text:
    James Smith versus James Kelly.
    Where matters in controversy, between parties, have once been put in issue by them before a court of competent authority, and passed upon by that tribuhal, in an action brought by the present defendant against the present plaintiff, the same matters cannot again be drawn into controversy in another action, in a different Court, brought by the former defendant against the former plaintiff.
    The defendant in the former action, by submitting to the decision of the Court in which it was brought, becomes bound by it; and he cannot cause the decision to be collaterally revived, by bringing an action against the former plaintiff
    If the defendant in the first action feels himself aggrieved by the decision of the first tribunal, his course is to except to the opinion of the Judge, and cause his decision to be reviewed by a competent tribunal. If he acquiesces, however, in the decision, by not excepting to it, he is bound by it.
    This was a special action on the case, brought to recover damages of the defendant, for not furnishing to the plaintiff certain goods, according to his undertaking on four certain orders drawn on the defendant by one Edmund M. Blunt, and by him accepted in blank.
    One of the orders was dated in November 1826, the others in January 1827. The first was for sixty dollars; the others were for $100 each, and they were all drawn in the following form, vix “.

      Mr. James Kelly,
    New-York, Jan. 3, 1827.
    Sir, Value received pay bearer on demand, grates, fenders, pans, shovels and tongs, at cash prices, to the value of one hundred dollars.
    Respectfully,
    Edm. M. Blunt.
    This order was accepted in the usual manner, by the drawee writing his name across the face of it.
    The declaration contained sixteen counts, to which was pleaded the general issue, accompanied by a notice, that the defendant would give in evidence in bar of the action, & former trial in a suit in the Court of Common Pleas, of the City of New-York wherein the said Kelly was plaintiff and the said Smith was defendant, in which the same matter sought to be examined in this suit, had been submitted to a jury and passed upon by them.
    At the trial in this court (which took place on the third of February, 1829, before the Chief Justice) the plaintiff called the said Blunt as a witness, who testified, that in the month of January 1827, he negotiated the four orders in question to the plaintiff and received of him their full amount. That prior to the negotiating of the orders, the plaintiff was engaged in building some houses, and the witness solicited the plaintiff to allow him to furnish the houses with grates, pans, and fenders, and represented that he could obtaih these articles of the defendant, on accepted orders, as cheap as the plaintiff could purchase them for cash ; and he referred Smith to Kelly for the accuracy of his statement.
    Blunt also testified, that he subsequently saw Kelly, and was informed by him, that the plaintiff had called upon the defendant in relation to the orders; that he had satisfied his inquiries relative to the goods, and had informed him, that he would accept the orders, and deliver the articles under them. That the witness then negotiated the orders to the plaintiff, the same having been previously accepted, by Kelly’s writing his name upon the face of each of the orders. That some time after he had negotiated the orders, he saw Kelly, who informed him, that he was furnishing the goods upon the orders, and that he had let the plaintiff have two grates which he had made for other persons, were negotiated within a few days after their date. The orders
    The plaintiff then called one Devereaux as a witness, who testified, that he was in the employment of the defendant, and that in the month of November, 1887, the defendant sent him to the plaintiff, in relation to a grate which had been made to be sent into the country. On this occasion, Kelly desired him to tell the plaintiff, that he was not willing to deliver any more grates on Blunt’s orders, as he had been deceived by him. The plaintiff replied, that he would see justice done to Kelly, as he had a copy right of a book in his possession, belonging to Blunt.
    These witnesses were examined on the trial in the Common Pleas, and testified to the same facts, which they now stated; and upon their evidence the plaintiff rested his cause.
    The defendant then offered in evidence the record of the judgment in the former suit in the Common Pleas, from which it appeared, that Kelly had brought an action of assumpsit in that Court against Smith for goods sold and delivered, and the jury returned a verdict for $156.18 in his favour. The particulars of the plaintiff’s demand in that action amounting to $388.68, were admitted in evidence at this trial, and among them were enumerated sundry grates fenders, shovels, tongs, &c., delivered by Kelly to Smith.
    The present plaintiff to his plea in the former suit added a notice of set off, which contained copies of the four orders upon which this action was brought.
    DanielLord, Jun. Esq, was then called by the plaintiff, and testified that he was the counsel for Smith in the former suit in the Common Pleas. At that trial, the defendant made no attempt to set off the orders against the plaintiff’s demands, but he offered evidence of the parol acceptance of the orders by Kelly, and of his collateral undertaking to deliver the articles upon them, according to the testimony of Blunt. Smith also contended, that the goods mentioned in the plaintiff’s bill of particulars, had been delivered on said orders and there was no attempt made to impeach the orders in any way. Mr. Lord, in summing up the defendants cause to the jury on that trial contended, that the matters in evidence were a bar to the plaintiff’s right of recovery. That Kelly was bound by his undertaking to deliver the goods on the orders, and would not rescind his contract, or in any way discharge himself from his obligations to deliver the goods on the orders.
    Mr. Lord also testified, that he confidently expected a verdict for the defendant, although the Judge charged the jury, that Kelly had a right whenever he pleased to refuse, to deliver any_ more goods upon the orders, and that if Smith did thereafter receive any more goods, he would be liable to pay Kelly for them.
    The plaintiff also called his honor, Judge Irving, as a witness, and he stated, that the principal point in the cause, according to the best of his recollection, related to the question, whether the goods were furnished upon the credit of Blunt or Smith. The Judge also produced and read his minutes of the whole trial; from which it appeared that Kelly had, in the first instance, accepted the four orders unconditionally, and had also promised to furnish the goods under them. But subsequently, owing to some delinquency on the part of Blunt in not making good his contracts, Kelly declined to deliver any more goods under the orders, although he had at the time of such refusal already furnished a part of them, amounting to one hundred and sixty dollars, and upwards. It appeared, however, that Smith had encouraged Kelly to furnish more goods/ after his refusal to do so, by some promise of indemnity to be derived from the copy-right in his hands.
    The defendant then called Blunt again, and proposed to en-quire of him as to the original consideration of the orders. The plaintiff objected to such an examination, upon the ground, that the consideration of the orders as between the original parties, could not be inquired into in this action. The Chief Justice, however, overruled the objection, and the plaintiff excepted to his opinion.
    Blunt then gave a history of the orders, and the manner in which they were issued, from which it appeared, that he had been in the habit of obtaining them, by giving his own notes in exchange. Some of these notes had been paid, but others remained unsatisfied, and at this time, Kelly held his notes for $250 and upwards, which were wholly unsatisfied.

