author: The Chief Justice, Oakley, J.

text:
    Daniel A. Phœnix and Samuel Whitney versus Jacob D. Stagg.
    April Term, 1829.
    To an action of debt, on judgment, the defendant pleaded a discharge under the act to abolish imprisonment for debt. The plaintiffs replied, that, ©n the day appointed for the appearance of the creditors to show cause against the discharge, a certain creditor appeared to oppose the application, when the defendant, to induce said creditor to withdraw his opposition, secured to him the payment of one half of his debt; whereby the plaintiffs withdrew their opposition, and the defendant obtained his discharge. Issue was taken on the replication, and a verdict found for the plaintiffs. The defendant then moved in “ arrest of judg“ment” or for “some order directing an entry on the record, qualifying the judg“ment, so that no execution should issue against his person.” Held, that the facts stated in the replication, (though found to be true,) were not so pleaded as to avoid the discharge ; and that the judgment, although it could not be arrested, must be so modified as to prevent the execution from issuing against the defendant’s person.
    A defendant cannot move for judgment non obstante veredicto.

    The plaintiffs declared against the defendant in an action of debt, upon a judgment obtained against him by the plaintiffs in “ the Supreme Court of the State of New-York,” at the May-term ef said Court, in the year 1827, for the sum of eleven hundred and forty-four dollars and thirty-seven cents.
    The defendant, for the purpose of protecting his person against the consequences of a recovery in this court, but without pretending to impeach the judgment on which the action was founded, pleaded, “ that the said plaintiffs ought not to have execution for the “ debt aforesaid,” “ adjudged to them, on or against the person of “him, the said defendant, because,” “ after the rendition of the “ said supposed judgment, and before the commencement of this “ suit, viz. on the 4th day of January, in the year 1828,” the defendant “ being an insolvent debtor, within the meaning of the act of the Legislature of the State of New-York, entitled an act to “ abolish imprisonment for debt in certain cases, did present a peti= “ tion to Richard Riker, Esq., Recorder of the city of New-York,” “ praying that his estate might be assigned for the benefit of all “ his creditors, and that his person might be for ever thereafter “ exempted from all arrest or imprisonment for or by reason oí “ any debt or debts due at the time of making such assignment,”. &c. The plea then averred, that such proceedings were thereupon had; that afterwards, viz. on the 25th of March, in the year 1828, the defendant was discharged by the said Recorder, as fully appeared by the record of the discharge, which was set out in the usual manner.
    To this plea, the plaintiffs replied, that they “ought not to be “ barred from having execution of the debt aforesaid,” “ against “ the person of” the said defendant, because, “ on the day ap- “ pointed by the said” “ Recorder,” “ for the creditors of the “ said defendant, to show cause before him,” “ why an assign- “ ment of the said defendant’s estate should not be made for the “ benefit of all his creditors,” &c., •“ to wit, on the 25th day of “ March, 1828, at the office of the said Recorder, in the city of New- “ York, one Samuel Judd, being a creditor of the said defendant, within the true intent and meaning of said act, appeared before “ the said Recorder, to show cause why the said defendant should “ not be discharged as aforesaid, and commenced opposition to “ the said discharge, before the said Recorder. And, therefore, “ the said defendant, in order to induce the said Samuel Judd to “ withdraw his opposition to the discharge of the said defendant,” “ offered to, and did secure to be paid to the said Samuel Judd,” “ a certain part or portion of his debt or demand, to wit, the one “ half thereof. Whereupon, the said Samuel Judd, so being such “ creditor of the said defendant in consideration thereof, to wit, “ on, &e., at, &c.y aforesaid, did withdraw his opposition, and “ thereupon the said Recorder executed and delivered to the said “ defendant the said discharge in the plea mentioned, and so the “ said plaintiffs say, the said discharge was fraudulently-obtained, “ and is void,” -&c.
    The defendant rejoined, taking issue upon the replication, and denying that Judd ever did show cause why the defendant should not be discharged, and denying that he ever made opposition to such discharge before the Recorder; “ without this, that the said “ defendant, in order to induce the said Samuel Judd to with“draw his opposition to the discharge of the said defendant,” “ offered to, and did secure to be paid to the said Samuel Judd,” “ any part or portion of his debt or demand,” &c., with a conclusion to the country.
    Upon this issue, a verdict was found by the jury in favour of the plaintiffs, and the defendant now moved “in arrest ofjudg- “ ment, or for some order of the court, directing an entry on the “ record, qualifying the judgment to be entered for the plaintiffs, “ so that no execution should issue thereon against his person.”

      Mr. Elias H. Ely, for the defendant,
    and in support of the motion, contended, that the judgment might be arrested, or at least modified, under the pleadings, because the issue joined, although found in favour of the plaintiffs, did not impair the discharge. The defendant, he said, would, of course, be entitled to the benefit of the plea, which asks merely for a personal privilege, unless there was something in the replication which avoided or destroyed its effect. The plea sets forth the discharge in h<zc verba, and if the defendant is to be deprived of the benefit of his plea, it must be for some cause set foi th in the replication.
    In the first place, the discharge itself cannot be impeached: it is a record, and imports absolute verity : it concludes all parties and privies, and creditors are of course parties. Even if there was fraud as to the manner of procuring the discharge, that would not avail against the discharge, except for the causes set forth in the statute. Fraud, in the consideration of a deed cannot be inquired into at law, and nothing comes up before such a tribunal but questions relative to the sealing. [1 Johns. R. 300. 2 J. R. 177. 13 Ib. 430. 5 Cow. R. 506, 510. 8 Ib. 177. 290.] In the case cited from the 13th of Johnson’s Reports, it was expressly decided, that all creditors who did not appear and oppose the discharge, assented to it; and here these plaintiffs having neglected to appear when notified to do so, if they had cause, have assented to the discharge.
    II. It is admitted, that the plea may be avoided by a replication, setting forth any of the facts stated in the statute, which destray the discharge. There acts are all set forth in the 5th section the act, [5 Vol R. L.p. 117. Sess. 42, ch. 101.] and the discharge cannot be avoided by any thing except the causes set forth in that section. These are, 1. perjury ; 2. a concealment oi property, and, 3. the receiving a debt after the discharge.
    Now the cause set forth in the replication, is not one of those enumerated: it states, that the defendant offered to secure, and did’secure, to one Samuel Judd the payment of one half of his debt, if he would withdraw all opposition to the defendant’s discharge. JVon constat, that the one half of Judd’s debt was paid by any part of the defendant’s effects., It is not asserted that the fund assigned for the benefit of all the creditors, was made less by the payment made to Judd. • Neither does it appear, that the creditors have suffered in any way by the acts of the defendant, set forth in the replication.
    For these reasons, Mr. Ely contended, that the judgment ought to be arrested or modified, so as to give the defendant the benefit of his plea, because there was nothing set up in the replication which could, in law, deprive him of the protection afforded by his discharge.

      Mr. D. B. Tallmadge, for the plaintiffs, contra, contended,
    I. That there were facts enough averred in - the replication to avoid the discharge. No matter whether the fraud alleged be that specified in the act or not, so long as it is one against the law or the policy of the law. It has been decided repeatedly, that frauds not set forth in the act are sufficient to avoid any securities taken by a creditor for withdrawing his opposition. [2 J. R. 386. 4 Ib. 410, and note to 2d Ed. 12 J. R. 306. 3 Caines’ R. 213. 9 J. R. 295.]
    II. But the fraud contained in the replication is specified in the 5th section of the act. It is concealment of part of the debtor’s effects. The insolvent “secured to one Judd a part of his debt, to wit, one “ half.” The fair intendment of this allegation is, that the insolvent secured it out of his effects, not contained m his inventory. This is a concealment within the meaning of the act, and it, need not he averred in terms. It is sufficient, if facts enough are set forth from which fraud may be inferred; for on a motion in arrest of judgment, every intendment is against the party moving and in favour of the pleading attacked. Whatever by possibility might have been proved under the issue, will be intended to have been proved. [2 Tidd’s Prac. 826. Steph. on Plea. 166.] Therefore, as under that issue, we might have proved that the insolvent bought off Judd’s opposition, by giving to him a note due and owing to the insolvent, it will be intended that we did, in fact, prove it; and such proof would be conclusive evidence of concealment within the letter of the 5th section. This mode of securing Judd’s debt, is the probable one, and the court will infer that it was adopted.
    Fraud may be inferred from the facts stated in the replication, which is concluded by a direct averment that the discharge is void by reason of fraud. The jury have found all the facts to be as stated in the replication, and the conclusion also: that conclusion is fraud.

    But, it is said, that if Judd was bought off, the fund was left entire, and the creditors thereby benefitted. In reply, we say, that if Judd had not been bought off, the defendant would not have been discharged, and the plaintiffs would have been left in possession of all the remedies against their debtor known to the law.
    III. The insolvent was guilty offalse swearing, within the meaning of the 5th sec. of the act. The act provides, that an insolvent shall not settle with any of his creditors with a view to obtain the benefit of the act, and the party is required to swear, that he has not so settled. Is the act complied with, if the oath be true when taken, but becomes false immediately afterwards'l The spirit of the act extends to proceedings as well subsequent to the oath as precedent thereto, and to settle, with a creditor, after the oath has been taken, is a violation of the spirit of the act.
    The act 5 Geo. 2, c. 30, sec. 10, requires the bankrupt to make and present to the Chancellor an affidavit, stating “ that the “ certificate and consent of the creditors thereunto were obtained “ fairly and without fraud.” In the case of Itodson v. Galze,[Doug. 228,] notes had been given by a confidential friend of the bankrupt without his knowledge to two of his creditors, whereby they were induced to sign the certificate. The bankrupt'made the affidavit required by the statute, and was afterwards informed of the acts of his friend; subsequently to this he presented his affidavit to the Chancellor. Upon these facts, Willes, J. observed, that it was “ a fraud in the bankrupt to present his affidavit “ to be read at the time when the certificate was allowed; for “ though it might be true when sworn to, it certainly was not “ true then, and therefore the certificate was void.” Buller, J. observed, “ that the certificate would not have existed, but for “means which the legislature had reprobated.”
    IV. But if the fraud set forth in the replication be not sufficient to avoid the discharge, the defendant cannot take advantage of it, by a motion in arrest of judgment. The plaintiffs are entitled to judgment, first, by nil dicit, and secondly, because the plea does not go to the cause of action, but merely to qualify the judgment. As to the cause of action the defendant says nothing. [Doug. 393, 1 Cow. R. 207.] Judgments cannot be arrested, according to our statute, for mere defects in form, and since the act no case can be found where a judgment has been arrested, except for defects in the declaration: none for defects in any subsequent pleading. If the defendant objected to the replication, he should have demurred, and that was the only course by which his objection, if well taken, could be sustained by the court.

