text:
    Harvey M. and George H. Soule, plaintiffs and appellants, vs. Thomas B. Chase, defendant and respondent.
    1. In proceedings for the discharge of an insolvent from his debts, under 2d Revised Statutes 35, the omission of a petitioning creditor to relinquish a security held by him, does not affect the jurisdiction of the officer, nor avoid the discharge, even though his petition discloses the existence of such security.
    2. Nor is proof of publication of notice of the order to creditors to show cause, essential to give jurisdiction. A discharge which recites due publication, and that due proof thereof was presented, is not invalidated by defects in the notice, its publication, or the proof thereof, on file.
    3. The statute does not require publication for a certain length of time, but a certain number of consecutive publications (10) within a period of a like number of successive weeks, there being one in each week, the commencement of which period is to be determined by the first publication.
    4. Proof that a notice was “published in the New York Day Book,” which was an evening newspaper, is sufficient to show compliance with an order that it be published in “ the newspaper printed in the city of New York, entitled ‘ the Evening Day Book,’ ” in the absence of any evidence of the existence of two papers with the title of Day Book.
    5. An affidavit in the commencement of which the deponent is designated by name, is not void for not being subscribed by him.
    6. The published notice of an order to. creditors to show causS, stating that the proceeding is for the discharge of an insolvent from his debts, need not specify the particular statute under which it is had. Adding a defective reference to the statute, does not vitiate it.
    7. Proof of publication of such notice is not limited by the statute to an affidavit of the printer or the clerk, or foreman of the printer. Such an affidavit merely enables the insolvent to perpetuate the evidence of notice by filing it.
    8. The petition and schedules of an insolvent debtor need not state the grounds of the demands of creditors with the same particularity as is required in a statement for a judgment by confession. It seems that want of sufficient particularity does not affect the jurisdiction of the officer.
    9. Where a discharge recites all the required jurisdictional facts and proceedings, a county clerk’s certificate, that certain papers which are technically insufficient to show jurisdiction, are all that have been filed with him in the proceeding, is not, by itself, sufficient to disprove such recitals.
    10. Whether a name in the list of creditors variant from that of the plaintiff’s was intended to designate them; and whether their names were omitted, and if so, whether such omission was fraudulent; held in this case, properly submitted to ■ the jury.
    11. An insolvent’s discharge, granted under the laws of this state, is a good defense to an action on a judgment recovered here, in the absence of any evidence as to where the contract was made on which the judgment was recovered. Evidence merely that the creditor was a non-resident, is not material.
    (Before Monorief, Robertson and Monekl, JJ.)
    Heard October 16,1863;
    decided November 14, 1863.
    This was an appeal from an order denying a motion for a new trial, and also from a judgment entered on the verdict.
    The action was brought on a judgment for $224.19, which the plaintiffs had recovered against the defendant, in May, 1855, in this state.
    The defendant in his answer set up an insolvent’s discharge from his debts, granted to him since that date, and alleged that he was, at the time of the recovery of the judgment, a resident of the state of New York.
    The cause was tried on the 4th day of June, 1863, before Mr. Justice Monorief and a jury.
    The defendant, in support of his answer, gave in evidence his discharge, and the proceedings on which it was granted, by the county judge of Kings county. The discharge was, in the usual form, signed by such judge. It contained the following recitals:

      “ Whereas Thomas B. Chase, of the city of Brooklyn, an insolvent debtor, residing within the said city, did, in conjunction with so many of his creditors, residing within the United States, as have debts in good faith owing to them by the said insolvent, amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States, present a petition to me, praying that the estate of the said insolvent might be assigned for the benefit of his creditors, and he be discharged from his debts, pursuant to the provisions of a statute authorizing an insolvent debtor to be discharged from his debts ; whereupon I ordered notice to be given to all the creditors of the said insolvent to show cause, if any they had, before me, at a certain time arid place, why an assignment of the said insolvent’s estate should not be made, and he be discharged from his debts, proof of the publication whereof hath been duly made. And whereas it satisfactorily appears to me that the doings on the part of the creditors are just and fair, and that the said insolvent has conformed in all things to those matters required of him by the said statute,” &c. &c. followed by subsequent matters not necessary to be referred to.
    The affidavits of several of the petitioning creditors upon which the application for the discharge was made, averred, respectively, that the sum claimed was justly due to the defendant “from the said insolvent, for goods, wares, and merchandise sold and delivered, and secured by indorsement of a promissory note of C. W. Smith, now due and payable ; and that neither he, nor any other person to his use, hath received from the said insolvent, or any other person, payment of any demand, or any part thereof, in money, or in any way whatever, or any gift or reward” whatsoever, upon any express or implied trust or confidence, that he should become a petitioner for the said insolvent.”
    The affidavit of one of the petitioning creditors (J. Robinson) described his demand as “ for goods, wares, and merchandise, secured by indorsement,” &e. continuing as above ; but without the words “sold and delivered.”
    There was no evidence in any of the papers produced, of any relinquishment by these creditors of the security mentioned in their affidavits.
    O. W. Smith was not mentioned in the schedules as a debtor or creditor of the insolvent.
    The order of the county judge requiring creditors to show cause why an assignment of the insolvent’s estate should not be made, and he be discharged from his debts, pursuant to the statute directed notice of the same to be published for ten weeks in the state paper, and in the newspaper printed in the'city of New York, entitled the Evening Day Booh, and the newspaper printed in the city of Brooklyn, entitled the Brooklyn D'aily Eagle.

    The notice, as published in the state paper, was entitled and commenced with a reference to the statute under which the proceedings were taken, as follows : “Notice of application for the discharge of an insolvent from, his debts, pursuant to the third article of the'first title of the fifth chapter of the second part of the Revised Statutes.” In the copy published in the Brooklyn Eagle, the words, “of the fifth chapter,” were omitted; and in that published in the Day Booh the words, “ of the second part,” were omitted. The publication was made once in each of ten successive weeks, commencing in the state paper, on the 21st of May, 1859—in the Eagle on the 20th, and in the Day Booh on the 28th of May. The order was returnable on the first of August. The affidavit of publication in the Day Booh was in the following terms :
    “ Gr. 0. Stimson of the city of New York, being duly sworn, says : That he is a clerh in the office of the New York Day Booh, a daily paper printed and published in the city of New York, and that the notice, of which the annexed is a printed copy, has been regularly published in the New York Day Booh, once a week for ten weeks successively, commencing on the 28th day of May, 1859.”
    Each of" the other affidavits alleged the deponent to be “foreman in the office ” of the paper designated, but did not state that he was foreman of the printer. The affidavit of publication in the state paper contained the deponent’s name in the commencement, as is usual, but was without signature. It was, however, certified by a commissioner of deeds, with the usual jurat.
    In the ■ debtor’s schedule or account of his creditors, the nature of the debts, and the cause and consideration of them, were indicated entirely by one of the following different . phrases, set opposite to each of the creditors’s names : “ Promissory notes for merchandise sold and delivered,” or for the same, and “ a book account,” or “ indorsement on promissory note for goods, wares, and merchandise,” or “ on note for goods and merchandise, and various stochs,” or for the same “ on note for goods, wares, and merchandise,” or “ goods sold and delivered,” or “ book account for merchandise sold and delivered.” The list of creditors contained the name of W. Gr. Soule, of Eew York, as a creditor to the amount of $>206.74, accrued at Eew York, on a promissory note for merchandise sold and delivered. In the affidavit of personal service of the order to show cause, this creditor was designated as W. Q-. Saurl. The plaintiffs were not named unless intended by these names.
    The papers produced in evidence, with the discharge, as being a copy of the proceedings on which it was granted, were certified by the county clerk as having been compared by him “ with the original papers” in th& matter of Thomas B. Chase, “an insolvent debtor, on file in my office, and that they are true transcripts thereof and of the whole of said original.”
    Various objections to the validity of the discharge, which were taken by the plaintiffs, are stated in the opinion of the court. The plaintiffs also offered to prove by a witness, who was one of them, that the plaintiffs at the tune the debt to them was contracted by the defendant, were both not only nonresidents of the state of Eew York, but were also citizens of another state. This was excluded by the court, to which ruling the plaintiffs excepted.
    The same witness, in answer to the following question :
    “ Did the plaintiffs receive notice of the defendants’s application to be discharged from his debts offered in evidence ?” testified as follows :
    “ They never did ; I and my partner have done business in the firm-name of H. & Q-. Soule for the past sixteen years, and both of us lived in Eew Jersey during that time.”
    The court refused the plaintiffs’ request, that the jury be instructed to find in their favor, and charged the jury, that they must determine whether the names of the plaintiffs in this • suit were omitted from the proceedings for the discharge, and if so, whether such omission was with fraudulent intent. To this the plaintiffs excepted.
    The jury rendered a verdict for the defendant; and the plaintiffs’ motion for a hew trial having been denied, and judgment having been entered therein, they now appealed from such judgment and order denying a new trial.