      The defendant alsb called another witness, to. show, that the goods furnished after Kelly’s refusal, were furnished upon the credit of Smith, and not upon the faith of the orders. He also called one of the jurors empannelled in the former cause, and he testified that the course of the testimony on that trial, corresponded with the present, and the same evidence was given.
    The Chief Justice charged the Jury, that if they believed the testimony of Mr. Lord, then that the former trial, was conclusive between the parties, and that they ought to find for the defendant.
    The plaintiff having excepted to this charge, the Jury returned a verdict for the defendant.
    The plaintiff now moved for a new trial, and Mr. Smith,inpropria persona, contended, I. that Kelly was concluded by his acceptance of the orders, and by furnishing a part of the goods under them. After such acts, he became liable for the full amount of the orders, and had no right to interpose any objections against them. He did not contend, that these orders were so entirely negotiable^ as that an action could be maintained against Kelly by any holder of the orders; but he asserted that Kelly had, by his own acts, fully recognised his claims, and could not afterwards repudiate the contract. He had commenced a fulfilment of his agreement with the plaintiff, by delivering a part of the goods, and he had. no right afterwards, when he knew that Smith had paid Blunt the full amount of the orders, to rescind the contract, because Blunt became delinquent. The plaintiff had nothing to do with the consideration passing between the defendant and Blunt; for, value received, is admitted upon the face of the orders.
    II. The former verdict in no way prejudiced the plaintiff’s right to maintain the present action. The Jury on that trial, considered the goods furnished by Kelly, after his refusal to furnish any more on Blunt’s orders, as having been furnished on the individual credit of Smith: and they accordingly found a verdict against the present plaintiff for all those items in the defendant’s bill of particulars, which were furnished after Kelly’s refusal. The plaintiff therefore, has a right in this action to recover the difference between the face of the orders and the amount deducted by .the Jury, or to recover of Kelly a sum in damages for the non-fulfilment of his contract. The charge of the Chief Justice was therefore erro-neous, and the former trial and judgment form no bar to this action. If the question of consideration was material, then he contended that Blunt had in fact, paid Kelly the principal part of the money for which these orders were given, and if he was indebted to the defendant on other accounts, or for other orders, that could not prejudice the plaintiff. The orders could not have been set off against the claims of Kelly, and the Judge of the Common Pleas only meant to charge the Jury upon the evidence, so as to exclude a presumption that the goods were delivered upon the orders, and his discharge was right. But if the charge of the Chief Justice is correct, then the plaintiff is without a remedy. It is perfectly clear that he paid Blunt the full value of these orders, with the knowledge and assent of Kelly, and the latter is under every moral obligation to fulfil his contract. If a new trial is denied, then the defendant escapes with impunity; and the plaintiff is deluded out of his rights by the arts of counsel, which may be termed a sort of judicial legerdemain.

      Mr. Anthon, contra, for the defendant contended,
    that the whole subject-matter, which formed the ground of the present action, had already been before a competent tribunal, on a trial between the same parties; that a. Jury had passed upon the same facts, and a judgment had been rendered upon the finding of the Jury, which was binding and conclusive. [Stark. Ev. 198. Gardner v. Bugbee, 3 Cow. R. 120. Burt v. Steenburgh, 4 Ib. 559. Stafford v. Clarke. 2 Bing. R. 377.]
    The whole question, which has now been raised, was presented before the Common Pleas, and the self-same evidence appeared. The present plaintiff then denied his responsibility to Kelly, upon the ground that the latter had furnished the goods for which the action was brought, not upon the credit of Smith, but upon the orders of Blunt. The Jury found that this defendant had in fact furnished a part of the goods upon the credit of the orders; but they also found that he had furnished another part upon the credit of Smith alone, having refused to trust Blunt any longer.

      The present plaintiff also contended on that occasion, that Kelly was liable at all events to him, for the full amount of the orders; that he had contracted with him by the force of his acceptance and his subsequent acts, and that therefore he (Smith) was not liable in law to pay for any part of the articles furnished. What more does he claim here 1 He now contends that the orders were binding upon Smith; and that as the Judge of the Common Pleas decided, that the orders were not available to their fullest extent,—because Kelly had a right to repudiate them at any time as to third persons,—they are now available by way of attack, because, in truth, Kelly had not a right to repudiate the orders as to a third person, who had paid value for them, with Kelly’s consent and approbation.
    The two questions are therefore precisely the same. If Kelly was liable to Smith to the full extent of the orders, then he had a perfect defence to the former action, and the Judge of the Common Pleas erred in his charge to the Jury. If Smith was dissatisfied with that charge, he should have excepted, and should have reviewed that opinion before the proper tribunal. Instead of taking that course, he has acquiesced in that judgment, and is now concluded by his own acts. If, however, the Judge was right on that occasion, then the plaintiff has no cause of action here, because Kelly had a right to refuse a delivery of any goods upon the orders.
    Under any aspect of the case, the same identical questions have been presented, tried, and disposed of. The former judgment is conclusive between the parties, and the charge of the Chief Justice was perfectly correct.
    If, however, it were necessary or proper to go into the matters of the former trial, it would be easy to show, that the Judge, who tried that cause, was correct in his charge, and that the Jury found according to the evidence, and the very right of the case. But the defendant now rests himself upon his first proposition, and is secure.

      Smith, in reply.
    I admit that the charge of Judge Irving was correct, and I contend that the Jury had a right to find, that a part of the goods were furnished upon my individual credit, and not upon the orders. If so, I was bound to pay for those goods; but it does not follow, that because Kelly refused to perform his contract, and because he furnished a certain part of the goods upon my responsibility, that therefore he is absolved from his contract. The former trial was no more than this. The plaintiff there proved that he refused to deliver me any more of the specified articles upon the orders, because he did not feel himself bound to me upon them. But he offers to furnish me with goods upon my own responsibility. I accede to the terms, and order the goods ; must I not pay for them 1 And does it follow from this, that Kelly is not legally bound by his acceptance of Blunt’s orders, and that I have no right to try that question with him here 1 My promise to pay for the goods, was aside from the contract, and had nothing to do with it; and the sole question to be disposed of is, whether Kelly is, or is not responsible upon his acceptance, under all the circumstances of this case. If he is, then I am entitled to recover; if he is not, there is an end of the question. The scope of Judge Irving’s charge was merely this, that I might he liable to pay for the goods furnished after Kelly’s refusal, notwithstanding the contract, because there was evidence to show, that the goods were not furnished under the contract. This was perfectly correct, and left the parties the right of trying the naked question, as to the defendant’s obligations upon the orders. I contend, therefore, that the former trial is no bar to this action, and that I am entitled to a new trial.
   Oakley J.

The plaintiff in this case moves for a new trial, for the misdirection of the Judge. It is a special action on the case, to recover damages for the refusal of the defendant to deliver certain articles, in pursuance of orders, drawn on and accepted by him, and subsequently negotiated to the plaintiff. It appeared in evidence, that the defendant delivered a portion of the articles, under the orders, and then refused to proceed any further, on the delivery, alleging that he had been defrauded by the person, who drew the orders. Articles, however, of the same description were subsequently furnished by the defendant to the plaintiff, and as action was brought in the Court of Common Pleas, to recover the amount of his bill. That action was tried in the Common Pleas, and the same evidence was given as in the present case. The present plaintiff then contended, that the goods in question were delivered under the said orders, and his defence, according to the evidence given by his counsel, Mr. Lord, was rested on the ground, that the then plaintiff was bound to deliver the articles, under the said orders, and could not rescind them. The Judge, at that trial, charged the Jury, as Mr. Lord stated, that Kelly had a right, whenever he pleased, to refuse delivering any more goods on the orders. The Jury in that case found a verdict for Kelly, for the goods furnished subsequent to the notice given by him to Smith, that he would not consider the orders as any longer binding upon him.