      Mr. J. Anthon for the defendant, in reply.
    The plaintiffs might have judgment by nil dicit, if they, had given the defendant the benefit of his plea. They were not bound to join issue, but might have had judgment without the least delay. If, however, they seek to take from the defendant the privilege given to him by his discharge, they must state some valid reason upon the record, why the discharge is void. The court will not, ex industria, seek for causes to establish fraud, but will rather call upon the party who asserts its existence, to state it in such clear and direct terms in his pleading, that the defendant may meet and rebut it if he can at his trial. If the defendant has been guilty of false-swearing his discharge is not only void, but he may be liable to the laws in another manner.
    Will not the court then, say, that every intendment ofmere technical pleading is against fraud, and will they not rather compel the plaintiffs to aver with strictness all the facts upon which they rely to establish the fraud 1 The general conclusion that “so the discharge was frudulently obtained and is void,” will avail nothing, unless the plaintiffs point out how it was fraudulent and void. This they have not done, and they are confined to their specific allegations. These, upon examination, turn out to be entirely inoffensive, if true, for there is no moral turpitude in paying or satisfying a debt w hich is justly due. The discharge, then, cannot be considered as void unless the defendant has done something which the act has forbidden him to do, and to ascertain that fac t we must examine the act itself.
    All the cases cited by the plaintifis, are such as have arisen under the “two-third act” where the proceedings differ materially from those which merely exempt the pérson from arrest. In the one case all remedy for the debt is taken away ; in the other the person only is exempted from execution. Under the act relating to non-imprisonment, it is no injury to one creditor that another has been bought off, unless it can be shown that his dividends have been thereby diminished. In this case, there is no averment that any part of the defendant’s property was taken to satisfy the opposing creditor, and the court will not infer it, becapse such might possibly, or even probably, have been the case. If tpe plaintiffs rely upon the fact, let them state it, that the defendant may have an opportunity of denying it.
    II. But has there been a concealment here in any shape, either within the meaning of the act, or in fact 1 Before Judd appeared to oppose, the defendant had made out a complete inventory of his property, which was surrendered to the assignee according to the inventory. How then could any part of this specified property be substracted, for the purpose of satisfying Judd’s debt 1 The whole case is narrowed down to the single enquiry, whether the defendant lias violated the statute. Upon this point the discharge speaks for itself, and is conclusive. It states, that the defendant had “ conformed in all respects to the matters. and “ things required of him, according to the true intent and meaning “ of the act.” How can this be gaínsayed ? The jury have found nothing more than this, that one Judd was paid or secured the one half of his debt 1 Does that deprive the defendant of the protection afforded by his discharge 1 If the oath was false the assignment was void, but the oath, the plaintiffs admit, was true when it was administered. If so, how can the statute operate retrospectively, even if the defendant did satisfy Judd after the oath was taken 1 The fifth section is an entire new enactment ; it is not to be found in the two-third act, and the legislature intended to point out every thing which could avoid the discharge. This they have done, and (he replication has set. forth none of them. The issue joined is, therefore, immaterial, and the judgment may he arrested.
    There is a distinction between an informal and an immaterial issue. [2 Saund. 319 a. 1. Ib. 227. 2 Arch. Prac. 239.] For the former defect, a motion in arrest cannot be sustained, but for the latter, it may.
   The Chief Justice,

in delivering his opinion, remarked, that the question in this case was, whether the facts stated in the replication were sufficient to avoid the defendant’s discharge ; for the court would infer, that all the facts upon which issue,was taken, had been found by the jury.

The replication alleges, that in consequence of a compromise made by the defendant with one of his creditors, that creditor was induced to withdraw the opposition to the defendant’s discharge, which he otherwise would have made. Suppose the fact to be so : does it follow as a necessary or inevitable consequence, that the compromise.wasfraudulent ? Suppose the defendant was attended to the Recorder’s office by some friend, and that friend being informed of the creditor’s intended opposition, had himself advanced the money to effect the compromise: would the other creditors of the defendant have been prejudiced, by such a course of proceeding 1 The entire fund, assigned by the debtor, would still have gone to his assignee, and it would, in that case, have been divided among a smaller number of creditors. By this means, the creditors would have been benefitted, and could not, with any reason, complain of the defendant’s acts in this particular. The court will not infer, that the acts done were fraudulent, because the replication, in its conclusion, asserts, that the discharge was fraudulent; but they will look at the facts stated, and ascertain from them whether the law has been violated.

In order to impeach the discharge, the court must infer, that the defendant subtracted a part of the funds, which would otherwise have gone to the creditors in general, and gave it to a particular creditor, for the purpose of inducing him to withdraw his contemplated opposition. This is not averred in the pleadings, and will not be intended, where such intendment must cast upon the defendant the perpetration of a fraud, and break up so solemn an instrument as a discharge, under the seal of a competent officer.

There is another reason why the allegations in the replication are not entitled to the particular favour of the court. When the defendant presented his petition to the Recorder, notice was directed to be given to all the creditors, to appear and show cause, if any they had, why the prayer of the petition should not be granted. That notice must have been given to the plaintiffs, among others, because the discharge itself avers, that satisfactory evidence was furnished to the Recorder, that all the requirements of the act had been complied with. If the plaintiffs intended to oppose the defendant’s discharge, why did they not appear at the proper time and place, and show cause ? By not appearing, they acquiesced in the discharge, and are concluded by it. The discharge is by the act itself, made conclusive evidence as to the facts which are asserted in it, and from that, nothing appears to shew the compromise, or impeach the discharge. It is, then, sufficient to afford the defendant all the protection which is sought in his plea, and must be made available for that object.

The next question is, can the judgment be arrested 1 According to strict technical principles, I think it cannot; but it may be modified, in such way as to meet the exigency of the case. Where the law affords to an insolvent debtor a privilege, which is to protect his person, the court may always point out the means by which it may be made available. The only part of the judgment complained of, is that which relates to imprisonment, and that must be modified by a special entry, which shall protect the debt- or’s body. The plaintiffs will thus have their judgment, and the defendant, the protection asked for in his plea.

Oakley, J.

This is an action of debt on judgment. The defendant, to protect his person against execution, interposes a plea of a discharge, obtained under the act entitled, “ An act to abolish imprisonment for debt in certain cases.” The plaintiffs reply in substance, that on the day appointed for the appearance of the creditors to shew cause, against the discharge, one Judd, a creditor of the defendant, appeared to oppose, and commenced his opposition to the said discharge, and that the defendant, in order “ to induce the said Judd to withdraw his opposition, offered to, “ and did secure to be paid to him, the one half of his debt;” and he thereupon withdrew his opposition, and the defendant obtained his discharge. Issue was taken on this replication, and a verdict was found for the plaintiffs. The defendant now moves in arrest of judgment, or for some order of the court, directing an entry on the record, qualifying the judgment to be entered for the plaintiffs, so that no execution shall issue thereon against his person.

By the act, under which this discharge was obtained, [sess. 42. c/t. 101, s. 2.] it is enacted, that the insolvent, on presenting his petition, shall make oath, among other things, that he has not settled with any of his creditors with a view to obtain (he benefit of the act. Public notice is then directed to be given to the creditors of the insolvent, to show cause against his discharge, on a day to be appointed, and if no causé be shown, and the officer to whom the petition is presented, “ shall be satisfied that the in sol- “ vent hath in all things conformed to the provisions of the act,” he shall direct an assignment to be made of the insolvent’s estate. The 3d section directs the discharge to be granted, upon proof of such assignment; and declares, that the discharge so granted, “shall be conclusive evidence in. all courts within this state, of the facts therein contained.” By the 5lh section, it is enacted, that the discharge shall be void, for several causes particularly specified therein, among which, are the commission of any perjury by the insolvent, and the concealment of any of his estate or effects.

It is contended, on the part of the defendant, that the discharge cannot be impeached or avoided for any cause, other than those particularly enumerated in the 5th section of the act. This position appears to be fully supported by the case of Lester v. Thompson, [1 J. R. 300.] In that case, the discharge relied on, was obtained under the general insolvent act, which requires the assent of a portion of the creditors of the insolvent to the granting of his discharge. The 13 th section of that act [1 R. L. 466.] enumerates the causes which shall render a discharge void, and its provisions are similar to those of the 5th section of the act now under consideration, as far as the nature of the proceedings under the respective acts Will admit. In Lester v. Thompson, the fraud alleged against the discharge, was one not enumerated in the act, as it then stood. The plaintiff there contended, that any fraud on the part of the insolvent, in obtaining the discharge, would vitiate it. But the court said, that its validity could not be contested on any ground, other than those expressly reserved in the act itself. This seems to be fully in point in the present case.

