author: Jones, C. J. Oakley, J.

text:
    Ellen Tooker, Executrix, and Daniel Tooker and Joseph Smith, Executors of the last will and testament of Samuel Tooker, deceased, versus Philo Doane.
    To an action of debt on a bond, the defendant pleaded his discharge under the insolvent act. The plaintiffs replied, that the defendant afterwards ratified and confirmed the bond and waived the benefit of his discharge.
    To support the issue taken on this replication, the plaintiffs produced a paper, signed by the defendant more than two years after his discharge, wherein he agreed that the obligee “ might make any settlement he thought proper with one Sexten (for whose benefit the bond was made) without giving up any lien he might have on the defendant for the amount of the bond.” Held, that the proof did not support the replication, and that the agreement was no waiver of the discharge.
    Sexten, it appeared, after the date of the discharge, made two payments on the bond; but as it was not shown that they were made with the knowledge or assent of the defendant, it was held that no inference unfavorable to him could be drawn from the acts of Sexten.
    This cause was transferred from the Supreme Court to this court, by a consent of parties, and the questions raised in it were presented by a case made. The action was debt on a bond for four thousand dollars, bearing date the first of September, 1815, with a condition for the payment of one thousand dollars in one year from its date, and a further sum of one thousand dollars on the first day of September, 1817.
    The defendant pleaded a discharge, bearing date the 21st of August, 1816, under the 9th section of the “ act for giving relief in cases of insolvency,” passed April 12, 1813.
    The plaintiffs replied, that “ after the supposed discharge mentioned in said plea,” to wit, “ on the second day of September, in the year 1818, in the lifetime of the said Samuel Tooker,” “ the said defendant agreed to, ratified and confirmed the said writing obligatory,” and “ waived the benefit of the said supposed discharge —and upon this replication the defendant joined issue to the country.

      The cause was tried before Mr. Justice Oakley, and at the trial, the plaintiffs proved the due execution of the bond, by a subscribing witness, together with the following endorsements, which appeared upon it, viz.:—“ Received, New-York, July 18,1816, from Philo Doane, by the hand of Thos. Sexten, 750 “ dollars on account of the principal of the within bond.
    “ Samuel Tooker.”
    “ Also, received at the same time, 250 dollars; and likewise “ 61 dollars and 44 cents, interest on 1000 dollars to this day.
    “ Samuel Tooker.
    “ Witness, Samuel S. Rogers.”
    Rogers, being called as a witness, testified, that although he had no recollection of the payments mentioned in the endorsements, yet he did not doubt that they were made in his presence, from the fact of his name’s appearing upon the paper. Annexed to the bond there was an instrument of the following tenor, in the handwriting of Doane, the defendant:
    “ I, Philo Doane, named in the annexed bond, do hereby consent that Samuel Tooker, who is also named in the annexed bond, make any settlement he may think proper with Thomas Sexton, (and for whose benefit the annexed bond was given,) without giving up or losing any lien that the said Samuel Tooker, his heirs or assigns may have upon me for the amount of said bond, in consequence of making any such settlement. In witness whereof, I have hereunto set my hand and seal this second day of September, 1818. Philo Doane.
    The plaintiffs’ counsel also offered in evidence the insolvent papers, presented by the defendant when applying for his discharge, for the purpose of showing that the plaintiffs’ debt was not enumerated among those specified in the defendant’s account of his creditors and estate. These being objected to by the counsel for the defendant, as irrelevant under the pleadings, were excluded by the presiding Judge.
    The counsel for the defendant then offered to produce his original discharge, for the purpose of showing that it was signed after the payments were made. This being objected to by the plaintiffs, it was excluded as unnecessary, the discharge itself being spread upon the plea, in hcec verba.

    Upon this state of facts, a verdict was taken for the plaintiffs by consent, subject to the opinion of the court upon this case.
    The cause was now argued by Mr. W. Mitchell and Mr. Slosson for the plaintiffs, and by Mr. W.T. M‘Coun for the defendant.
    For the plaintiff it was contended, that the admission of a debt as subsisting, after the time to which the discharge applied, was a waiver of the discharge,—and that such an admission was apparent in this case. [2 H. B. 116. 7 T. R. 97. 14 John. R. 117. Doug. 160, 192, 393.]
    II. That the discharge applied only to debts contracted before the petition was presented. [2 Esp. R. 736. 4 Cowen’s R. 607.]
    III. That, under the issue in this cause, it was competent for the plaintiffs to show, and from the evidence it appeared that the bond, though in form for the payment of money, was executed by the defendant as a surety, and was not forfeited at the time of the discharge. If, however, the defendant was to be treated as a principal, then, that he was liable under the first point. [Alsop v. Brown, Doug. 192. Cowp. 544.]
    IV. That an express promise to pay a debt barred by the insolvent’s discharge, was not necessary to avoid the discharge; but if necessary, that such a promise was contained in the writing of September, 1818.
    V. That the testimony offered by the plaintiffs and overruled by the presiding Judge, should have been admitted, as it showed a mutual understanding between the testator of the plaintiffs and the defendant, that the discharge should not apply to this bond.

      Mr. M‘Coun, contra, for the defendant.
    The pleadings and issue joined between the parties, admit the discharge to be a valid discharge of the debt in question, up to the second of September, 1818. The evidence of the debt was a bond for payment of money, and it was of course included among the" debts which the defendant owed at the time of his discharge. If there is no waiver of the discharge, the discharge is a bar to the action;—and this is admitted by the replication. The replication, instead of denying the validity of the discharge at the time it was obtained, sets up new matter to avoid it, and we are brought down to the single question presented by the issue; namely, whether the defendant ever did ratify the bend and waive his discharge.
    II. The plaintiffs rely upon the paper signed by the defendant and annexed to the bond. That paper is not a ratification of the bond as a debt against the defendant, nor a waiver of the discharge. A subsequent acknowledgment merely, will not renew a debt which is discharged; there must be an express promise to pay it, or the defendant will not be liable. [1 Stark. N. P. R. 370. 5 Esp. Cas. 198. 2 H. B. 116. 4 Taunt. 613. 2 Burr. 736. 2 Stark. on Ev. 209-10.]
    The promise must be precise and positive. In the case cited from Taunton, the debtor promised to pay the old debt by instalments, without expressing the times when or (he specific sums ; and the promise was held insufficient to bar the discharge.
    In this case, it is fair to presume that Sexten was under a moral obligation to pay the bond, as it was made for his benefit. The obligee, being desirous of making a compromise with Sex-ten, did not wish to lose by his own act any possible hold he might have upon the defendant. He therefore obtained the consent upon which the plaintiffs rely,—but it will not be found to contain an admission, or a promise, or a waiver. It merely permits a settlement with Sexten, without giving up any claim which the obligee might have upon the defendant. If he had no claim in September, 1818, the paper in question gave him none, and he cannot recover.
    The issue, therefore, taken by the plaintiffs is not supported,— for it cannot be pretended that the payments made by Sexten
      can implicate the defendant. It does not appear that he ever heard of the endorsements until the day of trial; and clearly, no act of Sexten could prejudice the defendant, unless assented to by him.
    III. As to the insolvent papers rejected at the trial, they were evidently inadmissible. If the bond was not enumerated among the defendant’s debts, it would prove that he did not admit its validity as a subsisting debt, and no inference unfavorable to the defendant could be drawn from the omission.
    But the plain answer is, that the papers, if admitted, would not avoid the discharge. If that was obtained by fraud, and by omitting to enumerate all the creditors of the petitioner, the plaintiffs should have alleged the fraud as a reply to the discharge. But having taken issue upon a fact which admits its validity, the insolvent papers became wholly irrelevant.
   Jones, C. J.

It is clear that the discharge, which is admitted by the replication in this case, is a bar to the action, unless the matter set forth in the replication, has been established by the evidence, and is sufficient to obviate the effect of the discharge, and remove the bar it created. The substance of the replication is, that the defendant has waived the benefit of the discharge, by a subsequent recognition of the bond as obligatory upon him, and the ratification of it as a subsisting debt.

It is settled, that a subsequent promise to pay, will avoid the operation of a discharge, which would otherwise bar the recovery of the debt so promised to be paid. In this case, the old debt, which the testator was bound, under a penal obligation, to pay, constituted a sufficient consideration to give effect to a promise, which might repel the force of the discharge, and remove the obstacle it would otherwise oppose to the action on the original demand. But here there is no express promise to pay the debt. The utmost that can be successfully contended for, is the admission of the bond as subsisting against the testator, and the waiver that admission implies of the benefit of the discharge, or a promise inferable from the receipts endorsed on the bond, or the consent of the 2d of September, 1818, or both conjointly, to pay the debt.

The question then presented will be, first, whether such an admission, or implied promise, has been shown in the present case, and if so, whether it is a sufficient waiver of the discharge, to operate as an avoidance of it, and obviate its force as a bar to the action on the bond.

Upon the first question, as to the fact of the admission or pro. mise, the only evidence of it is, the endorsment on the bond, of the payments of principal and interest, on the 18th of July, 1816j and the consent bearing date the 2d of September, 1818.

The payments, according to these endorsements, are prior in point of time to the discharge, which was given on the 21st of August, 1816, and, admitting the position assumed by the plaintiffs, that the payment of interest admits the subsistence of the principal debt, the evidence of that endorsement, can have no bearing on the question, unless it be true, as the plaintifls assume it to be, that the discharge in this case, applies only to debts contracted anterior to the presentment of the petition.

In the case of M‘Neilly v. Richardson, [4 Cowen’s R. 607,] it was held that the discharge under the first section of-the act, upon the application of the insolvent, in conjunction with two thirds of his creditors, refers to the existing state of things at the time of presenting thq petition; and that debts contracted, or accruing subsequently to that time, though they fall due before the discharge, cannot be proved under the assignment, and are not barred, or affected by the discharge.

In this case, the application was by a creditor, under the 9th section of the act, which is supposed to be hostile to the debtor, and has for its foundation, the apprehended waste or embezzlement by him of his estate or effects. The debtor is not intended, and does not appear to have any agency in the proceeding.