If the charge of the presiding Judge, at that trial, was correctly stated by Mr. Lord, it cannot be doubted, that the same questions, both of law and fact, were then considered, which have arisen in the case now before us; and the Jury, in the former case, must have found their verdict in pursuance of the rule laid down by the Judge. If that decision of the Court of Common Pleas was erroneous, the present plaintiff should have excepted to it. He cannot review it in a new action. Having acquiesced in the law, as pronounced by a court of competent authority, he is bound by it. There was, therefore, no error committed by the Judge' in the present case, in instructing the Jury, that if they believed the testimony of Lord, the former trial was conclusive between the parties. The motion for a new trial must therefore be denied.

Motion for a new trial denied.

[James Smith, in pro. per. Atty. for the plff. Chas. O’Conner, Atty. for the deft.]


source: Caselaw Access Project

author: Oakley J.

license: Public Domain

text:
    Elliot Higgins versus Henry Packard, Scott Fickett, Francis Fickett, and John W. Russell.
    P., one of the defendants, agreed with R., another of the defendants, in the month • of July, 1825, to purchase one fourth part of a ship of him, which had performed but one voyage, at one fourth of her original cost, and to come in as a part owner from the beginning. He was accordingly debited by R. with that amount, and credited with one fourth part of the profits of the voyage. Held, that this purchase did not constitute P. such an owner from the beginning, as to make , him liable for bills of the ship, which had accrued before the voyage was performed.
    Quare—As to- the effect of taking the promissory note of one of several Joint owners, for a debt of the whole?

      Qumre, also, as to the admissibility of the books of one of the joint owners, in ait action by a third person, for the purpose of showing that another of the joint owners had fulfilled all his stipulations with such owner, and had paid for his proportion of the vessel ?
    Assumpsit to recover the sum of $287.25, with interest from the 21st of May, 1825, for work, labour, &c. in rigging the ship Russell, alleged to have been owned by the defendants. Plea, the general issue. The cause was tried before the Chief Justice, on the 4th of February, 1829.
    At the trial, the principal question in dispute was, whether the defendant, Packard, was in fact the owner of any part of the vessel at the time the plaintiff’s services were performed. The defendants insisted, that the amount claimed was due to the plaintiff from such persons only as owned the ship at the time the services were rendered; and it was admitted, that those services were performed between the last of April, 1825, and the 21st of May of the same year.
    The plaintiff, on his part, to establish the joint ownership, called several witnesses to show, that Packard, who was master of the Russell, was frequently on board while the plaintiff was rigging that ship, and gave general directions concerning the work; and from certain expressions used by him, it might be inferred, that he was a part owner at the time the plaintiff’s work was performed. Indeed, one of the witnesses, (Gorham, a sail-maker,)'testified, that Packard took one of the sails of another vessel, of which he was a part owner, and caused it to be used in covering the ropes of the Russell. This witness heard Packard say, while the work was going on, that he was a part owner of the ship; and the other defendants had made the same admissions.
    The testimony of the plaintiff consisted, almost exclusively, of the declarations and acts of Packard, the most material of which have been already related.
    The defendants, on their part, produced the deposition of one Henry W. Barstow, who was a clerk of the defendant Russell, at the time the plaintiff’s work was performed on the ship. He testified positively, that Packard had no interest in the vessel at that time, or at any other time, until after her first voyage. The vessel was intended as a packet between New-York and New-Orleans, and was to be commanded by Packard. Russell offered to sell Packard one fourth of the vessel, at the original cost, before her first voyage, and gave him the option to take that proportion upon those terms, after the voyage was performed. After the ship’s return, Packard accepted Russell’s offer, and purchased one fourth part of him, he being the owner of three fourths, and the other defendants of one fourth. The ship returned from her first /oyagein July, 1825, and Packard having then elected to take an interest in her, one fourth part of her original cost was passed to his debit, in general account by Russell, who gave him a regular bill of sale of one fourth part of the ship, for the consideration of $6,600. The bill of sale bore date the 17th of September, 1825, and was executed in due form of law.
    The defendants also produced a receipt, signed by the plaintiff in the following words: “ Rec’d. New-York, Oct. 7, 1825, from John W. Russell, his note of the 6th inst. at 60 days, for six hundred and two 87-100 dollars in full for bills, up to August last and it was proved, that this sum included the bill, for which this action was brought.
    The defendants also offered Russell’s books of account, (which the plaintiff had called for,) in evidence, in order to show the state of his accounts with Packard; the plaintiff objected to the admission of this evidence, but the defendants having proved, that the entries were in the hand-writing of a clerk, who was dead, the Chief Justice overruled the objection, and the accounts were read to the Jury.
    After the defendants had gone through with their evidence, the plaintiff produced the note of Russell for $602.87, showed that it had never been paid, and offered to cancel it in court. The plaintiff also proved, and the defendants admitted, that Packard received and was credited by Russell with one fourth part of the profits of the first voyage of the ship, he having the election to come in, as a part owner from the beginning.
    Upon this evidence, by consent of parties, a verdict was taken for the plaintiff, subject to the opinion of the court upon a case to be made.
    The cause was now argued by Mr. Anthon for the plaintiff, and Mr. Talman for the defendants.
    For the plaintiff it was contended, that the acts of the defendant Packard, coupled witli his admissions to Gorham, completely established the fact, that he was a part owner from the beginning.
    II. That the taking of the note of Russell, one of the part owners, who was the ship’s husband, did not vary the rights of the plaintiff against all the owners. No damage was suffered by the other defendants, by this course of dealing, as they, in their accounts, had not paid money to each other, but had brought in various matters of account. [1 Cowen R. 297.]
    III. The books of Russell were inadmissible in evidence, and the death of the clerk, who made the entries, gave the defendants no additional rights. If the clerk were alive, the accounts could not have been proved by him and made evidence, being res inter

      alios, [Bul. N. P. 282. 2 Esp. R. 646, and notes by Day. 8 John. R. 212.]
    For the defendants it was contended, I. that Packard was not an owner at the time the plaintiff’s demand accrued. He had an election to become part owner or not, and he did not elect to become such owner, until long after the plaintiff’s services were performed. He was then charged with one fourth of the cost, and credited with one fourth of the earnings. The agreement had no reference to time, but only to price ; hence, in order to ascertain what Packard was to pay, the profits of the ship were passed to his credit. If this had not been done, he would have paid the same sum for the ship after the deteriorations of a .voyage, as when new.
    II. The books were produced upon the plaintiff’s own call, and they were admissible to establish a fact, which might as well be proved in that way as any other. The defendant, Packard, wished to show, from the books, that he had settled with Russell for his one fourth of the ship, and the books were clearly admissible. [Wharam v. Routledge, 5 Esp. R. 235.]
    III. The facts of the case warrant the conclusion, that the note of Russell, taken by the plaintiff, was at the time intended, and agreed to be considered, as a payment of the demand. [12 John. R. 409, Arnold v. Camp. Reed v. White & al. 5 Esp. R. p. 122.]
    IV. The original credit was given to the defendant Russell, and the plaintiff having taken the note of Russell upon a balance of account, including the demand in question, and given Russell a receipt in full, and the other defendants having, since the receipt, settled with Russell, and paid him their proportions of the plaintiff’s bill, they were discharged. [Muldon v. Whitlock, 1 Cowen R. 290, and the cases there.]

      Anthon, in reply, observed, that the plaintiff was not to be prejudiced by taking the note ; for when it was taken, he did not know, who the owners were, nor who were liable to him. In the case cited from Cowen, all the owners were known, and a receipt in full was taken, with a full knowledge of all the facts. But no court has ever decided, that a note given by one of several persons, for services performed for them all, should be considered as a discharge of the others, unless the responsible parties were known, at the time the note was taken, to him, who received it. [7 John. R. 311.]
   Oakley J.

