author: Gardiner, J. Bronson, J.

text:
    Adams vs. The People.
    A. was indicted in the city of New York for obtaining money from a firm of Commission Merchants, in that city, by exhibiting to them a fictitious receipt signed by a forwarder in Ohio, falsely acknowledging the delivery to him of a quantity of produce for the use of and subject to the order of the firm. The defendant pleaded that he was a natural born citizen of Ohio, had always resided there, and had never been within the State of New York; that the receipt was drawn and signed-in Ohio, and the offence was committed by the receipt being presented to the firm m New York, by an innocent agent of the defendant, employed by him while he was a resident of and actually within the State of Ohio; held, that the plea was bad, and that the defendant was properly indicted in the city of New York.
    Where an offence is commilted within this State by means of an innocent agent the employer is guilty as a principal, though'he did no act in this State, and wa: at the time the offence was committed, in another State.
    In such case the Courts of this State have jurisdiction of the offence, and’f the offender comes within the limits of the State, they have also jurisdiction oí his person, and he may be arrested and brought to trial.
    Where an offence is committed within this State, whether the offender be at the time within the State, or be without the State and perpetrates the crime by means of an innocent agent, it is no answer to an indictment that the offender owes allegiance to another State or sovereignty.
    Error from the Supreme Court. Adams and one Seymour were indicted in the New York General Sessions for obtaining money, by false pretences, of Suydam, Sage & Co., Commission Merchants in the city of New York. The pretence used to effect the fraud, was, as the indictment allekged, a false receipt signed by Seymour, dated at Chillicothe, Ohio, acknowledging that he (Seymour) had received from Adams a large quantity of pork and lard, irrevocably subject to the order of Suydam, Sage & Co.j which, by the same receipt, he agreed to forward to them in New York, and which they were to receive for sale on commission, and to have a lien upon for the amount of certain drafts drawn upon them by Adams against the property. The indictment alledged that the receipt was untrue, that Seymour had received no such property, and that the defendants knew it; also that Suydam, Sage & Co., upon the faith of the receipt, and the representations accompanying the Same, accepted and paid the drafts.
    Adams pleaded to the indictment, in substance, that he was born in Ohio, that he had always resided in that State, and had never been within the territorial limits of the State of Now York ; that the false receipt and the drafts mentioned in the indictment,’ were made and signed in the State of Ohio, and were presented to Suydam, Sage & Co., in New York, by an innocent agent of him, the said Adams, whereby they were deceived and defrauded, as alledged in the indictment, and therefore.the plea insisted that he the said Adams, ought not to be criminally questioned or proceeded against in the State of New York.
    On demurrer to this plea, the Sessions gave judgment in favor of the defendant, and the people removed the cause, by writ of error, into the Supreme Court, where' the judgment was reversed, and the defendant ordered to further answer the indictment. Sec 3 T).enio ■ 190, where the. pleadings are stated more in detail, and the arguments of counsel given at length.

      Creo. Wood, for plaintiff in error.

      Ogden Hoffman, and John MeJKeon, for the people.
   Gardiner, J.

No attempt was made upon the argument to controvert the reasoning of the learned Judge who delivered the opinion of the Supreme Court upon the premises assumed by him. It was however insisted, that the authority to punish on account of crimes, committed within the jurisdiction of this State, depended upon the' right of the State to the obedience of the criminal, and that the authority upon the one hand and the duty upon the other, was founded upon

the allegiance permanent or temporary, which the offender owed to the country within which the crime was committed.

It was therefore admitted that a crime had been committed within this State and through the instrumentality of the defendant, and the authority of the numerous cases cited to establish the position, the actual presence of the offender at the place where the 'crime was consummated was not necessary to make him amenable to the law, was also conceded ; but it was urged that they were adjudications in cases between sovereign and subject in reference to the municipal law of the country in which they arose, arid that they did not touch the great question of allegiance which was anterior and paramount to any municipal regulation. Ho direct authority was referred to establishing this doctrine. We must therefore consider it as it was argued, as a question depending upon general principles. ' /

Allegiance binds the citizen to the observance of all laws which are promulgated by his own sovereign, not inconsistent with the laws of nature'. The laws of nature as they are denominated also rightfully require obedience, not by reason of allegiance, but because they emanate from a higher authority than any human government.- They are written upon the ' hearts of all men; exist before governments are organized; anterior of course to allegiance, “ and are binding all oyer the globe, in all countries and at all times.”

To these laws all mem owe obedience, not because they are subjects, but because they are men.

Allegiance itself is modified and controlled by them.

Every political and civil power has its legal limits, no man is bound to do any.act contrary to the law of nature at the bidding of his sovereign. ( Vattel. B., 1 Ch. 4 § 53-4.)

The positive regulations of particular communities, such as their revenue and usury laws, indeed the whole class of regulations which render acts in themselves indifferent, criminal by prohibition, may to some extent derive their obligation from the doctrine of allegiance—and may therefore be binding only upon the citizens and residents of that community.

But, this is not so in reference to the higher laws to which I have adverted. The duty of obedience does not depend upon the allegiance of the subject, or.-the laws of his sovereign, but is assumed as pre-existing.

The citizen of Massachusetts who should murder an inhabitant of this State by the discharge of a loaded pistol or by striking with a deadly weapon across the invisible line which separates the territory of the two' States, would transgress a law universally binding and recognised as such by the citizens of both States. If it be admitted as contended for by the counsel for the prisoner that the offender would not violate his allegiance to his own State, he would not be the less guilty on that account. He would, notwithstanding, infringe a law he was under an obligation to obey, at all times and in all places, in Hew York as well as in Massachusetts.

In a.word, where the law of nature prohibits an act as criminal, it is the province of the municipal law of each State to prescribe the means by which the crime is to he ascertained and the punishment to he inflicted upon the offender.

