May, 1856, it was agreed between the plaintiff &nd the defendants that he should loan them $1,000 until the 15th of July, 1856, and that they should pay him $37.50 interest on such loan for that period; that, under this agreement, he made them such loan, and they gave him their note therefor, dated May 8th, 1856, for the sum of $1,037.50, payable on the said 15th of July; that such note was not paid at maturity; that on the 6th of October, 1856, they paid him said $37.50, in pursuance of said agreement, and on that day Palmer made and delivered to the plaintiff the note in suit, and before doing so it was corruptly agreed between Palmer and the plaintiff that the. latter should extend said loan eighteen days from the said 6th of October, and that for such forbearance the defendants should pay the sum of $15; and that in pursuance of last said agreement the note in suit was made and delivered to the plaintiff and accepted by him, and such note is alleged to be usurious and void. It appears that the trial was commenced in April, but was not concluded until the 3d of June, 1857.
    The judge;1 before whom the action was tried, found the facts substantially as they are stated in the complaint, and held the note usurious, and gave a judgment dismissing the complaint.
    The plaintiff excepted to his decision, and appealed from the judgment to the General Term.
    The opinion delivered at the General Term, contained a statement of the facts, which, in the judgment of the Court, the evidence established.
    That statement is in these words, viz.:
    “Prom a careful examination of all the evidence, we deduce the following conclusions of fact:
    “In April, 1856, the plaintiff and the defendants were on the most intimate terms. Moultrie was the plaintiff’s lawyer, and the plaintiff was daily in the defendants’ office and kept his check-book in their drawer; Palmer, one of the defendants, applied to the plaintiff, in the latter part of April, and stated that the defendants expected a draft upon them from an Insurance Company, and did not know how they were to raise the money to meet it. James De Gray, another friend of the plaintiff, was also in want of money at this time. The plaintiff, wishing to help them out of their difficulty, and having a draft from California (for $15,000, in amount), accepted by Duncan, Sherman & Co., which would mature on the 15th of July following, offered to get the draft discounted, if he could, with a view to let the defendants and De Gray use the proceeds of the draft until its maturity, when he expected to be paid the face of the draft. The plaintiff got the draft discounted, and the discount, at legal rates, amounted to $227. On the 3d of May, the defendants received $1,500 out of the proceeds of the draft; and the plaintiff expected them to receive, in all, some six thousand dollars of the proceeds. The draft appears to have been originally discounted for the accommodation of De Gray and the defendants, with each of whom the plaintiff was on the most friendly terms. Of this money De Gray received six thousand dollars, and there is no satisfactory evidence that the plaintiff used any portion of the proceeds of the draft; and the evidence is positive that he did not want the draft discounted for his own use. There was a repayment, by the defendants, of a part of this money, and on the 8th of May the defendants gave their note to the plaintiff, on demand, without interest, for $1,037.50, and out of this note grows the alleged usury. It is claimed, on the defendants’ part, that this note, though on demand and without interest, was, by agreement, to be paid on the 15th of July, when the plaintiff’s California draft of $15,000 matured, and that the $37.50 is for interest, and that such sum is more than at the rate of seven per cent per annum. It is apparent that $37.50 is more than the legal rate of interest upon $1,000 from May 8th to July 15th.
    “It was in evidence that $37.50 bore the same ratio to $1,000 that $189.50 bore to the amount of the money which De Gray received; and that the intent of all parties in this case was to place the plaintiff, on the 15th of July, when his draft would mature, in the same situation as though the proceeds had not been anticipated; and so far as the evidence shows, if De Gray and these defendants had, on the 15th of July, paid the plaintiff so much of the proceeds of the discounted draft as they had received, without any interest, and the sum paid by him as the discount of the draft, the plaintiff would not have been benefited by the transaction, but' would have stood precisely as though he had retained the draft in his poclcet until its maturity. It appears, in fact, that De Gray and the defendants did not actually withdraw from the plaintiff but about one-half of the proceeds of the draft; but he seems to have been ready, and to have expected them to use the rest as they needed it. The plaintiff does not appear to have used the balance himself in any other way; but it seems to have remained in his hands as though he were the defendants’ banker. ”

      D. D. Field for plaintiff and appellant.

      William Moultrie defendant and respondent, in person.
   By the Court.