This case comes before us on a verdict subject to the opinion of the court. The action is to recover the amount of a bill for work, in rigging the ship Russell, in the month of May, 1825 ; and the principal question of fact to be determined is, whether Packard was a part owner of the ship, at the time the work was done. The ownership of the other defendants is admitted.

I am satisfied, on a careful examination of the case, that the decided weight of the evidence is, that Packard had no interest in the ship, when the plaintiff’s demand for work accrued. The testimony of H. W. Barstow, together with the bill of sale of the fourth part of the ship to Packard, is sufficient, in my judgment, to outweigh the proof of the declarations of Packard, as stated in the case. The evidence of the declarations of a party, is at all times to be received with great caution, and is of all species of evidence, the least satisfactory.

It appears, that on the return of the ship from her first voyage, in July, 1825, the defendant Packard agreed to purchase one fourth part, at her original cost, and to come in as a part owner from the beginning. Accordingly he was charged with his portion of the expense of the outfit of the vessel, for her first voyage, and credited with a portion of the profits of that voyage. This cannot he considered as constituting him a part owner from the beginning, so as to render him liable, to third persons, for demands against the vessel, accruing before he had any actual interest in her. It was adopted merely as a mode of ascertaining, as between Russell and Packard, the price to be paid by the latter on his purchase. It is quite clear, that in performing the work in question, the plaintiff did not look to the responsibility of Packard. He trusted Russell alone, and took his individual note for the amount of his demand. Packard can be made liable only as being in fact a part owner of the ship, at the time the work was done, in which case, the law would render him liable, though his interest in the vessel might not have been known to the plaintiff. The proof, I think, shows, that Packard was not, in fact, a part-owner of the ship at the time, and there must be judgment, therefore, on this case, for the defendants, no joint assumpsit on their part being established.

The view I have taken of the case renders it unnecessary for me to examine the other points raised on the argument.

Judgment for the defendants.

[E. Anthon, Atty. for the plff. J. Leveridge, Atty. for the defts.]


text:
    Patrick G. Hildreth versus John Shillabee, Jun.
    A plea of a discharge under the 9th see. of the general insolvent act, [1. R. L. 464.] must aver every fact necessary to give jurisdiction to the officer granting it, and the want of such averments cannot be supplied by the recitals contained in the discharge itself, though the discharge be set forth at large in the plea. By this act it is essential, in order to give the magistrate jurisdiction over the case, that the debtor should have been imprisoned for 60 days upon execution in a civil suit. A plea, therefore, which merely set forth, that the debtor was imprisoned for 60 days and upwards, on civil suit, was held to be insufficient.
    To an action of debt on judgment, the defendant pleaded his discharge under the insolvent act; and the plaintiff replied, that after the discharge was obtained the defendant “ assented to, ratified, renewed and confirmed the Said judgment and demand of the plaintiff.” Held, that the replication was no departure from the count, and that the new promise was sufficiently laid in the replication.
    Debt, to recover $2,515.25, due from the defendant to the plaintiff, on a judgment obtained in the Supreme Court in the year 1816.
    The defendant pleaded, 1. nul tiel record. II. a discharge under the 9th section of the general insolvent act, [1 R. L. p. 464.]

      This plea alleged, “ that after the making of the supposed “ promises and undertakings, in the plaintiff’s declaration mentionee e(j$ to wit on the fifth day of December, in the year 1816, the “ said defendant was and had been, actually imprisoned for 60 days “ and upwards in a civil action within the true intent and meaning “ of the act” &c., and that “ whilst the said defendant was and “had been so actually imprisoned for 60 days and upwards in a civil “ action as aforesaid, one William Hall a creditor of the said defendant,” &c.
    The discharge itself was then set out at length in the plea, and that recited also, that the defendant had been actually imprisoned for 60 days and upwards, in a civil action, and that his creditor made affidavit, that the said insolvent “ was then in prison on “ execution issued against him in. a civil action, and had been so imprisoned for 60 days and upwards,” &e.
    Upon the first plea the plaintiff took issued and replied to the second, alleging that the defendant “ after obtaining his discharge “insaid second plea mentioned, and before the commencement of “ this suit, to wit, on the first day of January, in the year 1820, at “ the City and County of New-York aforesaid, assented to and then “ and there ratified, renewed and confirmed the said judgment and de“mand of him, the said plaintiff, in the said declaration mention- “ ed,” &c.
    To this replication the defendant demurred generally, and the plaintiff join ed in th e demurrer.

      Hugh Maxwell, Esq., for the defendant, and in support of the dumurrer contended,
    I. That the replication was a departure from the count. The foundation of the declaration is a matter of record, and the plaintiff cannot, by parol proof, substitute in its place a collateral matter by his replication ; for thereby, a judgment in assumpsit would be rendered in an action of debt, [4 T. R. 504. 1 Salk. 221. Co. Lit. 304. a. 6 Mass. R. 57. 1 Chit. Plead. 618. 2 Saund. R. 84. a. n. 1.]
    II. The judgment was the act of the law, and having been discharged by the law, it cannot be renewed by parol. The issue is not offered on the promise to pay, but on the question as to whether the defendant has or has not done an act, whereby he has renewed, ratified and confirméd the judgment. Now, this is an act of a court, not of a party, for a judgment can only be renewed by law.
    This release obtained by the operation of law, is much stronger than a release by the mere act of a party, and yet it is well settled, that a debt once released by the act of the creditor cannot be revived by a subsequent promise. There is nothing left for the new promise to act upon; the original liability being extinguished by the act of the party is notin existence, so as to be the subject of a promise except upon a new consideration, and it could not therefore be renewed. Every thing, which is done in relation to it, must be a new creation; there must be a fresh consideration as well as a new promise, or the contract would have no legal existence. So here, the original liability being extinguished by the discharge, was entirely gone and there was nothing for the new promise to attach itself to, without a new consideration ; for the promise without the consideration would be a nullity. By the plea, it appears, that the defendant was discharged from all debts; the replication admits the plea to be true, and therefore, admits that the judgment was discharged by law. There is nothing left therefore to be the subject of renewal and confirmation. The judgment was the record evidence of the existence of a debt, but as the debt was discharged, the judgment was legally satified, and there was no foundation for a renewal and ratification of the judgment by means of the defendant’s assent. There is some absurdity in saying, that a judgment was “ assented to and ratified” :—for a judgment, being the decree of a court, needs no assent from the debtor to give it validity, and cannot be set up or pulled down by his volition. We show a legal extinguishment of the debt and a satisfaction of the judgment, which was the evidence of it, and the replication does not show any thing to create a legal liability on the part of the defendant. He could not renew a judgment himself, except by permitting a new one to be entered up against him, and the replication therefore is bad upon its face. [3 Cranch’s R. 300. Com. Dig. Plead. 2. W. 12. 1 Gallison’s R. 32. 4 Burr. R. 2482.]
    III. We do not deny that a debt, barred by the statute of limitations, or by other means put beyond the creditor’s power, may be renewed by a new promise, because equity in stich cases, upholds the new promise by means of the original consideration. But a judgment discharged in law is discharged in equity, and a promise to renew is therefore nudum pactum.