It has frequently been decided, as suggested by the plaintiffs’ counsel, that notes or securities given to a creditor by the insolvent or others, as a consideration for withdrawing his opposition to the discharge, are void, as being against the policy of the law. That principle cannot, however, be applied to the present case. The validity of the discharge itself, rests upon the express provision of the statute, A note, madé under the circumstances above mentioned, is held to be void by the principles of the common law.

,The plaintiffs further contend, that the facts set forth in the replication, show, that the insolvent was guilty of false-swearing, within the spirit and meaning of'the 5th section of the act. The oath taken, by the insolvent, at the time of presenting his pet.ition, was, that he had not settled with any of his creditors, with a view to obtain the benefit of the act. The facts set forth in the replication, certainly show a settlement with Judd, within the fair import of that clause of the oath. But we are not at liberty to refer the party’s oath to a period different from that fixed by the statute. It was strictly true, for aught that appears at the time it was made, and acted on by the Recorder, and it would be over-leaping the plain terms of the statute, to refer it to a subsequent period, with a'view to falsify it. In this respect, the case differs from Robson v. Calze, [Doug. 228,] cited by the plaintiffs’ counsel. There, the affidavit of the party was true, as he supposed, when it was sworn to, but known by him to be talse when laid before the Lord Chancellor, for the allowance of the bankrupt’s certificate.

It is again contended by the plaintiffs’ counsel, that the facts set forth in the replication, amount to an averment, that the insolvent had concealed a part of his effects. The allegation is, that he had secured to be paid to Judd a portion of his debt, and it is said, that we must intend that such security was given by an appropriation of the insolvent’s own estate. Such intendment, I apprehend, cannot fairly be made. The security given to Judd, may have been by the intervention of some friend, and this will be presumed to have been the case, where a contrary intendment will charge the party with fraud.

On the whole, I am of opinion, that upon this record, the defendant is entitled to the protection of his discharge, notwithstanding the finding of the issue against him. The plaintiffs’ judgment for the debt, must be so modified, as that no execution can issue against the defendant’s person, and a special entry must be made on the record to that effect.

The defendant’s counsel, in the first instance, moved for judgment “non obstante veredicto, or for such other rule, or order, as the “ court might grant.” They then contended, that the facts stated in the replication were all immaterial, and that, therefore, the defendant might have judgment to the extent of his plea, and cited Whittemore v. Adams, [2 Cowen’s R. 626.]

Mr. Tallmadge, contra, contended, that the defendant could in no case, move for judgment, non obstante veredicto. It is the privilege of the plaintiffs to make this motion, while the defendant, on his part, is allowed to meet corresponding defects by a motion in arrest. In all cases where this motion prevails, a repleader may be awarded, and it is only made in cases of issues palpably immaterial.

The Court ruled, that the defendant could not move for judgment, non obstante veredicto, in a case where it was clear that the plaintiffs were entitled to it. His object was, not to enter up a judgment in his own favour, but to cause that of the plaintiffs to be modified to the extent of his plea, which claimed nothing more than a personal privilege. They therefore refused that motion, and permitted the defendant to seek for relief in some other form. The defendant, therefore, subsequently made the motion report-in the case above.

[E. Curtis, Att’y for the plffs. E. H. Ely, Att’y for the deft.]

       Vide Smith v. Smith, 4 Wend. R. 468.


source: Caselaw Access Project

author: Oaklev, J.

license: Public Domain

text:
    John Wheelwright versus John A. Moore.
    April Term, 1829.
    In an action upon a guaranty, where the defendant, relying upon the statute of frauds, pleads that “the promise mentioned in the declaration, isa special pro- “ mise to answer for the debt of a third person," and that no note or memoran- “ dum in writing, shewing the consideration of such promise was ever signed by “ him,” the plaintiff, if the consideration of the guaranty was the sale of goods •to a third person, made at the same time with the guaranty, must set forth by Ms replication, what he would be bound to shew in evidence, if the statute were not pleaded. It must appear by the replication, that the sale of the goods and the making of the guaranty, were simultaneous acts, constituting parts of one and the same agreement.
    The third and fourth counts of the plaintiff’s declaration set forth, that one S. made certain promissory notes to the plaintiff the payment of which, the defendant guarantied, “ in consideration of value received by S. and the defendant.” The defendant having pleaded the statute, the plaintiff replied, setting forth a written promise of the defendant, containing copies of the notes which were expressed to be “ for value received.” The guaranty also set forth, “ that in purs',:- “ anee of the understanding” between the plaintiff and S., the defendant stipulated to pay the notes, if S. did not. Held, that the replication did not support the averments in the declaration; the contract there set forth, not appearing with sufficient certainty, to rest on the same consideration.
    This case was formerly before the court, upon a demurrer to the plaintiff’s evidence, [ante p. 201.] It was an action upon a guaranty given by the defendant to secure the payment of three certain promissory notes, made by one Scovell in favour of the plaintiff. •
    The declaration contained four counts. The two first were like those contained in the former declaration, and differed by confining the breach of the defendant’s contract to the non-payment of the second note, merely.
    The third count alleged, that Scovell, on the 5th day of December, 182?, made three several promissory notes in favour of the plaintiff, for the sum of three thousand five hundred and thirty dollars, and twenty-seven cents each: the first being payable in seven, the second in nine, and the third in twelve months after date. That the defendant, “ in consideration of value received by‘ Scovell and him, the said defendantundertook and promised the plaintiff, “ that he would guaranty the just and full payment” of the aforesaid notes “ to the plaintiff, or his order.” This count then averred, that the second of said notes had become due, but that the same had not been paid either by Scovell or the defendant, nor had the defendant guarantied to the plaintiff “ the just “ and full payment thereof,” although requested, &c.
    The fourth count was substantially like the third, but confined its allegations to the second note, omitting the others entirely.
    The defendant relied upon the statute of frauds as a defence, and pleaded separately to each count of the declaration, that the promise therein mentioned as having been made by the defendant, “ was a special promise to answer for the debt of a third “ person, to wit, for the debt of Noah Scovelland that “ no agreement in respect of, or relating to, the said supposed pro- “ mise, or any memorandum or note in writing, wherein the con- “ sideration for such promise was expressed, stated, and shown, “ according to the form of the statute in such case provided, was “ ever signed by the said defendant, or by any other person or “ persons, by him thereunto lawfully authorised.”
    To this plea, the plaintiff replied, that the promise mentioned in the declaration, “ or the agreement in relation to the same,” was in writing; and he set forth the notes of Scovell, and the special agreement of the defendant, exactly as they appeared in evidence in the former case. The replication then averred, that the consideration of the said promise was “ expressed or stated in “ writing in the said agreement,” “ according to the form of the “ statute,” and that “ the said instrument in writing was sign ed by the defendant;” and prayed that the same “ might be inquired of by the country.”
    To each of these replications, there was a separate general demurrer ; and the cause was now argued by Mr. J. Anthon, for the defendant, in support of the demurrer, and by Mr. Wilkes, for the plaintiff.

      Mr. Anthon contended:
    I. That the promise was a collateral one, on the face of the pleadings, and to be valid, should have the consideration expressed. II. That the consideration, as expressed, is the understanding and agreement between Wheelwright and Scovell, which is unintelligible, without recourse to oral testimony, and, therefore, the promise is void. III. That the consideration expressed in the agreement, varied irom the consideration averred in each of the counts, and, therefore, the replications were departures. The two last counts aver, that the consideration for the defendant’s promise, was value received by him and Scovell; the written agreement disclosed by the replication, expresses “ the value” to have been received from Scovell alone. This is a manifest departure from the declaration, and the defect may be taken advantage of by general demurrer. He cited the case of Morley v. Boothby, [3 Bing. R. 107,] as precisely in point.

      Mr. Jlnthon observed, that the agreement set up in the two first counts of the declaration, had already been before the court, when the case was presented by the demurrer to the plaintiff’s evidence; and it was then decided, that the proof did not support the declaration. The court held, that the plaintiff had the right to- show, that the credit given to Scovell, and the signing of the guaranty, were one transaction: and that if it were proved, that the two acts were concurrent, then one consideration would be sufficient to support both promises. But the court, at the same time' decided, that the contract itself, upon its face, did not show, that the transactions were one entire agreement, and, therefore, that the declaration was not supported by the proof.
    The defendant has not varied his case in relation to the two first counts, in any way, except by pleading that now, which he then gave in evidence. The court cannot infer that the two acts were concurrent; but, on the contrary, the fair presumption is, that Scovell’s notes were made and delivered before the defendant’s guaranty was given. If so, the contract was. clearly void. [Fell on Guar. p. 25, 37.]

      Mr. Wilkes, for the plaintiff, contra,

    contended, that the “value “ received,” specified in the notes of Scovell, was the consideration, not only of the notes, but also of the guaranty, in which they were incorporated. Both promises were branches of the same contract, and founded on the same consideration.

      The cases from the English books cannot be considered as authorities here, when they contradict the spirit of the decisions of our own courts. Wain & Warlters, so far as it has any application to this agreement, is expressly overruled by the case of Leonard against Vredenburgh, [8 Johns. R. 39.] The plaintiff relies upon that case, as conclusive in his favour, and the doctrine asserted by Chief Justice Kent, is sufficiently comprehensive, to embrace every principle for which we contend. The strictness of the English courts in relation to proof of consideration under the statute of frauds, is not required by our tribunals; but effect will be given to a contract, where the requirements of the act have been substantially complied with. [D’Wolf v. Rabaud, et. al. 1 Peters S. C. R. 477.]
    But if the first and second counts be obnoxious to the objections raised, the third and fourth have a sufficient consideration expressed on their face, and which is proved by the agreement. It is stated in the declaration, that the defendant’s promise was in consideration of “value received” by himself and Scovell. Here is a sufficient consideration alleged. The notes of Scovell are ex- . pressed to be for “value received,” and these notes, with this consideration upon their face, are guarantied by the defendant- The consideration of his promise was this value received, and it was sufficient to uphold both contracts. This has been expressly decided : and these counts are fully supported by adjudged cases.. [11 J. R. 221. 13 J. R. 175.]
    The consideration of value received, is not inconsistent with: that of goods sold; for the latter may, in fact, be the exact consideration embraced by the former ; and in this view of the' subject all the counts are good.
    This is called a collateral undertaking, and, perhaps the use of that word may mislead us, if we suppose it contained in the statute of frauds. But, the act uses no such word. A contract may be collateral to another contract, and yet, original as to the party to be charged. His promise may be, to pay the debt of another, and yet, if made at the time of the principal contract, it is as much an original agreement, as the principal contract is. ¿Join this case, the defendant’s contract is original, although made to guaranty Scovell’s notes. The only question is, whether the promise is in writing: and, in this respect, we have complied with pne requirements of the statute.
   Oaklev, J.