Another prominent distinction between the two cases deserves to be noticed. It is this; the insolvent who petitions under the first section of the act, is required to deliver to the Judge, at the time of presenting his petition, a full and true account of all his creditors, and the moneys owing by him to them respectively, together with a full, true and just inventory of all his estate, both real and personal. But when the creditor applies for relief under the 9th section of the act, no account of creditors or inventory of estate is required to be delivered by the insolvent, until an assignment shall be directed by the Judge to be-made.

Still, however, the provisions of this section of the act, look to the creditors of the imprisoned insolvent, at the time of the application for relief, and the order, the Judge is to make, upon the application, is, to show cause why an assignment should not he made of the debtor’s estate, for the benefit of all such creditors. And if the insolvent make the assignment directed, he is to be discharged in like manner, as if he had petitioned for his discharge, in conjunction with the creditors, under the first section of the act; but if he refuses, or neglects to do so, an assignment of his estate is to be executed by the magistrate, and which the act declares shall vest in the assignees, the whole- of the estate which belonged to the insolvent, on the day of the first publication of the order to show cause why an assignment should not be made.

The construction of the 9 th section, therefore, must substantially correspond with that of the 1st; and a debt accruing subsequently to the order to show cause, would not be proveable under the assignment, nor barred by the discharge. It it settled, that the renewal of an old debt by a new promise, will obviate the effect of a discharge, and the case cited from Espinasse is in point, to show, that the time of making such new assignment is not material. In that case, it was made intermediate the issuing of the commission and the signing of the certificate, and it was held effectual. There the acts relied upon as renewing the debt, were after the full publication of the order to show cause, but previous to the discharge, and if sufficient in themselves to revive it, will have that effect.

In the case of Alsop and another v. Brown, [Dougl. 191,] which was an action of debt on a bond, to the trustees, under one Wilson’s will; the defendant, who was a principal debtor. pleaded a bankruptcy, and on the trial it appeared, that interest had been paid on the bond, after the defendant obtained his certificate, but it did not appear whether such interest was paid by the defendant, or one of his sureties. Lord Mansfield said, that if the interest was not paid by the bankrupt there was no question ; but, that if it was, it would be an admission by him, that the principal was then due, and he might be liable as on a new contract.

In the case before us, the payments were-confessedly made by Sexten, for whom the bond was given, and not by the insolvent It is true, that the money is expressed in the receipt, to be received from Doane the obligor, by the hands of Sexten; but that form of expression may have been used merely to show that it was a payment on account of the bond, and to go to the credit of the obligor, as he alone was bound by the obligation for the money; and the legal effect óf a payment, by any person, would be a payment and receipt for the obligor.

This payment therefore' must have been made by Sexten, the principal, and cannot, on the declaration of the receipt alone, be claimed to establish the admission of the debt by the obligor, so as to waive the benefit of his discharge as a bar to the action.

The next question is, whether the writing or consent of the 2d of September, 1818, amounts to such an admission? That writing was signed by Doane, the obligor, and by it, he consented that Tooker, the obligee, might make any settlement with Sexten, without giving up or losing any lien he might have on him, Doane, for the amount of the bond by such settlement.

This the plaintiff insists upon, as an acknowledgment of the bond, which binds the defendant to the payment of the debt; and the opinion of Lord Mansfield, in the casé cited from Douglass, is relied upon as an authority for his liability.

The defendant does, certainly, by his consent, recognise the bond as a subsisting security; but does he admit that it is obligatory upon him, or is it fairly to be inferred from the expression he uses, that he acknowledges his present liability to pay it ? The actual payment of interest on a bond, is the clearest testimony that can be offered of the admission of the party who pays it, of Ms liability to pay. But do the terms of this consent, import so strong and unqualified an admission that the principal debt was then due from the defendant, as the payment of interest by him would have implied 1

The permission to make a settlement of the debt with Sexten, assumes that the obligation of paying the debt lies upon him. But does the consent that such a settlement may be made by the obligee with Sexten, without giving up any lien the obligee may have upon Doane for the amount of the bond, necessarily admit that Tooker then had a lien, or claim upon Doane for the whole amount which might be enforced against him ? If the parties fully understood at the time that Tooker had a subsisting demand against Doane upon the obligation, which the consent was intended to preserve, the bond would undoubtedly have been treated as an undisputed debt of Doane. But what could have induced Tooker, the obligee, if the legal obligation of t)oane was admitted, to employ language in his consent to settle with Sexten, which imparted a doubt of the subsisting liability of Doane, and was calculated to embarrass him in his future recourse to Doane, in case of a failure of satisfaction from Sex-ten 1 The fair presumption from the acceptance by Tooker, of a consent so guardedly worded is, that his lien or claiip upon Doane for the amount of the bond was not conceded, and might he questionable.

It was asked why the consent should be required or given, if the debt was understood to be barred by the discharge ? The answer is, that probably some question had been raised as to the effect or legal character of the discharge; and Tooker wished to secure whatever right he might have.

On the part of the defendant it was broadly contended, that an absolute and unqualified admission of the bond as a subsisting debt, would not countervail the effect of the discharge, but that the bond required an express promise of payment to obviate the bar, and the case of Mucklow v St. George, [4 Taunton 612,] favors that opinion. In that case the defendant being indebted to the plaintiff on a promissory note, took the benefit of an insolvent act, and being called upon, after his discharge, by the servant of the plaintiff, for the debt, he inquired the amount of it, and being ° informed, he answered that he was not able at that time to discharge it, but his friends were about to do something for him, and he would pay the debt by instalments. At the trial the plaintiff relied upon this answer as evidence to establish a new promise to pay, but was nonsuited. On a motion to set aside the nonsuit and for a new trial, the counsel contended that this amounted to a promise to pay the debt by reasonable instalments within a reasonable time. But the court dissented from the proposition, and observed that this case was not like cases under the statute of limitations in which the evidence might suffice to revive the debt. The answer of the defendant in that case was too indefinite and uncertain to establish a binding promise to pay the debt, the amount of the instalment and the time of payment being undefined and unsettled, and the promise obviously based upon the aid he expected from his friends, and which it did not appear that he had received. But it was a clear admission of the debt, and an acknowledgment of his present liability to pay it; yet it was not held sufficient to revive the debt.

I am not prepared to say that an express promise is necessary to the avoidance of the bar, created by the discharge. It is not necessary for the decision of this cause to push the principle to that extent, and such a rule would hardly conduce to the purposes of justice. The conduct of parties often speaks as intelligibly and as strongly as their language; and undeniable acts of recognition, such for example as the payment of interest or a part of the principal, indicates a sense of present liability, and an engagement to pay as clearly, as an express promise could do. Such acts carry with them internal evidence of the waiver of the discharge, and the renewal of the obligation of the debtor to pay the debt. For the same reasons, and on the same ground, a clear acknowledgment of the debt, as a present subsisting obligation of the party, freely and understandingly made, ought to be, and in my judgment is, equally with a part payment of the demand, a waiver of the discharge, and a renewal or revival of the legal obligation to pay the debt. But there must be a distinct and unqualified admission of the debt, and an acknowledgment of the debtor’s continuing and subsisting liability to pay it, in order to obviate and repel the operation of the discharge, and enable the creditor to recover in an action for the antecedent demand.

Does the writing in this case import such an admission of the bond and acknowledgment of its continuing and binding obligation upon this defendant, as to manifest a waiver by him of the benefit of his discharge ? Or is the consent and authority it gives so cautious and qualified, as to preserve to him all the protection which that discharge could give him ? I understand the writing as intending to authorize a composition with Sexten, the principal debtor, without discharging him from his obligation as surety ; but 1 can discover no trace of any intention to waive the benefit of the discharge, or to admit any present liability on the part of Doane to pay the debt. And in niy judgment it would be a forced construction of the consent, to infer from it the broad and unqualified recognition of the bond as a subsisting debt which he was absolutely unable to pay, or to ascribe to it any other meaning or legal effect than that of a license by the defendant as surety to the obligor to compound with the principal, and a consent that such composition should not be made the ground of defence to an action against him, in case the plaintiff should at any time be disposed to contest, the validity of his discharge.

But it was further urged, that the bond was not considered, or treated by the defendant as his own debt, but was regarded as the debt of Sexten, to be provided for and paid by him, and that it was not considered as provable under the assignment, or barred by the discharge; and in proof of this, the payments by Sexten, and the subsequent recourse to him by Tooker, were advanced as decisive evidence; and the insolvent papers showing that the debt was not included in the account of creditors, nor any notice taken of it by Doane, or proof made of it by Tooker, as a creditor, were offered to justify and corroborate this understanding. These documents all concur in showing that Doane did not look upon the bond as a debt which he was to pay; and the probability is, that all parties understood that Sexten alone was to be held answerable for it. But this understanding of the parties could not change their legal obligations, nor could the omission of Doane to insert the debt in his inventory, exclude the creditor from his right to a dividend of the estate, or obviate the effect .of the discharge as a bar to the debt. Nor was that understanding, or the acts which grew out of it, of any material weight in the scale of evidence to establish the continuing liability ofDoane for the debt, or his admission of such liability after his discharge. The just inference deducible from his silence in his insolvent papers as to that debt, would seem to be that he did not hold himself liable for the payment of it, but that it was understood and arranged at the time of his assignment, that Tooker was to exonerate him, and look solely to Sexten. The contemporary payments by Sexten, pending the application for the discharge of one half of the debt, with the interest on that moiety up to the day of payment, justifies that conclusion, arid favors the idea that the arrangement was to relinquish all claim upon Doane, the _ surety, and look to Sexten for the residue. The reliance upon Doane, on the faith of that arrangement, may have induced him to omit” the debt in his account, which he would have been otherwise bound to insert.

Be that as it may, the omission could give Tooker no claim upon the insolvent personally for the debt, unless it was fraudulent, and as no fraud was pretended, the proof of the omission by the production of the papers, was not material, and the evidence was properly rejected.

Oakley, J.

The question in the case is, whether the .evidence supports the issue on the part of the plaintiffs.