      D. M. Porter, for the plaintiffs, appellants.
    I. There is a variance in the title of the newspaper printed in New York, in which the judge ordered the notice to be published, and that in which the proof of publication says it was published. The order was for the newspaper entitled “The Evening Day Booh.” The proof is of its publication in “ The New York Day Booh,” was not a compliance with the order. (Brisbane v. Peabody, 3 How. Pr. 109. Hallett v. Righters, 13 id. 43.)
    II. By the affidavit of Gr. C. Stimson, of publication in the New York Day Booh, the first publication was May 28, 1859. The affidavit was made July 30,1859, within the ninth weeh after the first publication, and by no reasoning could it be held to be a publication for ten weehs where the affidavit was made within the ninth weeh, it being made on the sixty-third day of the publication. Such a publication gave the officer no jurisdiction to grant the discharge. ■ It presents an entirely different case from what it would be if the affidavit had been made after the expiration of the ninth weeh, but before the tenth weeh had expired-; but even in that case, the discharge would be void. (People v. Gray, 10 Abb. Pr. 468. Small v. Wheaton, 2 id. 175, 179. In the matter of Underwood, 3 Cowen, 59. Anon. 1 Wend. 90. Stanton v. Ellis, 16 Barb. 319.) Chase’s creditors were in fact required to appear before ten weeks could elapse after the first publication.
    III. By the omission in describing the part of the Revised Statutes, the notice does not designate whether the application would be made under “the Two-thirds act,” “the Non-imprisonment act,” “the Stillwell.act,” or “the Fourteen day act,” and is not a notice of the defendant’s application under the first mentioned.
    IV. The affidavits do not show that the notices were published ten weeks under and in pursuance of the judge’s order. (Hallett v. Righters, supra.) Nor do they show that the persons making them weré competent, inasmuch as they do not swear they are either principal clerks or foremen of the printers. They might be clerks or foremen in the office, and still not be clerks or foremen of the printers. • The person making the affidavit must be the printer or his clerk, or foreman. (3 R. S. p. 688, § 7.)
    V. What purports to be the affidavit of publication in the publication in the state paper is not an affidavit, because it is not signed by the deponent. The oath is not binding, as no perjury could he charged upon such a paper. Consequently, there is no proof of publication to give jurisdiction to the judge to entertain the proceedings. By the only definition of an affidavit, it must be signed. “ An affidavit is an oath in writing signed by the party deposing, sworn before and attested by him who had authority to administer the same.” ■ (Laimbeer v. Allen, 2 Sandf. 648. Graham v. McCoun, 5 How. Pr. 353. Also, see cases in 1st Code Reporter, 63,114; Stanton v. Ellis, supra; Barker v. Cook, 16 Abb. 83.)
    VI. There is a want of proper specifications in the affidavits of the petitioning creditors, as to the nature of their debts, how and for what they arose, or when and where, and who were the parties thereto, and the consideration and character of the indebtedness. All and each of thése should appear on the papers, and without a full and proper statement thereof, the intent to defraud must be inferred, and becomes a question of law. (Slidell v. McCrea, 1 Wend. 156. Small v. Wheaton, 2 Abb. Pr. 175, 179. McNair v. Gilbert, 3 Wend. 344. Gillies v. Crawford, 2 Hilt. 338.)
    1. Section 7 (4,) of 3 Bevised Statutes, p. 92, (5th ed.) requires the petitioning creditors to state the nature of the demand, with the general ground and consideration of such •indebtedness. Unless the specification stated those matters, ■ subdivisions 3, 4 and 5, of section 7 are nonsense.- The defendant did not comply with either of these subdivisions. There was no specification as required, nor is there any statement whether there was any security for the indebtedness or not; neither is Smith named as a debtor or creditor.
    2. By the affidavit of Eobinson, it does not appear that the property was ever sold or delivered, nor is any specification made of any kind. In the statement of the debts it should be made to appear how and for what they arose, when and where, who were the parties, the consideration or character of the indebtedness, who delivered the goods or merchandise, and to whom they were delivered.
    3. Such a specification as was made would not support a judgment. (Dunham v. Waterman, 6 Abb. Pr. 357. Chappel v. Chappel, 12 N. Y. Rep. 215. Freligh v. Brink, 16 How. Pr. 272. Moody v. Townsend, 3 Abb. Pr. 375. Stebbins v. The East Society, 12 How. Pr. 410.) No confession of judgment has ever been upheld where no date or place has been given. None are given in the affidavits.
    4. In the case of Gandal v. Finn, (13 How. Pr. 418,) specifications were much more particular and greater than in these affidavits. How much more full, precise and particular should every such statement be made, in a case where a party’s just claim is to be swept away by a judicial statutory proceeding.
    VII. The court erred in refusing to allow the plaintiffs to show that at the time the debt for which the judgment was rendered was contracted, they were neither residents nor citizens of this state. The insolvent laws of one state can not impair debts contracted with those who were citizens of another state at the time of contract. (Donnelly v. Corbett, 7 N. Y. Rep. 500. Ogden v. Saunders, 12 Wheat. 213.)
    VIII. The discharge was void, inasmuch as the plaintiff’s names were left out of the proceedings. They were residents of New Jersey, and no persons are put in as residing there, nor do their names appear ; this claim was in judgment, and is for a different amount than any claim named—no mention of any judgment is made in the schedule, and the discharge was void. (3 R. S. p. 93, § 8, subd. 5. Stanton v. Ellis, 2 Kern. 575.)
    IX. The plaintiffs had no notice of the application which was required by law, which rendered the discharge fraudulent, not as a question of fact, but of law. (See cases before cited.)
    X. There was no schedule of the defendant’s creditors sworn to, as required "by section 8 of the Bevised Statutes. As the word “sworn” ■ is omitted, there is no jurat, and the .oath could only be administered by the judge granting tjie discharge. (Small v. Wheaton, supra.) The same objection is taken to the oath to the schedule of the nature of the indebtedness, and where the creditors resided, required by section 8.
    XI. This application of the defendant was a special statutory proceeding, and if any essential prerequisite was. wanting,' the discharge is a nullity. (Small v. Wheaton, 2 Abb. 175, 178, and cases there cited.) And the discharge being fraudulent in law, the court ought -to have directed judgment for the plaintiffs on their motion. (In the matter of Underwood, 3 Cowen, 59. 2 Kern. 575.) This court is now asked to correct the error.
    XII. If the discharge is held invalid for any jurisdictional defect in the proceedings, no possible state of proof will entitle the defendant to judgment; This case, therefore, comes within the rule laid down in Edmonston v. McLoud and another, (16 N. Y. Rep. 543 ;) and final judgment should be given for the plaintiffs.

      E. R. Bogardus, for the defendant, respondent.
   By the Court, Robertson, J.

The following objections were made, on the trial, to the validity of the defendant’s insolvent discharge, founded solely upon what was produced in evidence as the proceedings by which it was obtained.

1. Too short a publication in the New York Day Book, of the notice to show cause against such discharge.

2. Non-publication of such notice in any paper entitled the Kvening Day Book, as required by the order.

3. Want of proper specification in the affidavits of petitioning creditors of “ the nature of their debts and claims, how ■ and for what they arose, when and where; who were the parties, the consideration and character of the indebtedness ; who delivered the goods, wares and merchandize, or to whom they were delivered.”

4. The omission of the names of the plaintiffs in the pror ceedings.

5. The omission, from thé defendant’s list of creditors, of the name of O. W. Smith, whose indorsements are alleged in the affidavits of petitioning creditors as securing their debts.

6. Like want of specification of the nature of the creditors’ demands, in the defendant’s statements of them, as in their affidavits of indebtedness.

7. The absence of any signature subscribed to the proof of publication in the state paper.

To these objections, the plaintiffs’ counsel now adds another, of the failure of the petitioning creditors to relinquish to the assignee, by a statement at the foot of their affidavit, the security, which by such affidavit they appear to have.

Such of these objections as do not relate to jurisdictional facts, are cured by the provisions of law, which make the discharge conclusive evidence of the fact recited in it, (2 R. S. 38, § 19,) and enumerate for what causes the discharge may be set aside. (2 R. S. 23, § 34, 5th ed. 40.) Formerly, they excluded all contest, or even jurisdictional facts ; (Lester v. Thompson, 1 John. 300; Jenks v. Stebbins, 11 id. 224; People v. Stryker, 24 Barb. 649;) but the more recent case of Stanton v. Ellis, (12 N. Y. Rep. 575, S. C. 16 Barb. 319,) reduces the effect of the recitals as to jurisdictional facts to mere prima facie evidence.

What are necessary jurisdictional facts are clearly and succinctly enumerated in the case of Rusher v. Sherman, (28 Barb. 416,) in which they are stated by the learned judge who decided that case to be,

1. A proper petition by proper parties.

2. Proper affidavits, by the petitioning creditors, of the nature, amount, and consideration of their debts, and their freedom from any bribe.

3. A proper account of creditors, and the amounts due them ; the consideration of their debts, and any security held by them therefor.

4. A proper inventory.

5. The oath of the insolvent, before the officer, as to the accuracy of his petition and schedule, and other matters required by the statute.

6. Proof of residence. •

I can not regard the relinquishment by the petitioning creditor of any security .held by him, before he can become a petitioning creditor, as a jurisdictional fact. (2 R. S. 36, § 11.) The statute provides no mode of informing the officer of their existence, except by the statement in the petition or schedule annexed. In this case the statement of it in the creditors’ affidavit was superfluous, because not required by the statute. The statute' did not intend that the whole proceeding should be held for naught, if it should afterwards be accidentally discovered that a petitioning creditor held a security which he had' omitted to relinquish. It might form a good objection to granting .the discharge, on the hearing, and possibly might be cured by relinquishment even at that time.'

The provision in regard to such relinquishment forms, no part of the article prescribing the proceedings to be had before procuring the order for publication of the notice to show cause, and is 'only directory in' form. Moreover, in" this case, no mention" is made of any securities held by the petitioning creditors in the insolvent’s schedule of debts, and although proof may be now offered aliunde of the existence of such securities, such omission will not affect the validity of the discharge. (Stanton v. Ellis, 12 N. Y. Rep. 589, per Denio. J.) The accidental' statement in the affidavits of petitioning creditors in' this case,' that their "claim'is secured by some indorsement, did not make it incumbent on the officer to see that it was given up. The statute' only requires that the documents mentioned": in the case: of Rusher v. Sherman, (ubi supra,) as jurisdictional, shall be presented "to the officer to procure the order for publication, and upon such presentation and order he acquires'jurisdiction. ■

The' • proof of publication, required by the statute is not á jurisdictional fact; the decision of the Supreme Court in Stanton v. Ellis, (ubi supra,) to that effect is doubted by the judge, who gave the only opinion in the same case on appeal. (12 N. Y. Rep. 580, Denio, J.) He says he “suspects it is not;” thus giving as strong an impression as possible, considering that the point was not necessary to the case. He intimates very strongly, in that case, that jurisdiction begins on granting the order before the publication is made. The statute merely directs proof to be made before inquiring into the merits ; while the amendment in 1847, as to one mode of service which prescribes that the proof shall be satisfactory to the officer, (Sess. Laws of 1847, ch. 366, § 2,) neither states whether it shall be made by affidavit or orally. There was no evidence in this case that the affidavits offered were the only proofs of publication received by the officer; and the recitals in the discharge are at least prima facie evidence of due proof, even if it were a jurisdictional fact; and the same principles will apply to all the other objections, except the contents of the papers presented to the officer. But even if they were the only evidence, they are sufficient.

