text:
    JOHN DOUPE, Plaintiff and Respondent, v. SIDNEY C. GENIN, Defendant and Appellant.
    A covenant of quiet enjoyment may be implied in a lease for years. Held, that such covenant is not broken except there is an eviction; that a landlord is not bound to repair when there is no covenant to repair; and that in the absence of any covenant on the part of the landlord, he is not liable for injury to the tenant’s property or business caused by omitting to repair the roof, which had been partly destroyed by fire, or by not repairing it within a reasonable time.
    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    The defendant was the owner of the building No. 101 Sixth avenue, in this city. He rented the store and basement to the plaintiff for a term of five years and ten months, and the upper part of the building to one Trenor, for a dancing-hall. A fire occurred in an adjoining building, which communicated with the upper part of the defendant’s building, consuming the roof and most of the building above the first story.
    The complaint alleged that the defendant convenanted, by and in the giving of the lease, that the plaintiff should have quiet, peaceable, and full use of the store and basement during the term; and that the part of the building above the store would be kept in such repair and order that the plaintiff could safely, and without damage, use and occupy the store and basement for his business, and could safely keep upholstery and furniture and similar property therein.
    The lease to the plaintiff, which was set out in the defendant’s answer, contained no such covenants as were alleged in the complaint. It did, however, contain a covenant, on the part of plaintiff, to keep the demised premises, during the term, in good and substantial repair, and to give and surrender the premises, at the expiration of the term, in as good and substantial repair and condition as reasonable use and wear thereof would permit, damages by accidental fire excepted. And there was a mutual covenant, that in case the premises were so damaged by accidental fire as to make them untenantable for more than thirty days, the rent should cease, at the option of the plaintiff, until the premises should be repaired.
    The complaint further alleged that the roof of the'building was nearly destroyed, so that the store of the plaintiff had no cover or protection against rain and storm, and that the property of the plaintiff therein was injured by rain and snow; that the plaintiff demanded of the defendant that the roof should be immediately repaired, and his property protected from damage by the elements, and that he promised to do so; that several days of clear weather occurred next after the fire, during which the defendant could have temporarily repaired the roof, so as fully to have protected the plaintiff’s property, but that the defendant neglected so to do, and the plaintiff’s property was exposed for two and a half months to rain and snow falling upon the building and coming through the ceiling of the plaintiff’s store, injuring his property, and rendering the store and basement unfit for use.
    The answer alleged that the building was damaged to such an extent by the' fire as to render it wholly untenantable for sixty days thereafter.
    The action was tried before Hr. Justice Barbour and a jury.
    On the trial it was, proved that the defendant commenced repairing the roof-some eighteen days after the fire; that no temporary roof or covering was put up to protect the plaintiff’s store and property; that such temporary roof or covering might have been put up, which would have protected the plaintiff’s property. The repairs were not completed until two and a half months after the fire, during which time the plaintiff’s property in the store was injured by rain and snow, and he was otherwise injured, in being deprived of the use and enjoyment of the premises.
    A motion to dismiss the complaint, on the ground that no cause of action had been shown against the defendant, was denied, and the defendant excepted.

      There was evidence given, on the part of the defendant, tending to show that the whole roof was burnt, except a small portion in front; the upper stories, in front, were substantially destroyed, and nothing was left but the walls and the stores on the first floor and the basements; that the defendant was diligent in making the repairs, and the delays, if any, were owing to the severity of the weather.
    At the close of the evidence, the defendant again moved to dismiss the complaint, on the ground that, there being no covenant in the lease to repair, the landlord was not bound to repair, and was not liable for damages. The motion was again refused, and the defendant excepted.
    The court charged the jury, “ that it was the duty of the defendant, immediately after the occurrence of the fire, so soon, at least, as a prudent and careful man would do it, if the whole thing belonged to him—the property in the store and all—just as soon as a prudent and careful man would, to go and reconstruct the building, that is, put on the roof, and save the things from the storm; and after commencing the work, he should have carried it forward with reasonable and proper and customary vigilance until it was completed. If he failed to do that, and the water penetrated the store of the plaintiff, because of any improper delay in putting on the roof, on the part of the defendant, he is liable for damages so caused.”
    The defendant excepted to the charge.
    The jury rendered a verdict for the plaintiff, assessing the damages at fifteen hundred dollars.
    The defendant appealed.

      Mr. J. E. Parsons for appellant.
    It was clearly erroneous for the judge to permit a recovery for the plaintiff’s supposed loss of profits (Hamilton v. McPherson, 28 N.Y., 72).
    The only covenant for repairs in the lease was on the part of the tenant.; and, in the absence of such a covenant, on the part of the landlord, there was no obligation on him to make repairs (Howard v. Doolittle, 3 Duer, 464; Sherwood v. Seaman, 2 Bosw., 127; Mumford v. Brown, 6 Cow., 475; Carter v. Rockett, 8 Paige, 437).
    The cases upon this point establish, clearly that, unless otherwise agreed, the tenant must continue to pay rent, and cannot call upon the landlord to repair or rebuild,. even though the premises by fire have become untenantable (Hallet v. Wylie, 3 Johns., 44; Willard v. Tillman, 19 Wend., 358; Pomfret v. Ricroft, 7 East. R., 116; Pindar v. Rutter, 1 Term R., 312; Leeds v. Cheatham, 1 Simon R., 146; Belform v. Wesden, 1 Term R., 314).
    A subsequent promise to repair is void, as without consideration (Speckels v. Sax, 1 E. D. Smith, 253). Nor did the exception from the plaintiff’s covenant to repair, of damages by accidental fire, imply a covenant, on the part of a landlord, to repair such damage (Weigal v. Waters, 6 Term R., 488).
    If the plaintiff’s premises were capable of being kept tight, it was upon him that the law imposed the duty of protecting them, even had he not covenanted to repair (Anworth v. Johnson, 5 Car. & Pa., 239 ; Leach v. Thomas, 7 Car. & Pa., 327).
    The relation between the plaintiff, and the defendant as the owner of the rest of the building, did not impose any liability upon the latter (Cheetham v. Hampson, 4 Term, 318; Mayor of New York v. Corlies, 2 Sandf., 301).

      Mr. James Emott for respondent.
    A covenant for quiet enjoyment is implied in a lease for years (Mayor of New York v. Mabie, 3 Kern., 151).
    This involves lateral support, and covering, and whatever is necessary for the beneficial use of the premises (Graves v. Berden, 26 N.Y., 501; Humphry v. Brogden, 12 A. & E., N. S., 739; Rowbotham v. Wilson, 36 Eng. L. & E., 236).
    It was a breach of this covenant to remove the roof to put on a new and different one, or to repair the roof in such a way and with such delay that the plaintiff was injured (Dexter v. Manley, 4 Cush., 15, 24; Johnson v. Dixon, 1 Daly, 178).
    The defendant was bound to use reasonable diligence in repairing the building, and restoring the roof.
    The defendant was bound, while reconstructing his building, or the upper part of it, to protect the plaintiff by a temporary covering, if he could do so without interfering with his own work.
    If the fire had consumed any part of the premises of the plaintiff, he only would have the election to abandon them or terminate the relation of landlord and tenant (Graves v. Berdan, 26 N.Y., 498 ; Laws of 1860, p. 592).
    The defendant is estopped from denying the relation of landlord and tenant, or his obligation by every covenant expressed or implied in this lease, and every duty arising from the relation, by demanding and accepting rent. He demanded and received rent immediately after this fire, for the ensuing months of March, April, and May.
    The defendant was also liable to the plaintiff on the principle sio utere tuo ut alienum non Tcedas. He had no right, negligently by want of care and diligence in repairing, or wilfully by changing the roof and structure, to so use the roof of the building as to injure the plaintiff. It was he, and not the occupant of the upper story, who did this. He was in exclusive control and possession, and his acts and defaults produced the result.
   By the Court:

Monell, J.

The lease to the plaintiff contained a covenant on his part to keep the premises in repair during the term. There was no covenant to repair on the part of the landlord, nor any other covenant on his part, except the covenant relating to the abatement of rent during the time the premises might be made untenantable by fire.

A covenant of quiet and peaceable enjoyment may, however, be implied (Mayor of New York v. Mabie, 13 N. Y. R., 151), but a mere interruption of the use and enjoyment of the premises, consequential upon repairs being made of other parts of the building, without an actual entry upon the demised premises) and an eviction, actual or constructive, of the tenant therefrom, would not be a breach of such covenant. In Gardner v. Keteltas (3 Hill, 330), which was an action for not being put into possession of the demised premises, the covenant was construed to mean, that the lessor shall have such a title as shall enable him to give a free and unincumbered lease for the term demised, but that there was no warranty against the acts of strangers. In Howard v. Doolittle (3 Duer, 464), it is said that the covenant means that the tenant shall not be evicted by a paramount title; that it relates only to the title, and not to the actual possession or undisturbed enjoyment, where there is ho eviction from the premises demised. And a trespass committed by the lessor was held not to be an eviction (Levy v. Bond, 1 E. D. Smith, 169, Taylor L. and T., 124).

In the case of the Mayor of New York v. Mabie (supra) where the covenant was held to have been broken, by an unlawful interference by the lessor with the enjoyment of the premises by the lessee, the lessor had entered upon the premises, and assumed the entire control thereof, under a claim of right amounting to an eviction. It was not intended in that case to extend the force of the covenant beyond a protection to the lessee against the unlawful entry of the lessor himself, and it is clearly intimated that the entry must be under an assumption or claim of title to the premises. Otherwise it would be a mere -trespass and not a breach of the covenant.

The covenant of quiet enjoyment is not broken by the landlord’s neglecting or refusing to keep the premises in repair. The letting implies no obligation by him that the premises shall be or shall continue fit for the use for which the tenant designed them (Howard v. Doolittle, supra), or even that they are or shall be tenantable (Cleves v. Willoughby, 7 Hill, 83; Sherwood v. Seaman, 2 Bosw., 127; Post v. Tetter, 2 E. D. Smith, 284).