This' right is indispensable to enable a State to discharge the duty of protecting its own citizens. It is also exclusive: a The jurisdiction of a nation within its own territory,” says Chief Justice Marshall, “ is necessarily exclusive and absolute and the jurisdiction of its Courts is a branch of that sovereignty.”

y” If a citizen is injured in his pers'on or property by a foreign government or their avowed agent's, redress may be sought through his own sovereign, and if refused it would he a causé for war. But when the injury arises from the fraud or malice of a private citizen, with whom or his acts his government has no connection, and the offence is consummated in the-State of which the aggrieved party is a subject, no protection can be afforded . except. by the punishment of the offender if found within its limits. The aggrieved person cannot make reprisals, and the government of the offender is no more responsible for the tortious act of a private citizen than for his contracts. Protection therefore the “ return” or consideration upon the. part of the State for the obedience of the subject, cannot be secured at all upon the assumption that allegiance is the only ground of jurisdiction over the criminal.

The right to punish therefore it is believed, obtains in all cases where a law has been violated to which the offender owes obedience ; and secondly, where the offence is committed within the territory of the State claiming jurisdiction.

Piracy which is sometimes claimed as an exception, only confirms the general rule. Piracy is an offence against the law of nature, which is in this respect the law of nations. (Story’s Comm. 3 Vol. Chap. 22 § 1153.) A pirate who is one by the law of nations may be punished in any country where he may be found. Why ? Because he has transgressed a. law which he was bound to obey; and secondly, because the offence was committed in a place in which all nations have a common right, but over which no one has exclusive jurisdiction. Each nation therefore must have the right to punish or none; and the right is conferred upon each to prevent the escape of the offender.

Allegiance to a particular power, so far from drawing after it the exclusive jurisdiction to try and punish, is not even one of the elements necessary to confer it. A Pirate born in England where the crime is recognized and punished by the common law, (4 Black. Comm. 72) may be convicted and sentenced in the Courts of the United States or those of any other nation.

If a State may punish a foreigner who owes it no allegiance for acts committed on the highway of nations, there would' seem to be no doubt of its jurisdiction when the offence was committed by any means within its own territory. Bobbery upon land is as much opposed to the law of nature, as robbery -upon the high seas. In each case the individual forfeits the protection of his government, and the difference of jurisdiction in the two cases-is attributable to the right of domain, and not to the doctrine of allegiance. Vattel says that “ the sovereign who is injured by the subjects of another nation, takes satisfaction for the offence himself when he meets with the delinquents in his own territory, or in a free place as the open sea.” (Book 4, Ch. 4, § 52.) And again, after remarking that it would be unjust to impute to the sovereign every fault committed by a subject against a citizen of another country, he says, “ if the offended State has in her power the individual who has done the injury, she may, without scruple, bring him to justice and punishment,” (Book 2, Ch. 6, § 75.)

In this case the prisoner admits that by means of false pretences, and with an intent feloniously to cheat and defraud, he obtained, from citizens of this State, the sum of $28,000 through the instrumentality of innocent agents. And it appears that afterwards he voluntarily came within the territory of the State where the crime was committed.

I think he may be rightfully punished. • He has violated a law to which he owed obedience, for it was written upon his own conscience, and obligatory every where. To that law the statute of this State has affixed a penalty, to be enforced in her own tribunals for the protection of her own citizens.

The immunity he enjoyed at home from arrest and punishment, was not due to him as a criminal, or as a citizen of Ohio, but because he had injured no one whom that State was bound to protect, and because the inviolability of its territory was an essential to its sovereignty and independence. The prisoner knew that through his agent he was defrauding those who were entitled to the protection of our laws, and he cannot be permitted to say that he did not know that it was unlawful to cheat in Hew York as well as in Ohio.

Bronson, J.

As I have not found time to write out an opinion, I shall content myself with stating the conclusions at which I have arrived.

That -a crime has been committed within this -State, and by the defendant is not denied by his counsel. But they insist that he cannot be punished here", because he was a citizen of Ohio, and owned no allegiance to this State. I am of opinion that it is not a matter of any importance whether the defendant owed allegiance to this State or not. It does not occur to me that there are more than two cases where the question of allegiance can have anything to do with a criminal prosecution. First, where the accused is charged with a breach .of the duty of allegiance, as in cases of treason; and second, where the government proposes to punish offences committed by its own citizens beyond the territorial limits of the State. When the offence, not being treason, is committed within this State, the question of allegiance has nothing to do with the matter.

It is not necessary to notice the peculiar relation which a citizen of one of the United States sustains to the other States; for if a subject to .the British Crown, while standing on British soil in Canada, should kill a man in this State, by shooting or other means, I entertain no doubt that he would be subject to punishment here, whenever our courts could get jurisdiction over his person.

This leads me to say, that it is not necessary to inquire how the criminal can be arrested or whether he can be arrested at all. If our courts cannot get jurisdiction over his person, they cannot try him. But that is no more than happens when a citizen, who has committed an offence within the State, escapes, and cannot be found. Jurisdiction of the offence, or subject matter, and jurisdiction to try the offender, are very different things. The first exists whenever the offence was committed within this State; and the second, when the offender is brought into Court, and not before. And this is so, whether he be a citizen or not.

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

Judgment affirmed.


source: Caselaw Access Project

author: Weight, J. Bronson, J.

license: Public Domain

text:
    Charles impleaded with McIntyre vs. The People.
    Under the Revised Statutes (1 JR. S. 665, § 28)- it is a misdemeanor to publish in this State an account of a lottery to be drawn in. another State or Territory, although such lottery be authorized by the laws of the place where it is to be drawn.
    Accordingly held that a demurrer to an indictment which charged the defendant with publishing, in the city of New York, an account of a lottery to be drawn in the District of Columbia, was not well taken.
    Where the indictment charged the defendant with publishing an account of an illegal lottery, and set forth in haec verba the lottery scheme, which shewed that the prizes consisted of. sums of money; held good¡ although it was not otherwise averred that the lottery was set on foot for the purpose of disposing of money, land, &c.
    Charles and McIntyre were indicted at the New York General Sessions for publishing an account of an illegal lottery. The indictment charged that the defendants on, &c., at the fourth ward of that city, in a newspaper called the “ Wall Street Reporter,” published an account "of a certain illegal lottery, stating when the same was to be drawn, and where tickets were to be had, together with the prizes therein. It then set forth the account so published, in Jiaec verba, from which it appeared that the prizes were of various sums of money, and were to be decided by the numbers drawn from the wheel of the Alexandria Lottery, to be drawn at Alexandria, in the District of Columbia. The indictment did not shew, otherwise than by setting forth the published account, that the lottery was set on foot for any. of the purposes forbidden by the statute.' (1 J2. S. 665, § 27.) The defendant Charles put in a demurrer, which was overruled by the Sessions, and judgment given for the p’eople. The Supreme Court, upon writ of error, affirmed the judgment, and the defendant brings error to this Court.