Pierrepoxt, J.

All that is necessary to be considered, is the question of usury.

According to the statute of 1837, “ No person or corporation shall, directly or indirectly, take or receive in money, goods or things in action or in any other way, any greater sum or greater value for the loan or forbearance of any money, goods or things in action, than seven dollars for the use of $100 for one year, and after that rate for a greater or less sum, or for a longer or shorter time.”

The party who violates this provision of the act, is liable, not only to lose his entire debt, but is guilty of a misdemeanor, and may be punished by a fine of one thousand dollars, or by imprisonment for six months, or both.

The fair import of the contract between the plaintiff and the defendants is, that the defendants and De Gray should have the use of the proceeds of the plaintiff’s California draft, from the time of its discount until the 15th of July following, when the draft would mature—that the discount upon the draft which at the legal rate amounted to $227, should be deducted from the face of the draft, in order to ascertain the nett proceeds; and that the plaintiff should receive on the 15th of July the face of his draft, maturing on that day; so that the plaintiff was not by the terms of the contract to receive any rate of interest, or any gain or advantage by the transaction; and it was understood that the discount of $227 was to be borne by the defendants and De Gray severally, in proportion to the amount, of the proceeds of the said draft, which each of them used.

Such a contract is not per se usurious. It is usurious if done with intent to evade the statute, and to enable the plaintiff to receive more than lawful interest for the use of his money. Nor would the mere fact, that the plaintiff had at times drawn his bank account below the amount of the balance of the proceeds of this draft, thus left with him, necessarily make the transaction usurious. The usury in such a case depends upon the intent of the parties; it is not created by an error in computation, nor induced by an accident or a mistake, into which no corrupt intention has entered. Nor can a borrower by an act of- generosity, real or contrived, render that corrupt and usurious, which was not so by its terms, and which was not so designed by the lender.

The object of the statute is, to prevent the lender from receiving more than the legal rate of interest for the loan of his money. But it would be a monstrous doctrine to hold, that a borrower who induces a friend’to pay $200 for the legal discount of a draft in order to accommodate him, with the use of its proceeds until its maturity, can take advantage of the statute of usury to defeat a recovery, because the borrower did not immediately withdraw the proceeds of the draft, and therefore, had not, according to strict computation, been in actual possession of the money the entire time for which his note bears interest, or because not wanting to use but half the money borrowed, he had suffered the rest to remain in the lender’s bank, or because the borrower from a feeling of generosity or justice afterwards wished the lender to derive some uncertain advantage from the balance thus remaining. To make the transaction usurious, there must have been an intent on the part of the lender to receive, and on the part of the borrower to pay, more than legal interest. In any given case, all the circumstances are to be considered, in order to arrive at the corrupt intent, and any and every contrivance and subterfuge will be unavailing if the corrupt intention appears.

In this case, we. find no sufficient evidence that the plaintiff intended to receive any rate of interest, or to do anything more than accommodate his trusted friends, who agreed to place him on the 15th of July just in the same condition as though he had not caused the draft to be discounted, but had retained it in his own hands until its maturity on that day.

New trial ordered with costs to abide the court.


author: Bosworth, J.