There does not seem, therefore, to be any covenant of the defendant, express or implied, upon which this action can rest, the only covenant suggested by the plaintiffs counsel being the implied covenant of quiet enjoyment, which the cases I have ■cited show very clearly is not broken by any of the acts of the lessor complained of in this case.

The covenant of the plaintiff to pay rent, without a special agreement to the contrary, would have continued after the fire, except for the statute of 1860 (Sess. Laws, ch. 345, p. 592; Gates v. Green, 4 Paige, 355; Willard v. Tillman, 19 Wend., 358 ; Howard v. Doolittle, ubi supra). By that statute a tenant is discharged from the payment of rent after the destruction by fire of the demised premises, and the lease is terminated. So that, if the fire had rendered the buildings wholly untenantable, the plaintiff could have availed himself of the provisions of the statute, and surrendered possession, or, under the covenants in the lease, have required an abatement of the rent until the premises are repaired. In the one case, the lease would have been annulled, the term ended, and the covenant to pay rent discharged ; in the other, the rent only would have ceased until the premises were repaired. If the plaintiff continued to hold the possession, he must be deemed to have held under his lease, and to be subjected to all its burdens.

A subsequent parol promise to repair would be good, if supported by a sufficient consideration (Post v. Vetter, ubi supra). Or, if the defendant had entered upon the demised premises to make repairs, under the reservation of such right in the lease, and had made them in a wanton or unskilful, or even negligent manner, he might be liable (Turner v. McCarthy, 4 E. D. Smith, 547). But there was no consideration whatever for the promise which the plaintiff proved, nor was there any entry upon the plaintiff’s premises, nor any injury resulting from the repairs.

I have not, therefore, been able to find any obligation, express or implied, on the part of the defendant, either in the lease or the parol promise, the breach of which would constitute a cause of action; nor do I understand that the case was put to the jury upon any such grounds.

The jury were charged that it was the duty of the defendant to make the repairs immediately after the fire. But whether such duty was imposed by any legal obligation contained in the lease, or arose from the mere relation which the parties bore toward each other, of landlord and tenant, irrespective of any covenant or promise, the jury were not told. But they were instructed that, if the defendant failed to make the repairs, he was liable.

I have endeavored to show that the charge to the jury is not supported by any legal obligation resting on the defendant under the lease; nor upon any subsequent promise to repair; nor for trespass, by entry upon the plaintiff’s premises.

Is there any other principle of law on which it can be sustained ?

There is a class of wrongs known as misfeasances, for which remedies are provided. In those cases, however, the injury must be the direct result or effect of the act complained of. The mere omission to do a thing, which a person is not required to do, would incur no liability (Thorn v. Deas, 4 John. R., 84). But if the thing is undertaken to be done, and is done improperly, a right of action arises.

The defendant was under no legal obligation to repair the building; and had he chosen, he could have left it as it was at the end of the fire, and would, at most, have lost the rent for the remainder of the plaintiff’s term. But the building might have remained unroofed to the present time, without the defendant incurring any responsibility for any injury to the plaintiff’s possession or property. The plaintiff had his remedy. He could have removed his property, surrendered his possession, or can-celled his lease; or, if he preferred to occupy the premises in the condition the fire left them, he could abate the rent.

The injury complained of was caused by water and snow coming through the ceiling into the plaintiff’s store, and it is not even claimed that the flow was increased by any thing done in repairing the roof. If, therefore, the defendant had wholly omitted to replace the roof, and the plaintiff had continued to occupy his store, the injury might have continued to the present time. How then can the defendant be liable for not doing, within a reasonable time, a work which he was not bound to do at all, especially where the injuries complained of resulted from the omission and not from the ma/nner of doing it %

The case differs from Turner v. McCarthy (ubi supra), where the lessor entered for the purpose of making repairs, and they were made in a wanton and unskilful manner, and were the direct and immediate - cause of damage to the lessee’s property. It also differs from Edgerton v. Page (20 N. Y. R., 281), where the injury to the lessee’s property was the direct result of the lessor’s acts.

I cannot perceive in what réspect a partial injury of the premises could give a greater or better claim upon the defendant than if there had been a total destruction, in which latter event I presume it will not be contended that the landlord would be bound to rebuild, or that he would be responsible for damage to the plaintiff’s property, by exposure to the elements or otherwise.

There may be some principle which I have not been able to discover, upon which this judgment can be upheld. Those suggested by the respondent’s counsel are, none of them, in my opinion, sufficient.

My conclusions require a reversal of the judgment and the ordering of a new trial, with costs to the appellant to abide the event.


source: Caselaw Access Project

author: Fithian, J.

license: Public Domain

text:
    JOHN GEORGE REPPLIER, Plaintiff and Respondent, v. MATTHIAS BLOODGOOD, impleaded, Defendant and Appellant.
    It is no defence to a promissory note given for a prior indebtedness, that it was given partly in consideration of an agreement that the creditor to whom it was given would discontinue proceedings in bankruptcy which he had previously commenced against the maker. The other creditors of the maker are no way affected by such an agreement, nor does it contravene any policy of the Bankrupt Act.
    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    This action was on two promissory notes made by defendant Farrar, payable to the order of, and endorsed by, defendant Bloodgood. The defense was, that the defendant Farrar being insolvent, and indebted to the firm of Repplier & Brother in $19,000, and the firm of John Street & Co. in $4,000 or $5,000, and other creditors in various amounts, the firm of Repplier & Brother institutéd proceedings against Farm*, under the provisions of the United States Bankrupt Law in relation to “ involuntary bankruptcy.” After such proceedings an arrangement was made by and between Farrar and Repplier & Brother, by which it was agreed Farrar should, and he did, execute and deliver the two notes in suit—one to Repplier & Brother, and one to Street & Co.—to apply on his indebtedness to those firms; and in consideration thereof, Repplier & Brother agreed to, and did, withdraw their proceedings against Farrar, and agreed to assist him in “ every way.” The defendant claimed that the consideration of the notes was illegal, and the notes void—the transaction being contrary to the “ policy,” if not the letter, of the Bankrupt Act.
    This action was tried before Mr. Justice Jones and a jury.
    Under the direction of the Court, the jury found a verdict for the plaintiff.

      Mr. E. L. Fancher for appellant.
    The termination of the bankruptcy proceedings delayed the coming of the estate to the creditors, as it compelled new bankruptcy proceedings to be initiated. Such delay is contrary to the letter and spirit of the Bankrupt Law, besides being a fraud on the other creditors, and an agreement to that effect is void (secs. 35, 29; Davis v. Holding, 1 M. & W., 159).
    It is of no moment how Repplier effected this, whether by his own withdrawal at a time when the creditors were ignorant of his intention to desist, or by his inducing their desistance.
    The thing agreed to be done, i. e., the absolute termination of the bankruptcy proceedings, was consummated, and the creditor’s remedy injured thereby (Bell v. Leggett, 7 N. Y., 182; Sharp v. Teese, 4 Halst., 355).
    The promises “ to withdraw the bankruptcy proceedings,” and “ to assist Farrar in every way possible,” meant to forbear opposing Farrar’s discharge.
    If the withdrawal was illusory, this forbearance to oppose a discharge was the only real aid to Farrar in the agreement, and was clearly illegal (Nerot v. Waller, 3 T. R., 17; Holland v. Plummer, 1 Bos. & Pull., 95; 7 N. Y., 131; 4 Halst. [N. J.] 354).
    It is contrary to the policy of the Bankrupt Act for a petitioning creditor to extort from a bankrupt or his friends new security by illusory or illegal promises of this kind.
    It is putting the bankrupt under a temptation to prefer one creditoi as to so much (U. S. Bankrupt Act, sec. 35; Avery & Hobbs, p. 251; ibid., 209, sec. 29; Bello v. Leggett, 7 N. Y., 181).
    It contravenes the policy of the law (Davis v. Holding, 1 M. & W., 159; 3 T. R., 17; 1 Bos. & Pull., 95; Bell v. Leggett, 7 N. Y., 176).
    The policy of our insolvent laws is, that a full and fair disclosure and surrender of the property of the debtor shall be obtained; and on such disclosure and surrender, he shall be without further impediment, liberated from confinement; and all the creditors shall be placed on an equal footing without preference (4 Halst. [N. J.] 354; Phelps v. Thomas, 6 Gray, 327; Coates v. Blush, 1 Cush., 564; Barnard v. Crosby, 6 Allen, 327).

      Mr. John E. Parsons for respondent.
    So far as concerned the John Street & Co. note of $315.70, the facts do not permit defendant’s argument. They had taken no bankruptcy proceedings and made no promise to withdraw.
    It is security given to a creditor to induce him “ to forbear opposing the application for discharge of the bankrupt,” which the act makes void. The principle is one well recognized. The debtor’s proceeding for a discharge is by him as against all his creditors. Any advantage to one creditor, in view of which he withdraws opposition, operates as a fraud upon the others, who by his -withdrawal are influenced to adopt the same course in ignorance of the secret motive influencing his action, and are thus cheated (Bankruptcy Act, sec. 35).
    The case does not come within the provisions of the act. It does not offend its policy; though it would be immaterial if it did. An involuntary proceeding is between the petitioning creditor and the debtor. No one is defrauded by its withdrawal. The act neither prevents nor avoids security given by a third person in consideration of it (Bell v. Leggett, 2 Sandf. S. C. R., 450, 457).
   By the Court.:

Fithian, J.

I do not see any thing in the facts in this case contravening any of the express provisions or the policy of the Bankrupt Act. ' Section 25 of the act declares void all securities or contracts made or given in order to induce any creditor to “forbear opposing the application for discharge of the bankrupt.” But in this involuntary ” proceeding, taken.by a creditor against the bankrupt, there is not, nor can there be, any “ application for discharge of the bankrupt,” The statute provides no method or means whereby a bankrupt can apply for a discharge in a proceeding hostile to him, instituted by a creditor. In this respect, as well as others, the United States law differs from the English bankrupt statutes.

