author: Per Curiam.

text:
    Joseph Samble versus The Mechanics’ Fire Insurance Company.

    April Term, 1829.
    In an action upon a policy of insurance against fire, if the defendants admit that they are liable for the loss, and the controversy between the parties relates solely to items of injury, and the amount of loss sustained by the assured, the court will refer the matter to referees, to adjust the amount.
    In mixed questions of law and fact, where long accounts are involved, it is the practice of the court to hear the cause until the questions of law are disposed of, and then refer the accounts to referees. If the referees named are objected to by eitherparty, the court will draw them from the jury box. ;

      Mr. P. A. Cowdry, on the part of the defendants in this cause, moved, that the matters in controversy between the parties be referred to referees, to adjust the amount of the plaintiff’s claimr The defendants (he said) admitted the making of the policy, and their liability for the loss, and their defence related to the amount of the plaintiff’s claim, and not to the principles upon which it was founded. The preliminary proofs showed a great number of items said to have been injured or destroyed; and Mr. Cowdry contended, that the accounts relating to the injury, should be referred to referees for adjustment.

      Mr. J. Anthon, contra, for the plaintiff,
    resisted the motion upon the ground, that questions of law might arise, which could not be disposed of by the referees.
   Per Curiam.

The defendants admit all the principles upon which the plaintiff’s claim rests, and confine their defence exclusively to the items of injury, and the amount of the loss. There cannot, therefore, be any questions of law involved in the controversy, and the duty of the referees will be confined entirely to the questions of fact presented by the account of loss. As the injury sustained by the plaintiff extends to a great variety of items, the amount and extent of his loss can be much more conveniently ascertained by referees than by a jury.

Where there are mixed questions of law and fact presented by long accounts, our practice is to hear the cause until the questions of law are disposed of, and then send the accounts to referees for adjustment. The jury, in the meantime, are directed to bring in a verdict for an amount sufficient to cover the plaintiff’s claim, which is to be modified, or reduced to the amount reported by the referees. This practice saves much time, and the referees can look into the items of the accounts with a proper degree of accuracy and care. If the referees named are objected to by either party, the court will draw them from the jury box, and obtain an impartial tribunal by this means. This course will be resorted to in the present case, if the parties object to the referees now named to the court. _

Motion granted,

[E. Burr, Att’y for the plff. P. A. Cowdry, Att’y for the defts.]


source: Caselaw Access Project

author: Hoffman, J.

license: Public Domain

text:
    The President, Directors & Co. of the Fulton Bank of The City of New-York, versus The President and Directors of the Phœnix Bank.
    April Term, 1829.
    Where a negotiable promissory note, endorsed in blank by the payee, has been fraudulently or feloniously taken from the true owner, and that fact is shown at the trial; the person into whose hands it passes, cannot recover upon it against the maker, unless he show himself to be an innocent and bona fide holder for a valuable consideration.
    The Phcenix bank of the City of New-York issued a post-note, payable 60 days after dato, to J. G. or order, on demand. This note, being endorsed by J. G., was put into the mail at Charleston in the state of South Carolina, to be transmitted to N. Y.; but the mail being robbed, it never reached the hands of the true owners, but passed into the possession of Prime, Ward, King & Co., who deposited it in the Fulton Bank and received credit for a like amount, in account with that bank. The plaintiffs presented the note to the Phcenix Bank for payment, and it was refused, upon the ground that the note had been stolen from the true owners, who had requested the defendants not to pay it. The amount of the note although passed to the credit of P., W., K. & Co., by the Fulton Bank, had never been drawn out by them, and upon action brought by the Fulton Bank, against the makers, to recover the amount of the note—it was held, that the mere act of giving credit to P., W., It. & Co., for that amount, by the Fulton Bank upon their books, did not constitute them bonafide holders of the note for a valuable consideration.
    Bank post notes, overdue, are not to be regarded as subject to all the rules applicable to ordinary promissory notes, but they become assimilated in their character to ordinary Bank notes.

      Assumpsit, brought by the plaintiffs to recover the amount of a post-note for fifty dollars, made by the defendants, and hearing date on the 23d of December, 1826, payable sixty days after date, to Jasper Grosvenor, or order, on demand.

    The defendants upon the record, had themselves no objections to make against the payment of the note to the plaintiffs, and the defence was, in fact, interposed by S. & M. Allen, lottery dealers, who claimed to be the real owners of the note, and that it had been stolen from them under the following circumstances :
    S. & M. Allen, for the purposes of their business, had offices established both in New-York and at Charleston, South Carolina. The note, after it had been issued, was endorsed by Grosvenor the payee, to one Samuel St. John, and by him to S. & M. Allen at Charleston, whither it had been sent as a remittance. S. & M. Allen, on the 22d of February, 1827, deposited the note in question in a package with other notes, which they had purchased, in the mail at Charleston, directed to S. & M. Allen of New-York. The mail, which left Charleston on that day, was robbed, and never arrived at New-York; by which means the package of notes addressed to S. & M. Allen did not reach its destination.
    The declaration contained a count upon the note, in which the plaintiffs claimed as endorsees direct from Grosvenor, and the common money counts were also added.
    The defendants pleaded the general issue, and with the plea gave a special notice, setting forth, with great particularity, the endorsement of the note by Grosvenor to St. John, and by him to S. & M. Allen; that the note was put into the mail at Charleston on the 22d of February, 1827, directed to them at New-York; that the mail was immediately afterwards robbed, by which means the note in question never came to the persons to whom it was addressed. The notice further stated, that S. & M. Allen were the real owners of the note, and called upon the plaintiffs to show the time and circumstances, under which the note came into their possession, together with the consideration which they had paid for it.
    The cause was tried on the 5th day of January, 1829, before Mr Justice Oakley. At the trial, the plaintiffs presented the note, which was in the following words, viz: “ Sixty days after date, the President and Directors of the Phoenix Bank of New-York promise to pay Jasper Grosvenor, or order, fifty dollars on “ demand. New-York 23d December, 1826.
    “ J. Boggs, President.

    “ J. Delafield, Cashier.”
    The note was endorsed by Grosvenor in blank, and upon it there had been written this additional endorsement, “ pay S. & M. Allen, or order.
    “ Saml. St. John, Jun.”