text:
    Harris, plaintiff and respondent, v. The Panama Railroad Co., Defendants and Appellants.
    1. The opinion of a witness, that a wound which he saw inflicted upon a horse, was sufficient to cause his death, is not competent evidence; when such witness is not shown to have any peculiar skill or knowledge in relation to the natural and ordinary effect of such a wound, or any better means of determining such a question than the jurors themselves, except that he saw it inflicted.
    2. The opinions of persons who are specially skilled in relation to such a subject of inquiry are admitted as evidence; on the theory, that upon a description of the injuries by those who saw them, they are competent, as scientific experts, to determine with more accuracy, the natural and necessary effect of such a wound, than the witnesses who saw them inflicted, when such witnesses are not themselves experts; or the jurors by whom the facts at issue are to be determined.
    3. The opinion of a witness as to the value of an article (as for instance a horse), when admissible, is admitted partly on the ground that he is shown to have a knowledge on that subject not possessed by persons generally, and partly on the ground that no amount of descriptive testimony would be as safe a guide to a jury, in estimating its value, as the testimony of such a witness, acquainted with the animal, and speaking his judgment as to the value.
    4. ' But to make his opinions on such a question admissible, he must be acquainted with the subject of inquiry, and be particularly qualified to speak in relation to it, by possessing a knowledge and skill in that respect, not possessed by people generally, having ordinary experience and intelligence.
    5. In an action against a common carrier to recover the value of property destroyed, through his negligence, during its transit, at a place, where such property has not been the subject of traffic, or has not been bought and sold, the measure of his liability is the fair value of the property at or near the place of its destruction.
    6. But, in determining such value, it would seem that the jury may take into consideration the fact that the property has a market value, at a place other than that where it was destroyed, and to which it was destined, and towards which the carrier, in the course of the usual and regular communication with such place, was then taking it, in connection with the hazards and expenses attendant upon the residue of the intended voyage.

      Y. On the trial of the question whether a horse, at a particular time, had a disease of which he died, a book on the subject of the diseases of horses though of established reputation, cannot be read as evidence to the jury.

      8. The matters alleged in such a book as facts, when relevant to an issue to be tried, must be pi’oved in the same manner as any other facts. The book itself is not legal evidence of their truth.
    (Before Bosworth, Woodruff and Pjerrepont, J. J.)
    Heard, Feb. 8;
    decided, April 17, 1858.
    This case comes before the court, on an appeal by the defendants, from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion, made by the defendants for a new trial.
    This action was commenced on the 20th day of December, 1855, and issue was joined on the 9th January, 1856.
    The complaint alleges that the defendants, being common carriers from Aspinwall to Panama; on or about the 15th April, 1855, contracted to transport a horse, the property of one Johnston, from Aspinwall to Panama; that in consequence of a collision, caused by the negligence of the defendants, the horse was injured and subsequently died, and that Johnston had assigned his claim for damages to the plaintiff.
    The answer denies that the horse was injured or died from the effects of any injuries received in the transportation, and alleges that he was sick with a disease not caused by any injuries he received in the transportation, and died of the disease at Panama.
    The cause was tried at the May term 1857, before Mr. Justice Woodruff and a jury, when the jury rendered a verdict for the plaintiff for $2,500.
    A stay of proceedings was allowed to make a case with exceptions, on which to move for a new trial, and it was stipulated that no judgment be entered until the final disposition thereof.
    The motion for a new trial was made at Special Term and denied. Jtidgment was entered in favor of the plaintiff, October 16th, 1857, for $2,912, and the defendants thereupon appealed therefrom to the General Term of this Court, and also from the order denying the motion for a new trial.
    There was no controversy, at the trial, in respect to the alleged collision; or that the collision was caused by the defendants’ negligence, or that the horse received some injury and soon thereafter died; and that at the time of the collision he was being carried to San Francisco, by the ordinary route.
    The questions decided on the appeal, relate principally to decisions at the trial in admitting or rejecting evidence.
    John H. Austin, a witness for the plaintiff, who was present at the collision, and saw the horse at the time of the injury, and the wounds he received, was asked this question: “Were the wounds you saw sufficient, in your opinion, to produce death ?” “ The defendants objected to the question, but notas leading." The objection was overruled, and the defendants excepted. The witness answered, that they were.
    Before this question was put, Austin testified: “ I have been acquainted with horses twenty-five years; I have owned horses for twenty years, from one to sixty, all the time; I have doctered all my own horses for fifteen years, and the same for other people; I have never studied the diseases of horses; I doctor a horse pretty much as I do myself."
    On his cross-examination, after he had been allowed to give the testimony excepted to, he said: “lam nota horse doctor; I have seen the skeleton of a horse, but never have seen the sinews and nerves; I was called up to doctor a horse about two years ago......“The mare had run away, and had run a shaft into her shoulder;” .... “I bled the mare that night;" . “ That wound did not bleed.”
    Exceptions were also taken by the defendants, to decisions excluding testimony ; that when the horse was put on the cars at Aspinwall, he “ appeared ill;” and his “general appearance denoted ill health. ”
    The plaintiff had previously read the depositions of several witnesses who had been examined on commission, and their answers to interrogatories, which required them to state the “apparent health” of the horse, at the same time and place.
    The plaintiff offered to prove the market value of the horse at San Francisco, at and about the time of the injury, and of his death; the evidence was excluded and the plaintiff excepted.
    The other evidence given tended to show that no horses, like the one in question, had ever been bought or sold on the Isthmus, and that there were no such horses there.
    On the subject of damages the court charged the jury, inter alia,
      that if they found for the plaintiff, to “ find the fair value of the horse at or in the vicinity of the place of the accident or at Panama.” . . . “ The test is, what was the value of the horse there to the purchaser (if sold), or to the owner, he being at liberty to do with the horse whatever might suit his interest or pleasure, and subject, of course, to all hazards and risks, if he assumed to transport it to any other country; and in fixing that value, the jury are to fix it in reference to the condition of the horse as he was then, while in the hands of the defendants.”