Ueither am I able to see wherein the agreement, alleged and proved as one consideration of the notes in suit, is in conflict with any policy of the law. The policy and general intent of the bankrupt act is, that the bankrupt’s estate, and the whole therreofi without concealment or diminution, shall be honestly, and as speedily as possible, equally divided among all of his bona fide creditors. And there are various provisions of the statute forbidding and declaring void certain specified acts and things having a tendency to defeat such general intent and policy. But I do not think the agreement here tends, in any manner, to do that. If the defendant Farrar had paid these two creditors the amount of the notes in suit, in money of his own, or given a collateral security out of his estate, or had indemnified, out of his estate, Bloodgood, the endorser, it might have presented an entirely different question (although, as to that, I give no opinion). But there is nothing of the kind appearing here.

It is well settled that payment in full to a creditor of a bankrupt by a third person, as a friendly act, is not illegal preference, as between the creditor so paid and the other creditors, because it no way affects the other creditors. The fund to which they looked for payment was in no way diminished by it (Winson v. Kendall, 3 Story, 507; Fox v. Paine, 10 Alabama R., 523). And so, where all the creditors of the bankrupt, but one, had agreed to take a certain sum each in discharge, and the bankrupt afterward paid the one a greater sum, it was held not illegal (25 L. and E. Rep., 476).

So, here, the defendant Farrar merely gives an additional promise to pay part of his indebtedness. A judgment obtained against him in favor of plaintiff in no way affects his other creditors. It operates only as a transfer of part of his indebtedness from the original creditor to the plaintiff in this action. And in respect to the defendant Bloodgood, his endorsement was voluntary, and for the accommodation of the debtor, and without any consideration flowing from the debtor to him. It will be time enough for him to look to the interests of the other creditors, and they to raise the objection, when Bloodgood shall (if he ever does) attempt to claim against the bankrupt for endorsing.

The authorities cited by defendant’s counsel from the English cases are not, in my opinion, applicable. They arose out of particular provisions of the English Bankrupt Act, and establish no general principle applicable to this case.

.1udgment affirmed, with costs.


author: Monell, J. Jones, J.,

text:
    MARY S. NORRIS, Administratrix of WILLIAM H. NORRIS, deceased, Plaintiff and Appellant, v. JOHN F. KOHLER, Defendant and Respondent.

    The mere evidence that the defendant is the owner of a pair of runaway horses, which produced the death of the plaintiff’s intestate, is not sufficient to render the defendant liable, without also showing that the driver of the horses was the defendant’s servant. Held, that evidence that the horses were running without a driver, is not of itself sufficient evidence of negligence to charge the owner.
    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    Action to recover damages for causing the death of the plaintiff’s intestate.
    The complaint alleged that the death was caused by the wrongful act, neglect, and default of a servant and agent of the defendant, employed by him as driver of a pair of horses belonging to the defendant. The answer denied all the allegations of the complaint.
    The case was tried before Mr. Justice Barbour and a jury.
    At the close of the plaintiff’s evidence, the Court dismissed the complaint, and the plaintiff excepted.
    Judgment was entered, and the plaintiff appealed.

      Mr. R. M. Hall for appellant.
    The direction of the Court granting defendant’s motion to dismiss the complaint on the ground that the evidence failed to sustain a cause of action was erroneous.
    The credibility of witnesses is a question for the jury.
    A nonsuit cannot be directed on the assumption by the judge that a witness is unworthy of belief.

      The question of negligence in all cases involves a question of fact, and it is only when the question of fact is free from all doubt that the court has a right to apply the law, without the action of the jury (Merritt v. Lyon, 3 Barb., 110; Williams v. O’Keefe, 24 Howard, 16; Keller v. N.Y. Central R.R., 24 id., 172; Haring v. N. Y. & Erie R.R., 13 Barb., 9 ; Labar v. Koplin, 4 N. Y., 547; Newson v. N. Y. Central R.R., 29 N. Y. 383).

      Mr. Cheney for respondent.
    There was no sufficient proof that the defendant was the owner of the wagon and horses which ran away.
    There was no proof whatever that the homes ran away in consequence of any negligence of any person; there was no attempt to prove the condition, or circumstances of the team when it started—how it'came to start and run; there is no evidence of negligence, or tending to prove negligence.
    There was no proof whatever that the person in charge of the team was in the employ or under the control of the defendant.
    It was necessary, in order to sustain the complaint, to allege negligence of the defendant or his servant or agent, and when it was alleged that the team was, on the occasion referred to, in charge of a third party, it was necessary to allege further that such party was a servant or agent of the defendant (Stevens v. Armstrong, 6 N. Y., 435; Pack v. The Mayor, &c., 8 N. Y., 222 ; Button v. Hudson River R.R., 18 N. Y., 251; Wiggins v. Hathaway, 6 Barb., 636, and authorities there cited; Holbrook v. The U. S. R.R. Co., 12 N. Y., 242).

       Reversed by Court of Appeals, 41 N. Y., p. 43.

   By the Court:

Monell, J.

The reason for dismissing the complaint is not stated in the papers before us, but it is to be presumed it was because the evidence failed to connect the defendant with the driver of the wagon, or to show any negligence on his part.

It appeared that the intestate was a vendor of vegetables, and was in Monroe street with a cart and horse, engaged in selling, when he was knocked down by a pair of horses attached to a wagon. The horses were without a driver, and were running at a furious rate. One of the plaintiff’s witnesses (Ruckweg), being asked, “ Do you know who was the owner of the wagon or team which was running away?” answered, “Yes, sir; Mr. Kohler.” And another witness (Dunn) testified that the wagon to which the running horses were attached had the name of “ Mrs. Hopkins” on the sides and the name of “ J.. F. Kohler ” on the back.

The only evidence by which it was sought to connect the defendant with the driver of the wagon was that of the witness Lankenau. He testified that he kept a grocery on the corner of Scammel and Monroe streets, and had seen the defendant once.

Q. Are you in the habit of dealing with wagons belonging to him ?

A. Yes, sir; they used to furnish me with pies every day.

Q. What kind of wagons ? What do they deal in ?

A. High-top wagons; pies; Mrs. Hopkins’ name on the side.

Q. Do you remember seeing one of these wagons, marked “Mi’s. Hopkins’ Pie Bakery,” on the 24th of August, 1867?

A. I could not say the day, because I don’t remember; 1 saw a wagon run down Monroe street, some time last summer.

Q. The wagon which you saw run down Monroe street, where did it start from to run ?

A. It started from the south-east corner of Scammel and Monroe streets.

Q. Where was the driver of that wagon ?

A. One of them was in my store; the other, when I saw him, was running behind the wagon.

Q. Did he overtake the wagon ?

A. Ho, sir. *

Q. What was the one who was in the store there for?

A. He asked me if I wanted pies.

Q. Do you know what his name is ?

A. I do not.

Q. What name was on the rear of the wagon ?

A. I did not see it any nearer than half a block away.

Q. Do you mean when it was arriving, or after it started ?

A. After it started; I was in the store attending to my business when it started; it started right across the way from my store.

Q. 'How long had the driver of this wagon been in your store when you saw the horses attached to the wagon running away ?

A. I don’t think more than three or four minutes.

Q. Did the one who was in your store go after the wagon and horses?

A. The other one was right after the wagon, the one who was outside; the one who was in my store ran after as soon as he could, but the outside one was close behind the wagon.

Q. This wagon that you saw run away was marked Mrs. Hopkins’ Pie Bakery ” ?

A. Tes, sir.

This is all the evidence.

I am inclined to think there was sufficient evidence, at least to have sent the case to the jury, that the defendant was the owner of the wagon and horses. One witness said he knew so of his own knowledge, and another witness testified to seeing the defendant’s name painted on the wagon. This was enough to have authorized the jury in finding the fact against the defendant.

But my difficulty is in finding any evidence whatever, that the drivers or persons (for there seem to have been two) in charge ■ of the wagon and horses, were the servants of the defendant.

I have extracted literally from the case all the evidence touching the question, and it entirely fails to establish any relation of master and servant.

It was not enough, in my judgment, to charge, the defendant with a liability for the wrongful act of the driver of the horses, merely to show that the defendant was the owner of the horses. They might have been let to the driver, and there might have been a relation of an entirely different nature than that of master and servant existing between him and the defendant. To apply the principle respondeat superior, an agency must be established, not by conjecture or inference merely, but by either positive proof or by circumstances from which the conclusion can legitimately be drawn that the agency existed. A verdict against the defendant upon such evidence of the agency of the driver, as was given in this case, would not be allowed to stand. Such agency could be made out only by inference, drawn from the only fact proved, that the defendant owned the wagon and horses. The affirmative proof of an issue is not required to be conclusive, but it must be such as to authorize the finding that the fact exists; and where it is sought to charge a principal for the wrongful act of his agent, it requires something more than presumption or conjecture.

I also think the evidence was deficient in showing any negligence on the part of the driver or drivers of the wagon. The only proof was that the driver was off his seat, and the horses were running. It was not shown that the horses were left upon the street unattended; nor was any other fact shown from which it could be inferred that the driver was in any respect negligent. It might be quite as near the fact to suppose that the driver had been thrown from his seat by a collision for which he was in no way responsible, as to suppose he had left his horses unattended. There was no evidence on the subject, one way or the other; and the plaintiff’s counsel seems to have thought it was sufficient for him to show that the death was occasioned by the horses of the defendant. Such evidence alone would not sustain the allegation that the plaintiff’s husband was killed by the negligence of the defendant or of his servant.

For both reasons, therefore, I am of the opinion that there was not enough to go to the jury, and that it was proper to dismiss the complaint.

The judgment should be affirmed.

Jones, J.,

(dissenting.) I think this judgment should be reversed, and a new trial ordered.