The objection of too short a publication of the notice to show cause, was properly overruled, because the statute only requires ten publications, each one of which is to be successively within one of ten successive weeks, (2 R. S. 18, § 11,14,) the commencement whereof is determined by the first publication. (Sheldon v. Wright, 5 N. Y. Rep. 499. S. C. 7 Barb. 39. 1 Mass. Rep. 252.) A contrary doctrine upheld in The People v. Yates, C. P. (1 Wend. 90,) followed in Bunce v. Reed, at special term, (16 Barb. 347,) is overruled by the cases last cited. The difference, where a definite period -of publication such as ten weeks, and not the number of publications, is fixed, was overlooked in those cases. In the statute no length of time is prescribed during which the notice to show cause must be given, except by such order of publication.

The question of the name of the newspaper, The Day Book, is entirely one of identity. The affidavit of publication, complained of, does not aver the title of the paper to be the Hew York Day Book, but designates it by that name as. a Hew York newspaper. In the order of publication the term “ Even ing” may have been used merely to specify it as an afternoon issue. There was no evidence of the existence of two papers published in the city of Hew York with the title of Day Book, to create a patent ambiguity. Similar variances have been held, immaterial, even in actions for torts. (Southwick v. Stevens, 10 John. 443.) Extrinsic circumstances are admissible to show who is intended by a certain name. (People v. Ferguson, 8 Cowen, 102.) Even the entire omission of the Christian name of a person has been held to be immaterial.

The want of a signature subscribed to another affidavit of publication is also immaterial. In this case the affiant’s name was at thejhead of the affidavit, and that in the case of wills and agreements under the former statute of frauds was held held to be a sufficient signature.

The same view was taken in Jackson v. Virgil, (3 John. 539,) where a signature was omitted. The only object of a signature or mark (signum) is to identify the deposition sworn to. Persons incapable of making either a signature or mark, by disease or natural infirmities or defects, are not debarred from making an affidavit, which is but written testimony. The description in Bacon’s Abridgment (tit. Affidavits,) of an affidavit will hardly stand any critical examination as a definition. It is there called an oath in writing administered; how that can be when the form is presented orally is not very clear. The case of Laimbeer v. Allen, (2 Sandf. S. C. 648,) decided at special term, where the question arose on a pleading, not an affidavit, and was hastily considered without any notice of the case of Jackson v. Virgil, (ubi supra,) can hardly be considered as overruling it.

There is no statutory provision requiring the particular act of the legislature, under which the applicant seeks relief, to be designated in the published notice to show cause. The Revised Statutes require him to state therein merely, whether he seeks a discharge from his debts, or only from imprisonment. (2 R. S. 648, § 43.) The proof of publication is not limited by statute to any particular person; although it enables an insolvent to perpetuate such evidence when made by specified persons. The objections made on the score of an omission in the notice of the subdivisions of the Revised Statutes, in which the two-third act is to be found, as well as .of the person making the affidavit, therefore, fall to the ground.

The statutory requisites that the nature of the demands of the petitioning creditors, as well as whether they arise on a written security or otherwise, and their general grounds and consideration, shall be stated in their affidavits, and that their true cause and consideration, shall be stated in the debtor’s schedule annexed to his petition, seem to have been sufficiently complied with. If enough is stated to apprise disputing or opposing creditors of the general grounds of indebtedness, such as money lent, money paid or services at the debtor’s request, it has been held to be sufficient because it gives them a clue to inquiry. (Taylor v. Williams, 20 John. 21.) Defects in such statements, arising from want of particularity, have been held to be cured by the discharge, and even to0 be curable at the hearing. (In the matter of Hurst, 7 Wend. 239) Want of particularity differs from an entire omission of the consideration. (McNair v. Gilbert, 3 Wend. 344.) It was not necessary to specify to whom'the goods were sold and delivered, or when, with the particularity required in a complaint or even in the specifications required by the Code of Procedure to be annexed to a confession of judgment. (§ 383.) That exacts a concise statement of “the facts out of which the liability” arises, which is far more extensive than “the nature of the demand and ground and consideration of the indebtedness.” None of the conflicting decisions in regard to that .section of the Code would therefore be applicable. The subsequent provision in the statute authorizing the officer to whom the application is made to commence his proceedings for granting the discharge, by directing an assignment, upon being satisfied of the appearance of certain matters, (2 R. S. 21, § 25,) would alone throw great doubt on the question,' whether the proper description of the indebtedness of the insolvent to'petitioning creditors, which is not one of those matters, was a jurisdictional fact. That provision only requires the officer to be satisfied of the insolvent’s indebtedness to the creditors .for the amount claimed, without reference to its origin or nature. A mistake in any thing but the amount would seem to be capable of being overlooked. On the fact of the indebtedness and its being two thirds, the discharge seems to be conclusive. (Betts v. Bagley, 12 Pick. 572.) The language of Judge Denio, in Van Alstyne v. Erwine, (11 N. Y. Rep. 341,) in reference to another kind of special proceedings, quoted with approbation by the learned judge who delivered the opinion in Busher v. Sherman, (ubi sup.) is still more apt in regard to insolvent discharges, for without “ the liberal indulgence” challenged by him “even on questions of jurisdiction,” proceedings to obtain them would be “ a snare instead of a beneficial remedy.”

But most if not all of these objections -are technical, and founded on the supposition that the recitals in the discharge are contradicted by the sole want, of conformity of certain documents procured from the county clerk’s office to the provisions of the statute. There was no evidence offered to show that the officer granting the discharge had not other evidence before him of the facts recited in the discharge than appeared in the papers so produced.' The county clerk certified that he had compared the latter with “ the original papers in the matter of Thomas B. Chase on file in his office, and that they were true transcripts of the whole of them. ” He probably knew nothing of such original papers except that they were on file in his office, by. whom filed or when did not appear. The case states that they were a copy of the proceedings and discharge. ' They consisted of what purported to be copies of a discharge, assignment; some affidavits of publication and personal service of notice on creditors ; an order for an assignment ; a certificate of its execution by the assignee, and of -its record, by a county clerk; an order of publication of notice; a petition by the defendant and some creditors, and an affidavit of his good faith ; some affidavits of such creditors, a list of them and their residences, a schedule of the nature of their debts, and an inventory of the insolvent’s estate. These un-doubtedly were a compliance with some of the provisions of the statue, but are not proved to include every thing that took place before the officer. He is required to file “all proceedings ” to obtain a discharge within a certain time after the same shall have been consummated, with the clerk of his county. (2 R. S. 39, § 27.) What is meant by “proceedings ” does not clearly appear from such provision. Whether they include those required to be reported by such an officer to another court, (2 R. S. 10, § 46 ; Id. 13, § 68 ;) those for obtaining a jury, (2 R. S. 26, § 14 ; Id. 29, § 6;) or the minutes required to be kept by such officer of the testimony of witnesses examined before him, ( 2 R. S. 37, § 16,) which might include proof of due publication of the notice to sho# cause, does not appear. In some parts of the title of the Revised Statutes, containing the statute in question, the term “proceedings” is evidently used to signify all the steps taken to procure a discharge, according to its proper meaning. Under such circumstances the prima facie evidence that all the jurisdictional proceedings and facts recited in the discharge took place created by law from such recital, is hardly repelled by a county clerk’s certificate, that certain documents are copies of, all the original papers filed in the matter of such insolvency in his office, without some evidence, however slight, to show that the proper proceedings did not take place before the officer, who has certified in the discharge granted by him .that they did.

The question of fraud growing out of a supposed omission of the plaintiffs’ names from the documents presented by the defendant to obtain the order to show cause against his discharge, was submitted to the jury. That is entirely different from inserting a creditor’s name and omitting the amount due him, which is held to be essential in Stanton v. Ellis, (ubi sup.) because the necessary two thirds can not be ascertained. In that very case, however, it was held that the entire omission of a creditor’s name, or insertion of an incorrect amount, would not have made the proceedings defective, (p.579, per Denio J.; 2 R. S. 81, § 3, subd. 4.)

There was no evidence in the case where the contract, on which the judgment of the plaintiffs sued on was obtained, was made. Prima facie therefore the discharge' was good against it. Proof of a party’s mere residence in another state, without proof of where the contract were made, was immaterial and properly excluded.

There being no error in the rulings of the court on the trial, the judgment should he affirmed, with costs.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court, Robertson, J.

license: Public Domain

text:
    Maria Anderson, plaintiff and respondent, vs. Patrick Dickie, defendant and appellant.
    1. The owner of premises having an area or vault under the highway in front thereof, and communicating therewith by an underground passage, is bound, at his peril, to provide such a covering for an opening into such vault from the highway, that the latter will he as safe to pass over as-it would have been if no such area or vault and opening had existed. .
    2. If he leases the premises to which such vault is an appurtenance, without-providing a covering with secure fastenings for such opening therein, he is liable for injuries sustained by a passer by, who falls into such opening, although such covering may have been removed or deranged by the tenant, or a third person.
    (Before Moncrief, Robertson and Monell, JJ.)
    Heard October 7,1863;
    decided November 14, 1863.
    This was an appeal by the defendant, from a judgment entered upon a verdict in favor of the plaintiff.
    The action was to recover-damages for personal injuries sustained by the plaintiff in falling into the opening in the street of a coal vault which the defendant had constructed under the sidewalk in front of his premises, in the city of New York. This opening he had provided with a grating, which was without fastenings. In this condition he had demised the premises, or the part including the vault, with the appurtenances, to one James Walnut, in whose occupation the same were at the time of the accident. The defendant relied on evidence going to show that the tenant used, the vault hole in taking coal in. .That he uncovered the hole about once, twice, or three times a week to take in coal. That there was no difficulty about the vault or grating up to the occurrence of this accident. That when the grating was in its bed it could be walked over or pressed upon in any way from the outside without disturbing it, and that it could not be moved by stepping, on it. That on the day the accident occurred the grating had been removed, coal put through the hole into the vault, and the coal cartman did not put back the grating. There was no evidence that the tenant had replaced the grating after having lifted it in order to put in coal, but evidence to the contrary, and also that at the time of the accident the grating was not in its bed, and the tenant was in the habit of leaving the grating off, after-putting in coal.
    The cause was tried on the 24th and 25th of February, 1863, before Mr. Justice Monell, and a jury. Under the charge of the court, which is sufficiently stated in the opinion, the jury rendered a verdict for the plaintiff, for $750. Judgment having been entered thereon,.the defendant appealed.