      These last words, however, had been erased by the attorney for the plaintiffs, after the commencement of the action. The defendants proved satisfactorily that the note in question was put into the mail at Charleston, on the 22d of February, 1827, addressed to S. & M. Allén, at New-York ; that it was at that time their property, and that it had been taken feloniously from the mail immediately thereafter.
    The robbery of the mail was also shown, and notices of it had been given in Philadelphia and New-York. Several of the stolen notes belonging to S. & M. Allen had been presented at their counter in New-York, for endorsement, and they had stated to the holders that the notes had been stolen from the mail. The defendants themselves had received information of the robbery, by a printed notice, and had paid S. & M. Allen the amount of the note after it had been stolen from the mail, receiving from them at the same time a bond of indemnity.
    On the part of the plaintiffs, it appeared that the note in question had been received by them on the 25th of February, 1828, from Prime, Ward, King & Co. in deposite. That it was sent to the Phœnix Bank on the 26th of that month, and returned on the same day, with a message, that it was a stolen note and could not be received. It was then sent to P., W., K. & Co.’s office, and they returned it to the plaintiffs. When the note was presented to Prime, Ward, King & Co., by the messenger of the plaintiffs, they offered to take it back if he would swear that it was received of them, by the Fulton Bank. The messenger did not make the oath, as P., W., K. & Co. did not press it upon him. If they had done so, the witness would have made the affidavit, and P., W., K. & Co. declared, that they did not know where they got the note. It appeared, however, that this declaration was received from the messenggr, who returned the note This testimony was objected to by the plaintiffs but admitted by the court.
    It further appeared, that the note, when received by the Fulton Bank, had been carried to the credit of P., W., K. & Co.; that there was a large balance to their credit in that bank on the ,25th and 26th of February, 1828, and for several days thereafter. The note went into their general account, and they drew checks on those days, leaving, however, a large balance to their credit. The Fulton Bank had never taken any steps to collect the money of Prime, Ward, King & Co. Mr. Ward, one of the partners in that firm, being examined as a witness, testified, that he knew not from whence their house obtained the note, nor were there any means of ascertaining that fact. He stated, however, • that on the 12th of July, 1827, P., W., K. & Co. received two post-notes of the Phœnix Bank, for $500 each, from Horatio Gates & Co,, of Montreal, which the defendants had refused to pay, upon the ground that they were stolen notes, and that they had received notice not to pay them. The witness first heard of the robbery in July, 1828. Notice of the robbery, it appeared, had not been made public through the papers, upon the suggestion of the Post Master General, who thought that it might interfere with the detection of the robbers.
    Upon this testimony, the counsel for the defendants insisted,
    I. That the note, having been received by the plaintiffs after it had become due, the defendants had a right to make the same defence as if the suit had been commenced by the finder, or a robber, and claimed to have the court charge the jury, that if they were satisfied that the note in question belonged to S. & M, Allen & Co., and had been lost or stolen, they should find a verdiet for the defendants.
    II. That the note, by reason of the last endorsement, ought to be regarded as a note payable to order, and that the plaintiffs had acquired no right to it, as S. & M. Allen had not indorsed it, and on that ground, the jury ought to find a verdict for the defendants.
    III. That the plaintiffs, under the circumstances of the case, were not, in judgment of law, holders of the note for a valuable consideration; as they had parted with nothing on the credit of it, before they received notice of its loss, and could either have erased the, credit they had given P., W., K. & Co. for the note, or charged it to them, if they had chosen so to do, and that on this ground the jury ought to find a verdict for the defendants.
    Upon the two first grounds, the presiding Judge was of opinion, that the defence could not be sustained, but upon the third he thought there was some doubt. He, however, instructed the jury, that the plaintiffs were to be considered by them as bona fide holders of the note for a valuable consideration, and that <he only question of fact for them to find, was, whether the plaintiffs had notice of the loss, or sufficient information to put them on inquiry when they received the note, and whether they had acted negligently in receiving it, under the circumstances.
    To the opinions above expressed, and to the charge of the Judge, the defendants excepted. The cause was summed up upon the questions of notice and negligence by the counsel on both sides, and the jury returned a verdict in favour of the plaintiffs.
    The defendants now moved for a new trial, on the ground of a misdirection, and Mr. S. A. Foot, in their behalf, contended,
    I. That the testimony as to the offer made on each side, when the plaintiffs informed P., W., K. & Co. that the note in question had been spffeu, was admissible in evidence.
    II. That the note was dishonoured when the plaintiffs took it, and the same defence ought to have been allowed against them as against the robber. The note was like any other note, and was dishonoured at the time of the demand. It was due after 60 days, and whoever took it after it was due, took it subject to all the equity existing in faVour of the true owner.
    III. By the last indorsement, the negotiability of the note by order, had been restored. It was made payable to S. & M. Allen, and as they never endorsed it, that circumstance, if not conclusive against the holders, was enough to put every taker upon inquiry. The words, “payable on demand,” mean nothing more, than that the note should be presented at the bank for payment. But to make the note available to any person besides S. & M. Allen, it should have been endorsed by them. The holders cannot sue in their own names without such ment, and upon this ground the plaintiffs must fail.
    IV. The plaintiffs were not holders of the note for a valuable consideration. They seek to recover in their own right, and not for Prime, Ward, King & Co.: they must, therefore, be bona fide holders, for a valuable consideration, without notice that the note was a stolen one. But it is not pretended that they purchased the note, or that they parted with any thing valuable for it, when it was received. The note was taken for safe keeping, and the plaintiffs were mere bailees for the depositers. It appeals inevidence, that the depositers offered to take the note back again, if the plaintiffs’ messenger would make oath that it was received of Prime, Ward, King & Co. This is conclusive proof, that as between the bank and the depositers, there was no dealing which made the deposit conclusive and irrevocable. If the plaintiffs, then, had satisfied P., W., K. & Co. that the note had been received from them, they would have redeemed it, and the plaintiffs were bound to make the proof required.
    This is not the case of a forged note, which has been taken by the bank from which it was issued, and passed to the credit of a customer in his bank book, for in such case the credit is conclusive between the parties, we admit. But that rule is founded upon a principle of policy and convenience, which requires the bank to know their own notes, and they receive them at their peril. Here the plaintiffs passed to the credit of P., W., K. & Co. a note of the defendants, to which it was supposed the depositers had good title. If it shall appear that Prime, Ward, King & Co. could not collect the note of the defendants, then the plaintiffs are not bound or concluded by the credit given to the depositers in their books. The credit may be stricken from their accounts, and the plaintiffs could never have been compelled to pay P., W., K. & Co. the amount of a note, which they could not collect of the defendants.
    The rule is, that a note like this, which has been lost or stolen, is good and valid in the hands of an innocent purchaser or taker, W^° ^as rece‘ve(^ ^ bona fide for a valuable consideration, and without notice. The defect of the plaintiffs’ title is here; they have never paid any thing for the note, nor have they been prejudiced by it. There has always been a large balance in their hands belonging to P., W., K. & Co. ever since the note was deposited. The means of redress and protection are in their own hands, and they are not liable to pay over the amount of the note to the depositors, as the proof now stands.
    z If this defence prevail, then Prime, Ward, King & Co. will be driven to the necessity of asserting their title to the note; and if they took it under such circumstances as bring them within the rule relative to such notes,- they will recover. But if they took the note for collection merely, without ever having paid anything for it, and without having been prejudiced thereby, then their title will fail, and the person from whom they received it, must assert his claim. By this means, the note may be traced back to the rob-her, and it may appear that no consideration has ever been paid for the note since the day it was feloniously taken from the true owner. This is the true rule of law governing these cases, and it is the just policy of the law, not to allow a person to collect a lost or stolen note merely because he happens to be the holder of it. [Bay v. Coddington, 5 Johns. C. R. 58. 20 Johns. R. 644. same case. Buller v. Harrison, Cowp. 566. Cox v. Prentiss, 3 Mau. and Sel. 345. Lafarge v. Newland, 7 Cowen R. 461. Mowatt v. McLellan, 1 Wend. R. 178. Kent's Com. vol. 3, p. 51.]
    ■ Mr. R. R. Ward and Mr. J. Hoyt, for the plaintiffs, contra, contended,
    I. That the plaintiffs were to be considered as bona fide holders of the note for a valuable consideration, and without notice that it had been feloniously taken from the true owners. Prime, Ward, King & Co., at the time when they deposited the money, presented their pwn bank book to the plaintiffs, who passed the amount of this note among others to their credit thereon. This book, then, contains an admission in writing on the part of the that they had received of P., W., K. & Co., not aspe» cific note for collection, but a sum of money: and this particular sum even, was not a specific entry by itself, but was included in a much larger sum, deposited at the same time, and carried to the credit of Prime, Ward, King & Co.
    This bank book, under these circumstances, contains conclusive evidence against the plaintiffs, that they owe the depositers a sum of money; and if an action were brought against the bank, to recover the amount thus admitted to be due to P., W., K. & Co., the evidence furnished by the book could not be controverted or gainsayed by the bank. If this proposition be correct, then, it follows, that the plaintiffs are bona fide holders of the note for a valuable consideration, that is, their liability to pay P., W., K. & Co. a like amount with that deposited, is a sufficient consideration to maintain their title tothis note.
    The money received by the plaintiffs of the depositers, was re» ceived in the ordinary course of business. Prima fade, at least, the bank owes the amount deposited, and it would be a most inconvenient and mischievous rule to throw upon them the burthen of proving that the note in question was a stolen note. Prime, Ward, King & Co. demand of the plaintiffs the amount of their deposit: the plaintiffs reply, that the amount passed to their credit is incorrect; that one of the notes received by the bank as cash, was, in fact, the property of S. & M. Allen, from whom it had been stolen, and that, therefore, the depositers are not entitled to recover the amount, which the bank has admitted to be due. If the bank set up this defence, must they not prove it ? And can it be either a just or prudent rule, which shall subject the depositary to this hardship and inconvenience?
    But the entry upon the bank book is conclusive evidence against the bank, in favour of P., W., K. & Co., and the plaintiffs are therefore bona fide holders of this note, and entitled to recover. [4 Johns. R. 389.]
    II. But if this were not so, the plaintiffs may yet recover upon the strength of P., W., K. & Co.’s title. There is no pretence that they are not bona fide holders ; for the evidence is, that they could not tell from whence they received the note. They, of course, gave value for it, for bank notes pass between man and man as cash. If the bank are bailees or trustees of P., W., K. & Co., then they may repose upon their title, and upon this ground, the plaintiffs are- entitled to recover. The defendants received value for their note when they issued it, and, of course, they are liable to pay somebody; and who the receiver is, cannot be male-rial, to them. [Smith v. The Merchants’ Bank of Albany, 19 Johns. R. 115.]
    III. The plaintiffs, when they took the note, had nothing to put them on their guard. The notice of the robbery never reached them, and they are not to he visited by any constructive notice. Handbills were issued, but they were not shown to the plaintiffs, and the ordinary course of publishing an account of the robbery in the newspapers, was not resorted to. Hence it is clear, that the bank has received no direct or positive notice, and there was nothing to put them on inquiry. This point is not much relied on by the defendants, and evidently cannot be maintained. [Chitty on Bills, p. 26. 151. Edi. of 1826.]
    IV. The note is not a negotiable note, in the meaning of the term adopted by the defendants: that is, its negotiability does not depend upon endorsement, after the payee has put his name upon it. For the sake of remittance or security, post-notes are payable to order, and at a future day. But the instant they are endorsed and become due, they are money for all the ordinary purposes of business. They do not differ from other bank notes in this particular, but would be good as a tender in payment of a debt, if not objected to. The title of the plaintiffs, then, does not depend upon endorsement, but upon delivery; and being holders of the note, they can maintain this suit in their own names.
   Hoffman, J.