      Mr. James Tallmadge, for the plaintiff, contra, insisted,
    I. That the replication to the second plea was 'sufficient. It alleges, that the defendant after his discharge, “ ratified, renewed and confirmed the judgment.” By the discharge, the judgment was not extinguished; it remained as a lien upon all the property of the defendant, which was at the time of' the docketing of the judgment, the subject of a lien. If it could be shown, that the de fendant was the owner of real estate at that time, the judgment would still attach itself to such real estate, notwithstanding the discharge. It is a mistake, therefore, to suppose the judgment to be gone in consequence of the discharge; it still binds all property upon which it was a lien.
    The defendant owed the plaintiff a debt, which he had promised to pay. Before the fulfilment of this promise, the defendant obtained his discharge under the insolvent act. This discharge he may interpose between his original liability and promise, and any act of his creditor, which seeks to compel a performance of the promise. The moral obligation to pay the debt remains, and the defence afforded by the discharge may at any time be waived by the party for whose benefit it was obtained. If he make a promise to pay the debt, which thus morally remains, after obtaining the discharge, he throws away his defence and stands as he did before the discharge was granted. No new consideration is necessary to uphold the new promise; for the original consideration attaches itself to the new promise, and becomes a part of the new liability.

      In such cases, it is proper in pleading to declare upon the original promise. The defendant then sets up his discharge. The defendant cannot deny that; but he states new matter, which shows not an entirely new contract, but that the defendant has voluntarily abandoned that, which, but for the new promise, would be a sufficient defence. This is no departure: for it does not set up an entire new contract. On the contrary, it shows a circumstance perfectly consistent with the original agreement set out in the declaration, and points out how that agreement is to be, under a change of circumstances, upheld and supported.
    There are adjudged cases, which support these principles fully; and there is no difference between this case and those already decided, except that, which arises from the fact, that we declare upon a judgment. What is a judgment 1 Is it not the record evidence of the existence of a debt % And in declaring, must we not count upon that evidence 1 By the very act of obtaining the judgment, all evidences of debt became merged in the judgment; and we, of course, were compelled to resort to that, which was left to us. The words used in the plea show that the defendant waived his discharge, and if insufficient in point of form, they are good in substance, and cannot, therefore, be reached by a general demurrer. For these reasons, we deem the replication sufficient. [8 Mass. R. 127. Shippey v. Henderson. 14 John. R. 178. 1 Chit. Plead. 40.]
    II. But if the replication should be considered as bad, the defendant cannot escape upon these pleadings; for it will be found, upon examination, that he is the first offender. His plea is bad; and the plaintiff will, therefore, be entitled to judgment, let the fate of the replication be what it may. The plea is no answer to the declaration; for it no where alleges, that thé plaintiff’s judgment was barred, or even affected by the discharge. Neither does it admit the recovery of the judgment declared on, which it should do, if it intends to avoid it, by matter ex post facto.

    The plea is also bad, because it neither names the court, in which the judgment was obtained, nor the person upon whose suit it was rendered. If does not name the court from which the execution issued, nor does it set out that execution by a test or . . return. For these reasons, the plea is fatally defective.
    There is also another difficulty in the way. The plea of an insolvent’s discharge cannot be joined with a plea of nul tiel record. But waiving this consideration, there is nothing in the plea, which shows jurisdiction in the officer, who granted the discharge. The jurisdiction cannot be inferred by the court, but must he set out with precision by the plea. The act gives authority to certain officers to entertain petitions, and grant discharges to insolvents in certain cases. The plea must show distinctly all that the act requires. To give jurisdiction to the magistrate, there must be, I. imprisonment; II. the application of a creditor, together with his affidavit. And it must distinctly appear, that the petitioner has been imprisoned sixty days and upwards, on execution, in-a civil action. Now it does not appear from this plea, that the defendant was imprisoned on an execution: he might have been arrested and detained on mesne process, for any thing contained in this plea; and the court cannot infer, that the imprisonment was on execution.
    It is true, the affidavit of the creditor states that fact, but the plea cannot be aided by the affidavit. The averment in the affidavit presents no issue; it cannot be traversed, and the plea is fatally defective in this important particular. [The learned counsel cited in the course of his argument, and to various points illustrative of his views, (and which could not well be taken down,) the following cases, viz: 7 J. R. 75. Frary v. Dakin. 10 Ib. 161. Morgan v. Dyer. 11 Ib. 224. Jenks v. Stebbins. 2 Salk. 517. 7 Cowen’s R. 442. 1 Saund. 298. n. 1. 20 John. R. 159, 161. Andrus v. Waring. 1 Chit. Plead. 217, 236-7, 240.]

      Maxwell in reply, observed, that the defendant would be deprived of an important right, if the plaintiff could pursue the course adopted. If the plaintiff relied upon the new promise, lie should have declared upon if, and then the defendant would have had the statute of limitations as his defence, if he should think lit. to avail himself of it. By declaring upon the judgment, this privilege is taken from him, and he is deprived of a fair legal right
   Oakley J.

The first question arising on the demurrer in this case is, as to the sufficiency of the defendant’s second plea. The action is debt on judgment; and the plea sets up a discharge under the 9th section of the general insolvent act. [1 R. L. 464.]

In the case of Delavan v. Stanton, decided at the present term, it was held, that a plea of a discharge under this act, must aver every fact, necessary to give jurisdiction to the officer granting it; and that the want of such averment could not be supplied by the recitals contained in the discharge itself, though that be set forth at length in the plea. By the act in question, it is provided, that any creditor of any person, who shall have been imprisoned for . sixty days, upon execution in any civil action, may apply for relief, &c. The fact of the imprisonment of the debtor, on execution, is essential, to authorize the officer to take cognizance of the case; and such fact must, therefore, be averred. In the present plea, the averment is, that the debtor had been imprisoned, for sixty days and upwards, on a civil action. For any thing here alleged, the imprisonment may have been on mesne process, and in that case the law did not authorize the creditor to make the application, on which the discharge was granted. Without noting the other objections to the plea, this is fatal to it.

The question, however, most important to the parties arises on the replication to this plea. To defeat the operation of the discharge, the plaintiff says, that after it was obtained, the defendant “ assented to, ratified, renewed, and confirmed the said “judgment and demand of the plaintiff.”

In Shippey v. Henderson, (14 J. R. 178,) the action was assumpsit for goods sold, &c. And to a plea of the defendant’s discharge, there was a replication, in the same words with the present. The Supreme Court held, that the action was properly brought on the original promise; that the new promise was sufficiently laid : and that the replication was no departure from the declaration. The court say, that the discharge does not make the original contract void, but suspends every remedy upon it; and that the new promise merely removes the bar interposed by the pica.

This case would seem to be decisive, unless there is some distinction, growing out of the fact, that the present action is founded on a judgment. I cannot perceive any good reason for making any distinction. The judgment is not affected by the discharge, any further, than to release the defendant from any personal liability on it, and to prevent its attaching as a lién, on subsequently acquired lands. It remains operative as to any existing lien, and may be enforced against any property of the defendant, bound by it, at the time of the discharge. The discharge, therefore, only bars, or suspends any personal remedy on the judgment against the defendant; and I see no reason why a promise to pay the judgment, after the discharge, (and the replication substantially avers such a promise,) may not be relied on, as removing that bar, upon the authority of Shippey v. Henderson. The judgment, as evidence of a personal contract between ,the parties, is certainly as capable of being set up and renewed by a new promise as any ordinary assumpsit.