      A. Boardman, for the defendant, appellant.
    I. The motion to dismiss the complaint should, have been granted.
    1. The premises were, at the time of the accident, in the possession of the tenant, and he was prima facie liable. (Eakin v. Brown, 1 E. D. Smith, 36. Mayor v. Corlies, 2 Sandf. 301.)
    2. The evidence showed that the tenant had used the opening for the purpose of putting in coal,- and there is no evidence to show that he had replaced the grating in its bed.
    3. The burthen of proof was on the plaintiff, and she was bound to give some evidence that the accident was, not merely that it might have been, occasioned by defects of structure. (Butler v. Kent, 19 John. 223.)
    4. No defect or perfectness of structure could have had any effect in producing or preventing an accident if the grating was not properly restored to its bed after being taken off.

      5. There was no proof of any relation between the defects of structure and the accident, and consequently nothing to go. to the jury. Any verdict rendered on the plaintiff’s testimony alone, would be set aside as against the weight of evidence, and it is the judge’s duty to nonsuit where a verdict for the plaintiff would be against the weight of evidence. (Wilds v. Hudson River R. R. 24 N. Y. Rep. 430.) The judge is not justified in leaving the case to the jury where the plaintiff’s evidence is equally consistent with the absence as with the existence of negligence in the defendant. (Colton v. Wood, 98 Eng. Com. Law, 566 ; cited with approbation in the above cases.)

    II. The carelessness of the plaintiff contributed to the injury, and' therefore the defendant is not liable. (Wilds v. Hudson River R. R., 24 N. Y. Rep. 430.) ,
    III. The judge erred in refusing to charge as requested, “that a landlord, during the tenancy, gives up entirely to the tenant the premises demised, and has no right to enter them .for any purpose. His entering is permissive only, like that of any other person; If he enters without leave, he is a trespasser. That the defendant can not be held liable except for negligence of his own. He is not in any respect responsible for the negligence of his tenants.. That if the accident could not have happened, provided the grating had been properly placed in its bed, the landlord is not liable, in the absence of proof, that he had any thing to do with its displacement.”
    IV. The judge also erred in refusing to charge as requested. “ That it is the business of the tenant, and not of the land-land, to fix the grating into its bed after using italso, “ That if the accident happened by reason of the tenant not replacing the grating in its bed after taking the same away, the landlord is not liable for the injury.”
    I. D. Warren, for the plaintiff, respondent.
    I. The court properly denied the motion to dismiss the complaint.

      1. The defendant, for his own benefit, had constructed and continued vaults under the public street without any special authority, and had continued the same for thirty-nine years ; and the injury occurred by reason of the imperfect, manner in which such vault was covered and protected. The fact that it was rendered unsafe by the act of a stranger will not relieve him from liability where the party injured was free from negligence. (Congreve v. Smith, 18 N. Y. Rep. 79. Congreve v. Morgan, Id. 84. Dygert v. Schenck, 23 Wend. 446. Harlow v. Humiston, 6 Cowen, 191. Angell on Highways, § 223. Bac. Abr. Highways, D.)

    2. The evidence shows that the defendant was guilty of negligence in not having this defective grate properly secured. (Curtis v. Roch. and S. R. R. Co., 18 N. Y. Rep. 534.)
    3. There was an entire absence of any evidence of negligence on the part of the plaintiff, and the judge would not have been warranted in taking the case from the jury. (Johnson v. Hudson R. R. Co., 5 Duer, 21. Oldfield v. N. Y. and Harlem R. R. Co., 14 N. Y. Rep. 314. Williams v. O’Keefe, 24 How. Pr. 19.) She was walking in the highway of the city, upon the belief and assurance that it was in a safe and proper condition to be traversed, and as a matter of law, was justified in relying upon that belief. (Dargie v. Magistrates, &c. 27 Scottish Jurist, 311. Hay on Liability, 208, 215. Davenport v. Ruckman, 10 Bosw. 20. Ang. on Highways, § 226.) The court will not presume negligence,fin the absence of evidence. (Johnson v. Hudson River R. R. Co., 5 Duer, 25. Button v. The Same, 18 N. Y. Rep. 252. Johnson v. Hudson River R. R. Co., 20 id. 65. First Bap. Church v. U. and S. R. R. Co., 6 Barb. 318. 24 How. opinion of Monell J. Burrill’s Law Dict. vol. 2,p. 586. Broom’s Legal Maxims, 122. 3 Bl. Com. 215. 4 id. 27.)
    4. The defendant let the premises to Walnut, with this grate in a defective and dangerous condition, and on that ground alone is liable for any injury resulting to third persons by reason thereof. (Taylor’s Landlord and Tenant, p. 109, § 175. Brown v. C. and S. R. R. Co., 2 Kern. 487. Corporation Revised Ordinance, 1857, p. 259, § 16.)
    II. The first proposition or request to charge was properly-refused, except as the judge had already charged. (Taylor’s Landlord and Tenant, § 174, p. 108.)
    The judge could not charge in the terms of the request without qualification, and his refusal to charge as requested was no error. (Bagley v. Smith, 6 Seld. 489, 499. Carpenter v. Stilwell, 1 Kern. 61. Kiernan v. Rocheleau, 6 Bosw. 148. Magee v. Badger, 30 Barb. 246. Gardner v. Clark, 17 id. 538.)
    “It was the defendant’s duty to know that the side-walk over his vault was safe,” The plaintiff had a right to presume it was. (Cases under Point I. Ryan v. Fowler, 24 N. Y. Rep. 414.)
    III. The second request to charge was properly refused, except as it was charged ; as there is no evidence to support it. There was no lease in evidence, por any agreement proved containing any such provisions, and such a charge would haA-e been improper. (Mayor of N. Y. v. Price, 5 Sandf. 542. Kiernan v. Rocheleau, 6 Bosw. 148. Rushmore v. Hall, 12 Abb. 420. Eakim v. Brown, 1 E. D. Smith, 36.)
    IV. The sixth,.seventh and eighth requests were charged in stronger terms than the defendant’s request,
    V. Ho exception was taken to the charge, and every request to charge, in any way warranted by the evidence, or correct as a proposition of Iuav, was fully and distinctly charged.
    VI. Most of the evidence as to the improper construction of the grate is against the defendant.
   By the Court, Robertson, J.

The plaintiff was injured by falling through a circular aperture in the .pavement of the street in front of Hos. 68 and 70 Lispenard street, in the city of Hew York, from which a passage descended into a vault adjoining such premises and used therewith. This opening, passage and vault were there when the premises. Avere let by the defendant to a tenant. Such aperture Avas covered, usually, by a loose, moveable, circular grating, sunk into a circular flange or socket cut into the flagging of the side-walk, on which it rested. It appeared in evidence, that a chain fastened to such grating and to a bar on the inside of the vault, would have greatly increased the probability that such grating would not be moved. It also appeared that a grating with prongs and two chains, with one of them fastened to each side of the* opening, and a flange projecting beyond the edge of the opening and resting on the pavement, would have been the most secure. The evidence as to the existence of any fastenings to such grating when the premises were let by the defendant, the possibility of tilting up the grating, if it was in its socket, and the condition of the fastening and grating at the time of the accident, was somewhat conflicting. There was also some evidence to show that the gracing had been displaced and left unreplaced by the tenant. ^

On the trial the defendant requested the court to charge the jury, among other things : (1.) That a landlord had no right to enter premises let by him, without the consent of the tenant. (2.) That he is not bound to make repairs when he lets such premises by a lease binding the tenant to leave the premises in as good condition as when he entered.. (3.) That he is only liable for his own negligence, and not for that of his tenants. (4.) That he is not liable unless he be proved to have had something to do with the displacement of the grating, if the accident could not have happened, if it had been properly placed in its bed. (5.) That he is not liable if the accident happened by reason of the tenant’s not replacing the grating in its bed, after displacing it. (6.) That it is the business of the'tenant, and not of the landlord, to replace this grating after using the opening.

The learned justice who presided at the trial charged the jury, (1.) That the law imposed upon the owner of property in a city, who used any part of the street for his private purpose, the duty of employing all -necéssary and proper means for the prevention of damages and injury that might arise from the use of such public street by him, and he. is responsible for all injury resulting from the street being made thereby less safe for its proper uses when there is no negligence on the part of the party injured. (2.) If the grating was insecure at the time of the happening of the accident in question, and that was occasioned by the negligence of the defendant, he is liable in this action ; for, being owner of the property, he was bound to see that the grating was kept securely. (3.) If the jury were satisfied that without'the chain and bar the grating was entirely secure and free from liability to cause accidents to persons passing over it, the defendant was not guilty of negligence. (4.) If the defendant did not resort to all necessary and proper means to render the grating secure, and its insecurity had existed and continued for a considerable time previous to this action, he is liable. (5.) The law is answered by' a landlord’s using reasonable diligence at the time of letting the property to see that it is in good condition. (6.) The defendant would not be liable if the grating had been secured by him previously and the security had been removed by the tennant or any one else. The court refused to instruct the jury upon the points requested otherwise than it did in such charge, and the defendant’s counsel excepted to such refusal.

It was not probably intended to be maintained on behalf of-the defendant, that the mere liability of the tenant would of itself absolve him from all ’responsibility for the injury to the plaintiff; the creator of a nuisance, or one who more remotely either by negligence or design furnishes the means and facility for the commission of any injury to another, which could not have been done without them, is equally responsible with the immediate wrongdoer. (Vandenburgh v. Truax, 4 Denio, 464. Thomas v. Winchester, 6 N. Y. Rep. 397. McCahill v. Kipp, 2 E. D. Smith, 413.) So, too, if the defendant had never let the premises adjoining the vault, and the grating had been left in a condition to be easily moved by a stranger; and it had been so moved as to cause the injury in question, it would hardly be contended that the defendant was not liable for the injury to which he had contributed. The only question that remains, therefore, is whether the defendant relieved himself from responsibility in such case by demising the vault and its appurtenances, with the insecure grating, to a third person.