The complaint was dismissed on defendant’s motion, at the close of plaintiff’s case.

The motion necessarily brought up for decision the question whether the evidence tended to prove sufficient facts to establish the cause of action. The learned Judge held it did not. In this I think he erred.

It being conceded that the proof was sufficient to establish that the defendant was the owner of the wagon, I think a presumption arises from that fact that the driver was in his employ, and the burden of the proof is cast on him to overcome that presumption by showing that the driver, on that particular occasion, was in the employ and a servant of some other person. So, too, the evidence as to the negligence of those in charge of the wagon was sufficient to go to the jury.

It is true the cause of the horse running away was not shown. But the evidence shows that the wagon was in charge of two men, and one of the witnesses swears he was in his store attending to business when the wagon started; that it started right across the way from his store; that, before it started, one of the men in charge of it had come into his store to see if he wanted any pies, and had remained in his store three or four minutes before-the wagon started; that, when the wagon started, this man ran out as soon as he could, and the other man ran after the wagon, and was running close behind it (fols. 94 to 97).

Under these circumstances, it devolved on the defendant to show that the injury was accidental, and without the fault of his servants.

The principle of the case of Holbrook v. Utica and Schenectady Railroad Co. (12 N. Y., 236) is applicable.


author: Monell, J.

text:
    JEAN TOULANDON, Plaintiff and Respondent, v. AUGUST LACHENMEYER, Defendant and Appellant.
    The Statute of Limitations of another of the States of the Union is not a bar to an action in this State. J5Celdy also, that such statute cannot be proved by parol.

    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    This case was tried before Hr. Justice Jones and a jury.
    Action for money lent and advanced, and goods sold and delivered in the City of Hew Orleans, State of Louisiana, during the years 1858, 1859, and 1861.
    Defence, Statute of Limitations of the State of Louisiana.
    On the trial, á witness for the defendant testified that he was a practising lawyer in Hew Orleans, and acquainted with the laws of Louisiana. He was then ashed the. following question: “ What is the law of Louisiana with regard to prescription or limitation of actions for goods sold and delivered and money loaned ?”
    The question was objected to, and excluded by the Court, and the defendant excepted.
    The plaintiff had a verdict, and the defendant appealed, and also from an order made at Special Term denying a motion for a new trial.

      Mr. E. Lauterbach for appellant.

      Mr. H. Morrison for respondent.
   By the Court:

Monell, J.

The statute of the State of Louisiana, in which State the cause of action in this case arose, limiting the time for bringing actions, is not available as a defence in the courts of this State (Ruggles v. Keeler, 3 John R., 263). It is therefore immaterial that, by the laws of that State, the right of action would be lost. If six years have not elapsed since the statute of our own State began to run, the right of action is not barred.

The evidence offered of the Louisiana statute was therefore properly excluded.

The manner of proving such statutes was also objectionable. The defence was the “ Statute of Limitations,” and, although the question which was overruled admitted of an answer, proving the existence in that State of some common-law bar, recognized by the courts of that State, yet, under the answer, the statute was the only bar which could properly be proved; and the attempt was to prove such statute by parol. That probably could not be done. Until a recent period, such laws could be proved in our courts only by a copy properly exemplified by the officer having the custody of them—at least such seems to be the current authority (Packard v. Hill, 2 Wend., 411; Thomas v. Robinson, 3 id., 267).

In 1848 a statute was passed, in this Statue, allowing the printed volumes of the statute laws of any other of the United States to be admitted in our courts asprima facie evidence of such laws (Sess. Laws, 1848, chap. 312).

The question was therefore properly overruled, and the judgment should be affirmed.


author: Fithian, J. Jones, J.

text:
    LOUISE C. SOUTHWICK, Plaintiff and Appellant, v. GEORGE W. SOUTHWICK, Defendant and Respondent.
    A husband, having the custody of his wife’s money and property, rendered her an account, in writing, of moneys disbursed for her use, which she received and kept for some time without objection. Held, in a suit by the wife against the husband to recover her money, such account rendered was not conclusive or even prima facie evidence of the correctness of the items of the account. That the rule of “ account stated ” did not apply as against a wife in favor of her husband.
    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    This case was tried before a referee.
    The parties to this action are husband and wife. The plaintiff was entitled, under the will of her father, to a certain share of his estate, in her own right, and free and clear from all inter ference of her husband. She gave a power of attorney to her husband, the defendant, to demand and receive the proceeds of her share of her father’s estate. The defendant was also one of the executors of the estate. It appeared on the trial, and was substantially conceded, that under this power of attorney, and with the knowledge and consent of the plaintiff, there had come to defendant’s hands on and previous to March 12, 1866, the sum of $14,148.24, the money of the plaintiff. The action is brought to recover this sum. The defendant was examined as a witness, and testified that on the 10th of April, 1866, on the demand of the plaintiff to be paid her money, the defendant rendered to the plaintiff, in writing, an account current of and concerning the moneys received by him, wherein he charged himself with the receipt of $13,932.24, and credited himself with divers payments of moneys and government securities paid to him and to divers other persons for her account and use, as he claimed, including tradesmen’s and medical bills, &c. The account thus rendered showed a balance due plaintiff of $116.89, which the defendant then paid by check, which, with the account, was received by plaintiff without objection. As to a large number of the items in the bill, the defendant gave no evidence to show, nor did the referee specifically find, that they were proper charges against the wife, except so far as the account itself had the effect of evidence. The referee held that the acceptance and retaining of this account by plaintiff, without substantial objection, until the commencement of the action, and no “ fraud, accident, or mistake ” being shown, it was conclusive upon the parties, and gave judgment for defendant, from which judgment plaintiff appeals.

      Mr. E. T. Gerry for appellant.
    The referee erred in permitting the account to be admitted in evidence. It was at best but a copy of certain entries made in certain books by a third party not in the employ of the plaintiff. As neither the boobs nor the bookkeeper were produced, the account was not admissible for any purpose. The referee erred in finding that the respondent, on the 10th of April, 1866, accounted with the appellant and paid her all the balance due, and that the defendant fully paid to or laid out and expended for the plaintiff the sums received by him for her use and benefit (Vanderhaven v. Mallory, 1 Comst., 452; Vale v. Dederer, 22 N. Y. R., 450; S. C., 18 id., 265). The referee erred in regarding the so-called account as conclusive on the appellant, when the evidence showed that the account itself was not a complete statement of all received and paid, but a continuation of a previous account . never furnished her; that „she had no opportunity of verifying either account, but was obliged to take the respondent’s word, and check for what was due her.

      Mr. Wm. H. Arnoux for respondent.
    The exceptions to the admission of the copy of the account in evidence were not well taken. The paper was not offered in evidence to prove the payments, but to prove the contents of a paper that had been delivered to the plaintiff and retained by her without objection. The defendant then proved by documentary and unimpeached and unchallenged testimony, that he had made the payments therein contained independently of that paper. By that paper and the testimony of the defendant alone were the receipts of the money established, and if the paper was improperly received, then the whole must be excluded. The payments so made were properly charged to the plaintiff against the moneys she had placed in the defendant’s hands (Blood v. Humphrey, 11 Barb., 660; Gale v. Dededer, 18 N. Y., 271; Wiles v. Peck, 26 id., 42).
   By the Court:

Fithian, J.

Without passing upon any of the other questions in this case, I think the referee erred in holding the account conclusive ” between the parties, under the circumstances in this case. The decision was correct in respect (to accounts stated between persons having no other than business relations (Phillips v. Belden, 2 Edward’s Chy. Rep., 1; Dow’s v. Durfee, 10 Barb., 213; Lockwood v. Thorn, 11 N. Y, 170 ; 1 Story’s Equity, sec. 526). The reason of the rule is that in the absence of any “ accident, fraud, or mistake,” the parties are presumed to stand equal, each knowing their respective rights and the true state of the accounts as against himself. And when a bill is rendered containing charges against a party, and he makes no objection after a reasonable time, it is a just inference that he admits their correctness. But I do not think this rule should be applied to married women or infants in cases arising between them and their husbands or guardians, because in those cases the parties do not stand equal, and are not presumed to have equal knowledge of their respective rights or of the true state of the accounts. I am aware that, as to married women, the tendency of recent legislation and adjudication has been to consider them, in respect to their separate property or business, entirely as femes soles. But I do not think the courts have gone or will go the length of abrogating all the rules of the common law in respect to the relations formerly existing between husband and wife, especially that rule based upon the difference of sex, which considers the wife, to some extent, the weaker and dependent being, and subordinates her in many respects to her husband, and, as án equivalent, charges him with the duty of caring for and protecting her in all her rights and interests, in person and property. A part of that duty is, in all matters where he assumes to act at all in her business, to see to it, so far as he can, that she does not, either expressly or impliedly, stipulate away any right or be placed in any position to be barred or concluded of any right she may have. It is not, in my opinion, consistent with this, common-law obligation and relation that the husband should be permitted himself to estop or conclude the wife by an account stated, or any implied admission in any matter where the husband has assumed to act for her in respect to her separate business or property. There may be cases that have gone that length, but none such were cited on argument; and I have found none, with such examination as I have been able to give the case. I am, therefore, unwilling to be the first to hold a feme covert concluded by any such rule.

The judgment should be reversed with costs, reference vacated, and a new trial granted.

Jones, J.

(concurring). The decision of this case in the court below was placed on the ground that the rendering of an account by a husband to his wife, and the retention thereof by the wife for a period of four months without objection, constituted an account stated between the parties.

Under the facts shown by the evidence in this case, I concur with my associates in the view that such rendering, retention, and non-objection did not constitute an account stated, for the reasons given in the leading opinion of the Court.

I am not, however, prepared to say that there may not arise cases where such rendering, retention, and non-objection, when taken in connection with other facts proved to ..exist, will constitute an account stated.