      . “ The fair value of the thing required, at the place where it is injured, taking into view, of course, all the uses to which the purchaser or owner has it in his power to devote it, not speculatively, but upon proof of the facts, is a full and adequate compensation for any injury which the plaintiff may have sustained.”
    The defendants requested the court to charge the jury: “12th. That neither the value of the horse if he had arrived, or was safely in California, nor the profitable use of him there can be taken into account by the jury in fixing the measure of damages for which the defendants are liable.”
    The judge declined to charge in those terms, or otherwise in respect thereto than he had charged, and the defendants excepted to the refusal to charge as requested, and to the charge itself, in so far as it did not conform to such request.
    William Lockhart, a veterinary surgeon, and a witness for the plaintiff, was asked, during the progress of the trial, “How would a very severe blow, in front and below the ear, affect the horse?”
    A. “It might induce paralysis, complete or partial; American Turf Register and Youatt on Horses are authorities.”
    The defendants excepted to a decision, admitting this evidence. v
    Plaintiff’s counsel offered to read from Youatt on the Horse, a description of the glanders. Defendants’ counsel objected. Objection overruled, and defendants’ counsel then excepted. The plaintiff’s counsel read portions of Youatt’s work, to the jury.
    The theory of the defence was, that the horse was diseased with the glanders, at the time he was put on their cars, and that such disease, and not the injury from the collision, caused his death. The theory of the plaintiff was, that the horse did not have the glanders, but that his death was caused by the injury produced by the collision.

      D. B. Baton, for the defendants and appellants.
    Austin was incompetent, for two distinct reasons, to express an opinion upon the probability of the wounds causing death:
    1. Because the effect of the wounds could not be determined except by a person stilled in the physical structure of horses, and though he had doctored for some diseases of horses, he was not a veterinary surgeon, and he had no knowledge of the structure of a horse, beyond that derived from merely seeing a skeleton of the bones alone. (7 Barb., 314; 2 Comst., 514.)
    2. Because, as matter of fact, he did not examine the wounds of the horse, with such care as to'enable him to describe them, or to judge correctly of their effect.
    The exception to reading from Youatt on the Horse, is well taken.
    It is submitted that the bare declaration of a witness that a given book is “an authority,” without any proof of the witness ever having seen the work in question, or of its accuracy, or that it is the best evidence to be had, does not entitle counsel to read any portion he may please, as evidence to a jury, as was done in this case. (5 C. & P., 73; 7 C. & P., 701; 6 C. & P., 586; 1 Whart., 469; 7 Pet. Rep., 554.)
    The twelfth request to charge the jury contains the true rule on the subject of damages, and the rule as laid down to the jury is erroneous. The rule, as laid down, does not adopt the fair market value at any place, but would justify evidence of the use an article might be put to, and the value it would have anywhere on the globe, and the jury, in fixing its value, would be authorized to speculate on the probability and profit of taking the property to any other city or country, which is against all established principles, and would supersede any evidence, of market value.