This view of the case accords with the doctrine of the Supreme Court of Massachusetts, (8 Mass. R. 127,) where the very question now before us has been decided,- and upon a state of pleadings substantially like the present.

Judgment for the plaintiff.

[Wm. H. Bulkley, Atty. for the plff. Wm. P. Hawes, Atty. for the deft.]

       Ante p. 190.


text:
    The Morris Canal and Banking Company versus Seixas Nathan.
    The defendant signed a subscription for a certain number of shares in the stock of the Morris Canal and Banking Company; which subscription was upon condition, that 3000 shares of the stock, then held by the Company itself, should be subscribed for within 90 days from its date ; and this fact was to be certified by at least two of the Directors, and by the Cashier of said Company. The President, Cashier and two of the Directors signed the requisite certificate, and the defendant paid the first instalment on his stock. Refusing to pay the subsequent instalments, an action was brought against him upon his subscription; and at the trial he offered to show that the 3000 shares of stock, mentioned in the agreement, had never been subscribed, as stated in the certificate, and that the persons, who signed it, did sofraudulcntly,knowing it to be untrue.
    This evidence was rejected by the presiding judge, aud the court granted a new trial, upon the ground that the testimony thus offered was admissible, the certificate itself, if false and fraudulent, being a mere nullity.
    Assumpsit to recover of the defendant an amount due from him, upon a certain subscription for stock in the Morris Canal and Banking Company.
    The declaration contained two counts, upon an agreement in writing, of the following tenor, viz :
    “ The undersigned, with a view to fill up in part the shares of “s,tock in the-Morris Canal and Banking Company, which has not “ been effectually subscribed for, and thereby enable the directors “ to proceed in the completion of the canal, do hereby mutually “ agree, and severally bind ourselves to the Morris Canal and “ Banking Company, that we will severally take and complete “ the payments on, and we do hereby accordingly severally sub- “ scribe the number of shares towards the capital stock of the said “ Company, affixed to our respective names, in addition to the “ shares of the said stock, which any of us may now hold, subject “ nevertheless to the following conditions, to wit:

      “ First. At least 3000 shares of the stock now held by the com- “ pany, shall be bom fide subscribed, within 90 days from this date which fact shall be certified by at least two of the directors and cashier of the said company.

      “ Second. Payments of our several subscriptions hereto shall not be required at shorter periods than the following, that is to “say: ten per cent, in three days after the said 3000 shares shall “ have been subscribed and certified; ten per cent at the expiration of each successive quarter during the year 1837; fifteen “ per cent, on the first day of April, 1838; the like sum on the first “day of July, 1838; and the remaining twenty per cent, on the “ first day of October, 1838.
    “ Third. Any subscriber anticipating any of the said payments, “ shall be entitled to a discount on such anticipations, at the rate “ of six per centum per annum. September 31, 1836. Shares “ $100 each.”
    The cause was tried before the Chief Justice. At the trial, the plaintiffs produced an exemplified copy of their charter, by which it appeared, that they were duly incorporated by the Legislature of the state of New Jersey on the 31st of December, 1834. They also produced the written agreement on which their action was brought, and proved, that it was signed by the defendant, among others, and that he was a subscriber for thirty shares of the stock of the company. The plaintiffs then produced and read in evidence, (after duly proving the same,) a certificate in the following words, viz.:
    “ We certify that 3000 shares of the stock of the Morris Canal “ and Banking Company, which was held by the said company “ on the 31st day of September last, have since that time been “ bona fide subscribed. That pursuant to the terms of the new “ subscription, ten per cent, on the said shares became due in three “ days. The subscribers are required to make payment thereof “ to the cashier, at the office of the Canal Company, at No. 30 Wall-street, on or before Saturday next, the 18th instant. Dated “ the 14th day of November, 1836.”
    (Signed) Cadwalader D. Golden, President
    Robert Gilchrist, Cashier.
    Henry M‘Farlane, ) Directors. Lambert Suydam,
    It was then shown, that the defendant, having paid the first instalment under the said agreement, had received a certificate thereon, but had refused to pay any of the subsequent instalments, and that the company had continued to labor towards the completion of the canal at all times after the agreement was executed.
    The plaintiffs having resled their cause upon this evidence, the defendant moved for a non-suit: first,.because no sufficient evidence had been produced to show that the 3000 shares of stock, mentioned in the agreement, had been subscribed for, or that the plaintiffs had agreed to carry on the works of the canal. Secondly, because the agreement was not authorized by the charter.
    [The second section of theact, incorporating the plaintiffs, provided that the commissioners for receiving subscriptions to their stock, should open books for that purpose in the State of New Jersey, at such places as they migh t“ designate by public advertisements, to “ be previously inserted for at least three weeks in a public news- “ paper, printed in Morristown, Newark, and the city of New-York, “ respectively; and should continue the same open, until the said “ capital stock shall be subscribed for, or at their discretion close “ the same, after they should have remained open two days, and “ again open the same at some other time or times, place or places, “ giving public notice thereof, as aforesaid: and that the sum of ten “per ct. upon each share so subscribed for, should be‘paid by each “ subscriber at the time of the subscription,” to be paid over to the directors, who were authorized “ to call upon the said subscribers “ for the payment of further instalments, in such sum or sums, at “ such time or times, and under such forfeiture or forfeitures,- as they might deem expedient, until the whole amount of the said “ shares so subscribed, should have been fully paid.” By the seventh section of the act it was further provided, that if at any time thereafter, the President and Directors should deem it expedient td increase their capital stock, for the canal, it should be lawful for them to do so, and to obtain subscriptions for the same ; and all stockholders of such additional shares, and their assigns, were thenceforward incorporated into the Company, provided that a preference of subscription was given to actual stockholders, in proportion to the shares they respectively held.]
    Thirdly. The only consequence of the non-payment of the instalments by the defendant, was the forfeiture of the shares of stock subscribed for by. him, but he was not personally liable for the payment of such instalments.
    The motion for a non-suit was over ruled by the Chief Justice; and an exception having been taken to his opinion, the defendant then offered to .show, I. that the 3000 shares of stock, mentioned in the agreement, had never been subscribed for at all; II. that the said shares had never been subscribed for as stated in said certificate, and that the persons, who subscribed the certificate, did so, knowing it to be untrue.
    The presiding Judge rejected this evidence, as inadmissible, and charged the jury, that they ought, under the facts of the case, to find a verdict for the plaintiffs. The jury accordingly returned a verdict for $927.20 in their favor.
    The counsel for the defendant having excepted to the decision of the Judge upon the points of evidence, and also to his charge, now moved for a new trial, and Mr. R. Sedgwick, in support of the motion, contended,
    I. That the plaintiffs ought to have proved the consideration of the contract, declared on, as laid in the declaration that; being part of the contract. No consideration whatever was proved, except such as might be inferred from the contract itself, and this objection, although applicable to form, is fatal to the right of recovery in the present action.
    II. The fair construction of the contract proved, is, that the subscribers were to become stockholders by the agreement itself, and by the payment of their subscriptions, and not by means of any shares of stock then in being, and if so, then the , , ,, . , was contrary to the charter.
    The charter points out the mode of subscribing,-—and this, being an original subscription, not according to the directions of the statute, is void. . The defendant was to subscribe for stock, not purchase it, and the price was fixed by law. The sum specified in the agreement is identically the same with that mentioned in the charter, and this coincidence proves, that this was a subscription and not a purchase.
    III. The declaration is founded upon an original subscription, and it must be supported by proof. The subscription was not for an increase of stock, but for the original stock, and the plaintiffs must provetheir case as laid in th ir declaration.
    IV. If the stock in question was previously in existence, then the contract was void, for the Company had no authority to sell stock. They have no powers except such as are granted by their charter, and the incidental powers, which naturally flow from those, which are delegated. They were not authorized to act as brokers of their own stock, either in buying or selling, and their power to make this agreement, cannot be shown from the charter.
    V. The evidence offered to show, that the 3000 shares were never subscribed for, according to the conditions of the agreement, ought to have been admitted; so ought that, which was offered to impeach the fairness of the certificate, signed by the President and two of the Directors. If that was fraudulent, then there was no evidence to show, that the condition precedent had been complied with. The subscription itself was a conditional one, and the defendant was not bound, unless the plaintiffs could show, that the 3000 shares of stock held by the Company, had been subscribed for in good faith, within 90 days from the date of the agreement The fact of such subscription was to be proved by the certificate, and if that was false and fraudulent, then there was no proof whatever, to show, that the 3000 shares had been taken up. For this reason, if for no other, there should be a new trial.