I concur in reversing the judgment, ordering a new trial and vacating the order of reference, with costs to the appellant to. abide' the event.


text:
    SEYMOUR N. MARSH, Plaintiff and Respondent, v. EDWARD ELSWORTH and Another, Defendants and Appellants.
    Words spoken or written in a judicial proceeding by any person having a duty to .discharge or interest to protect in such proceedings, are privileged communications; and no action will lie for such speaking or writing, however false, defamatory, or malicious, if the words are material to the issue or inquiry before the Court.
    The party claiming such libellous and defamatory words, to be privileged, must show affirmatively and clearly that such words were written or spoken in a proceeding as aforesaid, and were material to the issue or inquiry before the court or tribunal. The materiality of a communication defamatory in its terms will not b & presumed but must . be clearly proved.
    The question whether slanderous words or libellous matter spoken or written in the prosecution, defence, trial, or argument of an action, are absolutely privileged or not, depends on the relevancy or pertinency of the words or matters to the prosecution, defence, trial, or argument to the action. Per Jones, J.
    The element of truth does not enter into the consideration of such relevancy or pertinency at all. Per Jones, J.
    Before Monell, Jones, and Fithian, JJ.

      [Decided February 12, 1869.]
    This is an action for libel. The complaint alleged, in substance, that in a certain proceeding in bankruptcy, on the petition of George Caldwell, a bankrupt, to be discharged from his debts, the defendant Elsworth appeared and opposed the bankrupt’s discharge; that the matter was referred to Henry Wilder Allen, a register in bankruptcy, and an order was made for the examination of the bankruptthat on such examination of the bankrupt, the defendant Elsworth, and defendant Ooursen, acting as his attorney, called plaintiff as a witness, and he wag sworn and examined as a witness in such proceeding before such register, in behalf of defendant Elsworth; that afterward the defendants maliciously composed and published what purported to be specifications or objections to the bankrupt’s discharge, wherein, among other things, they falsely alleged that the bankrupt Caldwell had procured and induced the plaintiff to testify %lsely on. such examination in regard to material facts, viz., that a certain share or interest in a certain business and firm, which m truth and fact belonged to the bankrupt, was the property of other persons, thereby intending to charge plaintiff with committing perjury on such examination. The complaint further alleged that the said defamatory statements were wholly immaterial upon the controversy pending, before the Register and the United States District Court, between the bankrupt and his opponent; that they were false, and malicious, and wilful, and made with intent to defame and injure the plaintiff.
    The defendants demurred to the complaint, alleging for cause of demurrer that the complaint does not contain facts sufficient to constitute a cause of action. The demurrer was argued at Special Term before Mr. Justice Jones. The demurrer was overruled, and from that order defendants appeal.

      Mr. A. R. Dyett for appellants.
    The complaint shows that the whole proceedings on the part of the defendants were in opposing the discharge of the bankrupt, George Caldwell.
    The United States Bankrupt Law (section 30) makes “ any fraud whatever, contrary to the true intent of the act,” a ground for refusing the discharge. It is clearly manifest from the allegations of the complaint that the specifications to which exception is taken by the complaint, was filed for the purpose of charging a fraud upon the bankrupt Caldwell. If he did procure the plaintiff to testify to what was false, then he (Caldwell) was guilty of such a fraud, contrary to the true intent of the act, as would have prevented his discharge. “ Words spoken or written in a legal proceeding pertinent and material to the controversy are privileged, and the truth of the statement cannot be drawn in question in an action for slander or libel. And where the statement is privileged within this rule, it is unnecessary in this action of libel for the defendant to deny the allegation of malice” (Garve v. Selden, 4 Comstock, 91). The matters testified to by the plaintiff in the proceeding before the "United States .Register were or were not pertinent and material.
    If. those matters were pertinent to the matter in'issue (or controversy) it could not be said that the charge of truth or falsity .in respect to them, was wholly or at all immaterial in the controversy pending before the Register. If those matters were not pertinent Or material, then the plaintiff could not have been (or ;was not) charged with perjury or subornation of perjury in the statement or specification. As to the materiality or pertinency of the defamatory statement or specification, that is a question for the Court to decide on the facts stated in the complaint. The allegation of the complaint that the same were “ wholly immaterial,” &c., is only, the statement of a conclusion of law, and is of no more.force or effect in the complaint than would be the allegation of “ indebtedness” in an action on a promissory note. The words in the specification, “ charges the said bankrupt (George Caldwell, meaning) with procuring his wife and the said Seymour U. Marsh (this plaintiff) to testify falsely,” &o., do not "necessarily charge the plaintiff with committing perjury. His testimony may have been in effect false, and yet the witness may have honestly believed that to which he testified.

      Mr.. Ira D. Warren for respondent.
    The charge clearly and distinctly accused the plaintiff of having sworn falsely, and of having been suborned to do so. The defendants claim that, the charge being made in a judicial proceeding, they are protected. We claim they are not protected, for the following reasons:
    That the charge was false and malicious.
    That it was made "with an intention to injure the plaintiff.
    .■ “ The privilege of parties and attorneys, solicitors and counsel, • in respect to words or writing used in the course of judicial? proceedings reflecting upon others is limited to matter which is pertinent and material.” “ If he go out of the way to asperse , or .vilify another by words or writing, not material to the controversy, he is without protection ” (Gilbert v. The People, 1 Denio, 41; Ring v. Wheeler, 7 Cowen, 725; Warner v. Paine, 2 Sand., 195).
    The fact of its being prima facie a privileged communication only rebuts the presumption of malice to be inferred from the slanderous words. The plaintiff has a right to show on the trial, notwithstanding the privileged character of the libel, that it was made maliciously (Edsall v. Brooks, 17 Abbott, 224, Monell, J.; Van Dyck v. Aspinwall, 17 N. Y., 193 ; Ormsby v. Douglass, 37 N. Y., 480; White v. Nichols, 3 How. U. S., 266).
    Although it is prima facie privileged, “ yet if it be proved that there was not probable cause for its statement, the law infers that it was malicious as well as false, and the writer will be liable for it as a libel” (Cook v. Hill, 3 Sand., 341; Washbourne v. Cook, 3 Denio, 113).
   By the Court:

Fithian, J.

That the words charged in the complaint are libellous, and actionable at common law, is not controverted-; and the defendants must be held to answer in damages for the'publication, unless they can show that, under the circumstances of the publishing, it was a privileged communication.” This, defendants claim to be the fact, on the grounds that the matter claimed as defamatory was written and published by them in a legal proceeding before a court of competent jurisdiction, in the discharge of their duty, and the protection of their rights as party and attorney. And further, that although the complaint alleges that the defamatory matter was wholly immaterial upon the controversy pending in the Court of Bankruptcy, yet that the facts stated in the complaint show that such defamatory matter was,- in fact, pertinent and material upon the issue pending in the bankrupt proceeding.

There is some conflict of authority in the American courts.as to the extent of the protection afforded to persons uttering or publishing defamatory matter of and concerning others, under circumstances which enable them to allege such' matter to be a “privileged communication.” In the courts of the United States, And in some of the States, it is held that the privilege and protection extend only to persons speaking or writing in good faith, and without malice; that in judicial proceedings, where the defamatory matter is pertinent and material to the issue being tried, malice is not to be implied, and the onus is upon the plaintiff to show the falsity of the words and express malice in the publisher or speaker, but where the matter is immaterial, the onus was upon the defendant to show that he spoke or published' in good faith and without malice, and having probable cause to believe the matter to be both true and pertinent (White v. Nichols et al., 3 How. U. S. Rep., 267, and authorities cited).

I am of opinion, however, after a careful examination of the authorities, that in England and in this State the rule is otherwise. It appears to he the settled doctrine of the courts of this State that words spoken or written in a judicial proceeding by any person (attorney or party) having a duty to discharge, or an interest to protect, in respect to such proceedings, are absolutely privileged, and no action will lie for such speaking or writing, however false, defamatory, or malicious may be the words, provided the matter was material to the issue or inquiry before the court (Buller’s Nisi Prius, 10 ; Brook v. Montague, Cro. Jac., 90; McMillan v. Birch, 1 Bin., 178 ; Hodgson v. Scarlett, 1 Barn. & Ald., 232; King v. Wheeler, 7 Cowen, 725 ; Gilbert v. The People, 1 Denio, 41; Hastings v. Lusk, 22 Wen., 410 ; Garr v. Selden, 4 Comstock, 91; Warner v. Paine, 2 Sanford, S. C., 195).

All- the authorities agree, however, that if the defendant will wander from the point in issue, and speak or write slanderous or libéllous matter of another, not material or pertinent to the inquiry, he shall be held to answer in damages, unless he can satisfactorily show that he spoke or wrote the words in good faith, without malice, and having reasonable and probable cause to believe they were both true and material. ,

Thus it appears that where words concededly defamatory are spoken or written in judicial proceedings, and the speaker or writer claims them to be absolutely privileged, within the principles settled by the above authorities, the onus is upon him to show clearly that such defamatory matter was material to the issue or inquiry before the court. And on this point there should be no doubt or uncertainty. The courts have (perhaps necessarily) gone a great way in extending protection to parties and attorneys. The materiality of the libellous matter is that which affords the protection, and whether material or not, is to be determined by the court, and must not be left in doubt or to inference. It should appear from the facts alleged or proved, or both, that the defamatory matter claimed to be “ privileged ” was certainly and clearly material to the inquiry before the court.

In the case at bar the words are libellous and defamatory, unless privileged.” The publication is admitted, and it is also admitted that the words are and were wholly untrue, malicious, and wilful,” and made with intent to defame,” as stated in the complaint. The defendants claim that these facts furnish no cause of action, because (as they allege) it appears from the facts set forth in the complaint that the libellous matter was published in a judicial proceeding, and was material to be alleged and proved in the case before the court; and that, therefore, neither the truth or falsehood of the words nor the motive with which they were published can be inquired into.