(After stating the facts of the case.) It is not denied, on the part of the plaintiffs, that the note upon which this action was brought, was feloniously taken from the public mail at or near Charleston, in South Carolina, on or about the 22d of February, 1827, after it had been deposited therein, for the purpose of being remitted to New-York. It is equally clear and undisputed, that S. & M. Allen, the persons to whom the note was remitted, were its true owners, and they, in the name of the Phoenix bank, interpose this defence for the purpose of protecting their own rights. The defendants upon the record, are indifferent as to the result of this action, having been indemnified by S. & M. Allen against its consequences. Being, however, the makers of the note, and having received value for it, the defendants must, of course, pay its amount to somebody ; and it is of no importance to them whether payment is made to the plaintiffs, or to. S. & M. Allen.

The defendants, therefore, are not, as to its practical results, interested in the event of this suit, but S. & M. Allen are, .and the first question is, whether they can be permitted to interpose this defence in the name of the bank.

It is a rule of law well settled, that possession of a promissory note, endorsed in blank, or payable to bearer, is prima fade evidence of ownership, and if the person or party having the possession, came by it bona fide, for a valuable consideration, in the course of his business, and without any accompanying circumstances of suspicion to put him upon his guard, or excite inquiry, he shall hold the note against the original owner, even if it had been lost or stolen. But it is equally well settled, that if the holder of the note received it under circumstances which ought to put a man of ordinary prudence upon his guard, or, at least, upon inquiry; or if he came into a possession of it without having parted with any thing of value, or without having given some new credit in exchange for the note, then the maker may, under proper equitable circumstances, setup a defence against his right of recovery. [Bay v. Coddington, 5 Johns. Ch. Rep. 56. Gill v. Cubitt, 3 Barn. and Cresw. 466. and the cases there cited.]

In the case of Gibson v. Taiman, decided in this court, it was held, “ that if the holder of a note obtains it by fraud, he cannot main- “ tain an action upon it against any of the parties to it. He “ must aver and prove that the note was transferred to him, and “ though his possession of the note is prima facie evidence of the “ transfer, yet if the defendant can show that the plaintiff obtain- ed the note by his own fraudulent act, he has a right to defeat “ t^ie acti°n on that ground, although he may be liable to pay the note to the true owner.”

The principle of that decision is applicable to this case. The plaintiffs here must recover, if they recover at all, by the strength of their own title, and if they have no right to the note, as against the claims of the original owners, they cannot recover upon the ground that the defendants are liable to somebody. The main question, then, to be decided, is, whether the plaintiffs a/re bona fide holders of this note; whether they have paid any value for it, or given credit upon the faith of it, or incurred any new responsibility by reason of their possessing it. That they came into the possession of this note in the ordinary course of their business, and without any circumstance to cast the slightest suspicion, in their minds, upon the title of those who made the deposit, cannot be denied; and the point upon which this case must turn, will depend upon the question of consideration entirely.

It appears from the evidence, that Prime, Ward, King & Co., at the time when the note was deposited, were creditors of the hank to a considerable amount, and have continued to be so since. They have at all times since the deposit, had funds in the Fulton Bank, subject to their order, to an amount far exceeding the amount of this note, and the plaintiffs cannot, therefore, by any possibility, be prejudiced by the claims of S. & M. Allen, unless Prime, Ward, King & Co. could recover the amount of this deposit of them.

It cannot be successfully contended on the part of the plaintiffs, that they, at the time when the note was received in deposit, parted with any thing of value in exchange for it, or that they gave any new credit to Prime, Ward, King & Co., upon the mere faith of the note, or that they have, at any time, withdrawn the amount. For, if those who made the deposit, had afterwards drawn out the money from the bank, there can be no doubt, that in such a case, the plaintiffs would be treated as bona fide holders for a valuable consideration, and entitled to recover. But the fact is not so. P., W., K. & Co. have not withdrawn their money from the hands of the plaintiffs ; but a sum remains there now, more than sufficient to indemnify them, and which they have a right to retain, unless they are concluded by some act of their own.

When the note in question was deposited with the Fulton Bank, they received it voluntarily of P., W., K. & Co., and gave them credit for a like amount in their books. It will be observed, that the plaintiffs were not bound to receive this note in deposit, or as payment of any antecedent debt, and they might have refused to receive any thing but cash. The note was, then, merely deposited with the plaintiffs in the usual course of business, for collection ; and the question is, whether their own acts, or the credit given to P., W., K. & Co., in their own book, and in the books of the bank, shall be held as conclusive evidence, that the plaintiffs were indebted to them to the amount of thej credit. If this be so, then beyond all doubt, the plaintiffs have givertea^neio credit upon the faith of the specific note, and may be prejudiced to the full extent of its amount, by their liability over to Prime, Ward, King & Co.

I cannot allow this potential effect to the mere act of giving credit upon the hooks of the hank, or those of their customers ; and I do not admit that the plaintiffs would have been concluded by any such entries. It may be, that entries made by banks upon the books of their customers, are considered by their officers as conclusive and irreversable: but the law does not look upon these acts with the same stem eye. The entry, it is true, being made by the bank, may be conclusive as to amount, where money has been deposited ; but not so in a case where the bank receives nothing of value, except in particular cases hereafter tobe noticed. This note, when deposited, was treated by the plaintiffs as a representative of fifty dollars, and they, therefore, gave credit to P., W., K. & Co. on their hooks, for a like amount. But when the note was presented for payment, the makers refused to pay it, upon the ground, that its true owners were not its holders. The plaintiffs, at the time of this refusal, had an open account with P., W., K. & Co., and might have erased the credit previously given, or have entered a like sum to their debit, by which means these accounts would have conformed to the truth of the case.

In the case of Garland v. The Salem Bank, [9 Mass. R. 408.] the endorser of a promissory note, being ignorant that by the rules °f law, he was not bound to pay the note for the want of a proper demand of the maker and notice to himself, -paid the amount of it to the defendants, with whom it had been left for a collection by the holder, and the bank passed the money to the credit of the holder on their books, as so much money deposited by him. Three days thereafter, the endorser discovered bis mistake, and that the amount of the note had not been paid over to the holder in any other way, than by its having been passed to his credit on the books of the bank. He thereupon demanded the amount back again; but the bank refused to comply with his demand, and subsequently paid the money over to the holder who deposited the note, upon his check.

Upon action brought by the endorser for money had and received, it was held tjj^tThe note had been paid by mistake by the endorser, under a misapprehension of his rights; that the entry to the credit of the holder, was not conclusive upon any of the parties, and that the bank might have corrected their accounts after the mistake was discovered. The endorser, therefore, had a verdict for the amount of the note. In this case óf Garland v. The Salem Bank, it was contended, that, the payment by the endorser to the bank, and the transfer to the credit of the holder, who made the deposit, amounted to an effectual and irrevocable transfer, according to the course of bank business.. The court,' however, considered that the mere act of giving credit on the books of the bank, under the circumstances -of the case, did not amount to such a transfer, and the bank could have successfully resisted an action brought by the person in whose favour the credit was made.

The principle of that case is applicable to this, and shows, that the credit given by the Fulton Bank to Prime, Ward, King & Co. was not conclusive ner" irreversible. -It was, as it stood, evidence prima facie against them, but not conclusive.

This view of the subject raises the question, whether Prime, Ward, King & Co., could recover the amount of this deposit of the plaintiffs, and whether they may not recover for the benefit of Prime, Ward, King & Co. It will be observed, however, that the Fulton Bank reposes upon the strength of its own title, and the plaintiffs do not claim to be the mere agents of Prime, Ward, King & Co., or to sue for their benefit. The plaintiffs, in fact, put their right to recover upon the exclusive ground, that the credit given to their customers in their book, is conclusive upon them, and that, therefore, they are holders for a valuable consideration. As I view the subject, the plaintiffs are under no such responsibility. They received the noteas the bankers of P., W., K. & Co., and for their accommodation. In that character they presented the note to the defendants, and payment being refused, they could return the note to P., W., K. & Co.

If the plaintiffs had taken a forged check in the name of a dealer, drawn upon themselves by mistake, and had passed the amount to the credit of another customer, it might have made a different case ; for there the law might 'cast upon them the responsibility of knowing the handwriting of the person who made the check. Bankers are supposed by the law, to be acquainted with the signatures of their correspondents and customers, and all the consequences of mistake in such cases are cast upon them. So in cases where their own notes, or notes purporting to be their own, are presented at the counter of a bank for payment: there the law presumes that the officers of the banks know their own paper, and can discriminate between spurious and genuine notes. If they cannot, who can 1 If they receive a forged note as a genuine note of their own issuing, they must sustain the loss. [Bank of the United States v. The Planters’ Bank of Georgia, 10 Wheaton p. 333., and the cases there cited.] The rules applicable to that class of cases, however, do not apply here, as I apprehend. The law does not throw upon these plaintiffs any peculiar responsibility, and theirentry upon the customer’s book, although prima facie, is not conclusive evidence against them.—If P., W., K. & Co. were to" bring an action against the Fulton Bank for the amount of this deposit, and were to exhibit the bank-book in evidence, then the bank would be at liberty to show-all the circumstances of the transaction and that payment of the note, when it was presented to the Phoenix Bank, was refused. It is said, that it already appears, that those who deposited the note are innocent and bona fide holders, and that a controversy with them on the part of the plaintiffs would be unavailing. In reply, it may be observed, that there is no proof now before the court which establishes that fact. We have nothing upon that point, except the evidence of Mr. Ward, and it might be that on a proper occasion, S. & M. Allen could show the circumstances under which the note was taken by P., W., K. & Co.