It was held in the cases of Congreve v. Smith, (18 N. Y. Rep. 79,) and The Same v. Morgan, (Id. 84,) that persons constructing an area in the highway are bound, at their peril, to keep it so covered that the way would be as safe as before the area was built, wholly irrespective of the covering being rendered unsafe by the wrongful act' of a third party. These decisions were followed by this court in the case of Davenport v. Ruckman, (10 Bosw. 20.) It may well be doubted whether, even if the defendant in this case had let the premises with the grating over the vault hole secured only by fastenings which were moveable, he would not be responsible for injury caused by those fastenings being removed after he parted with their possession and use for a consideration. He could hardly be held to have discharged his duty to the public by leaving such traps as vault holes guarded against doing injury only by fastenings easily undone and intended to be undone constantly by the tenant, for which facility he may be supposed to have been receiving part of his rent. But if there were in fact no fastenings, but merely a loose cover to the opening, he would be still more obnoxious to responsibility for its removal. The charge was more favorable to the defendant than he could ask, since it exempted him from liability if he used reasonable diligence to see that the premises were in good condition when he let them, and if the grating had then been secure, although the security had been removed by another. It only made him liable, in case the grating was insecure at the time of the accident by reason of the previous negligence of the defendant, and his failure to resort to all proper and necessary means to make it secure, and such insecurity had existed for a considerable time.

The request to charge as to the absence of any right of a landlord to enter premises let by him, if relevant, was too broad; he can do so undoubtedly to prevent waste, and certainly to save himself from liability for leaving an exposed opening in the highway. It was, besides, not absolutely necessary that he should go on the main premises at all, to a'dd a chain and fastening to the grating. There was no evidence of such a case as was supposed in the second, request; if there had been, the addition of a chain and fastening never before there, in order to prevent accidents, could hardly be called repairs. He was made liable only for his own negligence. The previous remarks dispose of the question of liability for the displacement of the grating by the tenant or a stranger, when facilitated by the negligence of the defendant; which is embraced in the remaining three requests to charge, before specified.

There being, therefore, no error in the refusal to charge, the judgment should be affirmed, with costs.


author: By the Court, Monell, J.

text:
    Joseph W. Hartley, plaintiff and appellant, vs. Benjamin Tatham and Rebecca C., his wife, (who were impleaded with Samuel W. Dunscomb et al.,) defendants and respondents.
    1. The assignee of a mortgage takes it subject to any equities subsisting in favor of the mortgagor, and any person who has succeeded to his estate, at the time of the assignment.
    2. Thus where one holding an executory contract for the conveyance to him of certain premises subject to a mortgage, rendered services to the mortgagee upon an agreement that their value was to be received as payment of so much due on the mortgage, and such agreement was' afterwards assigned, and the premises subject to such mortgage also conveyed to a third'persoh;

      Sold that the latter was entitled to the benefit of the application of the value of such services in part payment of such mortgage, as against an assignee of the mortgage by an assignment subsequently made.
    8. One who has succeeded to the estate of the mortgagor is not estopped from asserting such right by the fact that his immediate grantor had assumed the payment of the mortgage for its full amount, and agreed, with the mortgagor, to pay it. This is a mere personal obligation of such grantor, to such-mortgagor, and does not so run with the land as to estop his grantee. The mortgages could not avail himself of it, nor can his assignee.
    4. ■ Where, upon default in the payment of interest, upon a mortgage, which provides that on such default the principal shall, at the mortgagee’s option, become payable, the mortgagee has made his election by bringing an action claiming to foreclose for the whole amount, the defendant has a right, although after suit brought, to tender the whole amount, with costs, and the tender, if refused, extinguishes the lien of the mortgage.
    (Before Mohcrief, Robertson and Monell, JJ.)
    Heard October 16,1863;
    decided November 14, 1863.
    This was an appeal from a judgment entered at special term, in favor of the defendants, Tatham and wife.
    The action was for the foreclosure of a .mortgage, and was tried the second time before Justice Moncrief, without a jury, on the 9th, 18th and 23d of April, 1863. A previous decision in the cause is reported 10 Bosw. 273. Upon this second trial the following facts were established : On the 30th of May, 1860, Michael Cunningham executed and delivered the mortgage in question to Samuel W. Dunscomb, to secure the payment of the sum of fifteen hundred dollars, part of the purchase money for the conveyance of the same premises by Dunscomb to him. on the same day. On the first of June of the same year, Cunningham conveyed the same premises to James J. Smith subject to the mortgage, which Smith assumed, and agreed to pay. On the 26th of January, 1862, Smith conveyed the premises to the defendant Tatham, subject to the same mortgage. The latter conveyance contained no assumption of the mortgage, nor any agreement on the part of Tatham to pay the same. On the 23d of Aprils Dunscomb, the mortgagee, agreed to sell eight lots of land, (including the premises afterwards mortgaged by Cunningham,) to one Higginson, he, Higginson, agreeing to erect thereon eight dwelling houses ; the conveyance to be delivered when the houses were completed, subject to $5500 of mortgage. Subsequently, in March, 1851, Higginson assigned this agreement, with the consent of Dunscomb, to one Arment, he, Dunscomb, agreeing to convey the eight lots and houses to Arment when the plumbing work was finished. In the fall of the same year, Arment agreed with Dunscomb to do certain plumbing work in the Beekman Hill chapel, which Dunscomb was then building, Dunscomb agreeing to pay Arment therefor, by deducting the amount from the $1500 -mortgage from Cunningham to him. The plumbing work was clone, and the amount thereof ($490.03) was certified and agreed to by Dunscomb.
    At the time of the conveyance by Smith to Tatham, which was done by request of Arment, he agreed to assign to Tatham, and subsequently, on the 3d of May, 1862, did assign to Tatham his interest in the agreement between Dunscomb and Higginson, and also his claim against Dunscomb for the plumbing work upon the chapel, and his agreement in respect thereto.
    On the 13th of May, 1862, Dunscomb assigned the $1500 mortgage (mortgage in suit) to the plaintiff.
    On the 9th of July, 1862, Tatham tendered to the plaintiff the balance of principal and interest due on the mortgage, with the costs accrued in this action, after deducting the $490.03, the amount of the plumbing bill on the chapel, which was refused.
    The conclusions of law from the foregoing facts, were,
    ■ 1st. That the sum of $490.03 for work, &c. done on the Beekman Hill chapel, under the agreement between Duns-comb and Arment, was a payment pro tanto, on the mortgage.
    2d. That such payment must be applied to the interest; and being so applied there was no interest due at the commencement of the suit.
    3d. That by force of the several agreements, and the assignments and conveyance to Tatham, he was substituted in the place of the mortgagor and of Arment, with all their rights.
    4th. That the tender by Tatham to the plaintiff of the balance of principal and interest due, extinguished the lien of the mortgage.
    ■ A judgment was entered in conformity with these conclusions, from which the plaintiff appealed.