      C. C. Egan, for plaintiff in error.
    1. The statute only prohibits the publication of a lottery scheme which is set on foot within this State, and therefore the facts charged in the indictment constitute no offence. 2. The statute requires that the lottery shall he established for “ the purpose of exposing, setting to sale, or disposing of houses, lands, money, or goods, or things in action,” and the indictment is defective in not alleging that the lottery was set on foot for these purposes.

      John McKeon, for the people.
   Weight, J.

By the 26th section of article four, title eight, and chapter twenty, of the first part of the Revised Statutes, every lottery, game or device of chance in the nature of a lottery, other than such ns have leen authorized ly law, is declared to be “unlawful and a common and public nuisance.” The 27th section of the same article, makes it a misdemeanor for any person, unauthorized ly special laws for that purpose,” within this state, to open, set on foot, carry on, promote or draw, publicly or privately, any lottery, game or device of chance of any nature or kind, or by whatever name it may be called, for the purpose of exposing, setting to sale, or disposing of any houses, lands, tenements, or real estate, or any money, goods or things in action.” The 28th section is as follows: “No person shall by printing, writing, or in any other way, publish an account of any such illegal lottery stating when or where the same is to be drawn, or the prizes therein, or any of them, or the price of a ticket or share therein, or where any ticket may be obtained therein, or in any way aiding or assisting in the same. Whoever offends against this provision shall be deemed guilty of a misdemeanor,” &c.

In 1830, when the Revised Statutes went into operation, there were special laws in existence authorizing within the State, certain lotteries. This fact explains the reason for the exceptions in the 26th and 27th sections above cited. But in 1833, the legislature provided that after the close of that year, “it should not be lawful to continue or draw any lottery within this State, but all and every lottery before granted or authorized should absolutely cease and determine.” (Laws of 1833, p. 484.) Therefore, since the end of the year 1833, all lotteries have been unauthorized and contrary to law, and the sections of the Revised Statutes referred to above should be read as though the words, “ other than such as have been authorized by law,” in the 26th section, and the words “ unauthorized by special laws for that purpose,” in the 27th section, were stricken therefrom.

It is insisted by the plaintiff in error : First, That the facts charged in the indictment do not constitute an offence against the laws of this State, because the publication charged was of a foreign lottery, and the statute does not make such publication an offence. Second, That the indictment is defective in not averring that the lottery was one “ for the purpose of exposing, setting to sale, or disposing of” property or money according to the description contained in the 27th section. Both of these points will be met in a decision of the question, whether the words, “any such illegal lottery,” in the 28th section, refer to and point out only the particular kind of lottery or lotteries described in the 27th section, or whether they properly refer both to the 26th and 27th sections which include all lotteries ; for if the “illegal lottery” spoken of in the 28th section be only that described in the 27th, and it is conceded that the publication was of a foreign lottery, there is no offence charged against the laws of this State, as. the 27th section describes a lottery to be opened, set on foot, car-x’ied on, promoted or drawn, within this State, for specified purposes ; and had the publication been of a lottery of this State, the indictment would have been defective in not averring the purpose for which the lottery was set on foot, &c. So, also, by the 26th.and 27th sections, all lotteries being “ unlawful and common and public nuisances,” as far as there may be attempts to carry them on in the State, if the term “suchillegal lottery,” is meant to embrace all lotteries, made so by both sections, then the facts charged in the indictment do constitute an offence against our laws, and no special averment of the purpose of the lottery is necessary, but the general averment of publication would be sufficient; for the 28th section, under which the indictment is framed, then makes it a misdemeanor to publish an account of any lottery, game or device of chance in the nature of a lottery for any purpose whatever.

It is contended that the offence prescribed by the 28th section is only that described in the 27th, of “printing, writing or publishing an account” of a lottery set on foot, within this State, for the purpose of “exposing, setting to sale or disposing of” property or money. If this be so, though the giving notice of a lottery set on foot and to be drawn in the District of Columbia is within the mischief and against the policy indicated by the 27th section, yet not being an act malum in se nor in contravention of positive law, it is not criminally punishable. But I am of a different opinion. I think that the words, “ such illegal lottery,” relate not solely to the particular kind described in the 27th section, but to all lotteries ; as all arc by the 26th section declared to be “ unlawful and common and public nuisances.” Such is the relation given by the Supreme Court to similar words in the 29th section respecting the sale of tickets. (People vs. Sturdevant, 23 Wend. R. 418.) If the phrase, “ such illegal lottery,” in the 28th section were necessarily qualified by the description in the 27th section, and by no reasonable construction of language could relate to the 26th, I should not feel justified in an attempt to give it such relation. Though the mischief be as great to publish an account of a foreign as of a domestic lottery, it is for the legislature to determine whether one or both acts shall bo a misdemeanor; and it is not for courts by a strained construction of language, or by an adoption of a false relation of words to each other or to the preceding sentences, to create a criminal offence not obviously within the letter or meaning of the statute. But for ought that I can discover, the phrase “such illegal lottery,” in the 28th section may as aptly relate to all lotteries, which by the 26th section are declared to be unlawful, as to the particular description of lottery "which the 27th section makes specially an offence to open, set on foot, carry on, promote or draw ; and if the impediment I have suggested to such construction does not really exist, and the words may as well relate to the descriptions in the 26th section which embraces all lotteries, as to the 27th which includes only a particular, kind, it would certainly be erroneous, in view of the fact that the mischief which the law intended to prevent is the same by the publication of an account of a foreign as of a domestic lottery, to narrow or limit the offence prescribed in the 28th section, to the publication of an account of a lottery set on foot, within this State, for specified purposes.