The first and second counts of the declaration,

in this case, are substantially alike; and set forth, that the defendant, on the 5th of December, 1827, in consideration that the plaintiff would sell and deliver to one Scovell, a certain quantity of goods, &c., promised the plaintiff to guaranty to him the payment of certain promissory notes, made by the said Scovell to the plaintiff, bearing date on that day. The delivery of the goods to Scovell, on the faith of the defendant’s promise, is set forth, with the proper averments, showing a breach of the promise, on the part of the defendant. To these counts, the defendant has pleaded, separately, that the said promise of the defendant was a special promise, to answer for the debt of Scovell; and that no agreement, in relation to it, in writing, wherein the consideration for such promise was shown, was ever signed by the defendant, or by any person authorised by him. The plaintiff replies, setting forth the written agreement, signed by the defendant, dated the 5th of December, 1827.

The replications then aver, that the consideration of the defendant’s promise, set forth in the 1st and 2d counts of the declaration, is expressed in the said agreement, and that the same is signed by him. To these replications, there is a separate and general demurrer. The question arising on this written guaranty, has been before us, in another action between these parties. The declaration, in that case, contained two counts, like those now under consideration. On the trial of the cause under the general issue, the plaintiff having proved the guaranty, the defendant demurred to the evidence, and we held that it did not support the declaration. We thought that the consideration of “value received” expressed in the copies of the notes, contained in the guaranty, might, on the authority of the case of Leonard v. Vredenburgh, [ 8 J. R. 29, ] be held to be the consideration for the guaranty itself, but that it did not appear to be the same consideration alluded to in the declaration; and w.e also held, that the plaintiff might shew, by parol proof, that the notes of Scovell, and the guaranty of the defendant, were, in truth, one original transaclion, and were both entered into upon the same consideration,, to-wit: the sale of the goods, &c. by the plaintiff to Scovell.

Applying the principles of that decision to the present case, E think that the plaintiff, to support his 1st and 2d counts, ought to show, in pleading, what, in that case, we held him bound: to-show in evidence. After setting out the written promise of the defendant, he should have averred, in substance, that the consideration of the promise, was, the sale of the goods, &c. to Scovell, and that the defendant’s guaranty, and the notes of Scovell were made at the same time, and constituted parts of the same agreement, in pursuance of which, the plaintiff parted with his property, and that averment he might support, on the trial, by parol proof.

The replications to the first and second pleas of the defendant, do not, therefore, in my judgment, support the first and second ■counts in the plaintiff’s declaration, and there must be judgment for the defendant on the demurrer to these replications.

The third count of the declaration states, that Scovell, on the 5th of December, 1827, made three promissory notes to the plaintiff, (setting them forth particularly,) and that the defendant, in consideration of value received by the said Scovell, and him, the defendant,” promised the plaintiff to guaranty the payment of the notes, with the necessary averments as to the breach of the guaranty. The fourth count states, that in consideration of value received “by Scovell and the defendant,” for which Scovell made his promissory note to the plaintiff, (setting it forth,) the defendant promised to guaranty the payment of the note to the plaintiff. To these counts there are the same pleas, replications, and demurrers, as to the two first counts.

The third and fourth counts are substantially the same. The replications set forth a written promise of the defendant, signed by him, containing copies of the notes, to which the guaranty applies, and in which the notes are expressed to be for “value re- ceived.” In the case of Leonard v. Vredenburgh, the guaranty of the defendant was in the same form with that in the present case. A note expressed to be for “ value received,” was first signed by Johnson, and underneath was written the guaranty of Vredenburgh which contained no new or other consideration. In that case, the court say, that “ Johnson’s note given for value 6t recejve¿]) anc]3 0f course, imputing a consideration on its face, “ was all-the consideration requisite to be shown;” and the Chief Justice adds, “ if it was all one transaction,, the value received was evidence of a consideration, embracing both the promises: “ the writing imputed, upon the face of it, one original and entire “ transaction for a guaranty of a contract, and implies ex vi termini, that it was a concurrent act, and part of the original agree- “ merit.”'

It.is supposed by the plaintiff’s counsel, that the present case falls within the principles here laid down. I am inclined to think that it does not. The guaranty here, after setting forth copies of the notes, goes on to say, that in pursuance of the understanding and agreement- between the plaintiff and Scovell, the defendant stipulates to pay the notes, if S. does not. The guaranty, in terms, refers to some consideration arising out of the agreement between S. and the defendant, and excludes the inference, (which, perhaps, might otherwise be drawn,) that the ' value received, expressed .in the copies of the notes, was the consideration on which the defendant’s contract actually rested. If this be so, then the replications do not support the averments in the third and fourth counts of the declaration. The consideration of the contract declared on, is that of value received by the defendant and Scovell. The contract set forth in the replication does not appear, with sufficient certainty, to rest on the same consideration, and the replication mtist be considered bad for that reason.

Judgment for the defendant on the demurrers, with have to the plaintiff to amend his replications, on payment of costs.

[H. and E. Wilkes, Att’ys for the plff. E. Anthon, Att’y for the deft.]


text:
    David Hazul versus David Dunham, James D. Wallace, and David R. Dunham.

      Opinion of Peter A. Jay, Esq. Recorder.

    Motion for a new trial.

       This is the opinion referred to, [ante p. 150,] in a note to the case of Wolfe v. Luyster.

   This is an action against the defendants, who are auctioneers and commission merchants, for having sold four bales of cotton bagging, belonging to the plaintiffs, for a price less than that limited by his orders.

At the trial, William Todd was produced as a witness for the plaintiff. Being examined on his voir dire he testified, that he was the agent of the plaintiff in relation to the cotton bagging, and had received no instructions as to the mode of selling it, or the price to be asked for it: that the plaintiff had entire confidence in him, and submitted every thing, as to the time and manner of disposing of it to his judgment: and, that he was not interested in the suit. He was objected to, as incompetent, but admitted. Being sworn in chief, he further testified, that in October, 1817, he delivered to the defendants, to be sold, five bales of cotton bagging, belonging to the plaintiff; that on the 8th of May, 1818, he gave them written instructions, by which they were forbidden to sell four of the bales under the cost-price, or fifteen cents per yard; that the defendants, three days after, sold them at auction; that he was informed of the time and place of the sale, but did not attend.

It was then proved by the defendants, that the bagging was sold at auction, to a Mr. Hinton, part for seven and part for six cents a yard ; that it was of inferior quality, and that nd more could be got for it at auction, and by wholesale i but that it was afterwards retailed by Hinton, at from nine to twelve cents a yard,

It was objected by the defendants’ counsel, that the order to sell at auction for not less than a certain price, was illegal, and, therefore, that the action could not be sustained. But the court charged the jury, to find for the plaintiff the value of the four bales, at the best price which could have been obtained for them had they been sold in the most advantageous manner, and to allow the defendants no commissions on the sales. They accordingly found for the plaintiff $160.51, being at the rate of about nine cents a yard.

A motion is now made for a new trial, and the defendants’ counsel have made three points. 1st. That William Todd was an incompetent witness. 3d. That the instructions- given to the defendants were illegal. 3d. That the defendants were entitled to commission.

It is evident that the last point is a corollary to the second, and must receive the same decision. If the defendants had a right to sell without regarding their instructions, they were entitled to commissions; but if they violated their duty to their employer, then they can claim from him no compensation for doing so.

As to the admission of Todd’s testimony, it is argued, that as a general agent, he could not sell at auction; that for having done so, an action lies against him by his principal, and that he has, therefore, an interest in this suit. Supposing that he had no right to sell at auction, (which is far from being clear,) yet I think that the plaintiff, by bringing this action, has ratified Todd’s acts, and barred himself from suing him for that cause. It therefore appears to me, that he was properly admitted.

The principal point in the cause, and that which has been most laboured, is the second: viz. that it is unlawful to limit the price of an article sold at auction. To support this proposition, the case of Bexwell v. Christie, [Cowper, 395,] is relied on. In that case, the property of a person deceased had been advertised for sale at auction; and the printed conditions of sale declared, that every article should be struck off to the highest bidder. Bexwell sent a horse to be sold at that auction, and under those conditions of sale, but directed Christie, the auctioneer, not to let him be struck off for less than a certain sum. Christie struck the horse off to the highest bidder, for a less sum, and for this, Bexwell brought an action. Lord Mansfield supposing, that in this case, the orders of the owner could only have been complied with, by employing some one to bid on his behalf, proceeded to consider the propriety of that practice, and, thinking it immoral, held, that the action could not be sustained.