      D. M. Porter, for the plaintiff, appellant.
    I. The deed to the respondents recites the appellant’s mortgage, and conveys the land subject to it. They are bound, therefore, by such recitals. It was not only a contract that the land should pay the mortgage, but it estopped them from setting up any thing existing at that time inconsistent with the recital. (Chautauqua Co. Bank v. Risley, 4 Den. 480. Jackson v. Parkhurst, 9 Wend. 209. Penron v. Griffith, 4 Binn. 231. Stowe v. Wyse, 7 Conn. R. 214. Cram v. Morris, 6 Pet. 598. Jackson v. Harrington, 9 Cowen, 86. Parker v. Smith, 17 Mass. Rep. 413. Inskeep v. Shields, 4 Harr. Del. 345, cited in 2 Halst. Ev. p. 8, § 52. 1 A. K. Marshall, Ky. 475. 2 Hals. Ev. p. 111, § 26. Carver v. Jackson, 4 Peters, 83, 88. Sinclair v. Jackson, 8 Cowen, 585, 586. . Torrey v. Bank of Orleans, 9 Paige, 649. Demeyer v. Legg, 18 Barb. 14. Brinsmade v. Hurst, 3 Duer, 206. 2 Adolph. & El. 295. Addison on Cont. 856. Chitty on Cont. 85, 86. Barfoot v. Freswell, 3 Keble, 465. Sampson v. Easterby, 9 Barn. & Cres. 505. 4 Man. & Ry. 422, aff. 1 Crompt. & Jervis, 105. S. C. 4 Moore & Payne, 601. Sands v. Church, 6 N. Y. Rep. 2 Seld. 355. 24 N. Y. Rep. 173. McKinstry v. Curtis, 10 Paige, 503. Jumel v. Jumel, 7 id 591. Marsh v. Pike, 10 id. 595. Gilbert v. Averill, 15 Barb. 20. Mathews v. Aikin, 1 Comst. 604. Trotter v. Hughes, 2 Kern. 74. Carr v. Roach, 2 Duer 20.)
    II. Another principle is also fatal to the claim of the respondents.
    Arment directed Dunscomh to convey the house to Tatham, subject to the mortgages. Being at Arment’s request, he was a party to such arrangement, as well as Dunscomh, Smith and Tatham. Smith being the principal debtor, (Trotter v. Hughes, supra,) also held the title in trust for Dunscomh & Higginson. The covenants in the deed were with the principal debtor, because he could not discharge himself from liability by showing the fact that he was a trustee. (Jackson v. Stackhouse, 1 Cowen, 122. 1 McLean C. C. R. 178.) And he conveyed to Tatham, reciting in the deed, that the land was conveyed subject to the mortgage in question.
    1. All the parties, therefore, to the Arment, the Dunscomh and the Higginson contracts met and consummated them by a deed. That deed being not only a conveyance, but an agreement, all other contracts, whether written or parol, were merged in it. Arment’s contract to do work, &c., “ looked to, was connected with, and affected the title to the premises, and was merged and extinguished by the deed.” (Bull v. Willard, 9 Barb. 641, 645.) All prior or contemporaneous contracts were merged in it. (Pattison v. Hull, 9 Cowen, 749. Stevens v. Cooper, 1 John. Ch. 425. Howes v. Barker, 3 John. 506; Mumford v. McPherson, 1 id. 414. Lamatt v. The Hudson River Fire Ins. Co., 17 N. Y. Rep. 199, note. Spencer v. Tilden, 5 Cowen, 144. Austin v. Sawyer, 9 id. 39. Ruse v. The Mutual Benefit Life Ins. Co., 23 N. Y. Rep. 519, 520. Baker v. Higgins, 21 id. 397. 2 Phillips’ Ev. 4th ed. 665, 666, note 494, also p. 644. Lafarge v. Rickert, 5 Wend. 187. Creary v. Holly, 14 id. 30.)
    2. The recital of this mortgage in the deed was a ratification and confirmation of it, and was an agreement that it was a valid and subsisting security, and amounted to á contract that the premises were held and should pay it; that the land was the primary fund therefor; and that the mortgage was prior to the respondent’s equity of redemption.
    3. The respondents acted under the deed to them, which contained a covenant that the mortgage was a valid and subsisting mortgage. And the parties having by the deed put an end to all the agreements in any wise affecting the mortgage or the premises, they in law waived any prior agreements, inasmuch as they were merged in and by the deed. Tatham, by accepting the deed (at the request of Arment,) and putting it upon record, containing a recital that all the title he had was subject to this. mortgage, amounting in law to an agreement at the date of the deed, is very properly estopped, in pais and also by deed, from setting up any inconsistent contract or equities existing at the time of the deed, to defeat the deed and the covenants in it, which are binding upon both parties.
    4. A recital in the deed that the mortgage was reduced or affected by the Arment contract for work to be done on the church, would have prevented estoppel, merger, public policy, or the statute of frauds from cutting it off. If this had been done, Dunscomb would not have assigned the mortgage to the appellant, as his good faith is not impeached. It would be unjust, when Tatliam, Smith Arment, and Dunscomb all knew the relation of the church contract to this mortgage, and made and received the deed covenanting that the mortgage was valid, that the land should pay it, to allow them to set up an oral agreement, which they knew of at that time, against an assignee without notice. To prevent such an injustice, the law of estoppel and merger has been held, on the grounds of justice and public policy, to apply and preclude such a result.
    5. Only that part of the church contract which related to this mortgage was affected by the deed. He could collect the account of Dunscomb in an action therefor; therefore, no harm could result to Arment. He only waived the right to apply it upon this mortgage.
    III. After the deed to Tath'am, Arment had no equity in the premises, ceased to have any interest whatever, and became an utter stranger to all equity therein. The case is different from what it would have been, if Arment had not become such stranger before the right to apply the claim in payment had accrued.
    It is dangerous to have a parol agreement floating about to the prejudice of a mortgage. The law of merger, and of estoppel, if obeyed, is certain to prevent any injury to innocent assignees. A parol agreement can not be set up to impair the covenant in a deed. If parties have parol agreements, and subsequently put them into a deed, they will be prevented by merger and estoppel from showing any agreements not embraced in the writing. If so, there was no agreement to apply the work in payment, as it was done away with by the deed; and Arment, as a stranger, held nothing at the time of the assignment of the account, which amounted to, or could be applied as payment.
    IV. Tatham also was an entire stranger to all equities growing out of the Higginson contract, as it continued to be held by the bank until after this action was commenced and was satisfied, and merged by his deed. Nor was he in any way liable to pay the mortgage, if the plaintiffs had sued him therefor. (Belmont v. Coman, 22 N. Y. Rep. 438.) Nor was the mortgagor a party to these transactions. Presumptively he knew nothing of them. The appellant did not, when he took the assignment. Being told so a few hours after, could not affect him. Arment being an utter stranger to any equity, after his equity was terminated by the deed to Tatham, the law of a claim in a third party, (this does not amount to an equity,) laid down in Murray v. Lylburn, (2 John. Ch. 441,) Livingston v. Dean, (Id. 479,) James v. Morey, (2 Cowen, 298,) would prevent any such claim from being set up against the appellant’s mortgage. This case can not be decided in favor of the respondents without overruling Ferris v. Crawford, (2 Denio, 595.) The premises still remain chargeable, in the hands of the purchaser, with the payment of this mortgage. It never became an equity as against the mortgage, even if it was an equity within the decisions. (Murray v. Lylburn, and Livingston v. Dean, supra.) It could not be set up, because we had no one to inquire of relative to it. Cunningham knew nothing of it, and Tatham’s recording his deed was not even notice to the prior mortgagee, or his assignee, to put him on his inquiry of Tatham. (Stuyvesant v. Hall, 2 Barb. Ch. R. 151.) It was, therefore, a latent claim within the rule just referred to, and no one whom the law pointed out as proper to inquire of could have informed him of Tatham’s claim. No decision can be found where- a claim like the present has been held even to be an equity in a third person. The cases are either where a payment has actually been made, or some interest in the premises themselves acquired or held at the time of any transfer, by some persons equitably interested in the title to the premises, before the mortgage could be affected in the hands of an assignee.
    V; Neither can the claim he set up as an offset. 1. The debt was the bond and the promise in the deed to Smith, and not the mortgage. (Burr v. Beers, 24 N. Y. Rep. 178.) If the bond was once paid, the mortgage would be discharged. The mortgage might be discharged and the debt remain ; it was not even due until after the assignment to the plaintiffs, and the election of the appellants.
    The plaintiffs had a right of action both on the bond against the mortgagor, and on the deed against Smith, and could have made the money out of either. An offset of a claim in the hands of Tatham could not be successfully set up by them while they did not own it, (Pignolet v. Geer, Sup. Court Gen. Term, June 1863,) there being no mutuality. If so the plaintiffs could have recovered of the mortgagor and his grantee. Then they could have enforced the lien as against Tatham, despite the claim which could not be set up as an offset against them, because Tatham’s claim is against Dunscomb only, and their claim, although a prior lien upon the premises owned by Tatham, is not against him. If so, it is no offset to our demand against the mortgagor and the land, which he never conveyed, but expressly reserved to pay this bond. 2. It would be a different case if the mortgagor, or Smith, his grantee, had held an offset against Dunscomb. A person who is not a debtor can not set up a claim due himself to offset a claim, in a suit to recover a debt against a third person. There is no mutuality. It is not a counter-claim. (Dillaye v. Niles, 4 Abb. 253. Davidson v. Remington, 12 How. 310. Spencer v. Babcock, 22 Barb. 327. Vassear v. Livingston, 3 Kernan, 248.)
    VI. The judgment was erroneous, because although the court first found nothing due at the commencement of this action, yet it found that a tender was made which discharged the lien. It denied the appellant a judgment because the bond was not due, and then gave the respondents affirmative relief because it was due.
    VII. No tender was made, because the respondents made the tender all that was due on the mortgage, principal, interest, and costs. A tender must be without any restrictions or conditions whatever. (4 Camp. 156. Wood v. Hitchcock, 20 Wend. 47.)
    VIII. There was no proof of the value of the work. That it' was done is admitted, but not the value ; consequently, the respondents failed in showing they tendered enough. There is no proof of the amount of the costs, as they were not taxed, nor were thqy fixed by the plaintiff’s attorney. -His counsel had no authority to tax them. Therefore, enough not being tendered, there was no tender.
    IX. Pleading a tender, admits the facts stated in the compfiaint. (3 Taunt. 95. Peake, 15. 2 Term Rep. 275. 4 id. 579. Burks v. Trippet, 1 Saund. 33. Cox v. Parry, 1 Durn. & East, 464. Wood v. Perry, 1 Barb. 114, 129. Slack v. Brown, 13 Wend. 390.) Consequently, the pleadings admitted the sum of $1207.54 to be due ; the appellant was therefore entitled to judgment for that amount, with costs. (Brown v. Ferguson, 2 Denio, 196. Sheriden v. Smith, 2 Hill, 538. Livingston v. Harrison, 2 E. D. Smith, 197.) The tender could only discharge the lien, (Kortright v. Cady, 21 N. Y. Rep. 343), but not the debt; to save costs, the respondent ought to have brought the money into court. (Cases supra.) An answer having been put in, admitting the amount by pleading the tender, the appellant was entitled .to judgment for the amount alleged to have been tendered, with costs, irrespective of the form of the action. (Barlow v. Scott, 24 N. Y. Rep. 40. The Nexo York Ice Co. v. Northwestern Insurance Co., 23 id. 357. Emery v. Pease, 20 id. 62.)
    X. If the account could have been applied to affect the appellant’s rights, it would have satisfied the' first instalment of interest on the 3d of May, 1863, and its residue would have been applied upon the principal and not to reduce the interest not yet accrued," or upon the principal- remaining unpaid. (State of Connecticut v. Jackson, 1 John. Ch. 13.) Another installment of interest had fallen due, and the thirty days had elapsed thereafter, before the commencement of this action, July 8th, 1863 ; consequently, the mortgage was due when the action was commenced.
    XI. Higginson’s contract-was subject to the equities between himself and Dunscomb.
    Higginson’s contract, and all others-relating to this house, were merged in the deed to Tatham ; and the proof of them and about them was erroneous. (Armstrong v. Munday, 5 Denio, 170.) Nor can they have any force whatever, because they are extinguished thereby. •
    XII. There was also error in admitting proof of the parol agreement between Dunscomb and Arment; also, in refusing to strike out that proof. (Armstrong v. Munday, supra.)