I think that by printing, writing, or in any other way to publish an account of any lottery, “stating when or where the same is to be drawn, or the prizes therein, or any of them,, or the price of a ticket or shares therein, or where any ticket may be obtained therein, or in any way aiding or assisting in the same,” is an offence under the 28th section of the statute, and that consequently a general averment in the indictment of publication is sufficient.

The judgment of the Supreme Court should therefore be affirmed.

Bronson, J.

The defendant insists that our lottery act does not forbid the publishing an account of any lottery, except such as are opened, set on foot, or drawn within this State. (1 R. S. 665, § 28.) He makes the word “ such,” in the 28th section, refer, among other things, to the words “within this State,”'in the 27th section. But the words “ within this State,” as there-used, neither add nor takeaway any thing from the force of the section. Our Legislature has no extra-territorial jurisdiction; and when'it forbids, in unqualified terms, the doing of an act, it must always be understood that the thing is only forbidden within this State. The Legislature has in this instance only expressed what is usually left to implication. The words “ such illegal lottery,” in the 28th section, refer to lotteries- for disposing of money or property, which had not been authorized by the laws of this State ; and all other gaming lotteries are illegal here, though, they may have been authorized by the laws of other States. This point was decided in The People vs. Sturdevant, (23 Wend. 418 ;) and I see no reason for questioning the authority of that case. (See also, Commonwealth vs. Dana, 2 Metc. 329, 338.)

The indictment does not directly and expressly allege that the lottery, of which the defendants published an account, was opened or set on foot for the purpose of disposing of money or other property. (The People vs. Payne, 3 Denio 88.) But that fact appears from the advertisement itself, which is set out at large in the indictment: and according to the decision in The People vs. Rynders, (12 Wend. 425,) this is good pleading, even in a criminal case. Although, as an original question, I should probably have come to a different conclusion, I am content to follow the authority of that case.

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

Judgment affirmed.


author: Gardiner, J. Buggles, J.,

text:
    Coddington vs. Davis and others.
    In a strict and technical sense, the term 'protest when used in reference to com mercial paper, means only the formal declaration drawn up and signed by a Notary, but in a popular sense and as used among men of business, it includes all the steps necessary to charge an endorser.
    Therefore, where an endorser of a note, before its maturity, wrote to the holder, saying: “Please not protest T, B. C.’s note due, &c. &c., and I will waive the necessity of the protest thereof,” held, that this dispensed with a demand of the maker and notice to the endorser.
    A demand of payment from the maker of a note, and notice to the endorser, are sufficient to charge the endorser, without a technical and formal protest.
    Where two instruments are- executed on different days, relating to the same subject matter, and the one last executed refers to and is based upon the former one, in arriving at the intention of thq parties in the latter instrument, both should be read and construed together; and the general words, used in the last, should be restricted so as to conform to the intention of the parties as derived from an examination of both instruments.
    Accordingly, where the maker of a note made an assignment to one of the holders for the benefit of his creditors, in which the endorser, was named and preferred as a creditor to the amount of the note, and the holders were named and preferred as creditors on another account, bat were no where set down as creditors in respect to the note, and the holders in conjunction with other creditors after-wards executed to the maker an instrument referring to the assignment, and agreeing in consideration thereof) and of one dollar, to discharge the maker from all claims and demands existing in their favor respectively against him, over and above what they might realize under the assignment, on his agreeing at the same time to pay the balance of their debts in seven years, and the maker at the same time gave to the holders his written promise to pay such balance in seven years ,* héld, that the claim of the holders to recover the note of the maker was not discharged or suspended, the instrument being regarded as only applicable to their other demand against the maker; and therefore farther held, that their right to recover- against the endorser was not affected by such instrument.
    On error from the Supreme Court. Davis, Brooks & Co. sued Samuel Coddington in the Superior Court of the city of New York as the endorser of a promissory note for $10,000, made hy Thomas B. Coddington, which bore date Dec. 31, 1839, and became due Feb. 2, 1840. On the trial it was proved that on the 28th of January, 1840, the defendant wrote to the plaintiffs as follows:

      “Messrs. Dayis, Brooks & Co.—Gents.: Please not protest T. B. Goddington’s note due 2d February, 1840, for ten thousand dollars, and I will waive the necessity of the protest thereof; and oblige, Yours,
    SAM’L C ODDINGT 03ST. ”
    The plaintiffs having rested, the defendant moved for a non-suit on the ground that no demand of the maker and notice of non-payment to the endorser had been proved. The Court held that the above letter dispensed with the necessity of making such proof, and denied the motion. The defendant excepted.
    It was then proved on the part of the defendant, that on the 23d day of January, 1840, the maker of the note assigned his property to one Charles Davis, one of the plaintiffs, in trust to pay his debts, preferring certain creditors named in schedule A, annexed to the assignment. The assignment and schedules were read in evidence, from which it appeared that the defendant was named as a creditor in schedule A in the sum of $10,000, the amount of the note in question, and in two other sums of smaller amount. The plaintiffs were named in the same schedule as creditors in the sum of $1000, and in schedule B in two other sums of $1100 and $900 ; but they were no where named as creditors in respect to the note in question. On the day after the assignment was executed (January 24th) the defendant drew an order upon the assignee, in favor of the plaintiffs, directing him to pay over to them all monies which he might realize out of the fund assigned on account of the defendant, to the amount of $10,000. This order was accepted by the assignee, and in pursuance thereof he had paid over'to the plaintiffs previous to the trial about $2,800, which they had applied to the note.
    On the 8th of February 1840, the plaintiffs and other creditors of Thomas B. Cloddington executed to him an instrument without seal'in these words: “Whereas, Thomas B.
    Coddington, of the city of ISTew York, is indebted or liable to us for certain debts or liabilities heretofore incurred by said Coddington, and said Coddington has made an assignment of his property to Charles Davis, Esq. for the benefit of us and other creditors of said Coddington; How in consideration of one dollar paid to us by said Coddington, the receipt of which is hereby acknowledged, and in consideration of said assignment and a promise on the. part of said Coddington hereinafter mentioned, We, the creditors, whose names are hereunto subscribed, do hereby release, discharge and forever acquit said Coddington, his executors, &c., from all claims, demands, liabilities, engagements, judgments, and other responsibilities now "existing against said Coddington, beyond what we' shall respectively realize of said claims, &c., from said assignment to Charles Dayis, dated the 23d of January, 1840; we receiving or assenting to the conditions of said assignment, and coming under the same for a full and perfect discharge of said claims, &c., said Thomas B. Coddington, in consideration of the above, giving us severally a written promise to pay us at the expiration of seven years from the date of this instrument, whatever- balance of said claims should remain unpaid, out of the assets of said assignment. Witness our hands, this eighth day of February, 1840.
    Signed by Davis," Brooks & Co., and by other creditors.
    Simultaneously with the execution of the above instrument Thomas B. Coddington executed to the plaintiffs the written promise therein referred to, in these words: “I hereby promise to pay Messrs. Davis, Brooks & Co. whatever they may not realize from my assignment to Mr. Charles Davis, on account of my indebtedness to them, in notes, books, accounts, endorsements, or otherwise at the expiration of seven years from the date hereof. THOMAS B. CODDIHGTOH.” .
    “Hew York Feb. 8, 1840.”
    The above matters being given in evidence, the defendant’s counsel insisted, that the written instrument of the 8th of February, was a valid release and discharge of the maker of the note, and that thereby the defendant, the endorser, was discharged from his liability. Also that said written instrument in connection with the maker’s promise to pay any balance, &c., in seven years, was a valid extension of time to the maker of the note, which discharged the endorser. Also that the plaintiffs having by said instrument agreed to come in under said assignment for a full and perfect 'discharge of all their claims against said Thomas B. Coddington, could not sue on the note or endorsement until the assignment was closed". The Superior Court overruled these positions, and the jury found a verdict for the plaintiffs. The defendant excepted and had a bill of exceptions duly signed and sealed. The Supreme Court on writ of error affirmed the judgment of the Superior Court. (/See 3 Lenio 16.)