      JD. D. Field, for the respondent.
   By the Court.

Bosworth, J.

John S. Austin, one of plaintiff’s witnesses was present when the horse was injured. He testifies that the horse was injured on his head and on his side. He was asked, “were the wounds you saw sufficient, in your opinion, to produce death?” The counsel for the defendants objected to the question: what ground of objection was specified the case does not disclose. But it does state, that it was not objected to on the ground that it was leading.

The court allowed the witness to answer the question, and to that decision the defendants’ counsel excepted. The decision is claimed to be erroneous on two grounds:

First. That the witness did not show himself possessed of any such peculiar skill, or knowledge of the physical structure of a horse, and of the natural and ordinary effect of wounds, as entitled him to speak as an expert. ■
Second. That, as matter of fact, he did not examine the wounds of the horse with such care as to describe them, or to judge correctly of their effect.

The accuracy of the decision depends upon the foundation laid by the previous testimony, for the admissibility of the opinion of this witness as to the point of the proposed inquiry.

He had testified before the question was put, that he had been acquainted with horses twenty-five years; had owned horses for twenty years, from one to sixty all the time; had doctored all his own horses for fifteen years, and the same for other people; had never studied the diseases of horses; his knowledge came from experience <-> he doctored a horse pretty much as he did himself, and he had prescribed for other horses.

He did not pretend to any acquaintance with wounded horses, nor to any capacity to judge of the effect of any particular wound not possessed by any man of ordinary experience and intelligence.

Is the opinion of such a witness that a wound which he saw (and which he does not pretend to any inability to so describe, that a jury may not know everything as to its nature or extent that he did) was sufficient to produce death, admissible as evidence to prove that fact?

Whether a man has owned only one horse or a span continuously, or has owned from one to sixty, if he has never studied the diseases of horses, and more especially if he is unskilled as to the effect of wounds, and has never treated such injuries, it is difficult to say on what principle his mere opinion upon the question, whether a particular wound was sufficient to produce death, is admissible as evidence. In such a case the opinion is not based upon skill or science, which the jury cannot be supposed to possess to the same extent as the witness.

The grounds upon which opinions, involving scientific knowledge, are received, rest upon a natural foundation. “ The very notion of science springs from the recognition of the existence of general truths or laws, to which the relation of things and their operation upon each other conform. These laws or truths ascertained by the investigation of men devoted to particular departments of inquiry, constitute science.” “In every case the scientific witness brings the result of the previous investigation of general truths or laws to aid the particular inquiry. In case of death, the physician, from an examination of the body or from the appearance of its parts as proved by witnesses, speaks as to the cause of death, as that it was produced by poison or by disease. In such a case the substance of his testimony is that those appearances, seen by himself in the body or proved to exist there, either generally or universally, have been observed to accompany death produced by such poison or disease. It is the general or universal fact which science supplies to him, and which through him is made available to the jury.”

“In all these cases of inquiry as to scientific opinion, without exception I believe, the witness need know nothing of his own knowledge, as to the facts of the particular case. His opinion may be given as to hypothetical cases, or upon any view of the facts in evidence as established or supposed to be established by other witnesses, though, of course, so given, its weight may be much less than where he can speak both to the particular facts and to the proper scientific interpretation of them.” Clark v. Baird (5 Seld., 194, 195).

The views expressed in these extracts from an opinion approved by the Court of Appeals, indicate that if the testimony excepted to was admissible as that of a scientific expert, it would have been equally competent, after proving by another witness the existence of such wounds as he described, to have asked Austin’s opinion whether they were sufficient to produce death.

If admissible in the latter aspect, it would be nakedly for the reason that Austin had continuously owned more horses than it can be presumed that persons generally do, or had doctored the diseases of horses more than they, and not from any capacity not possessed by them to foretell that the existence of a particular wound, as a uniform result of the law of cause and effect, would produce death. If the wounds or either of them was such, that on a statement of all the witness saw of them, any person, of ordinary capacity and experience, would naturally or might properly conclude, that they would produce death, the case is not one which renders competent the mere opinion of a witness, possessing no knowledge on that particular subject which jurors generally are not presumed to possess.