As to the payment on the bond, made by Sexten, it is sufficient to remark, that it cannot be considered as the act of the defendant. The receipt was endorsed on the bond, by .the plaintiffs’ testator, and to make it the ground of inferring an acknowledgment by the defendant of the existing validity of the bond, and a promise to pay it, there should be clear proof that the payment was made by the authority or at the request of the defendant. There is no such proof in the case, and at the time the payments were made, the defendant had assigned his whole estate. The money was paid by Sexten, and his act surely cannot conclude the defendant's rights.

The principal question is, whether the agreement between the parties, of the 2d September, 1818, is sufficient evidence of the fact set up in the replication. The defendant, on that day, agreed with the plaintiffs, in writing, that he might “ make any “settlement with Sexten, (for whose benefit the bond was given,) without giving up or losing any lien which he might have on “ the defendant for the amount of the bond.” It is contended by the plaintiffs, that it must be necessarily implied from this agreement, that the defendant considered the bond, as then, valid and subsisting, and that a promise to waive the benefit of his discharge and pay the bond, may be inferred from it.

I think that this would be too forced an inference. The fair import of the agreement appears to me to be, that the then existing rights of the parties, were to remain unimpaired by the intended arrangement with Sexten. The plaintiffs were at liberty to question the validity of the discharge, either upon the ground of its unconstitutionality, or on the ground of fraud, in obtaining it. The arrangement with Sexten, if made without the consent of the'surety, might have discharged the bond, independently of the dischai’ge under the insolvent act. It is reasonable to conclude, that the agreement in evidence was resorted to, only for the purpose of avoiding that consequence. At least, that construction of it will give full effect to its terms, and no further inference necessarily results from it. As for the insol- ■ vent .papers which were offered in evidence by the plaintiffs, it is quite clear that they were irrelevant and inadmissible under the issue. They could not avoid the effect of the discharge as it appears upon the record, and they did not in any manner conduce to prove the facts set up in the replication.

I am of opinion, on the whole case, that the defendant is entitled to judgment.

Judgment for the defendant.

[William Mitchell, Att'y for the plffs. Seaman and Wills, Att’ys for the deft.]


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Ralph Lockwood versus James Flanagan.
    Where the attorney for the plaintiffs, through inadvertence, neglects to file a replication to the defendant’s plea of payment, and takes an inquest against him before the pleadings are formally closed; the court will, under proper circumstances, permit a replication to be filed after the inquest, nunc pro tunc.

    But where the defendant’s attorney was aware of the fact, that the replication was not filed, and lay by for the purpose of availing himself of the defect, and then, upon the plaintiff’s application for leave to file his replication, nunc pro tuna the defendant himself swore to a defence upon the merits, the court refused to allow the replication to be thus filed, but compelled the defendant to pay all the costs’ of the inquest and the motion, as a condition upon which the plaintiff’s application was refused.

      Mr. E. Burr, in behalf of the plaintiff in this cause,
    moved for leave to file a replication to a plea of payment, nunc pro tunc. It appeared, that the defendant had suffered a default, and had allowed an inquest to be taken, but the cause had never been put at issue upon the plea of payment. Mr. Burr read an affidavit of the plaintiff’s attorney, setting forth, that his neglect to file the replication had proceeded from inadvertence merely.

      Mr. E. Barnes, for the defendant,
    read a counter-affidavit of the defendant’s attorney, stating that he was aware, during the progress of the cause, that no replication had been filed to the plea of payment, and that he had never considered the cause as at issue upon that plea. That he had, anterior to the trial, applied to the plaintiff’s attorney for some favor which had been denied, and that, thereupon, he had intentionally neglected to take any part at the trial, believing that the plaintiff’s proceedings, if he ventured to take an inquest, would be erroneous. Mr. Barnes also read an affidavit, made by the defendant himself, stating that he had a good defence upon the merits.

      Mr. Burr contended,
    that the plea of payment, under our practice, was a mere matter of form, as the defendant had a right to set up every defence under the general issue, which could be made under the plea of payment, and he therefore insisted that the court, having the power to grant his motion, would" not deny it under the peculiar circumstances of this case.

      Mr. Barnes, contra, contended that,
    as the defendant had sworn to merits in his defence, the court would hot deprive him of the privilege of trying his rights. - If the attorney had been guilty of neglect, still his client’s rights were not to be sacrificed. Here, in the strictness of practice, the plaintiff was irregular, and he could not therefore ask a favor of the court, which- would prejudice the defendant.
   Per Curiam.

To a certain extent, the rights of a party may be concluded by the acts of his attorney, and he cannot always shelter himself under the defence here set up. If the plaintiff in this case, had proceeded in such.a manner as to take the defendant by surprise,; and. his attorney, supposing that no inquest would be taken Until the replication was filed, had, from, this cause, neglected to interpose his defence; then, as the defendant has sworn to a good defence upon the merits, the court would, as a matter of course, deny this application, and set aside the inquest. But here the defendant’s attorney admits that he was not surprised; on the contrary, he avers, that he lay by for the purpose of taking advantage of the inadvertence .on the part of the plaintiff’s attorney, relative to the replication. As the plea, under our practice, In a case like the present, is a mere matter of form, the court would allow the replication to be filed nunc pro tunc, were it not that the defendant , has sworn to merits. The court will not deprive him of his rights, for.the misconduct of his attorney; but as the' attorney is his agent in the cause, the court will connect them together to a certain extent. The power of the court over the whole matter is undoubted, and if they deny the application, it may be' upon such terms as they- see fit to impose. The application, under the circumstances of the case, must be denied, but the court direct that the defendant shall pay all the costs of the inquest, and of this motion, as the terms upon which the application is denied ; otherwise the plaintiff’s attorney has leave to file his replication nunc pro tunc, and thus perfect his judgment.


author: Oakley, J.T

text:
    Elliot Higgins versus Henry Packard, Scott Ficket, Francis Ficket, and John W. Russell.
    In an action of assumpsit against several joint owners of a ship, for work and labor performed in rigging her, it appeared that the plaintiff had taken the promissory note of one of the joint owners, payable sixty days after date, for the amount of his bill, and given him a receipt in full of all demands up to a certain date. The Judge charged the jury, that the taking of the note, under the circumstances of the case, was not a discharge of the plaintiff’s claims against the other owners, unless it was taken in fact, as payment, and with the intent to discharge the other owners. Held, that this charge was correct in point of law.
    This is the same cause which was formerly before the court, upon a case made, [ante, p. 226.] The court on that occasion, gave judgment for the defendants, but, by an arrangement of the parties, it was again brought before the jury, and tried at the last July term before Mr. Justice Oakley.
    The evidence introduced at the second trial did not differ materially from that produced on the former occasion, and it is not therefore recapitulated here. The Judge charged the jury that the written evidence of title, exhibited by the defendants, was not conclusive in the cause to fix the time when Packard’s ownership began. That such ownership might have existed previously to the date of the bill of sale. That it was for the jury to say, from all the circumstances of the case, whether he was interested in the ship at the time the work and labor were performed. If they found this to be the case, then that their verdict would he for the plaintiff, unless he had by some subsequent act discharged Packard from his liability. That the taking of Russell’s note, by the plaintiff, was not such an act, unless he took it in fact as payment, and with the intent to discharge the other owners, or had been guilty of negligence in obtaining payment of Russell. \ That as Russell was proved to be insolvent at the time the note was given, it did not appear to him that the plaintiff had been guilty of any culpable negligence, but the jury were to judge under all the facts of the case.
    The jury returned a verdict in favor of the defendants, and the plaintiff now moved for á new trial upon the ground, I. that the Judge erred in charging the jury in. substance, that the note of Russell was a discharge of the other part owners, if they should find that the plaintiff" had taken it as payment, and with such intent. II. That the verdict was against evidence.
    The cause was argued by Mr. Anthon for the plaintiff,
    (who cited 5 J. R. 68. 1 Cowen’s R. 304. 17 J. R. 340. Gow on Part. 18, 19,) and Mr. Talman for the defendants. The latter cited 5 J. R. 68. 12 Ib. 409, [Arnold v. Camp.) 5 Esp. Rep. 122.
   Oakley, J.T

his action was brought to recover of the defendant, Packard, as one of the owners of the ship Russell, the amount of a bill for rigging that vessel. The question whether Packard was interested in the ship at the time the work was done, was fairly left to the jury, and their verdict on that point must be conclusive ; and the more so, as it seems to me to be supported-by the weight of the evidence.

It appears, that after the work was performed, the plaintiff took the note of one of the owners of the ship for the amount, and it was contended at the trial, by the defendant, Packard, that the taking of the note; under the circumstances, was a discharge of the plaintiff’s claims against the other owners. The Judge told the jury, that it was not, unless they should be satisfied, that the plaintiff" had taken it “in fact as payment, and with the intent to “discharge the other owners.” The plaintiff now complains that here was error in this direction.

It might be sufficient to say, that no objection to the Judge’s charge was intimated at the trial. But it appears to me, on further reflection, that the charge was correct.

In Arnold v. Camp. [12 J. R. 411,] the S.C. after reviewing several of the cases on this subject, lay down the rule to be, that if the taking of anotéis “intendedandagreed tobe considered as payment' of a pre-existing demand, the latter is thereby discharged. The direction of the Judge, in the case now' before us, is entirely in conformity with this rule, and indeed goes beyond it, in favor of the plaintiff. The jury were told, that they must find not only that the note in question was taken in fact as payment, but that the plaintiffintended thereby to discharge the other owners. This was certainly equivalent to telling them that they must be satisfied that it was intended and agreed by the .parties, that the note should be considered as payment; and the plaintiff has no right to complain of the charge of the Judge in this respect.

Motion for a new trial denied.