      S. Stevens and L. Livingston for plaintiff in error.

      Charles O’ Connor for defendants in error.
   Gardiner, J.

The Plaintiff in error, the defendant below, was the endorser of a note made- by Thomas Coddington for 110,000. Thomas Coddington failed, and on the 23d January, 1840, made an assignment to Davis, one of the firm of Davis, Brooks & Co., the endorsees and holders of the note and the plaintiffs below. Qn the 28th of January, and prior to the maturity of the note, the defendant with full knowledge of the above facts', wrote the following letter :

“ Messrs. Davis, Brooks & Co.—Gents : Please not protest T. B. Coddington’s note due 2d February, for ten thousand dollars, and I will waive the necessity of the protest thereof; and oblige respect’ly, &c.,
SAMUEL CODDINGTON.”

The construction of this letter is the first important question presented in the cause.

The term protest in a strict technical sense is not applieable to promissory notes. The word, however, as I apprehend, has by general usage acquired a more extensive signification, and in a case like the present includes all those acts which by law are necessary to charge an endorser. When among men of business a note is said to be protested, something more is understood than an official declaration of a notary. The expression would be used indifferently to indicate a series of acts necessary to convert a conditional into an absolute liability, whether those acts were performed by a mere clerk or a public officer. It is obvious that the word was used in its popular acceptation by the defendant below. He requests the endorsees “ not to protest the note, and that he would waive the necessity of the protest thereof.”

The protest to which the endorser alluded was something necessary” to be done, something also for the benefit of the endorser, for ho assumed to waive it. It could not therefore be a memorandum, or declaration made by a notary, because neither of them were required. Nor could he have intended to waive that which whether performed or omitted, his right would in no manner be affected. The only things necessary on the part of-the endorsees was a demand of payment of the maker, and notice to the endorser. By waiving the necessity of protest the defendant dispensed with both, or his communication is destitute of all meaning.

It was argued indeed that the defendant might have referred to the notarial certificate authorised by statute. But this certificate is made prima facie evidence of a demand and notice in favor of the endorsees. It is for their benefit. The defendant in making such reference must have supposed that the certificate was necessary evidence, because he waives the necessity of a protest, which according to the argument is equivalent to dispensing with the necessity of a notarial certificate. Now to every fair mind, wrniver of proof necessary to establish a particular fact, is equivalent to an agreement to admit it. Whether therefore the defendant by waiving the necessity of a protest, intended to dispense with demand and notice, or with the evidence of them the result would be the same, and in either case he is concluded by his own stipulation from raising the objection taken upon the trial. I agree with the learned Judge who delivered the opinion of the Supreme Court, that the circumstances attending the written stipulation of the defendant confirm this view; but I prefer to rest my opinion upon the letter alone, as furnishing prima facie evidence of an intent by the endorser to waive demand of payment and notice to which he was otherwise entitled.

Another important point is made by the defendant, that the written statement signed by the plaintiffs and others, dated 8th February, 1840, was a valid discharge by the plaintiff of Thomas Coddington the maker of the note from all liability thereon, and consequently of the endorser. On the 23d of January, 1840, Thomas Coddington executed his assignment to Davis, and directed his assignee to pay and discharge the debts owing by the assignor contained in the schedule marked A. in equal proportions. In this schedule we find: • ”

Samuel Coddington, for endorsement, $10,000

“ “ “ 1,854

“ “ Balance of account, 2,178

Taking the schedule in connection with the assignment, it will be perceived, that the debts to the defendant for endorsements and for private account, are placed upon the same footing as debts owing by the assignor to the defendant, and both are directed to be paid absolutely. It is obvious therefore that thé $10,000 endorsement, which is admitted to be the note in question, was understood by the parties to the assignment to be the debt of the defendant and treated accordingly. This was on the 23d January: on the 24th, the defendant in writing, directed Davis as assignee to pay to the order of Davis, Brooks & Co., all monies that should be received by him as assignee on his account, to the extent of $10,000 value •received.