There is no other case so strong as this. It is subsequent to our revolution: and the reasoning employed in it has been doubted since in the English courts. But even in this case, it was acknowledged by Lord Mansfield himself, that the owner might, in certain cases, lawfully bid at an auction, and that an article might lawfully be set up at an auction, at a price under which it was not to be sold. Now, in the present instance, the defendants had received no instructions with respect to the manner in which the goods were to be set up: and it must be admitted, that if they could lawfully obey their instructions, they were bound todo so. If, when the four bales were set up, the auctioneer had given notice, that they were not to be sold unless fifteen cents a yard were bid for them, can it be imagined that this would have been a fraudulent transaction ? And if a proclamation to that effect was necessary to render the transaction legal, then it was the duty of the defendants to make it. They were simply directed to sell at auction for not less than a certain price; the manner of doing so was left to their own discretion, and if they published conditions of sale, making it necessary to sell for less, they violated their duty. In this view of the case, an examination of the authorities might be dispensed with. But it may not be useless to examine with some attention the doctrine contended for by the defendants, and countenanced by several decisions.

Human laws are, and necessarily must be, imperfect. It is impossible for them to control every word and action, and it is, perhaps, fortunate that they cannot. They do not attempt to enforce what are termed virtues of imperfect obligation. As much as they respect truth, they take no cognizance of its transgression in an almost infinite number- of instances. Perfect rectitude is not their object; they neither suppose men angels, nor require them to act as if they were such. " Public utility is their end, and this they best consult by interfering only upon necessary occasions. It is, in general, more useful to draw the line between what is lawful and unlawful, so plain and distinct; as to be obvious to all men, than through an excessive anxiety to render it the precise boundary between right and wrong, to make it indistinct and doubtful. Certainty is deservedly a favorite with the law.

Proceeding upon these principles, the common law does not profess to relieve in every case of imposition. It requires the exercise of ordinary prudence, and refuses its aid to such as will not exert it. To those, who ask for relief against the consequences of their own sloth and supineness, it answers, vigilantibus el non dormientibus subvenid lex. To the purchaser, who complains that he has been deceived in points, where the use of his own senses Would have been sufficient to guard him from fraud, the law replies, caveat emptor. If a man, in the full possession of his faculties, will not take the trouble to examine and inquire for himself, he must submit to the consequences, not because it is consistent with morality to take an unfair advantage of the sloth or folly of another, but because it is not necessary, nor would it be - useful, for the law to act as tutor and guardian for men, who are capable of taking care of themselves. It is for the same reason, that gross disparity between the price and the value of an article sold, is not of itself a sufficient reason to vacate a contract of sale, even in a court of equity; nor will those vague and exaggerated praises which vendors are accustomed to bestow upon their wares, though ever so undeserved, authorize the vendee to annul his bargain. But if a fact, such as might have influence with a prudent man, and such as cannot be easily ascertained, be falsely asserted, the party deceived may ask for redress. It is on this ground, I apprehend, that the practice of employing puffers at auctions has been condemned, and made a ground for relief in various cases. For it is plain that a person may be intentionally deceived as to a fact, though the falsehood is not asserted in words. If at an auction a number of persons are' seen bidding, even a prudent man may be influenced by that circumstance; it will lead him to believe that the article for sale is in demand) and the judgment thus expressed by others of its value, may have an effect on the estimate which he forms of it. If, then,, it should prove that these bidders are all employed by the owner, of the article, and bid only in appearance, and not in reality, a falsehood is asserted, which a by-stander has no means to detect, and a fraud is practised upon him.

In the year 1726; the House of Lords decided in the case of Walker v. Nightingale, [4 Bro. P. C. 193,] that a-person, who had been employed as a puffer, could not recover compensation for his services, since they were contrary to good faith.

In 1776, was decided the.case of Bexwell v. Christie, [Cowper, 395,] which turned on the same principle; for Lord'Mansfield there took it for granted; that the directions of the plaintiff could' only be complied with, by the employment of a puffer.

In 1796, in Howard v. Castle, [6 T. R. 642,] the same doctrine is sanctioned. There a sale was held void, it appearing that all the bidders, except the purchaser, were puffers.

In Conolly v. Parsons, in 1797, [3 Vesey, 625,] the Lord Chancellor expressed doubts as to this doctrine, in the extent to which it had been carried ; and in 1798, in Bramley v. Alt, [3 Vesey, 622,] the doctrine received a limitation, that a sale should not be vacated, merely because a puffer had been employed, if there were real bidders, who bid after the puffer had ceased to bid.

In 1806, in Smith v. Clarke, [12 Vesey, 477,] a specific performance was decreed against a vendee, although the person, who bid immediately before him was employed by the vendors, to prevent a sale under a given price; so that the doctrine received a new modification, certainly inconsistent with the opinion expressed in Bexwell v. Christie : it being now admitted, that where no fraud was intended, but a person was employed merely to prevent a sale beneath a fixed price, the transaction should not be considered fraudulent. Thus it appears that the rigid doctrine, first sanctioned in Bexwell v. Christie, has been gradually softened, and made more conformable to the common notions and habits of mankind.

I shall not discuss the abstract morality of employing bidders on behalf of the owners of goods, but I think it is evident, that a mere limitation of the price of an article, to be sold at auction, is not, of itself, illegal. It is true, that for the purpose of making it bring that price, unworthy and unlawful artifices may be resorted to; but in the present case, no such artifices were contrived, or directed, by the plaintiff or his agent. He merely prohibited the auctioneer from selling for less than so much : if nobody bid so much, the auctioneer might have stopped the sale. At all events, if the instructions could in any way be lawfully complied with, (and it is admitted even in Bexwell & Christie, that they might) then the auctioneer was bound by them.

After viewing this case in every light, I remain of opinion, that the verdict is right. The motion for setting it aside, is therefore denied, with costs..


author: By the Court. Hoffman, J.

text:
    Rufus G. Kemp, Assignee, &c., v. Thomas Carnley, Sheriff, &c.
    An assignment made by one of two partners of all the partnership property and effects is valid, when it is proved that at the time of its execution the other partner was absent and had relinquished all control and management of the business of the firm.
    Such an assignment is not rendered wholly void by a preference given to an individual creditor of one of the partners, but the preference so given is void as against the creditors of the firm.
    A mortgage on “ all the stock in trade of any nature or kind whatever” of a partnership, does not cover debts due to the firm.
    (Before Oakley, 0. J., Emmet and Hoffman, J.J.)
    Nov. 18 ;
    Dec. 24, 1853.
    This was an action to recover the possession of certain goods and chattels particularly described in a schedule annexed to the complaint, and was brought by the plaintiff as assignee of George Stewart and James W. Patterson, composing the firm of George Stewart & Co., against the defendant as Sheriff of the City and County of New York. The defendant justified under certain executions and attachments particularly referred to in his answer against the property of George Stewart.
    The cause was brought to trial before the Chief Justice and a jury in February, 1852.
    The counsel for the plaintiff, upon the trial, produced and read in evidence an assignment dated May 29, 1850, from George Stewart and James W. Patterson, composing the firm of George Stewart & Co., merchants, to the plaintiff, of all and singular the partnership property, together with all the debts, promissory notes, and demands due and owing to the firm, subject to a mortgage to one William Day for $6000 upon the following trusts; “ To take possession of such property, goods, and chattels, subordinate to the right of said William Day, and as soon as may conveniently be done, to sell and dispose of the same at public or private sale, in the manner he shall deem most conducive to the interests of this trust, either in conjunction with said Day or otherwise, and after satisfying the full amount of the balance of said $6,000 now due and owing to said Day, with interest thereon according to the terms of the mortgage aforesaid, to him,—In the first place to pay all the expenses of executing said trust, including the expenses of drawing this instrument, and all other expenses of employing counsel, and all auction expenses and clerk hire, together with a reasonable compensation to said party of the second part for discharging the duties of this trust. In the next place to pay all and singular the debts of the said firm of George Stewart & Co., contracted since the commencement thereof, on the first day of May instant, ratably and proportionably. In the third place, if there shall be any surplus, to divide the residue ratably and proportionably, to the extent of their respective claims, among those creditors of the said George Stewart whose debts were contracted prior to the first day of May instant.”
    The assignment was under seal, and was signed, “ George Stewart & Co., by J. W. Patterson ;” and it was proved that previous to its execution Stewart had absconded.
    The counsel for the plaintiff also produced and read in evidence the mortgage to Day, referred to in the assignment, which bore,date on the first of-May, 1850, and was signed and sealed by both partners. It covered the shawls, laces, &c., and the entire stock in trade of every name and nature now in the store, Ho. 379 Broadway, in the city of Hew York, the.store occupied by the firm, and was conditioned to be void upon the payment of $6,000 with interest, thirty days from its date.
    A witness on the part of the plaintiff proved that on the day'' of the execution of the mortgage, the goods in the. store were delivered to Day, the mortgagee, by both the partners, and that Day put a Mr. Humbert in possession as his agent, and that the plaintiff took possession on the same day that the defendant seized the property, as sheriff, but at an earlier time of the day; that he was in possession when the levy was made.
    Day, the mortgagee, was produced as a witness on behalf of the plaintiff, ánd was objected to as incompetent. The objection was overruled, but as the Court, in giving judgment, laid no stress upon his testimony, it is deemed unnecessary to state it.
    When the testimony on the part of the plaintiff was closed, the counsel for the defendant moved to dismiss the complaint, upon the grounds that the assignment was void, as executed by one only of the partners; that it was also void as giving a preference, and that it had not been shown that the plaintiff was in possession, as assignee, when the goods were seized by the defendant. He held the possession for Day, the mortgagee, who alone, if any one, had á right of action.
    The motion was denied, and the counsel for the defendant excepted.
    The defendant’s counsel then read in evidence the several executions and attachments referred to in the answer, and proved that the defendant made a levy upon the goods in question under one of the executions, on the 23d of May. Other testimony was given, which was relied on as proving that the levy was made before the execution of the assignment, and also as showing that the assignment was fraudulent in fact.
    ■ Further proof was also given on the part of the plaintiff, to show that the whole sum of $6000, secured to be paid by the mortgage, had been advanced to Stewart by the plaintiff and by Day in notes and in cash.
    When the cause was rested, the judge suggested that a verdict should be taken generally for the plaintiff, subject to the opinion of the Court, and that the jury should find upon certain questions of fact, which was agreed to by the counsel of the parties.
    Hpon the questions of fact submitted to them, the jury found that the assignment was not fraudulent, and that it was executed and delivered to the plaintiff before the receipt by the Sheriff of the execution under which the levy was made. They also rendered a general verdict for the plaintiff.