    XIII. The court erred in overruling the plaintiff's objections to evidence.

      A, Clarke, for the defendants, respondents.
    I. The assignee of a chose in action, or any thing but commercial paper, when he takes it bona fide, is liable to all the equities which exist against the demand, while in the hands of the assignor. (Roberts v. Carter, 24 How. Pr. 44. Murray v. Lylburn, 2 John. Ch. 441. The Niagara Bank v. Roosevelt, 9 Cowen, 409, affirming Hopkins’ Ch. 579. Mangles v. Dickson, 3 Ho. of L. Cases, 702, 18 Law and Eq. 82. Voorhis’ Code, ed. 6, p. 82, note (c.) Code of Procedure, §§ 111, 112.)
    1. A chose in action could not be assigned by the rules of the common law. (3 Black. Com. 442.) The assignment was originally, and still remains, in the form of a declaration of trust, and a permission by the assignor to use his name, in order to recover the possession. Until the passage of the Code, therefore, when a debt or bond was assigned over, it had to be sued in the name of the original creditor;. the person to whom it was transferred being rather an attorney than an assignee.
    2. When an action, under the former statute of set off, was brought in the name of the party by one to whom he had assigned it, the defendant could show a set-off against the nominal plaintiff. (Beckwith v. Union Bank, 4 Sandf. 610, aff. 5 Seld. 211.) Section 112 of the Code was intended to preserve in the same manner the-rights of defendants, in cases where the suit was prosecuted in the name of the assignee, as required by section 111,

      3. The rights of assignees will he protected only against such persons as have either express or implied notice of the assignment, before any dealing by them with the assignor. (Johnson v. Bloodgood, 1 John. Ch. 51. Wardell v. Eden, 2 John. Cas. 121. Van Vechten v. Graves, 4 John. 403. See 12 John. 343 ; 19 id. 95 ; 4 Barb. 47; Stuyvesant v. Hall, 2 Barb. Ch. 151; Truscott v. King, 6 Barb 346 ; Schutt v. Large, Id. 373.)
    II. The assignee of a bond and mortgags, takes it subject to all existing equities between his immediate assignor, and the owner of the equity of redemption, whether such owner was the mortgagor or one who had succeeded to his rights by one of several conveyances. (Mickles v. Townsend, 18 N. Y. Rep. 579,580. Davies v. Austen, 1 Ves. 247. Matthews v. Wallwyn, 4 id. 118. Coles v. Jones, 2 Vern. 692. Murray v. Lylburn, 2 John. Ch. 441.)
    1. He can not be protected, even in equity, as a bona fide purchaser, without notice, unless he has acquired the legal as well as the equitable title. (Peabody v. Fenton, 3 Barb. Ch. 451.)
    2. The assignee of a chose in action, not negotiable, obtains only an equitable interest, and is not protected against a prior equity. (Gay v. Gay, 10 Paige, 369.)
    III. The agreement of Dunscomb with Arment to deduct from the amount due on the mortgage, the value of plumbing work, and the acceptance by Dunscomb of such plumbing work, is in equity payment pro tanto.

      1. Payment is the fulfillment of a promise. (Bou. Die. verb. lcpayment ”) It must be made in the thing agreed upon. (Id.)

    2. Payment, when properly made, discharges the debtor from his obligation, to the extent of the payment. (Id. And see Brown v. Feeter, 7 Wend. 301 ; Eaves v. Henderson, 17 id. 190 ; Toll v. Hiller, 11 Paige, 228 ; Cameron v. Fowler, 5 Hill, 306 ; 5 Cowen, 671; 26 Wend. 555 ; 2 Paige, 605; 24 N. Y. Rep. 391; 1 Hopk. 569 ; 9 Cowen, 409.)
    3. Payment may be made by the real or principal debtor and any other persons from whom the creditor had a right to demand it. An agent may make payment for his principal. Any mode of payment by the agent, accepted and received as such by the creditor, as án absolute payment, will have the effect to discharge the principal, whether known or unknown, and whether in the usual course of business or not. (3 Chitt. Com. Law, 204. 1 B. & Aid. 14. 6 B. & C. 160. 7 Barn. & Cress. 17. Bou. Dic. “payment.”)

    IV. No interest was due on the bond and mortgage, as alleged in the complaint, either on the 30th of November, 1861, or at the time of the assignment of the bond and mortgage by Dunscomb to the plaintiff.
    1. By the agreement between Dunscomb and Higginson, the interest was to be computed from the date of the deed to Tatham, which was on January 26th, 1862.
    2. Before that time, Dunscomb had made an agreement with Arment to do work on the “ Beekman Hill Chapel,” amounting to about $500, which was to be received as a part payment of the said bond and mortgage., The work was done by Arment, and accepted by Dunscomb, under the agreement, before the assignment of the bond and mortgage to the plaintiff, and was a payment pro tanto. (Bank of Niagara v. Rosevelt, 9 Cowen, 409.)
    V. Where the principal is not, but the interest is due, a payment must be applied first to the interest, and the residue to the principal first to become due. (People v. County of New York, 5 Cowen, 331. Jencks v. Alexander, 11 Paige, 619. The State of Connecticut v. Jackson, 1 John. Ch. 13. Allen v. Culver, 3 Den. 284.)
    VI. On the 9th of July, 1862, the defendant Tatham offered to the plaintiff, the receipted bill of Arment for the plumbing work done for Dunscomb ; and, at the same time, tendered to the plaintiff the principal, interest, and costs, in this action, amounting together to the sum of $1207.54, which the said plaintiff wholly refused to accept. Such tender and refusal of the whole amount due on the mortgage of principal, interest, and costs, discharges the lien of the mortgage. (Jackson v. Crafts, 18 John. 110. Edwards v. Farmers’ Fire Ins. & Loan Co. 21 Wend. 467, aff. 26 id. 555. Arnot v. Post, 6 Hill,
      65. Kortright v. Cady, 21 N. Y. Rep. 343. 4 Kent’s Com. 7th ed. 165.)
    VII. A defendant may set off any demand against the plaintiff which arose out of the contract or transaction set forth in the complaint as the foundation of his claim, or which is connected with the subject of the action, or any other cause of action arising on contract, and existing at the commencement of the action. (Code, § 150.) He may also set off any demand due him in his own right, or as the assignee and owner of the demand against the plaintiff or the assignee of the bond and mortgage, which existed at the time of the assignment thereof, and which belonged to the defendant in good faith before notice of the assignment. (2 R. S. 4th ed. p. 604, § 12, sub. 8.)

    If the demand be for personal property sold, for money paid, or for services done, or be capable of being ascertained by calculation, the amount need not to be liquidated! (Id. sub. 3.)
    VIII. Several of the exceptions taken to conclusions of fact and law are not available on appeal, because the case does not disclose that the judge who tried the cause was requested to find the said facts and conclusions of law, and that he refused so to find. (Grant v. Morse, 22 N. Y. Rep. 323.) Others are untenable. And there is no error in the rulings at the trial, excepted-to.
   By the Court, Monell, J.

The assignee of a mortgage takes it subject to all the equities existing in favor of the mortgagee, or of any person who succeeds to his estate, at the time of the assignment, (24 How. Pr. 505,) and, hence, Tat-ham’s right to require the application of the plumber’s bill towards the payment of the mortgage, was as perfect as if Dunscomb had continued the owner of the mortgage. Tat-ham, by the assignment from Arment to him, succeeded to all the rights of Arment, under his agreement with Dunscomb, and could have required Dunscomb, while he held the mortgage, or his assignee afterwards, to deduct the amount of the plumbing work from the mortgage. It operated therefore, as a payment pro tanto, and left only the balance due on the mortgage.

The mortgage, by its terms, was not payable until the 30th of May, 1863; but it contained a provision that if default was made in the payment of interest, the whole principal should, at the option of the mortgagee, become immediately due and payable.

The plaintiff, in his complaint, elected to have the principal due, and the defendant had then the right, although after suit brought, to tender the amount of principal and interest due, and such tender and a refusal to receive it would- extinguish the lien of the mortgage. (Kortright v. Cady, 21 N. Y. Rep. 368.)

It is objected that Tatham is estopped from asserting the equity derived under the assignment from Arment, inasmuch as his immediate grantor had assumed the mortgage for the whole amount, and agreed to' pay it.

The general rule in respect to estoppels by deed is, that a man shall not be permitted to make any averment which contradicts the record to which he is a party. In other words, that he shall be concluded by the admissinns in the deed to which he is a party. Hence, the grantee is estopped by the-admissions of the grantor in the deed.

This rule, however, is not of uniform application ; and it is unavailing except as between the immediate parties and privies of blood or estate. To á stranger it is wholly unavailable. (Jackson v. Bradford, 4 Wend. 619. Jewell v. Harrinqton, 19 id. 471.)

In Jewell v. Harrington the deed conveyed the premises, “subject, nevertheless, to the right of dower of Cloe Jewell, who was the widow of Samuel Nash, deceased, who was the former proprietor of the above described premises.” And the court held the grantee was not estopped from contesting the plaintiff’s claim for dower. They say the plaintiff is not privy to the deed in any way ; but a stranger, who had no interest or concern with it.

The only effect of the assumption of the mortgage by Smith was to make him surety for Cunningham the mortgagor, and he became personally liable for the payment of the debt of the latter to the holder of the mortgage. (Halsey v. Reed, 9 Paige, 446. Russell v. Pistor, 7 N. Y. Rep. 171.) There was no covenant by the grantee, which would run with the land, and bind those who succeeded to his estate. It was a mere personal obligation, implied by the acceptance of the deed, and upon which an assumpsit could be raised in favor of the holder of the mortgage.

Even if Smith, who had assumed the mortgage, had been the owner of the premises at the time of this foreclosure, he would not be estopped .by the recital in his deed. As Dunscomb the mortgagee was not bound by them, Smith would not be, for there must be reciprocity to render an estoppel available. (Lansing v. Montgomery, 2 John. 382.) But there is nothing in the assumption by ■ Smith which binds his grantee. The defendant, Tatham, stands in no relation of surety, in respect to the mortgaged debt, and can not in any way be affected by the purely personal obligation of his grantor.

There is, however, another reason why the doctrine of estoppel does not apply to this case. The deed from Cunningham to Smith, which recites the mortgage, and which it is claimed should operate as an estoppel, 'was • executed and delivered before the agreement between Dunscomb and Arment, respecting the plumbing work, was made. At that time the whole amount of the mortgage was secured and unpaid, and it was proper for Cunningham to sell subject to, and for Smith to assume, the whole mortgage. The equity which was transferred to Tatham arose afterwards. The agreement with Arment for the plumbing work, and the performance of it by Arment, was the assumption by Smith of the mortgage, and while Duns-comb was the holder of it. It is clear, therefore, that-in the hands of Dunscomb, the plumber’s bill would have been a good set-off against the mortgage, either by Smith, had he taken the bill, or by Tatham, who did take it.