By this act the defendant riot only assented to the assignment, but as it appears to me, distinctly recognised .the relation in which he was placed by that instrument as creditor to the assignor to the amount of the $10,000 unconditionally, and of course liable for the same amount to- the plaintiffs. He directed the payment of a sum equal to the note, not only out of the fund set apart in the assignment for that purpose, but out of the proceeds of the property exclusively applicable to the discharge of a debt due to him individually, for a bal anee of account. In a word, he, recognized-this as a debt due from Thomas Coddington to himself, by claiming under the assignment by which it was so declared, and as a debt due from him to the plaintiffs by a voluntary application of his private funds to its payment. In conformity with this view of his rights and liability, we find him on the 28th day of January, the date of his letter to Brooks, Davis & Co., waiving the necessity of protest, and thus converting a conditional into an absolute liability upon his part, for the payment of this note to the plaintiff.

tinder these circumstances the discharge of February 8, 1840, was executed by Davis in behalf of Davis, Brooks & Co., and by some others of the creditors of T. Coddington.

This instrument, which is without seal, recites in substance, that T. Coddington was indebted or liable to the subscribers, and that he had made an assignment to Davis for the benefit of the subscribers and other creditors, and in consideration of one dollar, of said assignment, and of a promise to pay any balance that might not be received under the same, in seven years—the subscribers did release and discharge and forever acquit the .said T. Coddington, from all claims, demands, liabilities, engagements, judgments, and other responsibilities then existing against him, beyond ryhat-they might realize on said claims, &c., from said assignment; “We,” the instrument proceeds, “receiving and assenting to the conditions of said assignment, and coming in under tJie same, for a full and perfect discharge of our said claims. The said Codding-ton, in consideration of the above, giving to us his written engagement to pay the balance,” &c.

It is apparent that this discharge refers to and absolutely adopts the assignment, with all its conditions, and provisions as its basis. One of these conditions was, that the defendant should be paid out of the fund, as a preferred creditor, the amount of this note as a debt due to him. To this the parties to the discharge expressly assented. When, therefore, it was recited in that instrument that Thomas Coddington was indebted or liable to Davis, Brooks & Co., for certain debts, and that the former had made an assignment for the benefit of the latter as creditors, the parties could not have referred to this demand which they had agreed to describe and had actually inventoried as the debt of another.

It may be granted that independent of the assignment, the plaintiffs as to this note were the principal creditors of Thomas Coddington. But we must seek the intention of the parties in their writings, not in the relation previously existing. When therefore the assignment, as we have a right to infer, purposely omits Brooks, Davis & Co., and substitutes the defendant as the creditor to whom this debt was owing; the discharge upon authority as well as the plainest principles of justice should be restricted to the relations established by the instrument, to which it refers and expressly adopts. (Tayler vs. Homersham, 4 Maule 1 Selwyn 422; 23 Com. Law R. 50, 7 Com. Law 205, 1 Cowen 123, 126.)

The engagement entered into by Thomas Coddington at the time of the execution of the release confirms this view. By that he promised to pay Brooks, Davis & Co., whatever they might not realize from his assignment, on account of his indebtedness to them. This debt of $10,000 had been inventoried as due to S. Coddington. To suffer Brooks, Davis & Co. to share equally with the creditors of the second class, upon the ground that this debt was due to them also, would be virtually a fraud upon those creditors, upon the assignor, and those who executed the discharge with Brooks, Davis & Co. These creditors with justice could say to the plaintiffs, that with their concurrence the assignor had appropriated property for the payment of this debt to the defendant. You have elected to claim through him, to which he has assented, and you are bound by your election.

It is unnecessary therefore to consider the objection of a want of consideration, &c., raised to this discharge. Viewing it as legally binding upon the parties, it does not extend to this demand, and cannot have the effect either to disdv-vge or extend the time of payment of the note in quest! w ')'be judgment of the Supreme Court should be affirprcvV

Broksok, J. also delivered an opinion in favor of affirmance; and Jewett, Ch. J., Jokes and Wright, Js., concurred.

Buggles, J.,

dissenting. If the instrument called the discharge, dated on the 8th of February, 1840, signed by Davis, Brooks Co., did not absolutely and entirely discharge Thomas B. Coddington from all liability on the ten thousand dollar note as maker, it operated, beyond a doubt, as it appears to me, to extend the time for the payment of that debt until the expiration of seven years from the date of the instrument. So far as respects the right of Davis, Brooks Co. to recover against Samuel Coddington the endorser, it is immaterial whether it is an entire discharge or an extension of time. In either case the action against the endorser is barred, and unless the suit on the note could have been maintained by Davis, Brooks Co. against Thomas B. Coddington, the maker, then action against Samuel Coddington¡ the endorser, must fail.

Want of consideration furnishes no good ground of objection to the validity of the discharge. The pecuniary consideration expressed in it, is alone sufficient, although nominal in amount, it was inserted doubtless for the purpose of giving validity to the instrument, and is as effectual for that purpose as if it had been a larger sum. If tbe instrument had been under seal, the parties would have been estopped from denying it. Hot being under seal that rule may not apply. But the recital in the instrument is evidence of payment until proof be given to the contrary, and no such proof was offered. ' The sum of one dollar, expressed as the consideration, is not a part of the debt to be paid, but a separate and independent sum; and the creditors cannot now avoid this agreement bn the ground of want of consideration, without committing a manifest fraud upon Thomas B. Coddington. The assignment is also a sufficient consideration to support the agreement. If it should be answered that this was a past consideration, not appearing on the face of the instrument to have been made at the request of the creditors, the answer is, that if the objection had been made at the trial, no jury would have hesitated a moment, from the beneficial nature of the transaction, to have inferred a request.

Let us then look at the discharge with a view to ascertain whether Davis, Brooks & Co. could, after having executed it, and within the seven years mentioned in it, have sued Thomas B. Goddington, the maker, upon the note in question.