Whether they were of that character or not, is not to be determined in whole or in part by the mere opinions of persons, who have no special skill or knowledge of the effect of a particular wound upon a horse, and who have no better means of determining the fact than the jurors themselves, except that the witnesses saw the injuries inflicted.

The theory of the rule is, that on the description of the injuries by those who saw them, the scientific expert is competent to determine more accurately their natural and necessary effect, than the witnesses who saw them inflicted, when such witnesses are not themselves experts; or the jurors by whom the facts at issue, are to be decided.

It cannot be answered to the objection and exception that the ground was not taken, that enough had not been proved to make the opinion admissible as that of an expert, and if such ground had been taken it might have been obviated for aught that appears and therefore the exception' is untenable.

To make mere opinion competent evidence, a foundation must be laid for its admissibility. The general rule is, that opinions and deductions from facts are matters which belong to the jury. When the opinions and inferences of a witness are inquired into as matters proper for the consideration of a jury, their province is in a measure usurped, and the judgment of witnesses is substituted for that of the jury. All the cases in which opinions may be proved are exceptions to the general rule, and stand upon the general ground of peculiar skill and judgment in the matters about which opinions are sought. To uphold an exception to a decision admitting a mere opinion as evidence, the facts making it competent should have been previously proved.

But the witness had stated, before the question was put, that he had never studied the diseases of horses, and he did not pretend to any knowledge of the proper treatment, or the natural effects of bruises, fractures, or flesh wounds. His cross-examination did not obviate this objection to the competency of the witness’ opinion. He testified that he was “not a horse doctor.” He had seen the skeleton of a horse, but never its sinews and nerves; he was once called up to doctor a mare that had run away and had run a shaft into her Shoulder. He also testified; “ seeing a horse lying on his side and a piece of timber run into the side three or four inches; I should call the wound fatal.”

It is quite evident that his opinion, whether accurate or erroneous, was not based upon any peculiar skill or knowledge of the natural and necessary effect-of such a wound as he described, not possessed by persons of ordinary experience and capacity. We think the exception well taken. The various exceptions to the rule that-opinions are not competent evidence to be submitted to a jury; and the grounds on which they rest are stated and illustrated in the opinion of the Court, in Clark v. Baird (5 Seld., 183). Various applications of 'the rule and of the exceptions to it, are discussed in Merritt v. Seaman (2 Seld., 168); Dewitt v. Barley & Schoonmaker (5 Seld., 371); The People v. Lake (2 Kern., 358).

As to the decisions rejecting evidence that the horse “appeared ill,” and that “its general appearance denoted ill health,” it is proper to observe that the plaintiff had previously examined several witnesses on his part as to that point, by questions inquiring as to the “apparent health” of the horse, among the interrogatories annexed to commissions produced on the trial. The answers of his witnesses to those questions having been read by the plaintiff, it is by no means clear that the defendants had not a right to oppose to it evidence of the same nature from witnesses on their part.

Neither party had a legal right to give evidence of that character, unless it follows that the plaintiff, by reason of having given such evidence on examining the witnesses on his part, had precluded himself from objecting to evidence of the same kind in reply to it.

Whether he had not thus precluded himself from raising such an objection, it is unnecessary to decide definitely, as a new trial must be granted for reasons already stated.

It may, however, be added that the evidence, when read by the plaintiff, was not objected to by the defendants; and the evidence offered by the defendants does not appear to have been offered for the purpose of contradicting the plaintiff’s witnesses; nor was the attention of the Court called to the fact that in the voluminous depositions read by the plaintiff, any such testimony was contained; the defendants’ offer and its rejection appear to have proceeded upon the general question; whether such evidence w.as, in its nature, competent, and we have no hesitation in saying it was not.