The plaintiff purchased the mortgage after all this took place, and he took it subject to those equities, which in my ' opinion, were not defeated nor extinguished by the subsequent transfer of the mortgage to the plaintiff.

My conclusions are, that Tatham having received, by transfer, the bill for plumbing work, performed by Arment, under his contract with Dunscomb, could require its application, a' a payment pro tanto, on the mortgage, and that the terms of the balance due on the mortgage, and the refusal of the plaintiff to receive it, extinguished the lien of the mortgage. •

The conclusion of the learned justice was therefore correct, and the judgment should be affirmed, with costs.


author: By the Court, Moncrief, J.

text:
    Alexander Hardy, plaintiff and respondent, vs. Peyton and Frank Jaudon, defendants and appellants.
    Pledgees of stock, to secure the payment of a promissory note given on a loan of money, are liable for a wrongful conversion of such stock if not redelivered on demand and tender, although they are excused by a stipulation in such note from returning the identical certificate of stock delivered on such pledge, where they set up as the only ground for their refusal to deliver, a lien for ■ moneys due by a third person.
    (Before Moncrief, Robertson and Monell, JJ.)
    Heard October 19,1863;
    decided November 14, 1863.
    This was an appeal from a judgment entered on the verdict of a jury.
    The complaint was for damages for wrongfully converting one hundred and fifty shares of stock in the Erie Railroad Company, and the certificate representing the same, which belonged to the plaintiff, and which he had, through J. H. Draper, his agent, pledged with the defendants as collateral security for a loan.
    The cause was tried on the 21st of October, .1862, before Justice White and a jury.
    It appeared by the evidence that on the 18th of April, 1861, Mr. John H. Draper, an employe of Mr. Simeon Draper, but in this transaction acting in behalf of the plaintiff, borrowed $2000 of the defendants ; delivered to them one hundred and fifty shares of Erie railroad stock, and executed a paper of which the following is a copy:
    “ $2000 Hew. York, April 18th, 1861.
    At one day’s notice I promise to pay to Peyton and Prank Jaudon or order two thousand dollars for value received, with interest at the rate of six per cent per annum, having deposited with them as collateral security one hundred and fifty shares Erie E. E. O. stock with authority to sell the same at the brokers’ board, or at public or private sale, or otherwise, at their option on the non-performance of this promise and without notice, P. & F.Jaudon not being obliged to return the identical certificate. J. H. Deapee.”
    The last clause of this note was in writing, the body of it being printed.
    J. H. Draper subsequently tendered the amount due upon the note, with interest, and demanded the stock, which was refused, the defendants claiming a lien for a balance of the account due by another person, (Simeon Draper.)
    Upon the plaintiff resting his case, the defendants moved to dismiss the complaint, on the ground that the evidénce of the plaintiff had failed to sustain the cause of action, which, as set forth in the complaint, was one of trover; that the concluding words of the stock note being “ P. &. P. Jaudon not being obliged to return the identical certificate;” “that they therefore were justified in using it till a demand was made,and if they failed to deliver the stock on demand, were not liable in trover, but only in an action on contract for not delivering.” This motion was denied, to which denial the defendants excepted. Ho evidence was offered by the defendants. The court charged the jury that the plaintiff was entitled to a verdict. To which charge the defendants excepted.

      Max Goepp, for the defendants, appellants.
    I. The complaint, which alleges that the defendants have “ wrongfully converted and disposed of” the stock, makes this action one of that class in which the defendants are liable to execution against the person, (Code, §§ 288, 179, sub. 1,) and deprives the defendants of the right of setting up an independent counter claim. (Code, § 150.)
    II. A plaintiff who has set out in his complaint a cause of action under which the defendant is liable to arrest, and is precluded from setting up an independent counter-claim, such as trover, can not recover upon proof of a cause of action on contract merely, under which the defendant would not he liable to arrest, and could set up an independent counter-claim.
    Such a variance is a failure to prove the alleged cause of action in its entire scope and meaning. (Walter v. Bennett, 16 N. Y. Rep, 250. Slawson v. Conkey, 10 How. Pr. 57. Springstead v. Lawson, 23 id. 302. Ten Eyck v. Houghtailing, 12 id. 529.)
    III. The agreement between the parties, or stock note, of April 18, 1861, authorizes the defendants to use, convert, and dispose of the stock as- they please, and binds them only to deliver a like number of shares of the same stock on the repayment of the loan.
    1. The last clause of the contract modifies and controls the previous part. (Ward v. Whitney, 4 Seld. 442.)

      (a.) If possible, effect must he given to every expression in the contract. (Chitty on Cont. 70. Westcott v. Thompson, 18 N. Y. Rep. 363.)

      (b.) In Decker v. Furniss, (4 Kern. 611,) it was held that the word “ sells,” though importing, of itself, an executed sale, must be made to yield to other parts of the contract which show that the parties designed only an executory agreement to sell.
    (c.) The written parts of a contract control the printed parts. (See Leeds v. Mechanics’ Ins. Co., 4 Seld. 351; Harper v. Albany Mutual Ins. Co., 17 N. Y. Rep. 194; Weisser v. Maitland, 3 Sandf. 318.)

    2. The last clause is not susceptible of any other construction. To say that it means the pledgees must keep unconverted the stock given to them, hut may, if they choose, return, on demand, a different certificate, is to stultify these parties.
    (a.) Permission to sell, pledge, or otherwise dispose of the certificate is permission to pledge, sell, or otherwise dispose of the stock itself. “ Certificates of stock are the muniments and evidence of the holders’ title to a given share in the property and - franchises of the corporation of which he is a member.” Comstock, J. in the Mechanics’ Bank v. New York and New Haven R. R. Co., (3 Kern. 627.)

      “ They, are transferable by indorsement and delivery, and the title to the property, thus represented passes by such transfer.” {Id.).

    : (b.) .T.he privilege of returning a different certificate is no benefit -unless it includes the privilege of using and disposing of the stock received. The intention of -the parties clearly was that the Messrs. J audon might do as they pleased with the stock, and should only be bound, on payment of the debt by Mr. .Draper, to deliver to him one hundred and fifty shares of Erie.
    IY. If they have failed to do this, they are liable for a breach of contract, but not for a wrongful conversion. (Fuller v. Tabor, 39 Maine, 4 Heath, 519.) , Conversion for which an action, of trover may be maintained consists in the exercise of dominioñ' tod control over property -inconsistent .with and in defiance of the rights of the true owner.
    Y. The judgment should be reversed, and the plaintiff be remitted to his action for breach of contract, in which the defendants .will have the opportunity to present .their counterclaims against. Mr; - Simeon Draper,'and will not be subject to execution against the person, if there should be judgment agajnst them, .. .
    Jere Larocque, for the plaintiff, respondent.
    I. The clause “P. and F. Jaudon not being obliged to return. the identical certificate,’’ is no obstacle in the way of an action on. the, case for "the conversion of the shares. That clause did not give the defendants a right to.use the stock any further than to exercise the authority conferred by the power of attorney, accompanying the certificate, to have the shares transferred into their own names as security for the loan. They were bound (even if they had done so,) to retransfer the same shares on its repayment. The stock note itself expressly limits their right to sell the shares to the case of non-performance of the promise contained in it. ■
    II. There is no evidence that the defendants had parted with the stock, or even had it transferred into their own names, on the company’s books.
    III. They took the ground that redelivery was dependent on the repayment of a balance of account, of Simeon Draper, which was untenable, and are, therefore, not now at liberty to allege any other.
   By the Court, Moncrief, J.

The sole question argued upon this appeal and embraced by the exceptions taken at the trial is, whether by the terms of the agreement between the parties, the defendants were authorized to use, convert and dispose of the stock. The agreement, (or so called stock note,) uses the phrase that the shares are deposited “as collateral security,” “with authority to sell the same at the brokers’ board, or at public or private salé, or otherwise at their option, on the non-performance of this promise and without notice.” This language, unqualified, the appellants concede would give the pledgees no authority to convert or dispose of the shares of stock until after, a failure to perform on the part of the pledgor. The loan was payable at one day’s notice. It is contended that the concluding words of the agreement, “P. &F. Jaudon not being obliged to return the identical certificate,” change the nature of the whole contract. The transaction appears to have been plain and by no means unusual. A loan was asked for and made, and as security for its repayment one hjlndred and fifty shares of the stock of the Erie Railroad Company is deposited with the defendants. They may sell the stock without notice; but may not dispose of it until failure to repay the loan, and that the defendants can not enforce until after giving to the plaintiff one day’s notice. The fact that the stock delivered as collateral security was not to be disposed of until after such notice of recall of the loan, makes clear, if it was not otherwise, the concluding clause of the agreement. The defendants would probably not be guilty of a conversion of the stock by a mere inability to return the identical certificate, by reason of their- having exercised the privilege given to them, by way of abundant caution, or as a supposed greater security, if they handed to the company that certificate, and receiving another certificate for the same number of shares of the stock, or in any other way were deprived of such certificate. The agreement was not to return a particular paper called a certificate of stock, but either the paper evidence that the plaintiff had standing in his name the one hundred and fifty shares of stock, or some other indicia of title to the only thing pledged, to wit: A certain number of shares of the stock of the Erie Railroad Company; not any particular shares, but such number of shares of the stock •of that company. The error of the learned counsel for the appellants, in his argument, is that the plaintiff pledged some specific shares of stock because of the certificate he possessed and delivered to the defendants at the time of making the loan, when in point of fact the plaintiff never owned any par- ' ticular shares of the stock, whether he continued to hold that certificate, or in the course of his business had it exchanged and others substituted a hundred times. He owned one hundred and fifty shares- of the stock of the Erie. Railroad Company, being a certain proportion of its capital stock, and this 1 irrespective of the possession of certificate or other paper indicative of his title. This stock he pledged to the defendants, and they were bound to return that quantity of stock upon hi's repaying the loan and interest.

Upon the undisputed evidence in the cause the plaintiff was clearly entitled to a verdict, and it would have been error for the learned judge below to have submitted the case to the . jury-

The charge that the plaintiff was entitled to a verdict was correct, and the exceptions taken untenable.

The judgment must be affirmed.

Robertson, J. concurred in the conclusion.

Judgment affirmed.