It remains only to inquire, then, whether it does clearly appear from facts stated in the complaint that the defamatory matter was material on any issue or inquiry pending before the Register or Court in bankruptcy; not that it might possibly appear to have been material, by inferring the existence of some facts not expressly alleged in connection with those that do appear, but whether, from the facts stated standing alone, the matter does clearly appear to have been material. And here I put out of view altogether the allegation in the complaint that the “ defamatory words were wholly immaterial upon the controversy,” &c., because that is an assertion, not of a fact, but a legal conclusion, upon which no proper issue could be taken. And the defendants are not to be held to have admitted the allegation by their demurrer, nor are they estopped from controverting it on argument (McKyring v. Bull, 16 N. Y., 297).

■ The plaintiff’s counsel contended, on the argument, that, whether the plaintiff did or not commit perjury or swear falsely on the.hearing before the Register, was wholly immaterial as between the bankrupt and his opposing creditor. This -is true; and if the charge had stopped there; it would be unnecessary to inquire further. But the gravamen of the defamatory accusation is not only that plaintiff testified falsely, but that he was induced so to do by the bankrupt. It becomes necessary, therefore, to examine further, and see if there be any facts stated in the complaint from which it appears that it was material on the question of the bankrupt’s discharge, or on the examination before the Register, either to allege or prove that the bankrupt had procured a witness to swear falsely in reference to any matter, 'material or otherwise, in the course of the previous proceedings.

Whether it was material so to allege or prove what is charged in the alleged defamatory specification, must depend entirely upon what was the particular and specific issue or inquiry pending before the Register at the time the plaintiff testified, and at ’the time of filing the libellous publication. After a careful and critical examination of the complaint, I am unable to discover any fact showing the materiality of the libellous matter. It is not permissible to refer to the language of the libel itself to show its materiality, for the complaint charges, and the demurrer "admits, the words of the libel to be wholly false and untrue. And that is not (in respect to the words spoken or written) a legal conclusion; for it is always allowable to allege as a fact that the defamatory words are false and untrue; and inasmuch as the only statement found in the complaint, tending to show that the witness was induced to testify in reference to “ material ■facts in the proceedings,” is a part of the libel itself, and the complaint alleging, and the demurrer admitting, that statement to be wlrolly false, the pleading is thus left without a single allegation ■tending to show the materiality of the defamatory matter.

This will more fully appear from a reference to the Bankrupt Act. Section 10 of that act authorizes the justices of the Supreme Court of the United States to make and publish rules , of proceedings in bankruptcy. Section 29 provides that a bank- . rupt’s application for discharge may be opposed and defeated, if , it be made to appear that he has been guilty of any one of . eighteen specific and enumerated acts and omissions, the last of . which is, “ if he has been guilty of any fraud whatever, contrary to the true intent of the act.” Section 31 permits an opposing , creditor to file a specification in writing of the grounds of his , opposition, and the court may order any question of fact, so pre- • sented, to be tried at a stated session of the court. And rule 24 provides that an opposing creditor shall enter his appearance ip . opposition on the day the creditors are required to show cause against the bankrupt’s discharge, and shall file his specifications of the grounds of his opposition, in writing, within ten days thereafter, unless the term be enlarged, and the court shall then make an order sending the case on to the docket of the District Court for trial. And section 26 provides for the examination, of the bankrupt and his wife before the court. Bow, all that ap- . pears in the complaint in respect to these essential requisites to .raise a material issue or inquiry, are the allegations that the bankrupt filed his petition; that it was referred to the ¡Register; that defendant Elsworth appeared and opposed the bankrupt’s discharge, and procured an order for his examinationbef ore the ¡Register ; that an examination was had, and the plaintiff was sworn as •a witness on such examination; and that afterward the libellous specification was filed. But there is not a single fact stated, outside the libel itself, from which the court caff learn what, was the subject-matter of the examination before the Register,- or as to what particular matter the plaintiff was examined upon; or as to whether his testimony related to either, or which, of the .eighteen grounds of opposition to a discharge, specified in the statutq There is, therefore, no fact whatever alleged in the complaint •from which the court can determine whether or not the testimony of the plaintiff before the Register (whether true or false) had any relation whatever to any fact necessary or proper to be proved or disproved, affecting the bankrupt’s discharge.

The defendant’s counsel relies upon the ease of Garr v. Selden, (4 Comstock, 91). But in that cáse all the facts to enable the court to determine as to the materiality of the scandalous matter were spread upon the record. , There the plaintiff had sued the defendant to recover for professional services rendered as an attorney and counsel in suits for the defendant; the defendant answering, among other things, that the plaintiff had conducted the suits in a negligent, unskilful, and unfaithful manner. The plaintiff moved the court, on affidavits, to strike these allegations from the answer. In opposition to that motion, the defendant read and filed an affidavit of his own, containing the scandalous matter complained of; and the only question was, whether that scandalous matter was material and pertinent on that motion. The court held it was, and that the words were privileged.

But there are no such facts shown in the complaint here. The defendants’ counsel claims that the alleged defamatory matter was material -to show that the bankrupt had been guilty "of a fraud, contrary to the true intent and meaning of the act,” in concealing his property. But the difficulty is, there is nothing in the complaint from which the court can see that the question of fraud, or concealment of property, or any thing else, that would make the charge contained in the libel material to be proved, was at all a subject of inquiry before the Register. So, even if it were true that the bankrupt, procured the witness (plaintiff) to" swear falsely before the Register, if that false swearing was in respect to some matter wholly immaterial to the inquiry pending before the Register, it would be equally immaterial to' allege of prove such subornation on any subsequent hearing before the District Court; because, if immaterial, it would be no evidence against the bankrupt. It is very possible that it was in fact very material to allege and prove the defamatory matter, but it suffices to say here that the complaint does not show it. Unless, therefore, the court is prepared to go the extent of holding that defamatory matter which, if true, does not appear to be at all" material, becomes material by publishing it-—even though confessedly false—the decision at the Special Term must be sustained.

The order appealed from is affirmed, with costs, and with leave for defendant to apply at Special Term for leave to withdraw his demurrer and answer on terms.

Jones, J.

(concurring). As I understand the law of this State, slanderous words or libellous matters, which would otherwise be irrelevant and impertinent to the prosecution,def ens e, trial, or argument of an action, and therefore not privileged, are not, by reason of the truth in point of fact of such words or matters, rendered pertinent and relevant, and thereby privileged; so, on the other hand, if such words or matters are relevant and pertinent, they are not rendered irrelevant and impertinent by means of being untrue in point of fact.

The question of absolute privilege depends on the relevancy and pertinency of the words or matters. The element of truth does not enter into the consideration of such relevancy and pertinency at all.

Thus, if counsel, in summing up, should charge a witness with having been sent to the State prison for perjury,, or with having committed perjury on other occasions—there being not the slightest evidence to justify even a suspicion of the truth of the charge—the making of the charge would be clearly irrelevant and impertinent, for the jury are to decide the case upon the evidence before them, and consequently counsel cannot travel out of the evidence to state matters not appearing therein, to thereby affect the minds of the jury. Such charge, then, not being relevant or pertinent, would not be privileged; it is evident its truth would not make it pertinent. But although not privileged, still the counsel could plead truth in justification, the same as if the slander had been uttered in the public street.

So, again, suppose there was evidence (although improperly admitted) tending to show, even though slightly, that the witness had been sent to the State prison for perjury, or had committed perjury iu other cases, then, as either of those matters would materially affect the credibility of the witness, upon which credibility the jury would be called on tó pass on the evidencbefore them, it would be relevant and pertinent for the counsel tó call the attention of the jury to the evidence, and strenuously argue and insist, and charge that it showed the witness to be a perjurer, or to have perjured himself in that trial, and to affirm his belief in the charge.

Being thus pertinent and relevant, the malting of the charge is privileged; and that it is untrue in point of fact does not destroy the privilege.

So, too, if, in opening his case, the counsel, at the suggestion of his client, informs the jury that he will put in evidence matters which are scandalous or libellous in themselves, as reflecting oil the character of the opposite party to the action, or of witnesses already sworn, and comments thereon in no measured language, he is, if such matters, on being proved, would be relevant and pertinent to the issue, absolutely privileged,' although the proof subsequently given wholly fails to substantiate the matters, and they are themselves untrue. And this, because at such stage of,the case he is bound to enforce and give in evidence that which his client informs him, it being pertinent to the issue, and not to examine whether it be true or false; but it is so enforced' and given in evidence at the peril of him who informs it (Stark on Slander, vol. i., p. 283).

There may be cases where parties, or even counsel, honestly misjudge as to what is relevant and pertinent to the question before the court; and in such cases it may be proper to leave it to the jury to determine as a matter of fact whether the' words were spoken in good faith, under a belief that they were relevant and pertinent, or whether the party using them was actuated by malice, and intended to slander the' plaintiff.

■ These propositions are substantially enumerated in Hastings v. Lusk, 22 Wend., 410, as I read the case, and seem to me .to be - founded on reason and justice.

I concur, therefore, with Judge Fithian (and for the reasons given by him) in holding that the demurrer in this case cannot be sustained unless it appears on the face of the complaint that the specification in question was material and pertinent to the issue before the District Court; and that it does not so appear.

Order affirmed, with $10 costs of appeal.


author: Monell, J. Fithian, J.

text:
    GEORGE W. HOLTSINGER, Plaintiff and Respondent, v. THE NATIONAL CORN EXCHANGE BANK, Defendant and Appellant.
    A letter of attorney to collect, does not authorize the attorney to indorse a draft in the name of Ms principal. Meld, that a defendant, to whom the attorney had indorsed the draft, was liable to the principal, in an action for money had and received.
    Before Monell, Jones, and Fithian, JJ.

      [Decided March 3, 1869.]
    This action was brought to recover the amount of two drafts, one for five hundred and twenty-five dollar’s and ten cents and the other for nine hundred and thirty dollars and fifty-nine cents. They were in the same form. The following is the copy of one:
    “ No. 549. Washington, D. C., Sept. 21, 1866.