[E. Anthon, Att’y for the plff. Hoffman & Talman, Att'ys for Packard.]


author: Oakley, J.

text:
    John Dacy versus The New-York Chemical Manufacturing Company.
    The wife of the' plaintiff being entrusted by him with, certain -sums of money, and directed to deposit them in some bank for safe keeping, opened an account with defendants in her own name, and deposited the" ihoney in their bank: The defendants were not aware at the time of the deposits, nor until the money had been entirely withdrawn from .the bank, that the deposite^ was a married woman, and they therefore gave her a bank book in the ordinary form, and prescribed the mode in which her checks should be made, as she was illiterate and could not write.
    Uniter this arrangement 'the wife drew out of the bank,'upon checks in her own name, at various times, the -.entire sums deposited, —and her husband then discovering that his money was gone, brought an action of assumpsit against the bank, to recover the amount' of the deposits. Held, that he was not entitled to recover. That, the wife, being the agent of the husband to make the deposits, might fairly be presumed to have had authority to withdraw them; but if this were otherwise, as the bank had no notice of the agent’s coverture, atid as the husband had enabled his wife, by entrusting her with the money, to do the wrong,—that the loss accruing from her breach of trust should fall upon him, rather than upon the bank. ■
    Assumpsit, to recover of the defendants the sum of 481 dollars, deposited in .the Chemical Bank, under the following circumstances. The plaintiff was an illiterate man, tyho kept a grocery, and his wife was in the habit of attending the shop during his absence. Neither of them could read or write; but, in the course of their business, having accumulated a quantity of specie, the plaintifftold his wife to deposit it in some bank. She, there- ■ upon, went to the defendants’ bank in company with á person by the name of. Hoy, (who was understood, at the bank, to be her son) and desired to open an account with them." "A book was accordingly given her, in which her deposits were credited, and as the defendants did not know that she was a married woman, the account was opened in the name of “ Mary Dacy,” and she was directed^by the cashier to place her mark upon her checks always in the presence of Hoy, her son, as a witness, and that upon their being presented,- signed by'him. as a witness, they would be "duly honored.

      Under this arrangement, the wife, on her first visit, deposited the sum of 390 dollars, and at two subsequent periods 90 more ; and the bank book which she took away, was afterwards seen in the possession of the plaintiffs. At subsequent periods, the wife (but whether with or without the knowledge and assent of her husband, did not distinctly appear) drew seven checks upon the bank in her own name, which were duly paid, and thus withdrew the entire sums deposited ; but the defendants had no notice of the depositor's coverture until after the transaction was closed. Afterwards the plaintiff took the bank book to a friend for examination, telling him at the same time, that he had heard that his money had been withdrawn from the bank, and as the book confirmed the statement, the plaintiff thereupon brought this action.
    The Chief Justice, before whom the cause was tried, charged the jury, that the questions as to the form of the action, and the right of the defendants to pay the husband’s money upon the wife’s checks, were questions of law; and that they were only to determine whether Mary Dacy was authorized to do what she had done, as the agent of her husband, and whether he had in any way ratified her acts.
    The jury returned a verdict in favor of the defendants, and Mr. J. Lynch, for the plaintiff,
    now moved for a new trial. He had formerly objected to the production and proof of the checks upon which the defendants had paid out the money, until the authority of the wife to make them was first established; but his objection was overruled. The counsel for the defendants, on their part, had contended at the trial that the form of the action was misconceived,—that it should have been trover, if the defendants were liable at all, and not assumpsit. This objection was also overruled.
    For the plaintiff it was now contended, I. That the checks should not have been received in evidence until the authority of the wife to withdraw the money had first been proved. [1 Phil. Ev. 79.] That there was no contradictory evidence in the case, and that the question whether the facts proved amounted to an authority was a pure question of law. [13 J. R. 350.]

      II. That the deposit of the money in the name of the wife was unauthorized ; but if authorized, it was a deposit for the husband, and could not be drawn out except by his authority. [2 Caine’s R. 337-8.]
    Mr. Seely, contra, for the defendants, contended,
    I. That the verdict was fully supported by the evidence, and that no assumpsit could be implied from the facts.
    II. That no action could be maintained by the plaintiff) as the money was withdrawn by the wife before any notice of her coverture was received by the defendants. [1 Term R. 20. 1 Ld. Ray. 538. 224. Cumberback 470.]
   Oakley, J.

It appears from the evidence in this case, that the wife of the plaintiff" was entrusted by him with certain moneys, and directed to deposit them in some bank. She accordingly opened an account in her own name with the defendants, and made deposits from time to time. She gave directions at the bank as to the manner in which the money standing to her credit was to be drawn out on her checks, and various checks were accordingly drawn by her for the whole amount. The defendants had no knowledge that she was a married woman until after they had paid all the checks and closed her account. The husband now attempts to recover, on the ground that the payment to the wife was unauthorized.

The Judge submitted the fact to the jury, whether the wife was authorized as the agent of her husband to do what she had done, or whether he had subsequently ratified her acts. The jury found a verdict for the defendants, and I think rightly.

The plaintiff" entrusted the wife with the money for the purpose of depositing it. He knew that she was in the habit of making deposits, and though he might not have known that she had opened an account in her own name, as he was unable to read the entries made in her bank book, it is fairly to be presumed that he must have known that she was also in the habit of drawing checks for the money deposited. She was entrusted with the bank book, and the husband never made any inquiry as to the state of the account in the bank, and the jury were well justified in drawing the inference, that he must have known the true state of the case.

But if the jury were incorrect in finding the fact of an authority by the husband, on the evidence in the case, it is still clear that the plaintiff has no right to recover. If the wife abused the trust reposed in her by the husband, the defendants ought not to suffer by her fraudulent act, in depositing the money in her own name. By entrusting her with the money he enabled her to commit the fraud, and the loss, if he has sustained any, must fall upon him. In the absence of any circumstance to charge the bank with notice that she was a married woman, they had a right to open an account with her as a feme sole, and to pay the checks drawn upon the deposits made by herself.

Motion for a new trial denied.

[James Lynch, Att’y for the plff. W. A. Seely, Att’y for the defts.]


text:
    Robert Ogilby versus Thomas Wallace.
    Where a note is payable to bearer, or endorsed in blank, an action on it may be maintained in the name of any person, without the plaintiff’s being required to show that he has an interest in it, unless he possesses the note under suspicious circumstances. If any question as to mala fide possessio arise, that is a matter of fact, to be raised by the defendant and submitted to a jury.
    Where, therefore, in an action upon a promissory note, payable to order and endorsed in blank, the plaintiff upon the record Was a fictitious person, and the Judge for that reason nonsuited him at the trial, although the note appeared to be the property of a real parly whose name was disclosed ; the court directed the nonsuit to be set aside, that the questions of fact connected with the possession and prosecution of the note, might be submitted to a jury.
    Assumpsit upon a promissory note for 500 dollars, drawn by the defendant in favor of Henry Butler & Co., and payable to their order, ninety days after date, and endorsed by them in blank.
    The cause was tried before Mr. Justice Hoffman; and at the trial the plaintiff’s counsel having produced the note, and proved the handwriting of the maker and endorsers, rested his cause. The defendant thereupon called a witness, who testified, that Samuel B. Hickox, one of the firm of Henry Butler & Co., agreed with the defendant, that, if he would make the note in question, he, (Hickox,) would cause it to be discounted, retain out of its proceeds 300 dollars for the use of his firm, and deliver the balance to the defendant. That when the note should become due, each party should advance the sum retained by' him, and thus discharge the debt. That the defendant, for this purpose and under this agreement, drew the note in question, and delivered it to Hickox ; but not hearing of it for some days thereafter, the defendant made inquiry for the note, and found it in the possession of . one Thomas Ash, who told him that he had received the note from William B. Hart, to whom he had given, in exchange for it, another note and 130 dollars in cash.
    That the defendant then informed Ash of the circumstances under which the note was obtained, and he at first promised to return it to the defendant. Afterwards, the defendant threatened to indict the parties concerned, for a fraud upon him, and thereupon Hart and his father gave the defendant a bond, stipulating for the payment of the note by them at its maturity. This bond the defendant retained until the note became due, but it was not then taken up by Hart; and the defendant being informed that the bond was of no value, returned it to Hart, who promised to pay him 100 dollars on account of the note, if he would renew it for the balance. This proposition was acceded to by the defendant, but never fulfilled by Hart.
    The defendant then called the plaintiff’s attorney as a witness, who testified, that he received the note of Ash for collection, with instructions that the suit should be brought in the name of Robert Ogilby, or some other name. That Ash assigned as a reason for this, that the note belonged to a person, who did not wish his name to appear, and as the name of Ogilby had before been usen in suits by Ash, and as Ash furnished security for the costs, the attorney used the name presented to him, although he did not know any such person as Robert Ogilby.
    It further appeared, that Ash deposited the note in the Chemical Bank for collection, and that it remained there for several days after it became due.
    Upon this state of facts the presiding Judge required more evidence concerning the plaintiff upon the record, and none being furnished, he nonsuited him.

      Mr. J. S. Mitchell, for the plaintiff now moved to set the non-suit aside. He contended,
    I. That a promissory note endorsed in blank, is payable to bearer, and that the production of it by the bearer, is evidence of his title. [Chit. on Bills, 132-5, and note.]

    II. That the defendant by pleading in chief, admitted the due appearance of the plaintiff; and that the substance of the issue to be tried was, whether the defendant was liable or not. [7 J. R. 373.]
    III. That the bearer of a promissory note, has the right to fill up the blank endorsement with any name he thinks proper, and that he does not divest himself of his title as bearer, by inserting another name than his own. [11 J. R. 53.]
    IV. That the owner or bearer of a note is not bound to sue in his own name, but may sue in the name of another as his trustee; and who that trustee is, is foreign to the issue. [11 J. R. 53. 7 Cow. R. 176. 3 John. Ca. 263.]
    V. That a defendant, to protect himself against an unknown trustee, can apply for security for costs; and that a judgment in favor of the unknown trustee, who is plaintiff on record, will be a bar to the same cause of action forever. [Rule 55. 4 Cow. R. 559.]

      VI. That security for costs in this cause was duly filed, and that a misnomer either of plaintiff or defendant, could only be taken advantage of by plea in abatement. [1 Chit. Plead. 436. 4 Cow. R. 157.]
    VII. That the enquiry as to who the plaintiff on the record is, if matter of evidence, should, like other facts, be passed upon by the jury. That the evidence, or want of evidence, as to who the plaintiff is, did not justify a nonsuit; and that no more evidence upon this point should be required on a trial, than on an inquest.