      D. D. Field, for the plaintiff,
    moved for judgment upon the verdict upon the following grounds..
    I. The plaintiff, under the assignment and mortgage in evidence, had a right to claim the possession of the property in suit, and could therefore bring this action.
    II. The assignment to the plaintiff was a valid- instrument, and conveyed to him the property subject to the mortgage. (Cunningham v. Freeborn, 11 Wend. 241; Same Case, 1 Edwards’ Ch. R. 256; Egberts v. Wood, 3 Paige, 517; Havens v. Hussey, 5 Paige, 30 ; Harrison v. Sterry, 5 Cranch, 300, 289.)
    HI. Day was a competent witness.
    IV. Hone of the defendants’ exceptions were well taken.
    A. J. Vanderpoel, contra,
    insisted that the defendant was entitled to judgment upon the following among other grounds.
    I. The assignment under which the plaintiff claims title to the goods taken under the execution was void. 1st. It was executed by one partner only, and is preferential. (Havens v. Hussey, 5 Paige, 30; Hitchcock v. St. John, 1 Hoff.) 2nd. It is the settled law of this court that one partner cannot make a general' assignment of-the partnership property, even without preferences, where the partner is present and capable of acting. (Dearing v. Colt, 3 Sandf. S. C. R. 284; Hayes v. Heyer, Id. 293.)
    The principle of the decision is, that it is no part of the business of the co-partnership, nor incident to it, that one partner should have the right “ to appoint a trustee of all the partnership effects for the purpose of selling and distributing the proceeds.”
    H. The plaintiff’s title is not aided in any way by the mortgage.
    HI. Day was an incompetent witness, the action was prosecuted for his “ immediate beúefit.” 1st. By the terms of the assignment the proceeds of the recovery must- first be applied to the payment of Day’s mortgage debt. 2nd. He was surety in the action for Kemp, and was estopped from bringing an action to recover the same goods. 3rd. The witness alleged that Kemp was his agent, and as such held possession of the goods until the assignment was executed; he resigned his position as mortgagee to Kemp as assignee. A recovery by Kemp, would secure the fund out of which this mortgage debt was payable, instead of allowing it to go to other creditors. (Fitch v. Bates, 11 Barb. S. C. R. 471.)
   By the Court. Hoffman, J.

In this case, under the suggestion of the judge at the trial, a general verdict was taken for the plaintiff, subject to the opinion of the Court upon certain questions of law. The jury also found specially upon some questions of fact submitted to them, and the case is now before the Court for judgment.

The defendant seized the goods in question under warrants of attachment issued in favor of White and Thurger against George Stewart, one of the firm of Stewart & Patterson, as well as under executions against him. This possessory action is brought against the Sheriff to recover such goods, and damages for the detention. Security having been given under the Code, the goods were delivered.

In the first place the plaintiff’s claim' is placed upon an assignment executed to him on the 29th of May, of the property seized. The levy was made on the same day, but evidence warrants the belief that the plaintiff was in possession, claiming as assignee, some hours before the levy was made. The jury have also found that the assignment was not fraudulent, and that it was delivered to the plaintiff, before the receipt, by the Sheriff, of the execution under which the levy was made.

The defendant, to meet this view of the case insists, that the assignment is void. It is made by only one partner of the firm, and it is aEeged that the other partner had absconded at the time.

The law is definitively settled, in this Court at least, that one partner cannot-execute an assignment of all the partnership property, and appoint an assignee of all the property, even providing for a-ratable distribution of the funds, when his associate is present and capable of acting. (Denning v. Colt, 3 Sand. S. C. Rep. 284; Hayes v. Heyer, Ibid.) An assignment under such circumstances, giving preferences, would be even more objectionable ; and this was the decision in St. John v. Hitchcock, Hoffman’s Reports ; although the partner who did not join, resided in Savannah, where he was carrying on at the time the business of the firm.

One question on this subject remains without any judicial decision, that we are aware of. It is, whether an assignment by one partner, when the other has abandoned all control of the business, is valid or not; and as a branch of this question, whether a distinction exists in such a case, where preferences are given in the instrument, and where they are not.

We are of opinion that the decisions, and the principles of the decisions, lead to the conclusion, that in such a-case the assignment is valid, if an equal distribution of all the funds is directed. We do not feel called upon now to decide the question where a plain case of preferences is made, for reasons hereafter stated.

In the present case the evidence of an actual abandonment of the business, and relinquishment of all control and participation in the management, is sufficient.

We come then to the question, whether any preference of a creditor is given in the assignment, and the nature of such preference, if any.

Day was a mortgagee of property of the firm, upon an unquestioned mortgage. The assignment, after providing for the expenses of the trust, directs the amount of the mortgage held by Day to be paid from the proceeds of the property. That property comprises “ all and singular the partnership property of the said firm of George Stewart & Co., and especially all and singular the articles of dry-goods, and all other goods and chattels now in said store, together with all the debts, promissory notes, and demands due and owing to such firm.”

But the mortgage transfers only “ the shawls, laces, embroideries, silks,, hosiery, other fabrics, and the entire stock in trade of every name and nature, now in the store, Ho. 379 Broadway.”

The notes and debts owing to the firm, do not pass under the phrase, “ all the stock in trade of any nature or kind whatever.” Lord Eldon pointed out the distinction between capital and stock in trade, in the contested case of Crawshaw v. Collins (Jacob and Walker, 278 ; 2 Russell, 339). Neither in legal nor mercantile acceptation would these words comprehend the debts of the firm; and if they were doubtful, yet the phrase, “ now in the store, 379 Broadway,” would be decisive.

The assignment may operate to enable the assignee to take all the property not mortgaged, and apply it to the mortgage debt, leaving the avails of the mortgaged property to the other creditors.

It also operates so as to apply the avails of such other property to pay, in the first place, any deficiency which may occur upon the sale of mortgaged stock. It is a preference in favor of this creditor over all others so far as respects this property, and for this deficiency.

But we do not consider that such a preference renders this assignment wholly void. The jury have found that it was not fraudulent. It is true that under a series of cases this is not decisive of the question, if the illegality appears upon the face of the instrument.

The assignment transfers property covered by a valid mortgage, together with other property, for its payment. The parcels of property are entirely distinct. We cannot conclude that such a preference proves of itself a fraudulent intent which shall avoid this assignment.

The better opinion appears to be that a preference, in an assignment by partners of their property, given to a debt due by one of them, is not enough to vitiate the instrument, but affects the preference only. (Nicholson v. Leavett, 4 Sand. S. C. Rep. 302, affd cases cited.) This shows that it is not every preference apparently interfering with specific creditors’ rights, that will avoid the assignment. The character of the preference may be inquired into. Our opinion, therefore, is, that in the case of an absconding partner, or one who has abandoned all interference with the concern, the other partner has the power to make any assignment of the property which is not fraudulent, and that the preference given in the present case does not render it so.

It is urged, however,' on' the part of the defendant, that the assignment was found free from fraud by the- jury, by reason of the evidence of Day as a witness; and the argument is this—that the assignment is fraudulent because it gives a preference to the mortgage, which mortgage is fraudulent apart from Day’s evidence; and is only sustained, or it must be considered as sustained solely or chiefly, by Day’s evidence.

In the first place, it is to be noticed that the verdict was taken generally for the plaintiff, subject to the opinion of the Court upon the whole case, and upon certain facts specially •found.

In the.next place, the jury have found the assignment not to be fraudulent; and there was evidence enough before them to sustain the position that the assignment was executed and delivered, and possession taken under it, before the levy. • At any .rate, it was a point entering into the question of fraud in the assignment, and they have passed upon it.

Under such circumstances, it would be incumbent upon the defendant to show actual fraud in the mortgage or debt secured thereby, to protect which chiefly the assignment was made. Instead of. doing this successfully, the mortgage and debt are thoroughly sustained by testimony entirely independent of Day.

The following facts-relating to it appear. The mortgage was payable in thirty days; but the mortgagee was émpowered to put an agent in the store, who should keep the keys; the mortgagor was to continue to sell by retail, but the daily proceeds were to be paid over to the mortgagee. Humbert went there as such agent, about the date of the mortgage, and continued there until the Sheriff came. There was a delivery of the goods to Day who was present, and Humbert was put in possession by Day.

The advance of the money secured is distinctly proven by Brown. The mortgage was duly filed in the Eegister’s Office „ of the county, under the statute, on the day of its date. Under such circumstances, the mortgage and the debt mentioned in it were not merely not assailable, but entirely supported by evidence without that of Day. We do not, therefore, deem it necessary to decide the question as to the admissibility of Day as a witness.