If the credit given to those who deposited the note, is conclusive against the bank, it is conclusive upon the ground, that an entry in the bank-book is iinal, as between the bank and its customer ; that it is an act done which can never he remedied, a step taken which cannot be retraced. Suppose the robber himself was the person who made the deposit: could he by this indirect means, possess himself of money which he could not obtain directly 11f the robber were to sue the defendants, they might refuse to pay him and show his w'ant of title;—and can it be, that by the mere act of placing the note in a bank, as a deposit, he can thereby securely enjoy the fruits of his felony 1 This statement, to my mind, carries with it the proper answer. At all events, in a suit against them, after the fact is established, that the note in question was the property of 6. & M. Allen, and that it was stolen, P., W., K. & Co. would be compelled to show the manner in which they became possessed of it. It may be they took it of a stranger without enquiry, and without due caution ; for it is said, they know not from whom the note came to them. It may be that they received it of Gates & Co. for collection merely, and have never been prejudiced. By this means, the note will be traced back to the robber, and if no person can show himself to be a bona fide holder of it, in the legal acceptation of the term, then there can be no recovery against the rights of the true owner.

It being established, that the plaintiffs are not such holders of the note, as can recover by the strength of their own title, it follows that this defence may be set up by the Phœnix Bank. It certainly may, under the circumstances of this case; for here S. & M. Allen appear and interpose their just rights. This is a sufficient justification of the bank, and authorizes them to refuse pay- , *• •' merit. We may, however, go further. It is true, the Phoenix Bank can have no preference, as to whom they will pay the amount of the note, since they have promised to pay the holder. Nevertheless, they are under no obligation to pay any person, who is not a bona fide holder. If they could show that the note was stolen or lost, and that the holder of it came into possession of it without paying value for it, in any sense of the word, they would be justified in refusing payment. They ought to withhold the money from the person, who had no just title to it, and become trustee, or fiduciaries for the real owner, whenever he may appear By this means, no injustice would be done, and the rights of innocent persons would he best preserved.

Under this view of the subject, as there must be a new trial, it is not necessary to examine the other points made by the counsel for the defendants. But, in regard t.o the second and third points made by them, I do not consider post-notes, issued by a bank, as subject to all the technical rules attached to ordinary bills of exchange and promissory notes. Post-notes are intended to circulate like other bank notes, after they become due, and are treated as such for all convenient purposes. True it is, they are payable to order, and must be endorsed to give them negotiability. In this case, the note was endorsed by Grosvenor, the payee, in blank, and it was payable 60 days after date, on demand. When it became due, the makers were bound to pay it, at whatever period of time (within the statute) it might be presented. As between a bona fide holder and themselves, they had no equity to set up by way of defence; and it is a misapplication of the rule relating to notes over due, to apply it to a case like the present one. He, who takes a note over-due, takes it, it is said, subject to the equities existing between the original parties. And who are the original parties in this case 1 The Phoenix Bank and Grosvenor—the makers and the payee. And what equities are there existing between these parties, which the defendants can set up 1 None whatever. The note, when endorsed by Grosvenor, had perfect negotiability, and could afterwards pass by mere delivery. The names of all endorsers after him could be erased, without injury to a perfect right against the makers.

Without noticing the first point made by the defendants, I am of opinion, that the second and third points, on which their application for a new trial rests, cannot be sustained; but upon the fourth, I consider the application well founded. I do not view the plaintiffs as bonafi.de holders of the note for a valuable consideration, as the proof now stands; and as they cannot recover until that be shown, there must be a new trial.

New trial granted.

[Ward and Hoyt, Att’ys for the plffs. Foot and Kent, Att’ys for S. & M. Allen.]

Vide McLaughlin v. Waite, 5 Wend. R. 404.

Mote.—This action was finally abandoned by the plaintiffs, and the cause was never again brought to trial.