First. It was admitted on the argument by the counsel Lor the defendants in error, that the words in the body of the instrument, if considered alone, were abundantly sufficient to comprehend and include the note in question, and to acquit the maker of any liability at least during the period of seven years. It purports “ to release, discharge, and forever acquit him from all claims, demands, liabilities, judgments, and other responsibilities now existing against said Goddington.” But these comprehensive words were supposed to be limited and restrained in their effect by something in the recital. Let us refer to it. The recital is, “ that Thomas B. Goddington is indebted to us for certain debts and liabilities heretofore incurred.” This certainly embraced the $10,000 note. The recital then proceeds, as follows: “ And said Goddington has made an assignment of his property to Charles Davis, Esq., for the benefit of us and other creditors of said Goddington,” &c. How the question arises whether the assignment was made for the benefit" of Davis, Brooks & Co., as well in respect of this $10,000 debt, as with respect to the other debts he 9wcd them, and which were mentioned in the schedules. The issignment was for the benefit of those who were to take the lividends, and if they were entitled to the dividends on that debt as well as on the others, then it follows that the recital, instead of excluding the $10,000 debt from the operation of the discharge, brings it conclusively within its scope and meaning.

Here it becomes necessary to refer to the assignment and schedule annexed to it; for it was rightly said by the Supreme Court in its opinion on this case, that the assignment being referred to in the discharge, both papers should be examined for the purpose of ascertaining the intention of the parties.

The trust created in the assignment is that the assignee, “ out of the monies realized from the property, shall pay and discharge the debts owing by me, the said Thomas B. Coddington, mentioned and contained in the schedule .hereto annexed, marked A, and if there should not be sufficient to pay said debts in full, then to pay them in equal proportions according to their amounts.”

Schedule A is as follows :

Samuel Coddington for endorsement, $10,000 00

do. do. . do. 1,185 44

do. do. for balance of account 2,178 40

13,363 84

Davis, Brooks & Co., $1,000 00

James Taylor for account, 373 79

Joseph Meeks for rent, 250 00

It was assumed, upon the argument, and treated by all parties as an undisputed fact, that'the $10,000 debt in schedule A, opposite the name of Samuel Coddington, as endorser, is the debt due upon the note in question; and it is to be observed that although the debt is set down in the schedule opposite the name of Samuel Coddington, he is not set down as a creditor in the ordinary sense, but he is shown by the entry to be an endorser. It does not appear, however, in the case that his name was put into the column of creditors by his act or with his consent. It was the act of the parties to the assignment, and not his; and they knew that he was in fact an endorser merely and not a creditor. But the debt was nevertheless preferred. It stood at the head of the preferred schedule. And for whose benefit ?' or in other words, who were entitled to the dividends accruing upon it under the assignment ? Most undoubtedly Davis, Brooks & Co., and they only. They were the creditors. Thomas B. Coddington was the debtor, and Samuel Coddington the surety. It is a well settled principle of equity that the creditor is entitled to the benefit of all the securities which the principal debtor has given to his surety; and if it be supposed that one of the objects of the assignment was to secure Samuel Coddington, as endorser, the assignment immediately enured to the benefit of Davis, Brooks & Co., the creditor; and' they were as much entitled to the avails of the-assignment, and to the control of it, as if their names had been put down in the schedule as creditors. (Burge on Suretyship 324; 1 Story’s Eq. Com., Sec. 502; Pitman on Pr. and Surety 89, 113.)

As soon as a dividend was declared, the share set apart to this debt was payable instantly to Davis, Brooks & Co. The assignee (one of that firm) had the power and the right so to apply it. Davis, Brooks & Co. could lawfully require it to be so applied. . Samuel Coddington had no right to require it to be paid to him. . The effect of the assignment, therefore, is in all respects the same as if Davis, Brooks & Co. had been named in schedule A, instead of Samuel Coddington, as ere-, ditors for the $10,000 debt; and without reference to the order by which Samuel Coddington, on the 24th of January, directed the assignee to pay the dividends to them, the assignment, was as much for their benefit in regard to this.debt as if Samuel Coddington’s name had been omitted, and theirs inserted as creditors; and being so, the note in question comes as well within the letter as within the spirit of the recital in the discharge. The recital refers to the. assignment in genral terms, but not to the schedule specially. It does not point to the debts standing in the name of Davis, Brooks & Co., as the debts on which the discharge Was to operate, but to the debts due from T. B. Coddington to them, and upon which the assigned property was to be applied. . Indeed, nothing can be clearer to my mind than that the discharge was to operate upon all the debts on which the creditors who signed it were entitled to dividends. The assignment was mainly the consideration on which the discharge was founded, and upon no other construction can the two instruments have a consistent and harmonious operation. It will be borne in mind that the order made by Samuel Coddington, on the 24th of January, directing his dividends to be paid to Davis, Brooks & Co., had no effect whatever upon the dividend to be paid on thr $10,000 debt. Before that order was given, and without any aid from it, that dividend belonged to them, by the legal operation of the assignment. But the order was effectual to give to Davis, Brooks Go. the dividends upon the other debts in schedule A standing in Samuel Coddington’s name; and for that purpose only it ought to be understood to have been made, because for ¿very other purpose it was a dead letter.

In the opinion delivered in the. Supreme Court it is said to be evident, from what transpired between Samuel Coddington and the plaintiffs, that both the Coddingtons treated this as the proper debt of the defendant to the plaintiffs, and that it was not at that time considered as a debt against T. B. Coddington. But I find no evidence in the, ease shewing that Samuel Coddington so treated it. It has before been observed that the insertion of his name in schedule A, in connection with the note in question, does not appear to have been his act, or done with his assent. His waiver of the protest recognizes himself as the endorser, and Thomas B. Coddington as the principal debtor. The purpose of the ord'er to pay over the dividends to .the plaintiffs, has already been adverted to; and the discharge of Thomas B. Coddington by the creditors appears, as far as the evidence goes, to have been made without his knowledge or concurrence. There never was any assumption on his part to pay the debt except in his character as endorser; -and it is in that character only that the plaintiffs have sought in this suit to make him responsible; and unless the note in question then was and now is due from Thomas B. Coddington, as principal debtor, they must fail.

If the assignment of the 23d of January, and the order-made by Samuel Coddington on the following day, should, from the dates or otherwise, be regarded as part of the same transaction, and be looked upon as evidence that Samuel Codding-ton, as well as the parties tó this suit, were privy to the execution of the assignment and to the making of schedule A, then, on that hypothesis, another conclusion follows equally fata] to the plaintiffs. It is this, that it must have been understood and agreed between all the parties at the time that Davis, Brooks & Co. were to have the dividends on the §10,000 debt. This effectually brings that debt within the terms of the discharge and its recital. "

It was urged upon the argument that Davis, Brooks & Co. could not have intended to discharge a solvent endorser by giving time to the insolvent maker of the note in question.