      Mr. J. R. Whiting, contra, for the defendant.
    The defendant may show, under the general issue, that there is no such person as the plaintiff in existence. It is admitted, that any real person, with or without interest, may sustain an action upon a negotiable promissory note: but the name of s. fictitious plaintiff is only tolerated in the action of ejectment, for the convenience of parties.
    It is contended by the plaintiff, that this advantage can be taken by plea in abatement only, but it is available under the general issue also. Under this issue the defendant may show, that another person ought to have been made a co-plaintiff; that the defendant has no capacity to contract, &c. [1. Chit. Plead. 470.] Any thing which shows that the plaintiff had no subsisting cause of action at the time of the commencement of the suit, may be given in evidence under this issue. [Ib. 472.] The-defendant here, showed his own incapacity to contract, by showing the plaintiff’s absolute nonentity. There is no foundation for the argument, that a plea in abatement ought to be interposed.
    A misnomer of the plaintiff may be taken advantage of under the general issue, and be the ground of nonsuit at the trial. [Vide, Collman, et al. v. Collins, post.] In case of the Bank of Utica v. Smalley, Chief Justice Savage holds the doctrine, that the defendant should plead the misnomer of the plain tiffin abatement, to be untrue, and not supported by the cases. [2 Cowen’s Rep. 780.]
    It is no answer to the objection that security for costs has been filed; that remedy is merely cumulative, and in many cases proves ineffectual. The defendant, if he succeeds, is entitled to a judgment against a real person for his costs.
   Oakley, J.

It is sufficiently shown in this case, that the note on which the suit is brought was the property of Ash, and that it was sued in the name of the plaintiff) as his trustee, and for his benefit. The plaintiff’s attorney was called as a witness; and from his evidence, there was good reason to believe that the plaintiff is a fictitious person. The Judge required further evidence as to who he was, with a view, I presume, to ascertain whether he was or was not a real person, and none being given, he directed a nonsuit. It is now moved to set this nonsuit aside.

It seems to be settled, that where a note is payable to bearer, or is endorsed in blank, an action on it may be maintained in the name of any person, without the plaintiff’s being required to show that he has any interest in it, unless he possesses the note under suspicious circumstances. [11 J. R. 53. 7 Cow. R. 176.] It also appears to be established, that if any question of mala fide possessio arise, that is a matter of fact to be raised by the defendant, and submitted to the jury. In no other case does the court inquire into the right of the plaintiff, as possession will be evidence of property in him. [3 J. Cases, 263.] It is also recognized as a rule, that where the plaintiff on the record is a mere trustee for another, the defendant may avail himself of any defence, (except probably a set-off,) which he might set up against the real owner, if the suit were in his name. [7 Cow. R. 177.]

Applying these principles to the case now before us, it would seem that the real inquiry ought to have been, whether Ash, the owner of the note, was the bond fide possessor of it. The circumstances, under which it was obtained from the defendant. and put into circulation, were sufficient to throw upon Ash the burthen of showing how it came into his hands. The proof, " that the plaintiff was a fictitious person, may have been very material, to show bad faith or fraud in Ash, in prosecuting the note. That was a question, however, which should have been submitted to the jury. The probability raised by the evidence, that the plaintiff was fictitious, could not, properly, have been made the ground of a nonsuit. If it had been competent, under any circumstances, to call upon the plaintiff to prove who and what he was, that also was an inquiry for the jury. Prima facie, undoubtedly the plaintiff is to be deemed a real person, and whether the evidence showed him to be otherwise, was not for the court to determine. In any point of view, therefore, it seems to me that the nonsuit ought not to have been granted.

Nonsuit set aside, and new trial granted.

[T. S. Mitchell, Att’y for the plff. J. R. Whiting, Att’y for the deft.]

Note.—Upon the second trial of this cause, the facts proved did not differ materially from those established at the first trial, except that it clearly appeared that Ash paid no value for the note when he received it of Hart; but there was some evidence to show that the latter had advanced to Hickox 130 dollars when it was delivered to him; and the plaintiff’s counsel contended, that he had a right to recover of the defendant to that amount. The Chief Justice, before whom the cause was tried, charged the jury, that the defence set up, was not sufficient to protect the defendant, unless they should be of opinion that the note was fraudulently negotiated by Hickox, and taken by Hart with notice of the fraud. That if they believed that Hart had made an advance upon the note bond fide, they would be warranted in finding a verdict for the plaintiff to the amount of that advance.

The jury found a verdict for the defendant, and the court afterwards refused to set it aside.

They observed that it was a well settled rule, that if a note is put into circulation fraudulently, no person can maintain a suit upon it, who has not paid a valuable consideration for it, in ignorance of the fraud. That the facts of the case had all been presented fairly to the jury, who had passed upon them, and that under the eircumstances of the case the verdict ought not to be disturbed.

Mr. M‘Coun, for the plaintiff, cited 5 Barn. & Ald. 674, and 4 Cow. R. 567., as to the acquiescence of the defendant in the passing of the note.

Mr. Whiling, contra, cited 7 Cow. R. 176. 10 J. R. 231. 15 J. R. 270.

As to the acquiescence of the defendant in the passing of the note, the court observed that there was no evidence of an advance upon it by Ash, after the bond of Hart was received by the defendant, and that that branch of the defence could not therefore be sustained.


text:
    Edward N. Rogers, George S. Rogers and Samuel Rogers versus The Niagara Insurance Company of New-York.
    To an action upon a policy of insurance, the defendant pleaded the general issue and three special pleas in bar. The plaintiffs took issue upon the three first pleas, but demurred to the fourth. _ Upon the argument of the demurrer, the court gave judgment in favor of the defendants, with leave to the plaintiffs to withdraw their demurrer and take issue upon the plea. The plaintiffs, however, under the advice of counsel, went to trial upon the issue joined upon the three first pleas, taking no notice of the fourth plea, and the defendants entered up the judgment in their favor upon the demurrer.
    At the trial of the cause upon thc’issues under'the three first#pleas, the presiding Judge decided that the fourth plea covered the whole cause of action exhibited in the first count of the declaration; and as that plea had been decided to be good, and the plaintiffs had permitted the defendants to enter up their judgment upon it, he excluded all the testimony offered to support the eount, and the plaintiffs were compelled to submit to a verdict against them.
    Upon application to the court, setting forth that all the proceedings in the case had been under the advice of counsel, who supposed that the plaintiffs could proceed to trial under the other issues, without any embarrassment from the fourth plea, and the determination of the demurrer to it,—the court, notwithstanding the intervention of three terms between the rendition of the judgment on the demurrer and the verdict, set the verdict aside, upon the condition that the plaintiffs should pay all the costs which had accrued, and take issue upon the fourth plea without delay.
    This was a motion to set aside a verdict in favor of the defendants, and for leave to amend the plaintiff’s pleadings by filing a replication to the defendant’s fourth plea. The facts of the ease w'ill sufficiently appear on reference to the preceding marginal abstract, and to the report of the proceedings upon the demurrer. [Ante p. 86.]

      Mr. Geo. Sullivan, in behalf of the plaintiffs, now read an affidavit,
    setting forth the facts of the case, wherein it was stated that all the proceedings in relation to the trial upon the issues, under the three first pleas, and the neglect to take issue upon the fourth plea after the determination of the demurrer, had been by mistake, and under a misapprehension of the law. That the counsel for the plaintiffs had supposed, notwithstanding the determination of the issue in law, that they could proceed to try the questions presented by the issués of fact, without any reference to the fourth plea, or the decision of the court upon it.

      Mr. G. Griffin and Mr. Jay, contra, for the defendants, insisted,
    that the court could not, after the intervention of three terms
    between the rendition of the judgment on the demurrer and the verdict, interpose for the plaintiffs’ relief. They insisted that application for leave to amend should have been made at the first term after the rendition of the judgment; or, if opportunity presented, during the same term. [They cited 1 Dunlap’s Prac. 524. 1 Burr. 316. 321. 2 Ib. 749. 1 Saund. 80. (n. 1.) 18 J. R. 28. 30. 2 John. Cas. 284. 1 Sellon 379. 3 John. Cas. 300.
   Per Curiam.

The court have power to grant the relief here sought, notwithstanding the lapse of time, if the facts of the case warrant their interposition. In the strictness of practice, the plaintiffs would be too late in their application. They should •have amended their pleading, by replying to the fourth plea without delay. Several terms elapsed between the rendition •of the judgment on the demurrer and the trial of the cause, and they may be considered as having elected not to amend. But strict practice,in this case, might “entangle justice in a net of form” without affording any particular advantage to the defendants.

The proceedings of the plaintiffs were all under the special advice of counsel, who supposed that they might disregard the judgment on the issue in law, and still try the issues of fact presented by the other pleas. In this they, were clearly mistaken. The fourth plea covered the whole cause of action, and a judgment in favor of the defendants, on a demurrer to it, was conclusive. The mistake was committed bythe counsel; and upon the whole case, we think that the purposes of iustice will be best subserved by setting aside the verdict and permitting the plaintiflslo amend their pleading. The defendants will not suffer in their rights by this course, as the plaintiffs must take issue upon the fourth plea without delay, and pay all the costs which have accrued up to this time.

Motion granted.