text:
    Henry A. Williams versus Oliver M. Lowndes, Sheriff, &c.
    April Term, 1829.
    Where the sheriff has endorsed upon an execution the day and hour when it was received, the endorsement is conclusive evidence of the fact, that the execution was in his possession at that time ; and when he has assumed to act under it, he cannot compel the creditor, who has sued him for a false return, to prove at the trial the identity of the execution, either by witnesses or collateral testimony.
    Where goods are in the hands, and under the controul, of the defendant in the execution, and they are pointed out as his property to the sheriff by the creditor, the Sheriff is bound to levy upon them, without an indemnity; and if he neglect to do so, and the goods are afterwards removed beyond his reach, by the defendant in the execution, he will be answerable to the creditor for his neglect.
    If, after a levy, a claim to the goods be interposed by a third person, the sheriff may then demand an indemnity before he can be compelled to proceed further ; and his regular course would be, to call a jury de proprictate probandi. If he make the levy and follow this course, he will not be liable for a trespass, and the parties claiming the goods may be compelled to litigate their claims, and decide the question of property, before the sheriff can be compelled to make his return, or proceed to a sale.
    Quiere. Whether the deputy, who makes the levy can be compelled to testify as to the identity of the execution, in an action against the sheriff for a false return; and whether he be not incompetent as a witness, for any purpose connected with the action ?
    The property in goods in a store, conveyed to a third person by an instrument of assignment, dated after the docketing of a judgment against the assignor, and left in his hands, without any good reason shewn therefor, does not pass to the assignee, and the assignment itself is fraudulent and void. The presumption, in such cases, is, that the assignment was made to defeat the judgment, and it will not be upheld.
    This was an action on the case, for a false return on a writ of fieri facias, at the suit of the plaintiff, against one Samuel B. Hiclccox. The declaration contained two counts. The^rst count stated, that the plaintiff obtained a judgment in the Supreme Court of this state, at the term of October, in the year 1826, against Samuel B. Hickcox, for $10,000 of debt, and $17.13 cents costs; that afterwards, to wit, on the 20th of October, 1826, a writ of
      fori facias was issued thereon, directed to the sheriff of the city and county of New-York, returnable on the third Monday of February; 1827, on which there was an endorsement, directing the ghgpjjf ]eVy aD(j collect $969.98, with interest thereon from the 16th day of December, 1826, besides the sheriff’s lees, &c. which writ, so indorsed, was afterwards, to wit, on the 29th day cl December, 1826, delivered to the defendant in this suit, to be executed in due form of law ; that by virtue of said writ the defendant after-wards, to wit, on the same 29t.h day of December, 1826,siezed and levied upon divers goods and chattels of the said Samuel B. Hick-cox, within the said city and county of New-York, sufficient to satisfy said execution ; but the defendant had not the monies required to be levied by virtue of said writ, before the said Supreme Court, at the return day thereof, and at the return day the defendant falsely returned to the Supreme Court upon said writ, that said Hickcox had no goods or chattels in his bailiwick, &c.
    The second count stated the judgment andji. fa. as before : and that Hickcox had goods and chattels, on v Inch the defendant might have levied, &c., but that the defendant, being sheriff, &c., neglected to sieze and take the same, and falsely returned that said Hickcox had no goods or chattels, &c.
    The defendant pleaded the general issue.
    This cause was originally commenced in the Supreme Court, but by consent of parties, was transferred to this court, and brought to trial before Mr. Justice Hoffman and a jury, on the first day of December, 1828.
    On the trial, the plaintiff offered in evidence, an exemplified copy of a judgment in the Supreme Court, in favour of himself against Hickcox, for $10,000, of debt, and $14.29 costs, entered upon a bond, warrant of attorney and plea of confession ; and docketed on the 16th day of December, 1826. The plaintiff also offered in evidence an exemplified copy of a writ oi fori facias, upon a judgment in favour of himself against the said Hickcox, in the same court, and of the same date, for $ 10,000, of debt and $17.13 costs, (the plaintiff’s and defendant’s costs of entering up the judgment on warrant of attorney being both included in the fori facias,) tested the 8th day of October, 1826, and returnable on the third Monday of February, 1827, with directions endorsed, to levy $952.85 of debt, and $17.13 costs, with interest from the 16th day of December, 1826, besides fees and poundage- On the fieri facias appeared the following endorsements, viz. “ Rec’d. 11 Dee. 2Qth, 1826, ai 12 o’clock, at noon—no goods, chattels,lands or “ tenements.—O. M. Lowndes, sheriff. (Filed 7th April, 1827.”) The counsel for the defendant here raised an objection on the ground of variance ; the amount of costs mentioned in the record of judgment and the fieri facias not being the same. This objection however was overruled by the Judge, and the record and fi. fa. were admitted in evidence accordingly.
    The plaintiff then called one Decius Rice as a witness, who testified, that he was a clerk in a retail dry goods store of Samuel B. Hickcox, No. 121 Chatham-street, in the city of New-York, from July, 1826, till the 1st of January, 1827; that on Saturday, the 30th day of December, 1826, about noon, Jacob Westervelt, a lenown and reputed deputy of the defendant, came into the said store in company with Trueman Roberts; and Westervelt then told the witness that he had an execution against the property of Hickcox, and requested the witness to send for him, as he was not then in the store; and the witness accordingly requested one Joseph Hopkins to go for him. Roberts soon after left the store, and went aviay; but the deputy sheriff remained there about an hour, and then Hickcox came in. The deputy then told him that he had an execution against his property; upon which Hickcox stated to the deputy, that he had assigned all the goods in the store to one Frederick A. Stewart, and that the goods all belonged to him. He further testified, that while the deputy sheriff remained in the store, he (the witness) continued to sell and deliver parcels of the goods to customers as usual, to which the deputy made no objection. That at the time when the deputy sheriff entered the store, there was a sign-board over the outside door, on which was the name of Hickcox; which sign had been there during all the time of his clerkship. He further testified, that the said deputy left the store without making any inventory, or giving any directions concerning the goods; and the store was dosed that night by the witness as usual, it being Saturday night. There were then in the store goods of the value of $1500 and upwards; but on the Monday next following, he found that the g00t[g had ap been removed. In about six days thereafter, the witness and Hopkins, at the request of Hickcox, went, with him to a store in Grand-street, where Hopkins and the witness, at the request of Hickcox, took an inventory of the same goods, and delivered it to Hickcox. He knew not what became of these goods, except that about a month afterwards, he was employed by Hick-cox to carry about $100 or $200 worth of the same goods and pledge them to the Lombard Association, in order to raise money for him, which service the witness performed accordingly. He never heard of any claim or right of Stewart to said store of goods, until after the deputy sheriff came with the execution, and he continued to act as clerk to Hickcox, and to sell the goods in the store, from the 24th to the SOth December, 1826, inclusive, as he had done before, without any knowledge or information of said assignment. •
    The counsel for the defendant then objected, that the plaintiff had not given any evidence to show, that the execution so proved to have been in the hands of the deputy sheriff, was the same as that given in evidence in this cause; but it was insisted by the plaintiff’s counsel, that the evidence was prima facie sufficient on that point. The presiding Judge decided, that the plaintiff was hound to give further evidence as to the identity of the writ of fieri facias; to which ruling the plaintiff’s counsel excepted.
    The plaintiff then called the said Frederick A. Stewart, who was asked, whether the deputy sheriff, between the issuing of said execution and-the return day thereof, had not declared, that he had in his hands an execution at the suit of the plaintiff in this cause against Hickcox 1 To which he answered, that he understood from the deputy, that Trueman Roberts was the party, who claimed the benefit of that execution, and he did not hear the name of Henry A. Williams mentioned.
    ■ The plaintiff then called Jacob Westervelt, the said deputy sheriff as a witness, to prove the identity of the execution; that is, to prove that thefi. /«. given in evidence, was the same with that, which he had in his possession when he entered the store of Hick-cox, on the 30th December, 1826, as stated by the witness, Rice.
    The defendant’s counsel then made a preliminary inquiry of Westervelt, who testified, that he was a deputy of the defendant during the whole time, from the teste to the return of said execution ; that, as such deputy, he had given a bond of indemnity to the defendant, as his principal in the office of sheriff, which was then in full force, and so continued. That he was the real party defen 1 ant, and had employed counsel to defend this suit, and was bound to pay all damages, which might be recovered against the defendant; and he objected to answer, as a witness, to the inquiry proposed to be made by the plaintiff, on the ground, that he was the real party defendant in interest, and also, that his answer might establish, or tend to establish, that he was liable to a civil suit, under his bond of indemnity to the defendant. The Judge overruled this objection, and decided, that the witness was bound to answer the question, and the counsel for the defendant excepted to his opinion on that point. The witness then testified, that he had in his hands the writ oí fien facias produced at the trial, at the time when he entered the store of Hickcox, as testified to by Rice. That one Trueman Roberts claimed to be the assignee of said judgment, and went with the witness on that occasion, to the store, and directed the levy of the execution on the goods. He further stated, that when he was on his way to execute said writ, he mentioned to Roberts, that if any claim should be made to the goods, in opposition to the execution, he should require an indemnity from the plaintiff; to which Roberts answered, that a bond of indemnity should be given during the then next week, if required. He further stated, that on Friday, the 6th day of January, 1827, he saw the bond of indemnity on file in the sheriff’s office ; which bond was produced by the defendant at the request of the plaintiff. He also testified, in answer to questions put by the "defendant’s counsel, (and which were objected to by the plaintiff, on the ground of bis interest,) that on the 6th of January, 1827, the defendant delivered the bond of indemnity to the witness, and directed him to inquire as to the sufficiency of the obligors ; that, he made inquiry, and was informed, that they were not good, and he so reported to the defendant; but that no notice thereof was given, nor was any objection ever made to any person, to his knowledge, as to the insufficiency of the obligors. He further testified, in answer to an inquiry made by the defendant’s counsel, (which was objected to by the plaintiff’s counsel, on th.e ground of his interest,) that the goods were removed from the store of Hickcox, in the night of Monday the 1st day of January, 1827, vvithout his knowledge or consent. Upon a like inquiry by the defendant’s counsel, and on a like objection by the plaintiff’s counsel, Westervelt also testified, that after the witness went to the store of Hickcox with the execution, on the 30th December, 1826, Stewart came there in company with Hickcox, and Stewart then claimed the goods by virtue of an assignment from Hickcox to him.
    The plaintiff then gave in evidence, the bond of indemnity to the sheriff executed by the plaintiff and Roberts, and rested his cause.
    The defendant’s counsel then gave in evidence, an instrument of assignment from Hickcox, in the words and figures following, to wit: “ Whereas, I am indebted to Frederick A. Stewart, of the “ city of New-York, in the sum of one thousand dollars, lawful “ money, of the state of New-York, for cash advanced to, and for “ me, by him, and whereas, I am anxious to pay or secure the “ payment of the same to him : Now, Know all men by these “ presents, that I Samuel B. Hickcox, of the city of New-York, “ for the final payment of the said one thousand dollars, so far “ forth as I am able, ds hereby assign, transfer and deliver to the “ said Frederick A. Stewart, all of the goods, chattels, furniture, “ and other personal property now in the store, known as number “ one hundred and twenty-one, Chatham-street, in said city of 11 New-York, and also the goods, chattels, and furniture, situate “inthe house, number eleven Reed-street, in said city, hereby “ giving the said Frederick A. Stewart, full power and authority “ to sell and dispose of all of the said goods, chattels, and furni- “ ture, and from the proceeds thereof, I do hereby authorize him, “ the said Stewart, to retain a sum sufficient to pay and satisfy “ the said one thousand dollars, and the balance, should any re- “ main in his hands, I do hereby authorise the said Stewart to “ retain,in his hands, for the benefit of my creditors generally, to “be paid to them, in proportion to their respective debts or de- “ mands; and I do hereby authorise the said Frederick A. “ Stewart, to sell the same at private or public sale, as he may “judge best, for the promotion of the above object. In witness “ whereof, I have hereunto set my had and seal, the twenty-fifth “ day of December, 1826.
    (Signed) “Samuel B. Hickcox. [l. s.j
    “ In the presence of)
    J. B. Stewart.” )
    The only proof of the assignment, was derived from the evk dence of Thomas Drumgold, who testified, that J. B. Stewart, the only subscribing witness, was dead, but that his name as a subscribing witness to said instrument, was in the proper handwriting of the said J. B. Stewart. The defendant’s counsel also proved, that at the date of said assignment, Hickcox was indebted to Stewart in about the sum of $700.
    The defendant then called a witness, who testified, that in January, 1827, Trueman Roberts and Samuel A. Williams, the obligors, in said bond of indemnity, resided in the city of New-York; that Williams was then reputed to be insolvent: and that Roberts was a merchant in good credit, although he had, some time before, been connected with a house that stopped payment.
    The defendant then called Westervelt again, and inquired of him as to the solvency of the said obligors; to which inquiry the plaintiff objected, on the ground of interest in the witness, but the objection was overruled; and the witness answered, that at the period of the giving of the bond of indemnity, he made inquiry by direction of the defendant, as to the solvency of the obligors, and was informed that Williams was reputed to be insolvent ; and that Roberts was embarrassed and of doubtful credit.
    It was then agreed, that a' verdict should be entered for the plaintiff, subject to the opinion of the court upon a case to be made ; and the Judge, thereupon, charged the jury, that they h>d a right, in their discretion, to allow interest upon the sum claimed, or not, as they thought proper, under the circumstances of the case ; and the jury found a verdict foi the plaintiff for the sum of $969.98 damages, that being the amount directed to he levied on the execution, without interest.
    • The cause was argued by Mr. J. Platt for the plaintiff, and b3r Mr, Slosson for the defendant.