      “Assistant Treasurer of the U. S., New York :

      “ Pay to George W. Holtsinger, or order, five hundred and twenty-five dollars and ten cents ($525.10).
    “Paid, Oct. 2, 1866.
    “J. W. NICHOLLS,

      “Add. P. M. U. S.A.”

    The defendant received these drafts from one Charles EL Green, a depositor in the bank, indorsed as follows—•
    “ Pay to the order of B. Green, Jr.;

    “ George W. Holtsinger;
    “ B. Green, Jr.;
    “ Charles H. Green
    —and collected the amount from the Assistant Treasurer of the United States, upon whom they were drawn. It was admitted that the plaintiff had not indorsed the drafts, and that the indorsement of his name thereon was in the handwriting of one Richard Green, Jr., now deceased, whose only authority to indorse the plaintiff’s name thereon was contained in a power of attorney which is as follows:
    ' “ Know all men by these presents: That I, George W. Holt-singer, late First Lieutenant, and afterward Captain, of Company F, of the Fourth Regiment of Tennessee Infantry (Volunteers), do hereby constitute and appoint Green & White, of Nashville, Tennessee, to be my true and lawful and sufficient attorneys for me, and in my place, name, and stead to ask, demand, receive, and receipt for any and all pay and allowances due me from the Government of the United States, on account of my services as First Lieutenant and Captain of Company F of the Fourth Regiment of Tennessee Infantry (Volunteers), aforesaid, to sign my name to any receipt, pay-roll, voucher, or other acquittance' of such dues; and for the purpose aforesaid, I do hereby grant unto my said attorneys full power to execute and deliver all needful instruments and papers, and to perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully and completely, to all intents and purposes, as I might and could do if personally present, hereby ratifying and confirming all the acts of my said-attorneys, or either of them, done by virtue and in pursuance of these presents.
    “ In testimony whereof, I have hereunto set my hand and , seal, on this fifteenth day of August, a.d. one thousand eight hundred and and sixty-six, at Greenville, Tennessee.
    “GEORGE W. HOLTSINGER,

      “late 1st Lt. and Capt. Co. F, 4th Regt. Tenn. Infantry (Vols.).

      “ Witnessed by
    “ Robert M. McKee,
    “ William D. Culver.”

      It was also admitted that Richard Green, Jr., was one of the firm of Green & White, mentioned in the foregoing power of attorney.
    It was proved that the amount of the drafts, when collected by defendant, was carried to the credit of Charles H. Green, from whom the drafts had been received for collection.
    It did not appear whether the defendant had or had not paid the amount to their depositor.
    The action was tried by a referee, who, after finding the facts, decided that the power of attorney was void, under section 1 of the Act of Congress of 26th of February, 1853, and that the indorsement of the plaintiffs name was without authority, and ineffectual to transfer the drafts to Charles H. Green or to the defendant.
    From a judgment in favor of the plaintiff, for the amount of the drafts and interest, the defendant appealed.

      Mr. Charles P. Crosby for appellant.
    . The principal error of the referee was in holding that the plaintiff had such privity of contract with the defendant as would entitle him to bring the present action, and in holding the power of attorney to be null and void.
    If the power of attorney from Holtsinger, the plaintiff, to Green & White was null and void, for the reason that it was in conflict with the statutes of the United States, passed July 29, 1846, and February 26, 1853, and if the indorsement of the name of the plaintiff on the back of the draft was unauthorized, still the plaintiff is not in a position to bring this action, for the reason that there is no privity of contract between the plaintiff and the defendant (1 Archbold’s Nisi Prius, 3d Am. edition, marginal paging 79, 80, 81).
    The power of attorney itself was not null and void under the acts of Congress, for the reason that the demands of an army officer against the United States, for pay and allowances, is not a “ claim ” against the United States within the meaning of the act of 1846 or of 1853. The act of 1846 only applied to claims allowed by a resolution or act of Congress. By a provision of the act of 1853 the acts of 1846 and 1853 were declared to apply and extend to all claims against the United States, whether allowed by special act of Congress, or arising under general laws or treaties, or in any other manner whatever.
    There is no evidence in the case showing that the plaintiff had any title to the drafts. The only testimony to that point is to be found in the stipulation by which it is agreed “ that the plaintiff is the payee mentioned therein.”
    There is no proof in this action on what account or for the payment of what claim the drafts were issued.
    We insist that this is a proper case for the application of the rule that where one of two innocent persons must suffer, he shall suffer who places it in the power of a third person to do the the injury.

      Mr. O. L. Stewart for respondent.
    The power of attorney from the plaintiff to Green & White, on which the defendants rely, is “absolutely null and void” and the defendants acquired no title to the warrants under it (1 Brightly’s Dig., page 132). The power of attorney bears date the 15th of August, 1866-—and the warrants bear date September 21, 1866, more than a month later. Prima facie these instruments were •executed at their dates; and there is no evidence to the contrary of their dates being in fact the time of them execution (St. John v. Amer. Mu. L. Ins. Co., 2 Duer, 419; Seymour v. Van Slick, 8 Wend., 403; Bill v. Davis, 8 Barb., 210; Jermain v. Dennison, 6 N. Y. Rep., 276). By the act of Congress of February 26, 1853, it is declared that all “powers of attorney, orders, or other authorities for receiving payment of any such claim ” (any claim upon the United States), “shall be null and void, unless the same shall be freely made and executed,” &c., * * * * * “ after the allowance of such claim,, the ascertainment of the amount due, and the issuing of a wa/rrant for the payment

      thereof? It seems to us that this case is directly within that provision, and that the power of attorney is, by the express terms of the provision, absolutely null and void. Where negotiable paper is payable to order, if the name of the payee is indorsed without authority, subsequent parties, to whom the paper is in form transferred, acquire no title (Graves v. The American Exchange Bank, 11 N. Y. Rep., 205). By the stipulation" in evidence, it is conceded that Richard Green, Jr., had no authority to indorse the name of the plaintiff on the warrants beyond what he received by the power of attorney.
    That gave him no power whatever. The warrants have not been indorsed by the payee thereof, or by his authority; and being payable to his order the unauthorized indorsement of the name of the payee transferred no right to the warrants to Richard Green, Jr.; his attempted transfers without authority to Charles H. Green amounted to nothing toward investing the latter with any right or title; and Charles H. Green, having no right, title, or authority, could pass no title to the defendant.
    Richard Green, Jr., or Green & White, had no authority to indorse warrants in the plaintiff’s name, to appropriate the warrants to his or their use, and if they assumed to do so, and the other parties had notice of it, the indorsements for that purpose are void (Easton v. Clark, 35 N. Y. R., 225; Smith v. Bowen, id., 83).
   By the Court:

Monell, J.

Without examining the ground upon which the referee has placed his decision, namely, that the power of attorney to Green & White was' void, under the first section of the act of Congress of February 26, 1853, and therefore the defendant acquired no title to the drafts, I am so well satisfied there is another ground so fatal to the defense, that, without inquiring into the correctness of the reason given by the referee, we must affirm his decision, upon the well-established rule that the' Court will not reverse a correct judgment, merely because an insufficient or incorrect reason may have been assigned for it.

The only claim of title to the drafts asserted by the defendant was derived through the indorsement of the payee’s name by JR. Green, Jr., under a power of attorney to Green & White.

It was admitted on the trial, by the defendant, that the indorsement of the plaintiff’s name on the' drafts was not in the handwriting of the plaintiff, but was in the handwriting of Richard Green, Jr.; and that the only authority he had to indorse the name of the plaintiff was contained in the power of attorney.

This admission must be deemed to conclude the defendant upon the facts of the case.

Upon those facts an objection might be taken that a power exercised by one only of two joint attorneys, was not sufficient to pass title to the drafts to the defendant.

The general rule is, that where an authority is given to two or more persons to do an act, the act is valid to bind the principal only when all of them concur in doing it (Story, on Agency, § 42, and cases cited). In respect to real property, it is made the subject of a public statute (1 R. S., 735, § 112); and in respect to other things it is a well-understood principle of the common law. In the case of Green v. Miller (6 John. R., 39), it was held that, in a parol submission to fioe arbitrators, all must join in the award. It is there said, that in a delegation of power for a mere prwate purpose, it is necessary for all to concur. In matters of public concern a different rule prevails. That decision was before the statute (2 R. S., 542, § 7), which somewhat changed the common-law rule (Raley on Agency [Lloyd], 177, and cases cited). In this case, however, the letter of attorney was to two persons in their copartnership name, and it may be that the signature of one of the partners of his own name, and not of the name of his firm, was a sufficient execution of the power. But .as the Court do not fully concur on that point, and it is not necessary to the decision, it is left undecided.

The important question is, Did the power of attorney give any authority to the attorneys to indorse the drafts ?

The express power is, “ to ask, demand, receive, and receipt for any and all pay and allowances due me from the Government of the United States, on account, &e., and to sign my name to any receipt, pay-roll, voucher, or other acquittance of such dues; * * * with full power to execute and deliver all •needful instruments and papers, and to perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises,” with the usual clause ratifying and confirming the acts of the attorneys".

It will be seen that the letter of attorney does not in express terms grant any power to indorse the plaintiff’s name upon any draft; and unless such power can be derived from those parts of the instrument which confer what may be called general power, it nowhere exists.

The case of Hogg v. Smith (1 TAunt., 347) was very similar to this case. The plaintiff, by power of attorney, constituted one English his attorney, to ask, demand, recover, and receive, from the Commissioners of his Majesty’s navy, all such salary, wages, &c., as there was or thereafter should be due to him, for his services in any of his Majesty’s ships, * * and acquittances, releases, and other discharges” in his name to make, with the usual clause of general ratification and of general power in the premises. English received from the Commissioners of his Majesty’s navy, on account 'of the plaintiff, two bills, payable to the plaintiff’s order. English indorsed the drafts in the plaintiff’s name, and. negotiated them to the defendant. The action was trover, and it was held that the authority was strictly confined to receiving the debt; that the attorney, by receiving the bills, performed all that he was authorized to do, and ought to.have kept them in his possession for the plaintiff.