[A. G. Rogers, Att'y for the plffs. G. W. Strong, Att'y for the defts.]


text:
    Lawrence Van Buskirk versus Ezekiel Purinton, Israel G. Collins and Edward K. Collins.
    A conditional sale of goods, accompanied by a delivery thereof to a third person, who is to hold the same, as the agent of the contracting parties, until the terms of sale are complied with, will not vest the properly in the purchaser, until the condition precedent is fulfilled.
    And where goods purchased conditionally, were put on board a vessel by such agent, with the intent, that when the condition precedent was complied with, the title thereto should vest in the purchaser, who had, by a charter-party, agreed to furnish a cargo for the vessel to proceed to a foreign port; the seller was permitted to reclaim the property out of the hands of the ship owner and master, upon a failure, bythe purchaser, to fulfil the precedent condition; although the defendants claimed to have a lien upon the goods for the freight specified in their charter-party. [See the caption to the neat case.]
    Trover for 385 barrels of turpentine. Plea, the general issue. Upon the trial of this cause, it appeared that on the 18th of December, 1828, the defendants, by a charter-party, bearing date on that day, entered into a contract of affreightment with one D. H. Robertson and Samuel Candler, whereby they chaptered to R. & C. the whole tonnage of the ship Mary, (except so much as might be necessary for the accommodation' of the crew, &c.,) for a voyage from New-York to London and back to New-York. Robertson and Candler, by the terms of the charter-party, were to provide a cargo for the vessel in New-York, together With a return cargo at London; and for the freight thereof were to pay 4000 dollars ; “of this sum, as much “ as might be wanted by the defendants, was to be paid in London, “ and the balance on the termination of the voyage in New-York.”
    Purinton was the master of the vessel, and the other defendants were the agents of the owners, and as such, separately entered into the contract with Robertson and Candler, in their own several names, under seal; whereby they covenanted in the usual form, at their own proper cost and charges, to keep the vessel “ tight, stanch and strong, sufficiently manned, and provided'with all things necessary for such a voyage,” &c.
    Robertson and Candler, it appeared, supposed themselves to be, by the contract of affreightment, the owners of the vessel for the voyage described' in the charter-party; and being unable to' purchase- the cargo they were to provide, they entered into an arrangement with one Harris Blood, (who was acting as an-agent or broker for a Mr. Faber, one of the partners in the house of Coliman, Lambert & Co., of London,) whereby it was stipulated that Faber should make an advance of money to Robertson and Candler, sufficient to enable them to pay for a quantity of turpentine to be put on board the vessel as a part of her cargo, upon condition that the turpentine, when purchased, should be consigned to the house of Coliman, Lambert & Co., for sale, and Faber furnished with bills of lading therefor, stipulating for its delivery in London, freight free.” When these bills of lading were furnished, the turpentine was to become the property of Robertson and Candler, but not before.
    Robertson, for the purpose of accomplishing the foregoing objects, made application to the plaintiff for the purchase of a part of the turpentine necessary for the cargo, and promised that-it should be'paid for in cash, whenever it was delivered to Blood at the same time referring the plaintiff to him for the particulars of the arrangement. The plaintiff thereupon contracted for the sale of a quantity of turpentine to Robertson and Candler; and it was agreed that the same should become their property whenever it was paid for by Blood; and the plaintiff accordingly delivered to Blood 332 barrels, which were paid for by him, with money received of Faber, and put on board the ship.
    Afterwards the plaintiff delivered to Blood 385 barrels more, (the same for which this suit was brought,) and at the time of the delivery, demanded payment. Blood thereupon called upon Robertson for the bills of lading, stipulating for the delivery of the turpentine, to Coliman, Lambert & Co., “freight free,” according to the conditions of the agreement. Robertson immediately prepared the bills of lading in the prescribed form, and presented them to Purinton, the master, for his signature ; but the master contended that he had a lien upon the turpentine for the freight expressed in his contract, and refused to sign the bills of lading in any way, except as “ subject to the conditions of the “ charter-party.” Robertson communicated this result to Blood, who, by direction of Faber, refused to advance the money to pay for the 385 barrels last mentioned, which had also been put on board the vessel.
    The plaintiff thereupon, as Robertson and Candler neglected to pay him, demanded the turpentine of Blood, alleging that it was placed in his hands upon a condition that had not been complied with, and declaring the contract to be rescinded. Robertson and Candler acceded to this claim of the plaintiff; agreed to rescind the contract, and consented that he should receive the turpentine back again. The plaintiff then made a formal demand upon all the defendants for the turpentine, offering at the same time, to pay them the expenses of lading and unlading it; but did not offer to pay the freight or any part of it. The defendants however refused to deliver it up, alleging that they had a lien upon the turpentine for the freight money mentioned in the charter-party. The plaintiff thereupon brought this action to recover the value of the 385 barrels last delivered, and which had not been paid for by Blood.

      At the trial of the cause, the plaintiff, for the purpose of maintaining the issue on his part, called Robertson as a witness, but he was objected to on the part of the defendants, as interested in the event of the suit. The counsel for the plaintiff then stated, that it would appear that the contract between him and Robertson and Candler had been rescinded, whereby R. was exonerated from all responsibility to the plaintiff; and that the interest of the witness was balanced.
    The Chief Justice, before whom the cause was tried, decided that Robertson was a competent witness, if it should appear that his contract with the plaintiff had been rescinded; but if it should not so appear, then, that he would not be competent.
    The counsel for the defendants excepted to this opinion, and Robertson being sworn, stated the facts which have already been set forth.
    Blood was also examined, and he testified, that ,when the turpentine was put on board the vessel, he took receipts for each parcel in his own name, as it was put on board : and he corroborated the testimony given by Robertson in all its essential particulars.
    The counsel for the defendants offered no evidence on their part to support their defence, but insisted that the plaintiff' was not entitled to recover; first, because the proof did not show a conversion by all the defendants; and secondly, because the defendants had a lien on the turpentine for their freight, and were not bound to surrender up the cargo until their contract had been satisfied.
    Upon this state of the case, the Chief Justice being of opinion, that the plaintiff’s right of recovery depended entirely upon questions of law, a verdict was taken in his favor of for 920 dollars, subject to the opinion of the court upon a case.
    The cause was afterwards argued by J. Prescott Hall for the plaintiff, and by G. Clark and W. Slosson for the defendants.
    For the plaintiff it was contended, I. That Robertson was a competent witness.

      II. That the proof was sufficient to show a conversion by all the defendants ; but if not, that that objection was not a sufficient ground of nonsuit. [2 Phil. Evi. 125. 1 M. & S. 588. Nicoll v. Glennie and others. Com. Dig. Abatement F. 86.]
    III. That the sale of the turpentine to Robertson and Candler, and the delivery thereof to Blood, were entirely conditional; and the conditions of sale and delivery not having been complied with, the right of property in the turpentine, never vested in Robertson and Candler, but remained in the plaintiff. He had a right, therefore, to resume the possession of his goods. [Kent’s Com. vol. 2. 391. Palmer v. Hand, 13 John. 434. Hussey v. Thornton, 4 Mass. R. 405. Barrett v. Pritchard, 2 Pick. R. 512. Haggerty v. Palmer, 6 J. C. R. 437. Marston v. Baldwin, 17 Mass. 606. Barrow v. Coles, 3 Camp. R. 92.]
    IV. That there never was any delivery of the turpentine to Robertson and Candler, either actual or constructive. But if by the contract of sale, any right of property vested in them, they relinquished it, and the contract of sale was entirely rescinded, whereby the plaintiff’s right to the possession of his goods reverted to him. [Richardson v. Goss, 3 B. & P. 119. Mills v. Ball, 2 Ib. 457. Salte v. Field, 5 T. R. 211. Atkin v. Barwicke, 1 Stran. R. 165. Craven v. Ryder, 1 Holt’s R. 100. 2 Mar. R. 127.]

    V. That the defendants had no lien whatever upon the turpentine ; but that if they had, it was not sufficient to overreach the plaintiff’s claim, nor sufficient to defeat his right to have his . goods restored to him. [Birley v. Gladstone, 3 M. & Sel. 205. Philips v. Rodie, 15 East. 546. Curling v. Long, 1 B. & P. 634. Holt’s Law of Shipping, vol. 2, 173. Lawes on Charter-Parties, 117. 139. Kent’s Com. vol. 3, 173, 174. 177. Montague on Lien, p. 54.]

    For the defendants it was contended, I. That the defendants were improperly joined in the action, there being no joint conversion proved. That the Collins’ were mere commission mer< chants, acting as agents for the owners of the ship. That they had no control over the property when shipped, and could not be liable for a conversion where they had no possession, or right to dictate to the master. That if there was default anywhere, the master alone was liable, and he alone should have been sued. [1 Com. Dig. 78. 3 Sel. N. P. 1176.]
    II. That the freight money agreed upon by the charter-party, was a lien on the goods, and they could not be legally demanded, without a tender of the freight. [Palmer v. Lorillard, 16 J. R. p. 348. Clarkson v. Edes, 4 Cow. R. p. 470. Saville v. Campion, 2 B. & A. 503. Detouches v. Peck, 9 J. R. 210. 15 Ib. 332. Sansom v. Ball, 4 Dall. p. 459.]
    III. That no person having goods on board a vessel ready for sea, can reclaim them, or unlade the vessel without paying the freight. That in this case, as the defendants were to receive a large sum in London, they had a lien for that sum on all goods laden on board; and that where freight is payable in advance, it cannot be recovered back. [De Silvale v. Kendall, 4 M. & S. p. 37.] That where there is no default on the part of the shipowner or his agents, he cannot be deprived of his freight after the goods are once taken on board.
    IV. That in this case the goods were laden with the consent of Robertson and Candler. As between them and the plaintiff, the title of the property passed to the purchasers by the delivery ; and the defendants’ lien stood as it would if Robertson and Candler were the plaintiffs. And that if they had instituted the suit, the defendants’ claim would have been clear and undoubted. [Chapman v. Lathrop, 6 Cowen’s Rep. 110. Mowrey v. Walsh, 8 Ib. 238. 5 D. & E. 231. 5 J. R. 395. Long on Sales, 153.]
   Per Curiam.

The proof in this case shows a conversion by all the defendants. They were all personally bound by the charter-party. Though the Collins’ describe themselves as agents, yet they stipulated personally, and are therefore personally bound for the performance of their contract. The defendants all claimed a right to detain the goods, as subject to the chartei-party, and they all united in the refusal to deliver them up. The property was as much under the control of the merchants as the master, and they are responsible with him for the act of withholding it, if that would not be justifiable on his part. The action, therefore, is not misconceived in point of form, and if well founded in other respects, may be maintained against all the defendants jointly.