      Mr. Platt contended,
    I. That the variance between the'judgment and thefieri facias, in the amount of costs, was immaterial, and that the objection was properly overruled. In Bissell v. Kipp, [5 John. 89.] in an action for an escape, there was a variance in amount between the judgment and the ca. sa. and the court held, that “ process was “a sufficient warrant for the sheriff; and that he could not take “ advantage, of the defect in" this collateral way.”
    It being a judgment on bond and warrant of attorney and cognovit, the mistake is formal merely, and not. a.matter of substance. The defendant’s, as well as plaintiff’s costs, were recoverable out of the penalty, and properly collectable on the fi.fa. In Mills v. McCoy & Wife, [4 Cowen, 406.] the court said, “if “a variance be substantial, and such as could not be amended,” the objection did not come too late, although made after summing up to the jury : but “if it was merely formal, the objection “ in any stage was good for noihiug.”£;That was a variance in the i'seoui too, which was held not material in substance, and overruled.
    The rule is, that whenever the error is amendable, the mistake cannot be taken advantage of in thisjcollateral way; unless the proceedings were set out in hmc verba in the pleadings; which is not the case here. [Rees v. Overbaugh, 4 Cowen, 124.,] Lion ex Dem. Eden v. Burtis, [18 John. 510.]
    If the'defendanfffin the original suit, has waived error or irregularity in the judgment or execution, the sheriff is justified, in executing the process, and shall not be allowed; to question it in action for an escape or false return. [Jaques v. Cesar, 2 Saund. 101 (a.) Jones v. Pope, 1 Saund. 38, Note 2. Bull v. Steward, 1 Wils. 255. Bently v. Donnelly, 8 D. & E. 127.]
    II. The sheriff’s endorsements on the fi. fa., “ Received “December 29th, 1826,” and “No goods, chattels, lands or “ tenements,O. M. Lowndes sheriff,” were sufficient and conclusive to prove, that this execution was in the sheriff’s hands on the 30th December, when it is proved that Westervelt, the deputy, was requested by Roberts, (the assignee of the judgment,) to levy on the goods of the defendant in that execution. It also appearing, that the fi. fa. was returned and^“ filed on the 7fh April, 1827,”—it must, therefore, have been in the sheriff’s hands on the thirtieth December, one thousand eight hundred and twenty-six, when the deputy ought to have levied on the goods pointed out to him; and it is immaterial whether the deputy had the execution in his own hands, or whether it lay in the sheriff’s office; his powers and duties were the same in either case. The ruling of his hon-our, the Judge, requiring further proof of the identity of the execution, under which the deputy acted, was erroneous; and the plaintiff had completely made out tris case, independent of the testimony of Westervelt, the deputy.
    Executions in the Supreme Court are, almost necessarily, sent by letter to the sheriffs throughout the state; and if the endorsement required by law, as to the time of its coining into the sheriff’s hands, is not to be evidence against the sheriff) as to that fact, the object of the law would be defeated, and suitors would be subjected to extreme hardship and inconvenience.
    Here we prove by the indorsement, that the sheriff had this execution on the 29th December, 1826 ; and. that the next day his deputy, under the direction of the plaintiff, (the assignee of the judgment,) went to the store of the defendant in that execution, for the purpose of executing a fi. fa. on the goods of that defendant; is not the inference irresistable, that the deputy assumed to act* under this execution, there being no evidence of any other 1

      III. Westervelt was legally required to answer to the question put to him by the plaintiff’s counsel, as to the identity of the execution, which was explained by the plaintiff’s counsel, to be the only object of inquiry on his part.
    In Lord Mellville’s Case, in the House of Lords, it was decided, (upon the opinions of the Lord Chancellor, and eight Judges against four Judges,) that “ a witness cannot by law refuse to “ answer a question relevant to the matter in issue, (the answer- “ ing of which has no tendency to accuse himself, or to expose ■“’him to penalty or forfeiture of any nature whatever,) on the “ ground that the answering of such question may establish, or ‘‘ tend to establish, that he owes a debt, or is otherwise subject to “ a civil suit.” [1 Phil. Ev. 208. 1 Am. L. Journal, 228. Anthon’s N. P. 101. Note.]

    The rule is founded in justice,convenience and wisdom. If it it be decided, that Westervelt is not compellable to answer to that inquiry at law, the plaintiff would have an unquestionable right to his answer, on a bill of discovery, to be used in this suit, (the sheriff also being made a party to such bill;) and cui bono, put the plaintiff to this circuitous and expensive mode of obtaining his testimonjr 1 He is not a party to the record; and why allow him the technical privilege 1

    The cases of the People v. Irving, [1 Wendell, 20.] and Mauran v. Lamb, [7 Cowen, 174.] are distinguishable from the present case.
    Those cases decide, that the real and immediate parly in interest, though not a nominal party on the record, is privileged from being a witness against hie immediate interest.
    Here Westervelt swore, that he was “ the real party defendant,” and that he was “ bound to pay all damages, which may be re- “ covered in this suit.” But it must be remarked, that the witness here improperly swears to inferences of law, which proves nothing. The question is for the court, upon the facts disclosed, whether . he is, in judgment of la tv, the real and immediate party defendant. He is not the real defendant in fact, although the recovery in this suit, may consequentially, subject him to an action by his principal. A new suit or action must be brought between different parties, in order to subject the deputy sheriff. There is a difference between a party having an interest as plaintiff, or as defendant. The cases above cited, (in Cowen and Wendell,) were of the former description. The assignee of a bond, though not a party on the record, will be regarded by courts of law, as the actual plaintiff fot any purpose. But a court of law never can recognise any person as actual defendant, except the defendant on the record.
    IV. The assignment by Samuel B. Hickcox, (the judgment debtor,) to Frederick A. Stewart, dated 08th December, 1806, was fraudulent in fact and in law, as against the plaintiff, whose judgment was docketed on the 16th December, 1826.

    There is no colour for the proposition, that this assignment was in the nature of a mortgage, and therefore consistent with the continued possession of the goods in the vendor or mortgagor.
    According to the terms of the assignment, the goods were to have been delivered to the assignee, to be sold by him, and accounted for, to the vendor. The value of the goods in question, besides the furniture, &c., in the house, is proved to exceed double the amount of the debt due by the vendor to the vendee ; the goods were supposed to remain in the store of the vendor five days after the -pretended date of the assignment; during which time, the vendor and his clerk, (who never heard of the assignment,) were making hourly sales, as in a common retail store of drygoods; and not a single act of claim or ownership on the part of the vendee was ever heard of, until about one hour and a half after the deputy went to the store, and announced the execution. There is no proof when the assignment ’was in fact made ; and there is reasonable ground to believe, that" it was in truth-made after Stewart heard of the execution, and was ante-dated.
    That it was intended as a mere shield of the property, is evident from the fact, that even after thefi.fa. was known to Stewart, he permitted the vendee(Hickcox,) to keep possession of the goods, and to convert them to his own use. In fact, the goods have not been sold and applied on the execution, nor have they gone to Stewart; the debtor (Hickcox,) has pledged them in part ■to raise money, and kept the residue.

      As further evidence of fraud in the assignment, it is to be remarked, that it purports to be a sale, at random and in gross, of all “the goods, chattels, furniture and other personal property in (he “ store No. 121 Chatham-Street,” and also “ the goods, chattels “ and furniture inthehouseNo. 11 Pearl-Street,” without, inventory, valuation or description. ■ It was a secret assignment ; it was coupled with a trust; and there is every badge of fraud which existed in Twine’s case.

    V. The deputy sheriff has no excuse for his omission of duty, and appears to have connived at the fraudulent designs of Stewart and Hickcox, in allowing the goods to be removed without any exertion of authority- by him, under the execution, after the plaintiff had conducted him to the store, and pointed out the goods then in the unequivocal possession of Hickcox. What could a vigilant creditor do more 1 The deputy saxv the clerk of Hickcox selling part of the goods to customers, while he stood there with the execution in his hands, and did not even forbid it: and this was before any claim was made by Stewart.
    VI. Finding the goods in the possession of Hickcox, (the defendant in the execution,) it was the duty of the sheriff to levy on, and inventory them. If they were claimed by a third person, he might have protected himself by an inquest de proprietate probandi, so as to justify a return of nulla bona, if the property was found in the claimant.
    All this he totally neglected. He took no inventory, made no levy, and took no possession or charge of the goods; and the second night afterwards, they were secretly removed by Hick-cox.
    In Bayley v. Bates, [8 John. 185.] it was decided, that an inquisitionfinding the properly in a stranger, will justify the sheriff in returning nulla bona, if there be no collusion. But if adequate indemnity be tendered, the sheriff is still bound to sell the property. Such indemnity was given and accepted, xvithout objection as to time or sufficiency.

      it is true, the defendant attempted to prove that the bond of indemnity given by the plaintiff) was insufficient : but the only competent witness, James Mabbett, (defendant’s own witness,) testified, that the surety Roberts was at that time a merchant in this city, in good ciedit.
    This pretence of insufficiency was an after-thought, and a mere subterfuge. The goods were secretly removed, and put out of the reach of the execution, on the night of Monday, the first of January, one thousand eight hundred and twenty-seven : and no inquiiy was made, as to the sufficiency of the bond, till Friday the sixth of January, one thousand eight hundred and twenty-seven,
    Bui, if the bond of indemnity were deemed insufficient, the sheriff was bound to speak, or to give notice to the plaintiff or his attorney, both residing in this city.
    The truth is, the deputy sheriff determined not to execute the fi. fa. on these goods ; and must be presumed to have been indemnified, for adopting that course. But if not so, the plaintiff ought not to suffer for the negligence or folly of that officer.
    VII. The testimony of Wesieroelt throughout, was improperly admitted agamst the plaintiff, on the new point of inquiry, on the part of the defendant; because the witness was clearly interested against the plaintiff, and could not, therefore, be a witness for the defendant.
    This testimony, if anywise material, ought to be stricken out of the case, (having been objected to at the time,) excepting only so far as it relate 1 to the point of inquiry on the part of the plaintiff; to wit, the identity of the execution.
    VIII. If the court should be of opinion, that Westervelt was improperly admitted as a witness for the plaintiff; yet, inasmuch as it appears that the plaintiff had completely proved his case, as to the identity of the execution, before Westervelt was called for that purpose, the plaintiff is entitled to judgment upon the verdict, notwithstanding the supposed error of the Judge in compelling him to answer.