The case of Hay v. Goldsmidt (cited by Lawrence, J., in Hogg v. Smith, supra) was also similar. There was a power of attorney to ask, demand, and receive from the East India Company all moneys that might be due, &c., and to transact all business, with the usual general power and clause of ratification. The attorney received an India bill payable to the plaintiff’s order, indorsed it in his name, procured it to be discounted by the defendants, who received of the India Company the money due on the bill. The action was to recover the money, and the court was of opinion that the instrument gave no authority to the attorney to indorse the bill, and that the words all business,” must be confined to all business necessary for the receipt of the money.'

In Gardner v. Baillie (6 T. R., 591), the attorney had accepted a bill for and in the name of the defendant as executrix, for a debt due to the plaintiff from the defendant’s" testator. The letter of attorney authorized her attorney to “adjust and settle all accounts, differences,” &c., wherein she, as executrix, was interested; and for her and in her name, as executrix, to execute assignments of mortgages, receipts, releases, &c.; to 'pay all debts due from her as executrix, and “ generally to do all such fmther acts for recovering debts and discharging the power given by the letter.” It was held that there was no , authority to accept the bill. In Rossiter v. Rossiter (8 Wend., 494), a promissory note was made by an attorney, in the name of his principal, to release certain pledged property. " The letter, after giving special powers to the attorney, also empowered him “ to accomplish, at his discretion, a complete adjustment of all the concerns of Pynchon, and to do any and every act in his name which he could do in person.” The court held that the attorney was a special agent; that the letter specified what business he was to transact, and that the general authority “ to accomplish, at his discretion,” &e., conferred no power that did not relate to the business previously mentioned. The cases of Hogg v. Smith and Hay v. Goldsmidt were cited and approved.

The general rule for the interpretation of this species of written instruments is, that language, however general in its form, when used in connection with a particular subject-matter, will be presumed to be used in subordination to such matter, and will be limited accordingly. Such instruments are always subjected to a strict interpretation, and will not be extended beyond that which is given in terms, or which is necessary and proper for carrying the authority so given into effect (Ferreira v. Depew, 17 How. Pr. R., 418).

The cases I have cited are sufficient to show that the general words in a letter of attorney cannot be construed to extend or enlarge the power beyond the subject-matter of the agency, as expressed in the previous parts of the letter. ;

There being, therefore, no express authority to indorse the drafts, none can be implied from other parts of the letter.

The defendant, being without legal title to the drafts, acquired no title to the money received upon them, and I can see no objection to the maintenance of an action by the payee for its recovery.

In Hogg v. Smith (supra) the action was trover, to recover for the conversion of the bills; and 'in Hay v. Goldsmidt (supra), for the recovery of the amount of money received on the bill. In each case the action was against a person to whom the bills had been transferred for value.

In this case, the defendant was the collecting agent of its depositor, had parted with no value, and was, in fact, the mere custodian of the money, having no interest whatever, -which under other circumstances it might, perhaps, ask to have protected.

But, if the English cases were not sufficient to sustain this judgment, one or two in our own courts can be brought to their aid..

In the case of Canal Bank v. Bank of Albany (1 Hill, 287), a draft drawn upon the plaintiff was sent to the defendant for collection, with the payee’s name forged, and they received the money. It was held that the defendant was bound to refund to the drawees who had paid the draft. ■

A similar ease is Coggill v. American Exchange Bank (1 N. Y. R., 113), where the payment by the drawees was also after a forged indorsement, and the amount was recovered. And see Goddard v. Merchants’ Bank (4 N. Y. R., 147).

In each of these eases the defendant was the collecting agent, and received the money on account of its immediate correspondent and indorser; and they are cited to show that the mere agency of the defendant in the matter did not protect them from an action for money which, they had received without legal authority from the payeee of the drafts.

The principle decided in Easton v. Clark (35 N. Y. R., 225) is, I think, also applicable to this case. It is, that property disposed of by a factor in a manner not within the scope of his authority may be reclaimed by the owner, on the ground that no title passes, either in r&plevm or trover, or he may waive the tort and recover the proceeds of the sale.

It not appearing in this case that the defendant has paid over to its depositor the money received on the drafts, it must be assumed that it remains in their hands, and therefore it is a matter of indifference to them which party receives it.

I have reached the conclusion in this case, that the defense is unsound, with some reluctance, inasmuch as the points I have considered were not much discussed on the argument; but the reasons I have stated are founded wholly on facts which cannot be changed; and the most that can be complained of, is that the appellants have not had another opportunity to argue them.

I am of the opinion that the judgment should be affirmed.

Jones, J., concurred.

Fithian, J.

(concurring). The cause of action in this case is that defendant having innocently, but without authority or assent of the owner, become possessed of plaintiff’s property (the drafts in suit), and having, through the unauthorized use of plaintiff’s name, converted the same into money, which he refused to pay to plaintiff, the law gives the latter a right of action as for money had and received to his use. I think the action is clearly maintainable in such a case.

I concur in the opinion of the Court affirming the judgment in this case, on the ground solely that the power of attorney is not sufficiently broad and comprehensive to authorize the attorney to sign or indorse plaintiff’s name to any bill, draft, or note. The attorney was a special agent for one single purpose, and when he had received and receipted for the drafts or warrants” specified, he had executed his power, and his authority as agent terminated. He held the drafts precisely as he would have held money if he had received that instead of the bills from the United States officer, viz., as the property of plaintiff, with no power or right of disposition whatever, save to pay over to plaintiff.

On the question whether in this case the power of attorney could be legally executed by one of the two joint attorneys, alone, I express no opinion.

The grounds upon which we put our decision in this case render it unnecessary to inquire whether the power of attorney was void by reason of its not being executed within the time required by the act of Congress of February 26,1853.

However, as the referee based his decision solely upon that ground, and the question was much discussed on the argument, it may not be inappropriate to state briefly my conclusions on that subject. I am of' opinion that the provisions of the statute- above mentioned are not intended to apply to all powers of attorney, but only to such as are irrevocable, and work an assignment to the attorney of an interest in the claim or its proceeds ; or in other words, powers coupled with an interest—for it is such only that are within the mischief sought to be remedied (6 Opinions Attorney-General, p. 60); and that a simple power or authority to an agent to collect and receive money on a demand against the government, in which the agent has no interest whatever, is not within the provisions of the first section of the Act of 1853, provided it be executed in accordance with the requirements of the Act of 1846 on that subject. I am also of opinion that as to such powers as are void within the provisions of the Act of 1853, they are so only as between the claimant and the government; that is, the officers of the government are authorized to disregard the power and treat it as a void instrument. If, however, the officers of the United States choose -to so far recognize the power as to pay over to the agent money or property on account of the claim, the claimant has his election to repudiate the act as no lawful payment, and still assert his claim ; or he may ratify the act of payment, and pursue his money or property into the hands of his agent, or other persons to whom the agent may have delivered the same.- If he does the latter, he is subject,to and bound by all and every power of disposition or interference with the fund which he may have given, and which is valid at common law. The United States statute was not intended to affirm or avoid contracts between citizens, except so far as it affects the relations of the government with its citizens. Had the power of attorney in this case been sufficient at common law to authorize the agent to indorse Mils, the judgment must have been reversed. As it is, judgment is affirmed.


text:
    JESSE HOYT, Plaintiff and Respondent, v. LEWIS W. PHILLIPS, Defendant and Appellant.
    On appeal from the taxation of a sheriffs bill of fees the appellate court will be controlled by the evidence before the taxing officer, and where no proof whatever is furnished by the sheriff, not even the usual affidavit required by law, the correctness of his charges will be determined upon the evidence furnished by the party objecting.
    Where an execution had been levied upon property sufficient to satisfy the judgment, and the judgment was compromised for less than the whole amount, held, that the sheriff was entitled to poundage upon the whole amount of the judgment. Held, also, that three dollars a day was a reasonable sum for watchmen.
    Before Monell, McCunn, and Freedman, JJ.

      [Decided March 9, 1869.]
   By the Court:

Monell, J.

This is an appeal from the taxation of a bill of the sheriff for fees, &c., upon an execution under which he had levied upon the defendant’s property. The judgment was after-wards compromised and satisfied by the defendant’s paying a little over half the amount thereof.

The papers furnished to us upon the appeal do not contain any proof whatever on the part of the sheriff of the correctness of the charges, not even the usual affidavit required by the statute (2 R. S., 653, § 7), and we must therefore decide this appeal upon the evidence furnished by the defendant before the taxing officer, and which are printed in the appeal papers.

We think the amount of poundage charged is correct. The fees of the sheriff are regulated by the Revised Statutes, and the case of Parsons v. Bowdoin (17 Wend., 14) was decided under those statutes, and supports the amount claimed in this case. The 243d section of the Code relates exclusively to judgments in attachment suits.

The correctness of the charge for watchmen’s fees must be tested by the evidence before us. The only proof is contained. in the affidavits of the defendant, and of his book-keeper and yard-keeper. Those affidavits are not disputed, and they show distinctly that twenty-four days is all that should be allowed for watchmen. Again, the defendant’s affidavits are our only means of ascertaining and determining the reasonableness of the per diem charged. Upon such evidence, three dollars per day for each watchman appears to be a fair amount; and as we must decide this appeal upon the evidence before us, we would not be justified in allowing any larger amount.

There are no levy fees, other than poundage. A fee of sixty-nine cents is allowed for returning an execution.

Upon the principles above stated and the facts, the taxation must be reversed, and the bill readjusted at the following rates fixed by the court, without again going before the taxing officer, viz.:

Poundage................................ $71 25

Two watchmen, 24 days each, at $3 a day each, 144 00

Returning execution....................... 69

$215 94

Deduct amount credited................ 40 00

$175 94

McCunn, J., dissented.