      Mr. D. B. Ogden and Mr. Slosson, contra, for the plaintiffs.
    I. At the time the agreement under consideration was made, the Morris Canal Company was in existence, and its operations were begun. They had commenced a canal, and there was an implied obligation to complete it. The very preamble to the agreement shows, the reasons for the new subscription, and the propriety of it. The stock of the Company had all been taken up originally, but a part of it was not effectually subscribed for; and to enable the company to complete what they had in good faith begun, the new subscription was opened. Its sole object was, to take up the shares “ not effectually subscribed for” by an additional subscription. The Company had accidentally become possessed of some of the shares of their own stock; they were personal property, and might be disposed of for the benefit of all the stockholders. The defendant knowing all the facts of the case, subscribed for a certain number of these shares, and is bound to comply with his contract. He cannot question the correctness of a proceeding to which he was a party, unless he can impute fraud to the plaintiffs. There was a good consideration for his promise, arising out of his rights as a subscriber and stockholder, and he cannot now dispute the validity pf his own contract.
    II. The defendant cannot he permitted to say that the three thousand shares were not subscribed for, because he has himself paid the first instalment on his own subscription. Rut if he could, the plaintiffs have still complied with the condition imposed upon them. The three thousand shares were to be subscribed for, it is true, but what was the proof to be, which was to show that fact ? The certificate was the proof, and it was to be conclusive. The parties to the contract.agreed that they would abide by that proof, and they are concluded by it. [Dorr v. The Pacif. Ins. Co. 7 Wheat. R. 581. 20 John. R. 334.]

      Mr. Ogden Hoffman, in reply.
    I. By their charter, the Company could not accept any'subscriptions, except according to its provisions. If this is to be considered as a new subscription, it is void, because the requisitions of the charter have not been complied with. An ineffectual subscription is no subscription, at all, and that cannot be considered as an effectual subscription which is contrary to the charter. The declaration counts upon a new subscription. No other can be proved under it; and if a new subscription be proved, it can have no binding force upon the defendant, because it is not authorized by the charter.
    II. This agreement was a conditional one, and the plaintiffs, before they can recover, must first show, that the stipulated number of shares has actually been taken up by subscription. In the second place, they must produce the certificate. The defendant is not bound to pay his money upon the production of the certificate alone, but the plaintiffs must show that the three thousand shares have been taken up. There are two conditions precedent to his liability, and both must be complied with. The plaintiffs to show that the stock was subscribed for, produce a certificate which the defendant says is false and fraudulent. He offered to prove it, and his testimony was rejected. This was tantamount to a decision, that the defendant was liable upon the production of the certificate, even if it were forged. A fraudulent certificate has no more validity than a forged one; it proves nothing, and the defendant had a right to impeach it. It does not follow, because the defendant has, under a misapprehension, paid ten per cent, that therefore he is bound to pay ninety per cent, more, upon a void contract. The plaintiffs must prove that the three thousand shares were taken up by an effectual subscription; and they must show this by proof, somewhat better than that furnished by a false and fraudulent certificate.
    The Chief Justice, in delivering the opinion of the Court, observed, that the regularity of the proceedings on the part of the Directors, could not be questioned by the’defendant, nor could he now assert that the requisite number of shares was not subscribed for before he was called upon for the payment of his subscription. By his own act of subscribing, he admitted the correctness and regularity of all the proceedings in relation to the subscription ; and he could not dispute the authority, on the part of the Company, to make the contract, having himself entered into an agreement with them, whereby their powers were admitted. [All Saints’ Church v. Lovett, 1 Hall’s R. p. 191.]
    By the terms of the agreement, the three thousand shares of stock held by the Company, were to be taken up by subscription within ninety days from its date; which fact was to be certified in a particular manner. The plaintiffs produced a certificate, signed in the manner required, and it -was, prima facie, sufficient evidence of the fact. But the defendant offered to show that the three thousand shares had never been subscribed for at all. This evidence was clearly inadmissible, because he had already admitted the fact by his own acts, in subscribing and paying his first instalment.
    He then offered to prove a fraud on the part of the Directors in this; that they knew, at the time the certificate was granted, that it asserted a fact which did not exist. On the trial, I did not understand the offer as it is now presented, and it may be expedient to grant a new trial, in order to let in the proof of fraud, if any such can be produced. If, in point of fact, the three thousand shares were never subscribed for; if the certificate was false and fraudulent, and the defendant was ignorant of these fact's, he would be absolved from his contract; and for this reason, a new trial should be granted.
   Oakley J.

The plaintiffs are an incorporated Company in the State of New-Jersey. On the 21st of September, 1826, the defendant signed a subscription for stock in the said Company, which subscription was upon condition, as expressed on its face, that three thousand shares of the stock, then held by the Company,' should be bona fide subscribed for, within ninety days from its date; which fact should be certified, by at least two Directors, and the Cashier of the Company.

On the 14th clay of November, 1826, the President and Cashier, with two Directors of the Company, signed a certificate, setting forth, that three thousand shares of stock, held by the Company, at the date of the subscription, had been bona fide subscribed for. The defendant paid the first instalment on the stock, which, according to the terms of the subscription, fell due in three days after the giving of the certificate, but refusing to pay the instalments, subsequently falling due, this action was brought.

On the trial, the defendant offered to prove that the three thousand shares of stock, mentioned in the subscription had never been subscribed for, as stated in the certificate, and that the persons who subscribed the said certificate, did so, knowing it to be untrue. This evidence was rejected by the Judge, and the jury, under his direction, found a verdict for the plaintiffs.