      It being a verdict, subject to the opinion of the court upon the case, the court are to perform the office of the jury, as to every matter of fact, except the amount which is ascertained and fixed by the verdict.
    If the plaintiff be mistaken' in these positions, there must be a new trial, to enable him to supply the supposed deficiency of proof, arising from the exclusion of Westervelt’s testimony, with costs to abide the result.

      Mr. Slosson, for the defendant, contra, contended,
    I. That the deputy sheriff was improperly compelled to testify. He considered this a case, where the defendant would be justified in protecting himself by all the rules of law, in their strictest application.
    The question is, whether a party in fact, can be compelled to testify; for such is Westervelt. He testifies, that he is the real party defendant; that he has given a bond of indemnity to the sheriff, and that he has employed counsel to defend his cause. Were he a party upon the record, he could not be a witness, much less could he be compelled to estify. [7 Cow. 174. Mauran v. Lamb. 13 East, referred to in 1 Wend. The People v. Irving.]
    Where a corporation is a party, you cannot compel a corpora-tor to testify, although his name does not appear upon the record. But he is a party in fact, and no person who is the actual defendant, can be compelled to testify against his wishes or his interest. [Frear v. Evertson, 20 Johns. R. 142.] A defendant may call a plaintiff as a witness, if he will run the hazard of his testimony, and if he be willing to be examined. But he cannot be compelled to testify against his will. If he could be thus compelled, then the rule ought to be reciprocal. If he can be called against his interest, then he ought to be permitted to volunteer in favour his interest. This would subvert all the rules of evidence, and let in interested witnesses.
    In this case, if the sheriff be liable, then the deputy is answerable over to him, and from the records of this trial, facts may be brought forward, sufficient to convict the deputy in the action of the sheriff against him. Every thing which he swears to is conclusive against him, but those facts material to his defence are excluded. Here the identity of the execution was not proved, and could not be proved, but by the evidence of Westervelt. I waive the point of the variance between the judgment and the ft. fa., at this time, because it is sufficient for this cause, to exclude the evidence of Westervelt. The witness, Stewart, does not identify the execution, and there is no evidence, therefore, to support the declaration. Upon this point, we are confident, the plaintiff must fail.
    [Hoffman, J. At the trial, it struck my mind forcibly, that the deputy sheriff ought not to be permitted to shield his principal, by refusing to testify, and this from reasons of public policy.

      Slosson. The plaintiff himself, however, objects to the witness the instant he makes one step beyond the line to which he wishes him to advance; he is a competent witness, it seems, to prove the identity of the execution, but he is incompetent to show the insolvency of the obligors of the bond ! The plaintiff’s own objection proves the correctness of the position we assume by the sanction of the law.]
    II. We contend, in the second place, that the deputy was excused, under the circumstances of this case, from making the levy. Roberts claimed to be the assignee of the judgment, and the real party in interest. He went with the deputy when the levy was to be made, and the latter then told him expressly, that if the goods were claimed by another person than the apparent owner, he should require a bond of indemnity, to protect him against the consequences of the levy. The fact that an assignment of the property had actually been made, was communicated as soon as they entered the store, and yet no bond of indemnity was offered. . Roberts, it is true, liad previously promised to furnish a bond, if one should be required; but, in point of fact, it was not forthcoming until the sixth of January, and before that time, Hickcox, without the knowledge of the deputy, conveyed the goods beyond his knowledge and reach. The pretext of collusion is wholly unfounded; for the deputy could have no object in preventing a successful levy. He is an officer responsipig |n himself9 and under bonds for his official good conduct. There is no ground, therefore, for the charge made, or for any imputation against the officer’s fairness.
    The sheriff was not bound to become a trespasser. He acts in the character of an agent, and like other agents, is bound to exercise all reasonable care and diligence. But if he discharge his duty, then, like other agents, he is protected. [Bayley v. Bates, 8 J. R. 185. Townsend v. Phillips, l0th Ib. 98.] An inquisition, it is true, shows good faith on the part of the sheriff', but he is not bound to exercise any thing more than ordinary diligence. [Van Cleef and others v. Fleet, 15 J. R. 147.] In this ease, the inquisition found that the property was not in the debtor, but the court held, that if the plaintiff would indemnify the sheriff, he was, in such case, bound to make the levy. The principle is, that the sheriff is not bound to incur a risk. He Would not be bound to sell without an indemnity, then why should he seize, and thus become a trespasser %

    In the principal case, there was no inquisition, neither was there an indemnity proffered or furnished in time, and the sheriff] therefore, was not bound to levy.
    Suppose the sheriff had taken the goods, would he not have been liable as a trespasser 1 The cases answer that question in the affirmative. [2 Dun. Prac. 792-3. 4 T. R. 633. 6 Cow. R. 467. (in a note.)] Where it is agreed, that the giving of the indemnity shall be suspended, that is tantamount to a release of all claim upon the sheriff", until the indemnity is furnished.
    ■ But here, when the indemnity was offered, the goods were withdrawn, and so no levy could be made. The indemnity itself was insufficient, as the principal was insolvent, and the credit of the surety was doubtful. The giving of the indemnity was in itself a mere after-thought, and it imposed no duty upon the sheriff whatever. If the plaintiff intended, in truth and fairness, to indemnify the sheriff] he should have prepared his bond at a time when it might have been available, and when the sheriff had the power of making the levy. But, as the matter stood, the sheriff liad nothing- to protect him from the consequences of a levy, if the assignee of the goods established his title to them, and he was not bound to incur any peril whatever of the kind sought to be imposed upon him by the plaintiff.
    Ill- But the assignment to Stewart vested in him the legal title to the goods, and the levy, if made, would have been void. The assignment is perfectly good upon its face, and has for its object to secure to the assignee the payment of his debt, which is proved to be bona fide, and also, to secure to the other creditors of Hickcox the payment of their debts, so far as the property would go. Stewart accepted the trust, and by this means, he made himself liable to the creditors of Hickcox, to the extent of the entire value of the goods, provided he could not prove his own debt, and he was, at all events, bound to account. This being so, the title to the property was vested in Stewart, and as the sheriff saw the assignment, it was sufficient to put him on his guard. He could not decide upon its validity, and was not bound to hazard a legal contest as to the interests of conflicting claimants. The possession of the goods by Hickcox, was not per se fraudulent, and there is nothing but possession to raise even a suspicion of fraud. [Bissell v. Hopkins, 3 Cow. 166, and the note.]

   Per Curiam.

To decide this case, it is not necessary to determine the question, whether the deputy sheriff was a competent witness or not; although that question has been raised and discussed at the bar. It was the duty of the sheriff to make the levy without any indemnity whatever, as he found the goods in the hands of the defendant in the execution; and he would not have been liable to an action as a trespasser, if he had made such levy. The goods were pointed out to him as the goods of the defendant in the execution; he was exercising acts of ownership over them; they were in his exclusive custody and possession ; and the sheriff would have incurred no peril from the act of Ievy~ing. If, after the officer’s first duty was performed, a claim to the property had been interposed, then a jury should have been called to determine the right of property. If, by the inquisition. it should be determined that the property was in the claimant, then the return upon the execution should be nulla bona ; and gucfi a finding, although it would not be conclusive upon the question of property, would nevertheless justify such a return. Should the jury declare the property to be m a third person, then the sheriff could not be compelled to proceed further, without a full indemnity. But, in the first instance, he was bound to make a levy, and there is nothing in this case to excuse his neglect in that particular.

The sheriff need never be in difficulty upon this point: for if "the title appear doubtful, or the proceedings hazardous, the court, upon application, would extend the time for the making of his return; or he might file a bill of interpleader, and stay all proceedings against him, until the right of property was settled. Indeed, the conflicting claimants could be compelled to litigate their claims ; and a sheriff, taking the proper course, would never be subjected to damage of any kind.