If this were not so, there would be no ground of nonsuit in this branch of the defence. In suits ex delicto, the joinder of too many defendants is never objectionable, where the defect is not apparent orí the record. One may be acquitted and another found guilty; for a failure of proof against one, does not show that the cause of action, established in evidence, is different from that comprised in the declaration. [Com. Dig. vol. 1. 78.]

If the decision of the cause depended upon a particular examination of the second ground of defence assumed by the counsel for the defendants,we should be inclined to say, that under the charter-party, no lien attached upon the turpentine, even if it were considered as the property of Robinson and Candler. The freight, as such, did not become due until the termination of the voyage at New-York, except so much as might be actually wanted for the expenses of the ship in London; and the lien, in any event, could not exist, exception a due proportion of the freight. The outward cargo could not be bound for the whole amount of the charter money, for it was to be delivered long before the entire sum became due.

But without examining more particularly the questions raised on the argument, as to the lien of the owners of the vessel on the goods put on board under the charty-party, or when such right of lien commenced, we think that the evidence shows that the turpentine in question was never put on board under the charter-party at all. The sale and delivery by the plaintiff were clearly conditional, and the property was not to vest in Robertson and Candler until the condition was complied with. The delivery was to Blood, and it is evident that he did not act in the purchase as the agent of Robinson and Candler, but as the agent of. Faber. The goods were not put on board as the property of Robinson and Candler; Blood took a receipt for them in his own name. The whole sale, by the plaintiff to Blood, and by him to Robinson and Candler, depended on the performance of the condition stipulated for by the latter as to the bills of lading, and on the payment of the money by Blood.

The sale and delivery being thus conditional, it is well settled, that the property never passed out of the plaintiff unless the condition was performed. [13 J. R. 434. 6 J. C. R. 437.] It is immaterial therefore, to consider what may have been the rights of the defendants, to retain property put on board by Robinson and Candler, under the charter-party. It is quite clear, that they had no such right as against the plaintiff, who never intended that his property should go on board the ship at all, unless he received payment for it.

On the supposition that by the delivery, the property vested in Blood, without payment for it, it is very clear, that it did not pass from Blood to Robinson and Candler. The sale as to them, was strickly conditional, and whatever interest may have vested in Blood, was restored to the plaintiff, by the agreement to rescind the whole contract of sale.

Judgment for the plaintiff.

[D. P. Hall, Att'y for the plff, G. Clark, Att’y for the defts.]


text:
    Leonard Coleman, Joseph Lambert, Conrad W. Faber and Herman Stolterfoht versus Israel G. Collins and Edward K. Collins.
    A mistake in the declaration, as to the Christian name of a plaintiff, is not a ground of nonsuit at the trial; and such mistake cannot be taken advantage of, except by a plea in abatement.
    A conditional sale of property, accompanied by a delivery of it to a third person, who is to hold.the same, as the common agent of the contractmg'parties, until the terms of sale are complied with, will not vest the title to the property in the purchaser, until the condition precedent is fulfilled.
    The plaintiffs, through B., an agent, agreed with R. & C., to advance a sum of money sufficient to cover the first cost of a quantity of turpentine, upon condition, that the turpentine, when purchased, should be shipped and consigned to them at London, “freight free,” by the bills of lading: R. & C. acceded to the terms, and a quantity of turpentine was purchased by B., the agent, and R., one of the contracting parties, and put on board a ship which R. & C. had chartered of the defendants for a voyage to London and back. It was agreed between B,, the agent, andR. & C., that the turpentine should not become the property of the latter, until they had produced bills of lading therefor, signed “ freight free;” and upon these conditions, B., the agent, paid for the turpentine, with money received of the plaintiffs; put it on board the ship, taking receipts therefor in his own name. The master of the vessel, with the approbation of the defendants, refused to sign bills of lading for the turpentine, “freight free,” contending that they had a lien on it for the freight money mentioned in the charter-party. The contemplated voyage was, by this means, broken up, and the defendants took the turpentine out of the vessel and sold it.
    Held, that R.&C., not having complied with the condition upon which the turpentine was to become theirs, had no title to the property; and as the plaintiffs had paid for the turpentine and received possession of it through B., the agent, they were entitled to maintain frnier for the conversion of it by the defendants.
    Held, also, that the turpentine, under the circumstances of the case, was not put on board the ship under the charter-party, and that the defendants, therefore, had no lien on the property for their freight.

    Trover, to recover of the defendants the value of 332 barrels of turpentine. This cause, and the preceding one of Van Bus-kirk v. Purinton and these defendants, originated in the same transaction; and to avoid unnecessary repetition, as well as for a more correct understanding of the facts connected there- . with, reference may be had to that case.
    The cause was tried before Mr. Justice Oakley, and at the trial, Blood was called as a witness by the plaintiffs. He testified, that in the early part of the month of December, 1829, he was informed by D. H. Robertson, that he was negotiating for the charter of the ship Mary, for a voyage from New-York to London and back, and his assistance in procuring a cargo for her was desired. That he suggested to Robertson the plan of shipping a quantity of turpentine to London, and told him that he (the witness) could, as he thought, procure an advance of money upon certain terms, by which the cargo might be purchased. Robertson yielded to the suggestion, and agreed to purchase 1500 barrels upon the terms proposed.
    Blood then called' upon Faber, one of the plaintiffs in this cause, who resided in New-York, and one of the firm of Coliman, Lambert & Co., of London, to know whether he would advance the funds necessary for the purchase; and Faber finally agreed to make such advance, upon condition that the turpentine should be shipped, when procured, to C. L. & Co., at London, and consigned to them “ freight free,” by the bills of lading. This proposition being communicated to R., was assented to by him, and he then informed Blood that he had already contracted with Van Buskirk, and with Mitchell &. Bleecker, of New-York, for 'the purchase of two parcels of turpentine, which they were expecting to receive from North Carolina, and that he had referred them to him (Blood) as the broker in the transaction, who would pay for the turpentine on its delivery.
    When the turpentine was received, Mitchell & Bleecker gave notice of its arrival to Blood, and afterwards delivered to him the 332 barrels in question, he having agreed to pay for them on delivery. Blood put the turpentine on board the ship, and took receipts therefor in his own name.
    As soon as the turpentine was delivered, M. & B. sent their bill for it to Blood, who paid- the amount with money received by him of Faber for that purpose.

      Blood further testified, that he acted in the transaction as the agent both for Faber and Robertson: that he was to receive keep possession of the turpentine in Ms own name, until Robertson’s agreement was complied with; and the turpentine was not to become the property of Robertson until the bills of lading stipulating for its delivery, “ freight free,” to C. L. & Co. were procured.
    After the turpentine was put on board the ship, Blood called upon the defendants, and upon Purinton, the master, for the bills of lading, which had been stipulated for with Robertson ; but the master, with the approbation of the defendants, refused to sign any, unless made subject to the charter-party. Blood then made various propositions to the defendants and the master, and finally offered to accept bills of lading, filled up at the current rate of freight between New-York and London. All these propositions were rejected, and Blood then, by the direction of Faber and in the name of the plaintifls, demanded of the defendants, and also of the master, the 838 barrels of turpentine in question; but they refused to deliver them up, insisting that they had a lien upon them for the freight specified in the charter-party.

    The defendants afterwards took the turpentine out of the ship and sold it, without the consent of any of the other parties having a claim upon it, or an interest therein.
    It also appeared from the testimony of Mitchell, (who was called as a witness by the defendants,) that Blood had communicated to him, before the turpentine arrived from North Carolina, the fact that Faber was to advance the money for it, under an arrangement made with Robertson for that purpose. But the agreement as to the purchase was made with Robertson, and the bills for the turpentine were made out in his name, and sent to Blood for payment. All the circumstances, however, relating to the manner in which the turpentine was to be paid for, were understood by Mitchell & Bleecker, while it was in the possession of Blood, and before payment was received by them.
    The plaintiffs, in the course of the trial, for the purpose of showing who composed the house of Coliman, Lambert & Co., and for the purpose of showing a joint interest in themselves, called one of their clerks as a witness: and it appeared by his testimony, that the individuals associated in that firm, were Leonard Coliman, John Lambert, Conrad William Faber and Herman Stolterfoht. The witness also stated that there were several brothers bearing the name of Lambert, but no person by the name of Joseph Lambert was known to him.
    The counsel for the defendants, upon these facts, moved for a nonsuit, upon the ground, first, that the house of Coliman, Lambert & Co., was not composed of these plaintiffs ; Joseph Lambert, being the person named in the declaration, whereas John was the actual partner.
    Secondly, because the plaintiffs had failed to show any title to the property in themselves. This motion was overruled by the presiding Judge, and the counsel for the defendants excepted to his opinion.
    The defendants on their part then gave the charter-party in evidence, for the purpose of showing their right to detain the turpentine, and called the mate of the ship as a witness. He testified that after the turpentine was sent on board, Robertson and Candler came to the vessel and gave several directions relative to it, and appeared to be, so far as the witness observed, its real owners ; no other person seemed to have any interest in it, and he supposed the turpentine had been sent on board by them. The master refused to sign the bills of lading because they contained the clause “ freight free,” and the captain intimated to the person who presented them, that, if he signed such bills, he might be prevented from receiving his freight. No other cargo, except the turpentine and a small quantity of peppermint, was put on board the ship, although she continued ready to receive it until the 23d of January ; when the witness understood that Robertson and Candler had refused to furnish any more cargo, and had abandoned the voyage. The turpentine was then taken out of the ship by the defendants.
    The witness signed the receipts for the turpentine in the name of Blood, who delivered the turpentine to him, but he did not know that Blood was the agent of the plaintiffs, or that he had any interest in the transaction of any kind.
    After the value of the turpentine had been shown, and all the facts were ascertained, the counsel for the defendants again moved for a nonsuit; but the motion was denied by the presiding Judge, who recommended that a verdict should be taken in favor of the plaintiffs, subject to the opinion of the court upon a case to be made. This being assented to by the counsel for both parties, the jury returned a verdict in favor of the plaintiffs for seven hundred and ninety dollars and sixty-one cents damages, and six cents costs.
    The cause was now argued by J. Prescott Hall, for the plaintiffs, and by Mr. G. Clark and Mr. Slosson, for the defendants.
    For the plaintiffs it was contended, I. That the mistake in the Christian name of the plaintiff, Lambert, was no ground of non-suit, and that such mistake could only be taken advantage of by plea in abatement. [6. Mau. & Sel. 45. 2 Brod. & Bing. 34. 1 Bos. & Pul. p. 40, 645. 1 Saunders on Plead. & Ev. p. 11. 1 Chit. Plead. 441. Com. Dig. vol. 1, p. 61. Abatement, c. 19. f. 18. 4 Cow. R. 157. Arch. Prac. 305. 1 Tidd’s Prac. 452. The counsel for the defendants assented to the correctness of this proposition, on the argument, and all objections upon this point were waived by them.]
    II. That the turpentine in question having been paid for by the plaintiffs, and delivered to their agent, Blood, under an express condition that it should not become the property of Robertson and Candler until they produced the bills of lading, stipulating for its delivery to the plaintiffs at London, “ freight free neither Robertson and Candler, nor the defendants, could have any claim to hold the property against the rights of the plaintiffs, until the condition precedent on the part of Robertson and Candler was fulfilled. [Kent’s Com. vol. 2, 391. Hussey v. Thorn