The judgment will be entered for the plaintiff.


author: By the Court. Oakley, Ch. J.

text:
    Isaac W. Brownell v. Thomas Carnley, Sheriff, &c.
    Goods in the possession of a consignee, who has made advances thereon, cannot be seized and taken possession of by a Sheriff under a warrant of attachment against the property of the consignor as a non-resident debtor.
    By such a seizure the Sheriff renders himself liable as a trespasser, and an action to recover the possession of the goods may be maintained against him by the consignee.
    Although the interest of the consignor in such a case may be attached, the proper mode of making a levy thereon is that prescribed by § 225 of the Code.
    (Before Oakley, Ch. J., Boswoeth and Slosson, J.J.)
    Jan. 9 ; 28, 1854
    This was an action to recover the possession of fifty hogsheads of sugar and fifty barrels of molasses, which the defendant, as Sheriff of the city and county of Mew York, had seized and taken possession of, under a warrant of attachment against the property of one W. S. Gordy, as a non-resident debtor. It was brought to trial before the Chief Justice and a j'ury on the Yth February, 1853, upon the issues made by the pleadings, denying the plaintiff’s title, andj'ustifying under the attachment.
    It appeared upon the trial, that the goods belonged originally to Gordy, who ■ received an advance thereon from one A. M. Sayre of $180218; that Sayre, with his knowledge and consent, shipped them from a port in Louisiana to the plaintiff in Hew York, from whom he, Sayre, had received an advance corresponding in amount with that which he had made to Gordy. The bill of lading was in the ordinary form. By its terms the goods, upon their arrival at Hew York, were to be delivered to the plaintiff or his assigns, he or they paying freight for the same. The .goods, shortly after their arrival, were seized, taken possession of by the defendant, and remained in his possession when the suit was brought, under the warrant of attachment against Gordy, mentioned in his answer. The warrant was produced and proved upon the trial. It was agreed by the parties, that the' value of the goods was $2708 81, and that the plaintiff had a surplus in his hands, arising from the sale of the property, over and above his advances, commissions, and charges, belonging to Gordy, and amounting to $850.
    The jury, under the direction of the Court, found a verdict for the plaintiff with six cents damages, and assessed the value of the goods at $2708 81. The verdict was taken, subject to the opinion of the Court at general term.

      C. W. Sandford, for the plaintiff,
    moved for. judgment on the verdict, and insisted on the following points.
    1. The plaintiff had a lien upon the goods consigned to him until his advances were paid, and the bill of lading transferred to him the title. (Colley v. Merrill, 6 Greenleaf’s Repts. p. 50; Walker v. Birch, 6 Term Repts. p. 262; Gordon v. London Assur. 1 Burrows, p. 494; Maker v. Wilson, 1 Gallison Repts. p. 419 ; Kent's Com. vol. 2, p. 549, and cases cited; Abbott on Shipping, p. 333, 334, 335; Grove v. Brien, 8 How. U. S. R. 438.)
    H. The creditors of Gordy had no right, by attachment or otherwise, to take the goods out of plaintiff’s possession without paying or tendering the amount of his advances and expenses thereon. (M'Neil v. Glass, 13 Martin’s Louis. Repts. p. 261.) The case of Steif v. Hart, 1 Comstock, p. 20, 6 Hill, 484, relied upon by defendant, does not apply. That case has no reference to attachment, but is confined strictly to executions, and is a technical decision upon the statute relating to executions. (See 1 R. S. p. 366.)
    IH. The shipment was made by Sayre to the plaintiff Brownell, who had no right to surrender the property without Sayre’s orders, Sayre having a legal interest id the property and a right to control the proceeds until his advances were paid.
    IV. Judgment should be entered for the plaintiff upon the verdict.

      A. J. Vanderpoel, contra,

    contended that the Sheriff was not liable, upon the following grounds.
    I. The proofs established that Qordy, the defendant in the attachment, was the owner of the goods attached, subject to the lien of the plaintiff for his advances thereon. The sheriff was bound to levy the attachment upon the property. (Code, sec. 231, 232.)
    II. The statute made it the duty of the Sheriff to take possession of the property pledged, when levied upon by virtue of an execution or attachment. (2 R. S. p. 366, § 20, 21, 23; Stief v. Hart, 1 Coms. 20; Bakewell v. Cook, 6 Hill, 484; Wheeler v. Macfarland, 10 Wend. 318; Moore v. Hitchcock, 4 Wend. 292.)
    HI. .The powers and duties of the Sheriff, under proceedings by attachment,.are more explicitly defined by the Code, than in proceedings by virtue of executions under the revised statutes. (2 R. S. p. 366, § 20, 21, 23.)
    ' The doubt which arose under the statute relative to executions from the use of the terms “right and interest,” in the 20th section, and “personal property” in the 23d section, is most carefully guarded against in secs. 231 and 232 of the Code relative to attachments, by using the word “ property ” in an unlimited sense.
    The Sheriff’s powers and duties under attachments against absent debtors are found, 2 R. S., p. 65., sec. 7 of 3d ed., and it will be observed that the amendment contained in the act of 1840 (Laws, p. 296) is so framed, as most effectually to guard the rights and interests of all parties from abuse, while the property is in the hands of the Sheriff.
    Sec. 8. “ He shall make a just and true inventory of all the property so seized. Collect, receive and take into possession all debts, credits and effects of such debtor.”
    The pledgee acquires his lien, subject to the pre-existing regulations, for the benefit of the creditors of the pledgor, and while the property is in custody of the law, to enable the officer to do his duty, the lien of the factor is not lost or affected.
    IT. The Sheriff, under and by virtue of his levy, was rightfully in the possession of the property, for the purpose of executing his process; in acquiring such possession he did not interfere with any right of the plaintiff; he is not charged as a wrong-doer in acquiring the possession. ' The plaintiff, therefore, cannot maintain this action.
    The action is for a wrongful detention; no refusal to deliver or demand was shown before suit was brought.
    V. It appearing that the plaintiff has sold the property, and now has a clear balance of $850, to which he has no claim, the defendant is entitled to the same, as the value of the right and interest of the defendant in the property at the time it was attached. (Moore v. Hitchcock, 4 Wend. 292; Scrugham v. Carter, 12 Id. 131; Wheeler v. Smith, 11 Bar. R. 345.)
   By the Court. Oakley, Ch. J.

We are all of opinion that there must be judgment for the plaintiff. The legal title of the goods at the time of their arrival was vested in him, not merely by the terms of the bill of lading, but by virtue of his antecedent advances (Anderson v. Clarke, 2 Bing. 20 ; Patten v. Thompson, 5 M. &S. 356 ; Bryan v. Nix, 4 Mees. & Wels. 792; Abbot on Ship., 5, Amer. Ed. pp. 332-4.) He had then an absolute right to sell them, and to perfect the sale by a delivery to the purchaser; and this not only for the purpose of reimbursing his advances, but with a view to his commissions upon the sale, since, according to the known custom of merchants, it was doubtless to secure these commissions that his advances were made. The seizure of the goods by the defendant was, therefore, a plain violation of his legal rights. It not merely prevented their exercise, and deprived him of the benefits he meant to secure, but if continued, might have resulted in an actual loss of the moneys he had advanced. A decision more at variance with the understanding, and more hostile to the interests of merchants, could not well be made, than to hold that the prior rights of a consignee, having a title and a lien, are liable to be thus sacrificed at the instance of a general creditor of the consignor.

It is undoubtedly true that Grordy as owner, and virtually the consignor, had an interest in the property consigned, which was liable to be attached, but it was not an interest which gave to him, or could give to his creditors, any right to divest, or interfere with, the possession of the plaintiff—unless upon the terms of refunding his advances with interest, and paying his commissions and charges. Until a compliance with these terms, the interest of Grordy was nothing more than a right to demand and receive from the plaintiff the surplus proceeds of a sale,—and it was this interest, and this alone, that was liable to be attached. It is evident, however, that this contingent interest or right was not’ a property which in judgment of law was capable of a “ manual deliveryand hence the Sheriff, instead of taking possession of the goods, should have proceeded in the mode prescribed in § 235 of the Code. He should have done nothing more than to leave with the plaintiff a certified copy of the warrant of attachment, together with a notice of the interest levied on, and by so doing he would have given to the.creditor, at whose suit the attachment was issued, all the protection and security to which he was entitled. By proceeding as he has done, he has rendered himself liable as a trespasser, and lost wholly the protection of the .process under which he professed to act.

Even had the plaintiff in this case been only an ordinary pledgee, having no title to the goods, and no power of immediate sale, but merely the right of retaining the possession for his ultimate security, we must still have held that the conduct of the defendant in depriving him of this possession was unlawful, and not justified by the process under which he acted.

Every pledgee has at common law an absolute right to retain the possession of the property pledged, not only against the pledgor, but against every person not showing a paramount title, until the conditions of the pledge have been fulfilled; and to warrant an interference with his possession, in any other ' case, an express statutory provision changing the rule of the common law is necessary to be shown ; but no such provision certainly is to be found, making goods in the lawful possession of a pledgee, liable to seizure under an attachment' against the property of the consignor, whether the attachment be issued under the Revised Statutes, or under the Code. It is true the Revised Statutes have so far changed the rule of the common law, as to make the right and interest of a ’ pledger liable to be sold under an execution against him, even while the goods are still in the possession of the pledgee, but the statute, by its express words, is confined to a sale under an execution ; and this a sale, not of the goods themselves, but merely of the interest of the.pledger—that is, his right to redeem them upon payment of the debt for which they are pledged. The reasons upon-which the statute is founded, are not applicable, in our opinion, to a seizure of goods under an attachment; and the principle is well settled, that a -statute, in derogation of the common law, is, in all cases, to be strictly construed, and is never to be extended, by a doubtful analogy, to .cases that .its terms have failed to embrace.

It may not be amiss to remark that it is still, in our opinion, an open and doubtful question, whether the statute, in authorizing a sale under an execution of the interest of the pledger, has authorized the Sheriff to remove the property from the possession of the pledgee. Such was indeed the decision of the Supreme Court in Stief v. Hart, but although the judgment in this case was affirmed in the Court of Appeals, it was so, not by a majority of its members, but solely as a consequence of an equal division in their opinions. We do not think that this question—rejecting as we do the supposition, that the provisions of the statute are just as applicable to an attachment as to an execution—is necessary or proper to be decided by us in the present case, nor, are we to be understood as meaning to express any opinion in relation to it. We mean only to intimate that we’should not hold ourselves precluded from examining and determining the question in conformity to our own views of the proper construction of the statute, if hereafter it shall properly arise in a case before us.