In this case, the sheriff refused, or, at all events, neglected, to make the levy; and if the plaintiff" can show that the goods found in the possession of the defendant in the execution, were in truth his property, he is entitled to recover. To determine this question, we have merely to examine the assignment to Stewart; for if the property in the goods did not pass to him, then it remained, beyond all doubt, in the defendant in the execution; for nobody but Stewart has interposed a claim to it. It is evident, from the testimony adduced, that the assignment to Stewart was fraudulent. It bears about it those characteristics which generally indicate fraud. In the first place, the goods were left in the hands,-and under the exclusive controul, of the assignor. This ia always such evidence of property in the possessor, that it throws upon the assignee the duty of explaining satisfactorily, why the goods assigned were left in the hands of the assignor : why delivery, which is in most cases essential to pass the title of chattels, did not accompany the act of transfer. It is true, there may be cases where mortgaged property may be left, for good and sufficient reasons to be shown to the court, in the hands of the mortgagor* But the intent of the transfer ought to appear upon the instrument of assignment, and if upon the face of the instrument the transfer is absolute, it will throw upon the claimant the whole burthen of explaining why possession did not follow the transfer.

In the present case, the claimant and the sheriff have not even attempted to show why ¡he goods were left in the hands of Hick-cox; why he controuled them; why he sold the goods, and received the money for their proceeds. Here is enough to show the real nature of the assignment, and its objects may be easily guessed, when we look at the date of the instrument, and compare it with the time when the judgment was docketed. The latter precedes the former by several days, and the inference is irresistable, that the object of the assignment was to deieat the execution. The court, in this matter, act also in the place of a jury, and upon every principle of law, as well as inference from facts, vve are all of opinion, that the assignment is fraudulent, and therefore void. It is proved, then, that the property remained in Hickcox : it was in his hands on the day when the sheriff’s deputy proceeded to his store ; it was pointed out to the deputy as the property of Hickcox, and he was desired to -e'< y upon it. It was a plain case, and the sheriff’s duty was obvious : it could not be mistaken. But he neglected that duty, and must respond to the complainant for the consequences of that neglect.

There is one more question to be disposed of, in order to meet all the objections to a recovery, and that relates to the execution itself. We consider that the endorsement made by the sheriff is conclusive evidence, that the execution was in his hands at the time the deputy went to the store to make the levy, and this by the operation of the statute. It is his duty to endorse upon the execution the time when it was received, and here the defendant cannot deny, what he has admitted to be true. There could be no difficulty, therefore, in identifying the execution, without a recourse to the testimony oí Westervelt; and we therefore disregard that evidence in this part of the case. The sheriff or his deputy, (and it matters not which, as the sheriff is responsible for the official acts of his deputy,) had this execution on the 29th of December, 1826, and assumed to act under it. He cannot, therefore, gainsay the proof furnished by his own acts, but is conclusively bound by it.

There must be judgment for the plaintiff upon the case, for the amount assessed by the jury.

Mr. Justice Hoffman observed, that he was satisfied, upon further reflection, that there was no necessity for calling Westervelt as a Witness, and he concurred in the opinion of the court in all its parts.

Judgment for the plaintiffl


text:
    Oliver M. Lowndes, Sheriff, &c. versus Matthew Campbell and others.
    April Term, 1829.
    The parties to a suit in this court, and to another also, in the Supreme Court, for the purpose of bringing the matters in controversy to a speedy decision, and save costs, referred the same to disinterested persons, of their own selection, for a decision, under a stipulation, that if the issue was found in favour of the defendant the said several suits were to be discontinued ; but if in favour of the plaintiff that then a relicta for a given sum, should be delivered to the real party in interest, on which a judgment was to be entered up, for the amount, together with costs, to be taxed, including the expense of the reference. XJpon a motion by the defendants, to set aside the award of these referees or arbitrators, upon the ground principally, that certain evidence offered by them, at the trial, was rejected, it was held that the parties were precluded by the terms of their submission from questioning the award, there being no stipulation for a review.
    The award was for less than $250 ; but as the action was brought for the penalty of the bond, which exceeded that sum, the plaintiff taxed his costs according to the rules of the Supreme Court. But it was held, that as the plaintiff had agreed to accept a relicta for less than $250, waiving a judgment for the penalty, (which otherwise, would govern costs,) he was entitled to Common Pleas costs only.
    The plaintiff in this suit, brought an action of debt on a replevin bond, executed by the defendants; but the real party in interest was one Abraham Depew. Two of the defendants had previously commenced an action of trespass against Depew, in the preme Court, which was also pending. The question in controversy, related to the title to seventy barrels of apples, which had been levied on, by an execution, out of the Marine Court, in favour of Depew, against one Wheeler. The parties, “ in order to “ save costs, and bring the matter to a speedy decision,” agreed by a stipulation, signed by their respective attornies, to refer the question, as to said title, to “ three indifferent referees,” who were named. If the title to the apples, was found by the referees to be in Matthew Campbell and Ira Carpenter, (the plaintiffs in the Supreme Court, and two of the defendants here,) then the suit in this court, and that in the Supreme Court, were to be discontinued, and the parties were to exchange release. If, however, the title was found to be in Wheeler, then the referees were make a report in favour of the plaintiff, for one hundred and nineteen dollars and seven cents; and a relicta for that sum was to be delivered to Depew, on which he was to enter up a judgment for the amount, “ together with the taxable costs of this suit, in- “ eluding the costs of the referees.”
    To carry this arrangement into effect, a consent and rule of reference were duly filed with the clerk.
    At the trial, the plaintiff produced in evidence, a fi.fa. for §119.25, against Wheeler, in favour of Depew, issued out of the Marine Court, on which was endorsed a levy upon the apples. He also produced a bond, for a return of the apples, together with a replevin bond executed by the defendants, on which was endorsed the appraised value of the property levied on.
    The defendants, for the purpose of proving the property of the apples, to be in Campbell and Carpenter, called Wheeler as a witness; but. he was objected to, on the ground of interest, and rejected by the referees, who made an award in favour of the plaintiff for §119.07, finding the title of the apples to be in Wheeler. The attorney for the plaintiff thereupon, filed the relicta, and entered a rule for judgment thereon nisi.

      Mr. T. C. Pinckney for the defendants,
    now moved to set aside the award, and stay proceeding, upon the ground, first, that Wheeler ought to have been permitted to testify. He cited the following cases to this point, viz : [1 Phil. Ev. 38 to 57, and, the notes. 8 Johns. R. 377. 10 Ib. 21. 16 Ib. 89. 5 Ib. 256. 1 Ib. 491. 1 Caines’ R. 276. 1 T. R. 163. 1 Cox’s R. 332. 14 J. R. 362, 3 Johns. Cas. 82. 2 Caines’ R. 77. 11 J. R. 185. 1 East. 20. 1 J. R. 159. 16 J. R. 89. 7 T. R. 476. Ib. 477. n. Cowen’s Treatise, 595. 4 Mass. R. 156. 12 Ib. 20. 1 Caines’ R. 167. Peake’s Ev. 224. 2 J. R. 399.]
    II. That the plaintiff’s attorney had no right to proceed on the relicta, no report having been filed, or served on the parties.

      Mr. Western, contra, for the plaintiff contended.
    I. That the witness was properly rejected, because, by the terms of the submission, he stood in the situation of a party, and the report could be given in evidence, for, or against him. At all events, he had an interest in the event of the suit,—he stood before the referees as a vendor, and could not be permitted to support his own title.
    II. All matters, both of law and fact, were submitted to the referees, and the relicta was conclusive upon the defendants. The reference was not made under the statute, but was in the nature of an arbitration, and the relicta covers a release of errors, and the court will not interfere.
   Per Curiam.

The parties in this cause, it appears, submitted the matters in controversy between them, to a tribunal of reference, made by themselves, without any stipulation for a review. They are, therefore, concluded by the award, unless the defendants can show, that the referees have been guilty of fraud. It is said, however, that the referees improperly excluded the evidence of a witness offered by the defendants. If this' be so, it was a mere error in judgment; and this court cannot interfere to correct it. The submission or reference was in the nature of an arbitration, and the relicta having been delivered to the plaintiff’s attorney, according to the terms of the submission, he had a perfect right to file it, and enter up judgment. There was no necessity for filing a report, for the relicta stood in the place of it by the consent of the parties, and being signed by the attorney of the defendants, it was conclusive. This motion, therefore, is denied, with costs.

It afterwards appeared, that the plaintiff^ attorney had taxed the costs according to the rules of the Supreme Court, and Mr. Western moved for costs as taxed. He insisted that the plaintiff was entitled to such costs, as the action was upon the replevin bond, which was for a sum exceeding $250. The judgment in such cases, is for the penalty and carries full costs. [Harvey v. Walker and Bardwell, 6 Cowen, R. 57.]

Mr. Pinckney, contra, contended,

That the plaintiff was entitled to Common Pleas costs only, he having accepted a cognovit for a sum less than $250. [He cited 2 Dun. Prac. 734. 1 R. L. of 1813, p. 347. Sec. 21. 1 Caines' R. 66.]

Per Curiam. If this were a case arising under the action for the penalty of the arbitration bond, then if the plaintiff succeeded, he would be entitled to costs, according to.the amount of the penalty, because the judgment would be for the penalty. But here the plaintiff agreed expressly to except a part of the penalty, in full satisfaction of his claim, and has stipulated that his recovery should be for a sum less than two hundred and fifty dollars. He is entitled, therefore, to Common Pleas costs only.

[H. M. Western, Att'y for the plffs. T. C. Pinckney, Att’y for the deft's.]