The evidence offered as to the value of the horse in California was excluded by the Court, on objection taken to it by the defendants. The witnesses, so far as the admission or rejection of their evidence was controlled by any decision of the Court, were required to state his value on the Isthmus. But the charge of the Court imports, if it does not directly declare, that such value was not to be determined upon the hypothesis that its owner must of necessity sell or retain him on the Isthmus, but upon the consideration that he might do with him whatever suited his interest or pleasure, and with reference to all the uses to which, according to facts proved at the trial, the owner or purchaser might devote him. The. Court was requested to charge otherwise and declined to do so; and to such refusal the defendants’ counsel excepted.

Of the plaintiff’s witnesses, Johnston, Hendrickson, Porter and Somerndyke, knew nothing of the market value of such a horse at Panama, nor of his actual value on the Isthmus," disconnected from the idea of the price which they supposed he would command with a view to be taken to and used or sold at some place off the Isthmus.

Johnston was allowed to state his value when put on the “cars at Aspinwall.” So, also, were Hendrickson, Porter and Somerndyke.

. The opinion of witnesses as to the value of an article in question, is admitted partly on the ground that they have and are shown to have a knowledge on that subject not possessed by persons generally, and partly on the ground that no amount of descriptive testimony as to some articles, as, for instance, a horse, would be as safe a guide to a j ury in estimating its value as the testimony of such a witness acquainted with the animal and speaking his judgment as to the value. (5 Seld., 193, 196.)

But to make the opinion of a witness on such a point equal to knowledge, or as near an approximation to it as is attainable, and partake of the character of a fact, he must be peculiarly qualified to speak on the subject, and possess a knowledge not possessed by the mass of those having ordinary experience and intelligence.

When, as in a case like the present, an article like that in question, has not been a subject of traffic or sale at or near the place of its injury or destruction, and its value there is to be ascertained, not by reference to the price at which a similar article was ever sold there or in that vicinity, if witnesses are asked to express opinions of value, founded on facts as to its value at some place to which it could be carried, it would seem that such opinions should be excluded, and all the facts be proved which may properly be taken into consideration, and that the jury should determine the value upon such consideration of those facts, as in their judgment they deserve.

When it appeared that no such horse had ever been sold on the Isthmus, that he had, therefore, no market value there, in the ordinary sense of that phrase, we are inclined to think, evidence should have been admitted as to his actual or market value, at the nearest points at which he would have a market value, and the jury should be left to determine, in view of such facts, and the cost and hazards of transportation, his just value at the place where he was destroyed, that place being one to which a party chargeable with his value had taken and was bound to take him.

The defendants’ route being part of a connected line to California, and the horse being destined for the latter place, we think his market value in California, if proved that he had one at that place, might be shown, and that such a fact was a proper one to be considered by the jury in determining his value at the place where he died, or was killed.

There was, therefore, not only no error in refusing to charge on this point, as requested, but the judge might, and, as we think, ought to have admitted evidence, that such a horse had a market value, at San Francisco, and what it was.

As the defendants could not have a new trial by reason of any error alleged to have been committed on this branch of the case, and as a new trial is granted on other grounds, the decision of some of the questions we have discussed in relation to the rule of damages, and the evidence competent to show what they were, do not necessarily arise, and .we do not intend to express an opinion to control the future action of the court, but merely to state our present impressions, to the end that such further investigation may be made, as may be necessary to remove any doubts that may exist, or be supposed to exist, as to the true rule, in respect to these points.

The admission, as evidence, of the book called, Youatt on the Horse, and of the parts of it containing a description of the glanders, seems to be opposed to the decisions to which we were referred, and to such as have fallen under our observation. 5 C. and P., 73; 6 id., 586; 7 id., 701; 1 Whart., 469 ; 7 Pet. Rep., 554; Commonwealth v. Wilson, 1 Gray (Mass.), 337; Melvin v. Easby, 1 Jones (Law), N. C., 386; Laning v. The State, 1 Chand. (Uis.), 264; Corks v. Purday, 264; 2 Car. and Kir., 270.

The matters alleged in such a book as facts, when relevant to an issue to be tried, must be proved in the same manner as any other facts. The book itself is no evidence of their truth. This proposition is established and illustrated by the cases cited, above.

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