It is admitted that the goods now in question have been sold -by the plaintiff since the possession was restored to him in the present suit, and that he has now in his hands a balance of $850 belonging to Gordy, the debtor in the attachment; but whether the defendant, by virtue of the attachment, is entitled to demand from the plaintiff the payment of this balance, is not a question that we have now a right to determine. Ho such question is raised by the pleadings, and it is very doubtful whether it could have been raised, in any form of pleading, in an action like the present. The only question that we can now determine is, whether the seizure of the goods by the defendant under the attachment was a wrongful act, and the plaintiff therefore entitled to recover their possession, when he commenced this action. We are clearly of opinion that he was so entitled, and- consequently, that judgment must now be entered in his favor.

Judgment accordingly with costs.


author: By the Court. Bosworth, J.

text:
    Engle, Appellant, v. Thorn and Owen, Respondents.
    E. let premises to T. <fc O., the lease providing, that the premises should he preserved . in tenantable order by T. & O., but that they should make no alteration without the consent of E. in writing. In such a case, when it is not alleged in the complaint, that the alterations are an injury to the demised premises, the court will not entertain jurisdiction of an action merely for the purpose of compelling the lessees to restore the premises as exactly as possible to the condition they were in when hired, especially when it appears that doing so would be a great injury to the lessees and no benefit to the lessor. It will, by injunction, inhibit further alterations. But it will not attempt to compel a party to do a thing, substantially impracticable, and which, if done, as nearly as is practicable in the nature of things, would not only be a great injury to the party sought to be coerced, but would be of no practical utility to the plaintiff.
    (Before Oakley, O. J., Boswobth and Slosson, J.J.)
    Jan. 10; 28, 1854.
    The plaintiff demised to the defendants, Ho. 414 Broadway, for the term of ten years from the first of May, 1850. The lease contained these provisions. “ The premises to be preserved in tenantable order or condition by the lessees, no alteration to be made without the consent of the lessor in Writing, the premises are not to be occupied for any business deemed extra-hazardous on account of fire, nor shall the same be let or underlet, or any part thereof, except the upper part, basement, or rear part of store, the front store to be as a clothing or tailor’s store, and not otherwise.”
    The complaint alleged that the defendants, without his consent, had cut a door through the south side of the said premises through the brick wall, to make a communication with the adjoining building, which is a hotel. It specified other alterations alleged to have been made, and stated that the defendants intended to make further alterations, and prayed judgment, “ that the said defendants do put the said premises in the same order and situation that they were at the time of executing the aforesaid memorandum or agreement, within a reasonable time, or that in default thereof tins plaintiff be at liberty to cause the samé to be done under the direction of a referee, and have execution against the said defendants for the expense of doing thereof.”
    The gist of the answer was, that when the premises were hired they were in some respects dilapidated and.needed repairs. That all the changes which the defendants had made were in substance and effect improvements and repairs, and have greatly benefited the said premises, and have increased the value of the freehold and reversion thereof. That the plaintiff knew of the cutting through of the door at or -about the time-it was done, and in no manner objected thereto. That the door put up therein was made of iron, in the most substantial manner, and the construction of such door has in no way ór manner injured the said premises, and is, and long has been, and will continue to be of great use and convenience to the tenants who occupy the second story of the premises aforesaid.
    The action was tried before Hr. Justice Duer at a special term of the court, without a jury. His decision was as follows:
    “It is decided and adjudged that as to the matters charged in the complaint, excepting the cutting of a doorway through the brick wall on the southerly side óf the premises in the complaint mentioned, the acts and doings of the defendants in and upon the said premises, were in the nature of improvements and repairs, and not alterations, within the meaning of the agreement of hiring and letting between the plaintiff and the defendants, and that the cutting of said door has not materially injured said building or endangered its safety.
    “ And it is further ordered and adjudged that the defendants do, at least sixty days before the expiration of the said agreement of hiring and letting, re-build and close up the said doorway with proper and suitable materials for that purpose, so as to make the same in all respects equal in solidity and durability to the other parts of the said wall, under penalty of being deemed guilty of a contempt of this court. And it is further ordered and adjudged that the defendants, their attorneys, servants, agents, and workmen, are and be perpetually enjoined from making any further or other alterations of said premises without the consent of said plaintiff.
    “ And it is further ordered and adjudged that neither party recover costs in this action.”
    To which decision and judgment the plaintiffs then and there excepted, and in due time appealed to the General Term, both as to the decision as to matters of law and matters of fact.

      J. N. Platt, for the Appellant,
    argued, among others, the following points.
    I. One of the express conditions on which the defendants obtained the lease of these premises was their covenant not to alter them. It can make no difference what may be the effect of such alterations, and whether they will or will not improve the rent of the premises. Hr. Engle had a right to impose such restrictions when he let the premises, and with such restrictions affecting the rent of the premises and their value and use, the defendants leased them. Without these restrictions the defendants would not have obtained their lease, and if the premises in their then situation were less valuable than they would otherwise be, of course the defendants got them for less rent.
    This being so, the plaintiff is entitled to the performance of this covenant. The Court can no more tear the seal from this covenant than they can from the one to pay rent, or to yield up the possession at the end of the term.

      II. The preceding point being correct, the plaintiff’s course of proceeding was by this action. Where a lessee covenants, for a particular use of demised premises, equity will restrict him, without an irreparable or even a substantial injury being shown, by a breach of the covenant—and if no pecuniary damage can be shown or estimated, then especially is it the duty of equity to interfere, and give a specific relief to the party injured.
    Proof of a single.instance of breach is sufficient to entitle the plaintiff to an injunction, and as it is scarcely possible to estimate the injury sustained by violations of this kind, laills to restrain acts of this character will not be frowned upon by the Court. (Steward v. Winters, 4 Sand. Ch. R. 587; Sarle v. Sarle, 3 Sand. Ch. R. 601; Kane v. Vandenburg, 1 John. C. R. 11; Corning v. Lowerre, 6 John. C. R. 439.)
    III. Judge Duer’s conclusions, therefore, are manifestly wrong on his own premises. If opening the door in. the wall was such a breach of the lease as to justify the decree he did make, it was clearly wrong in putting off the remedy for seven years and until the defendants’ lease had expired; and they did not then want it any longer, and we were entitled to the possession of the premises and could help ourselves.
    If the other acts complained of are improvements, they are by that very term alterations, for it is hard to conceive of improvements which are not alterations—if there are no alterations there can be no improvements, for things would then be in statu■ quo.

    If, then, there were these acts of the defendants, and to redress them the plaintiff had to come into court, and the defendants contested every inch and attempt to justify their conduct, the plaintiff is entitled to his costs, and Judge Duer was wrong in refusing them. (2 R. S., p. 604, § 79.)

      M. G. Harrington, for Respondent.
   By the Court. Bosworth, J.

The plaintiff demised certain premises to the defendants for ten years, from the 1st of May, 1850. The agreement was signed by both parties, and contained among others these provisions, viz. “ the premises to be preserved in tenantable order or condition by the lessees, no alteration to be made without the consent of the lessor in writing.”

The complaint stated that certain alterations had been made without the plaintiff’s consent, and that the defendants intended to make further alterations. It does not aver that those made have been, or may be, injurious, or that those intended will be of that character. It prays judgment, that the “ defendants dt> put the said premises in the same order and situation that they were at the time the lease was given within a reasonable time, or that in default thereof this plaintiff be at liberty to cause the same to be done under the direction of a referee, and have execution against the said defendants for the expense of doing thereof.”

There is no difficulty in restraining the defendants from making further alterations; but it is physically impossible to put the premises “ in the same order and situation that they were ” at the time the lease was executed. The extension built can be' pulled down, and all.new materials that have been added can be removed, but the old materials cannot be restored, and if they could be, the court would not interfere to compel it to be done. Such an act could be of no benefit to the plaintiff.

If the alterations made can be shown to be an injury to the plaintiff, he has a perfect remedy by action to recover the damages. So far as the alterations that have been made can be regarded as a breach of the contract, it is a breach which cannot be repaired by placing the property in the precise condition in which it was before the alterations- were made. That is impossible. The court will not attempt to do things substantially impracticable, and which, if. done as nearly as is practicable in the nature of things, would not only be a great injury to the defendants, but would render the premises less, rather than more, valuable to the plaintiff.

There is no principle of equity, jurisprudence, nor of public policy, which can justify a court in attempting to exercise such a power (9 Law & Equi. R. 249; 6 Simons, 340). The lease does not provide that a breach of this part of the agreement shall work a forfeiture, or entitle the lessor to re-enter, nor does it provide what the consequences shall be. There is no complaint that the premises are used for any purpose other than that for which they were hired, nor that the. alterations made do. not render the premises more valuable intrinsically, or for the business for which they were designed, or for any future use contemplated by the plaintiff.

If the plaintiff claimed damages for the alterations made, he should be allowed to make proof of damage, and if the proof established damage, compensation should be given in this action.

If the plaintiff prefers, before going into such proof, to wait until after the éffect of the alterations had b.een tested by time; the judgment should be so modified that he shall not he prejudiced by the finding in this suit, that as matter of fact, what has been done consists of repairs which actually improve the .building, instead of. alterations which are prohibited by the lease.

We think the judgment should he so modified as to absolutely ' prohibit all future alterations, hut without prejudice to the plaintiff’s right to bring an action to recover damages for any alterations that have been made, unprejudiced by any judgment in this action, that they are in fact beneficial and not an injury.

If the plaintiff prefers to make and try that claim in this action, he should be permitted to do so, and allowed to amend his complaint as may he proper for that purpose. Unless he makes such an election, a judgment will be entered modifying the judgment appealed from as above suggested, and in other respects affirming it, with costs.