It is contended by the defendant, that the certificate in question, is not conclusive evidence of the fact of the bona fide subscription of the three thousand shares of stock, according to the true construction of the agreement signed by him. It appears to me, that the position assumed by him is the true one. The provision, that the fact of the subscription of three thousand shares should be certified by two Directors of the Company, was, I apprehend, inserted in the agreement for the benefit of the subscribers, that they might have some definite information of the fulfilment of the condition, on which they were to become liable. The subscribers might refuse to pay until the certificate was given; but I think it would be a violent construction of the instrument, to hold that they were bound to pay, in that event, though the certificate might be shown to be false.

If, however, this general position should be doubted, and the certificate is to be considered as conclusive evidence of the fact stated in it, yet I think it cannot be questioned, that the defendant should have been suffered to show that it was falsely and fraudulently made. A fraudulent certificate was a mere nullity. If the defendant is to be considered as stipulating that the act of the plaintiffs, or their agents, should be conclusive on him, he had certainly a right to require that it should be done in good faith. The plaintiffs cannot be permitted to acquire any rights by their own fraudulent conduct.

it was contended on the argument, that the defendant, having paid the first instalment due, and accepted his certificate of stock from the Company, is now too late to object, that the condition of his subscription was not performed. I do not think so. If he made the first payment, relying that the entire subscription had been completed, according to the terms of the agreement, I see no good reason why he may not now inquire into the truth of that fact; and especially why he may not aver and prove, if he has the power to do so, that the plaintiffs had been guilty of a fraud.

New trial granted.

[J. A. Johnson, Atty. for the plffs. D. D. Field, Atty. for the deft.]


author: Per Curiam.

text:
    Gabriel L. Lewis and Horatio G. Lewis versus Walter Stevenson.
    A case made can never be turned into a special verdict, or bill of exceptions, unless the right to do so, .is reserved at the trial.
    Where a verdict has been taken, subject to the opinion of the court upon a case, with the assent of both parties, and the court, in deciding on the case, give a judgment founded on facts, rather than questions of law, a new trial will not be granted upon the ground, that one of the parties supposed that the case would be decided upon questions of law, and did not, therefore, make his proof as strong before the jury as he might have done.
    At the trial of this cause, [ante p. 63.] a verdict was taken .for the plaintiffs, subject to the opinion of the court, upon a case to be made, and no right was reserved by either party to turn the case into a bill of exceptions, or a special verdict.

      The judgment of the court, (which was in favor of the plaintiffs,) was founded principally upon the fact, that the defendant had not, in receiving the goods of the mortgagor on pledge, acted with a sufficient degree of caution, and had not made due inquiry as to the right of the party in possession, to pledge property which had been previously conveyed to the plaintiffs.

      Mr. Barnes and Mr. Anthon, for the defendant,
    now moved for a new trial, upon the ground of surprise, and if that motion should be denied, then for leave to turn the case into a special verdict, or bill of exceptions. They read an affidavit of the defendant, setting forth, that at the trial neither himself, nor his counsel, supposed that any question of fact, as to his vigilance, in receiving the property, would be raised, and that he could have produced testimony upon that point, which would have satisfied the jury, if he had supposed that such a question was to arise in any stage of the cause. That after the evidence had been closed, it was assumed by the Judge, who tried the cause, and by the counsel for both parties, that the result would depend entirely on questions of law; and that, therefore, the defendant’s counsel were willing that a verdict should be taken for the plaintiffs, subject to the opinion of the court, upon a case to be made, not supposing that the judgment of the court, would rest upon a question of fact. The affidavit then stated, that the defendant was taken entirely by surprise, and that, upon a new trial, he could make the question of caution, clear in his favor.

      Mr. W. H. Harrison and Mr. O. Hoffman, contra, for the plaintiffs,
    read an affidavit of Mr. Harrison, stating that at the trial, after the evidence had been closed, the Chief Justice asked the counsel for both parties, if there was any question of fact to be submitted to the jury: that the defendants counsel replied, that they did not know that there was, and that they were willing that a verdict should be taken for the plaintiffs, subject to the opinion of the court upon a case. That some conversation was held between the counsel of both parties, as to the question of fraud, and that the Chief Justice then informed them, that if a verdict were taken, subject to the opinion of the court upon a case, that the court would then be judges of the facts, as well as the law. The affidavit further stated, that the deponent was aware, that if either party should be desirous of removing the cause to a higher tribunal, by writ of error, it was necessary to reserve that right at the trial. That the plaintiffs’ counsel being willing to abide by the judgment of this court, did not reserve any such right to themselves, and supposed that the judgment here would be final.
    Upon these affidavits, the counsel for the defendant contended, I. that they had been taken by surprisethat they did not suppose, that the. judgment of the court could turn upon any collateral question of fact, but would be founded, exclusively, upon the questions of law presented by the case. For this reason they asked for a new trial.
    II. If the court should deem the first point untenable, then they asked for leave to turn the case into a bill of exceptions, or special verdict. They contended, that this was a matter within the discretion of the court, and that this privilege, under the circumstances of the case, ought not to be denied to the defendant. He was willing to abide by the decisionof this court, so long as he supposed that it would depend on questions of law, but as it had turned upon a question of fact, he claimed the right of carrying his whole cause to a higher tribunal. If there, was neglect, or fault in not reserving the right at the trial, it was the neglect of counsel and not of the party ; and that the court ought not to visit upon the party the consequences of such a neglect.
    The counsel for the plaintiffs replied to both points, and contended, as to the last, that the court had no discretion in the matter; that they could not now allow the case to be converted into a bill of exceptions or special verdict, without destroying the practice upon which the plaintiffs had relied. That the plaintiffs being aware of the consequence of takinga verdict, subject to the Opinion of the court had concluded themselves at the trial. If the judgment had been adverse to them, they would have been without the means of redress. They submitted the whole question of law and fact to the court, and had now a right to claim all the benefit of a final judgment in their favor. As to evidence, if the defendant had produced more evidence upon the question of negligence, the plaintiffs would have done the same, and the court could not say upon which side the preponderance would be. The)' insisted, therefore, that the motions ought to be denied.
   Per Curiam.

As to the first point, the defendant has no cause of complaint. He might have submitted all questions of fact to the jury, at the trial, if he had been disposed to do so, and there was no attempt to influence him to the contrary. By putting the whole question to the court, he took no higher risk than the plaintiffs did, and can have no greater rights. If the opinion of the court had been adverse to the plaintiffs, upon the question of fraud, whether in fact or inlaw, or upon any of the other questions presented by the case, their judgment would have been final. The plaintiffs could not have moved again in the matter, but would have been concluded by their own acts. The defendant’s rights in these particulars are the same with the plaintiffs, and he has concluded himself, by voluntarily putting all questions of fact, as well as law, to the court. There can be no new trial upon this ground, without manifest injustice to the plaintiffs, and the defendant cannot be permitted now to receive a favor, which the plaintiffs could not have claimed if the judgment had been for the defendant.

Secondly. A case can never be turned into a bill of exceptions, or special verdict, unless the right to do so, is reserved at the trial. In practice, we do not require the party to take formal exceptions at the trial; it will be sufficient if he make his objections informally. But if he wishes to bring a writ of error, it must appear upon the face of the case, that he has reserved the right to do so, either in the shape of a special verdict; or a bill of exceptions. The case of Woolsey v. Camp, (3 Cow. R. 358,) shows such to be the practice of the Supreme Court, and it is expedient that the same course should be adopted here.

Motion denied on both points.

[W. H. Harrison, Att’y for the plffs. E. Barnes, Att'y for the def’t.]