      ton, 4 Mass. R. 405. Barrett v. Pritchard, 2 Pick. R. 512. Haggerty v. Palmer, 6 J. C. R. 437. Marston v. Baldwin, 17 Mass. R. 606. Barrow v. Coles, 3 Camp. Rep. 92. 19 Vesey, 235.]
    III. That the plaintiffs having paid for the turpentine under the conditions aforesaid, and having taken the same into their own possession by their agent, Blood, acquired either a general" or a special property in the turpentine, which was not divested by putting the same on board the ship.
    IT. That as between the plaintiffs and Robertson and Candler, the latter could have no right to the turpentine, until they produced the bills of lading signed “ freight freeno right of property or possession, therefore, ever vested in Robertson and Candler, but the same remained in the plaintiffs.
    That the plaintiffs, at all events, were entitled to the possession of the property in pursuance of the agreement between Robertson and Blood, the agent of the plaintiffs. Until the bills of lading were produced signed “ freight free,” the property was not to'vest in Robertson and Candler, and being out of Mitchell & Bleecher, it of course remained in the plaintiffs. Robertson and Candler being wholly unable to comply with the terms of their contract with the plaintiffs, the latter were entitled to retain the possession of the property against Robertson and Candler, and all other persons.
    V. That the plaintiffs never contracted with the defendants, nor with the master of the ship, for the conveyance of the goods to London. When,'therefore, the voyage was broken up, the plaintiffs had a right to reclaim the turpentine; and at most, were only chargeable with the expenses of loading and unloading the same. They were not bound to tender any thing to the defendants, both because the latter claimed to hold the turpentine as an indemnity for their charter-party with Robertson and Candler, and because the plaintiffs offered to pay the defendants and the master of the vessel, the customary freight on the goods to London.

      VI. That the selling of the turpentine on the part of the defendants, without notice to any of the parties in interest, was a conversion thereof. The plaintiffs never parted with the possession of the property. When it was delivered on board the ship, and receipts therefor were taken in the name of Blood, it was but a delivery to themselves, or their order, Blood being the agent of the plaintiffs for this purpose.
    VII. Robertson and Candler never interposed any claim to the turpentine, and did not pretend that they had any interest therein, or that there ever was any delivery of it to them, either actual or constructive. If they ever had any interest in the property, they relinquished it in favor of the plaintiffs, who became entitled to the possession. [Richardson v. Goss, 3 B. & P. p. 119. Mills v. Ball, 2 B. & P. p. 457. Salte v. Field, 5 T. R. p. 211. Atkins v. Barwicke, 1 Str. Rep. 165. 1 Holt's Ni. Pri. Rep. p. 100. Craven v. Ryder, 2 Marshall’s Rep. p. 127.]
    VIII. That the purposes for which the turpentine was put on board the vessel having been defeated by the acts of the defendants, or the acts of the defendants and the master, the plaintiffs had a right to the possession of the property. That being refused by the defendants, they were liable to the plaintiffs in this action for the value of the property.
    IX. That the defendants had no lien whatever upon the turpentine ; but if they had, it was not sufficient to overreach the claims of the plaintiffs, nor to defeat their right to have the property restored to them. [Birley v. Gladstone, 3 M. & S. 205. Philips v. Rodie, 15 East. 546. Curling v. Long, 1 B. & P. 634. Holt's Law of Shipping, vol. 2, 178. Laws on Charter-Party, 117, 139. Kent's Com. vol. 3. p. 173, 174. 177. Montague on Lien, p. 54.]

      Mr. G. Clark and Mr. Slosson, for the defendants.
    I. The plaintiffs never purchased the goods in question, arid have no property therein, which will enable them to sustain the action of trover. The circumstances of this case differ from those of the previous one, in which Van Buskirk was plaintiff. There the property was originally in Van Buskirk, and he made a conditional sale of it; but here Robertson himself was the purchaser; he made the contract with Mitchell & Bleecker, who made out the bill of parcels in his name. That the money to pay the amount of the bill was to be advanced by Faber, could make no difference as to the question of title, for the property was never, under any circumstances, to become his. He made but one condition at the time of the advance, namely, that the turpentine should be consigned to his house; but the money was to be a loan to Robertson, for which security was to be given by him, on property which he was to purchase in his own behalf.
    The plaintiffs in order to sustain their action must show either a general or a special property in the turpentine; but all the testimony shows the general title to be in Robertson and Candler ; while the special property, (if any there was,) vested in Blood. He was not authorized to advance the money of the plaintiffs, until the proper bills of lading were produced, and if he exceeded his authority, that might be the plaintiffs’ misfortune, but it conferred upon them no title.
    There were two contracts in this case, one between Robertson and Mitchell & Bleecker, the other between Robertson and Faber, through Blood. By the former, the turpentine was sold to Robertson and Candler, to be paid for on delivery. That condition was complied with, the money was paid, and the title to the property, therefore, vested in Robertson and Candler. It passed out of Mitchell '& Bleecker, whose claims were satisfied ; it did not vest in the plaintiffs, for they made no contract for it, and were not purchasers ; it must, therefore, have become vested in Robertson and Candler. If the property had been destroyed by fire or other accident, the loss would have been theirs; they had a right to insure it, and were to all intents the legal owners. The plaintiffs were merely commission merchants, making an advance of money, upon the faith of a consignment, which was to have been made to them, but which had never reached their hands. For their disappointment they can have an action against Robertson and Candler, but have no claim upon the property.
    II. The goods were put on board the ship with full knowledge by all the parties, of the existence of the charter-party, and the owners had a lien for freight.
    III. Robertson and Candler, by the terms of the charter-party, became so far interested in the vessel, that a delivery on board of her was a delivery to them. By such delivery the whole title vested in the purchasers, and could not be divested to the prejudice of any third person having a claim upon the property. [6 Cow. R. 110. 2 Mason’s Rep. 236.]
    Faber had a full knowledge of the charter-party, and so had Mitchell & Bleecker. The latter knew of no condition as between Blood and the purchasers, that the property was not to become theirs, until the bills of lading were produced “ freight free.” The delivery was absolute, the contract of sale was unconditional, except that it was to be a cash sale ; and if the money had not been advanced by Faber, Mitchell & Bleecker could not have reclaimed their property. The reason is obvious, they had delivered it to the purchasers on board of their ship, and had delivered it without condition, although they expected to receive the money from Blood. Where the delivery is absolute the property passes to the purchaser, and the only remedy of the vendor is personal against the purchaser.
    The plaintiffs at all events have no title. If the delivery was conditional to Blood, then the special property vested in him, while the general property remained in Robertson and Candler. Under no aspect of the case can the plaintiffs claim title, and they cannot, therefore, maintain this suit. [Upon the question of lien, the counsel for the defendants relied upon their former propositions and arguments.]
   Oakley, J.

The point raised at the trial, on the ground of a mistake in the Christian name of one of the plaintiffs, was abandoned on the argument. The cases clearly show, that such a mistake can be taken advantage of, only by a plea in abatement. [1 Chit. Plead. 460. 2 Brod. & Bing. 34.]

The principal question involved in the cause is, whether the plaintiffs have shown property in themselves, so as to be enabled to maintain the action of trover.

It is quite clear, that the property in the turpentine, was not vested in Robertson and Candler. The proof is explicit, that it was not to become theirs, except on the condition that they furnished,bills of lading to the plaintiffs, “ freight free,” and in the meantime the possession was to remain with Blood. This condition not having been performed, nothing passed to them by the delivery of the articles on board of the ship. The delivery, in fact, was not to them, even nominally. The receipts taken in the name of Blood, preserved the possession in him, and the owners of the vessel were bound to account to him, according to the tenor of those receipts. Blood still retained the control of the property. [Craven v. Ryder, 6 Taun. 433.]

The property having passed out of Mitchell & Bleecker, the former owners, vestéd either in the plaintiffs, or in Blood. Now it is clearly proved that Blood acted as the agent of the plaintiffs, who advanced the money for the purchase. It is, I presume, well settled, that when a purchase is made by an agent, the property vests, by the act of purchase in the principal, and this, even when the agent does not disclose his agency; and in such a case, the principal may always maintain an action in his own name. [Wallis v. Murray, decided in this court.] The possession of Blood was, therefore, the possession of the plaintiffs—the receipts taken by him, on the delivery of the turpentine on board, will enure to their benefit; and if Blood, under the circumstances, could maintain the action of trover, I can see no reason why the plaintiffs cannot.

The other questions involved in this cause were considered in the previous case of Van Buskirk v. these defendants. The property here, as in that case, was never intended to be put on board the ship as the property of Robertson and Candler, or under the charter-party. We then held, that a conditional delivery of the property on board did not vest it in Robertson and Candler, or subject it to any lien of the ship’s owners. The principle of that case, seems to me, to apply fully to the present.

Judgment for the plaintiffs.

[D. P. Hall, Att'y for the plff. G. Clark, Att'y for the defts.]