The solvency of the endorser is not a fact proved in the case. But if it were proved, the argument is entitled to very little weight when applied to the consideration of a written instrument.- But when considered in connection with other facts proved in the case, it .falls to the ground entirely. When the discharge was given, Charles Davis, one of the plaintiffs, held the assignment of property amounting nominally to §32,000. The preferred debts, of which the note in question was a part, amounted to less than §15,000 : and by Samuel Coddington’s order of the 24th of January, the plaintiffs became entitled to receive the dividends on other preferred debts due to him of between §3,000 and §4,000, and to apply them to the §10,000 note in question. There was no proof of the insufficiency of the property assigned to pay the entire debt. Part of the assigned property remained, at the time of the trial, undisposed of, and the assignment had -not been closed..

There is another paper in this case not yet mentioned which throws light on the question between the parties. It is the promise which Thomas B- Coddington gave in writing to the plaintiffs, at the time they executed the discharge, t.o pay at the expiration of seven years, the balance of his indebtedness to them which might be left after deducting what might be realized from the assignment, A reference to that instrument will shew that like the discharge and its recital, it was evidently intended to include the note in question.

.Finally. ; From reading the three instruments together, that is to say the assignment and schedules, the discharge and the written promise of T. B. Coddington, I am brought to the following conclusions:

First. That by the assignment and schedules, without reference to any other paper, Davis, Brooks & Co. were entitled to the dividends on the $10,000 debt, mentioned in schedule A as the creditors 'of T. B. Coddington, although that debt was set down against the name of Samuel Coddington as endorser.

Secondly. That by the recitals in the discharge, Davis, Brooks & Co. referred to the debts due from T. B. Coddington to them, of which this was the principal one, and therefore include this debt; that they do not refer to the debts set down to the names of Davis, Brooks & Co., and therefore do not exclude it.

Thirdly. That the operative words in the body of the discharge are amply sufficient to include the debt in question, and do include it.

Fourthly. That the obvious meaning of the -discharge was, that it should operate on all the debts on which the creditors who signed it were respectively entitled to dividends; and.

Fifthly. That Davis, Brooks, & Co. in conformity with this construction, took Thomas B. Coddington’s written promise to pay, at the end of seven years, the balance that might remain duo on this note, and on his other debts, after deducting what might be realized from the assignment.

I am therefore of opinion that the judgment of the Supreme Court should be reversed, and that a new trial should be awarded.

Gray and Johnson, Js.., were also for reversal. .

Judgment affirmed.


author: Bronson, J.

text:
    Bouchaud, Executor, &c., Appellant vs. Dias and Furman, Respondents.
    An assignment by a debtor, who is insolvent, of his property in trust for the benefit of a single creditor or surety, containing no provision for the benefit of creditors generally, is not within the act of Congress which declares tbo United States entitled to priority of payment, “in cases where'a debtor not having sufficient property to pay all his debts shall make a voluntary assignment thereof for the benefit of his creditors.”
    Accordingly, where a debtor made such an assignment of his property, and his surety in certain Custom House bonds filed a bill, claiming that the United States had acquired a right to be first paid, and to be subrogated to that right on tlio ground that as such surety he had been compelled to pay the bonds j held, that the bill could not be sustained.
    Costs on an appeal to the Court of Appeals are in the discretion of that Court and when the "decree of the Court below is reversed, it should be without costs.
    Appeal from Chancery. Joseph L. Dias and Job Furman, filed their bill in Chancery before the Vice Chancellor of the First Circuit, in which the case was stated in substance as follows:—Castro and Henifiques, partners in trade in the city of Hew York, on the 13th day of May, 1823, made an assignment to Louis A. Brunei of a large amount of property in trust, firstly, to pay a debt which they owed Brunei; secondly, to pay two notes made by them and endorsed by him, and certain Custom House bonds given for duties upon goods imported by them, executed by Castro as principal and Brunei as surety ; and lastly, to pay over or reassign the surplus of the effects assigned, to the assignors, or hold it upon such trusts as they should appoint. The debt and notes provided for amounted to $6,873, and tho Custom House bonds to $30,626. The assignment made no provision for any other debts than those .already specified, and'the declared object of making such assignment was to pay the debt due to Brunei, and to secure him for his liabilities upon the said notes and Custom House bonds, and to enable him to pay off and discharge them. The amount of property, assigned was $80,000 and the assignors were insolvent. The assignment on its face did not purport to convey all their property, but such was alledged to bo .the fact.

      The bill also charged, that at the time of the assignment Castro and Henriques were largely indebted to the United States upon other Custom House bonds, three of which, were signed by the complainant Furman as surety, and which he paid to the United States on the 15th of December, 1824, after suit and judgment against him and Castro upon the bonds. The amount paid by him was $3,737,52. The complainant Dias was a co-surety with Brunei on two of the bonds provided for in the assignment, on which judgments were obtained against him, Brunei and Castro, March T, 1824, and Dias paid to the United States upon these judgments the sum of $1,000, on the 7th of November, 1834.
    The bill insisted, that by reason of the facts stated, the United States acquired a right of priority of payment out of the assigned property over all other creditors -under the act of Congress hereafter referred to, and that the complainants in consequence of having been compelled as sureties, to make the payments above mentioned, were entitled, in respect to the sums so paid, to stand in the place of the United States, and be preferred in the same manner. But the bill admitted 'that the right so claimed was to be shared in common with the United States, which still held unpaid bonds of Castro, given for duties as aforesaid, to the amount of about $10,000, on the most of which one Thouillier was the surety.
    The bill further charged, that the property assigned to Brunei -was sufficient not only to pay all the debts provided for in the assignment, but all the Custom House bonds of Castro, and a large dividend on the other debts of Castro and Henriques, but that Brunei, in disregard of the rights of the United States-, and of the duty he owed to the sureties of Castro in the bonds, paid the simple contract debts mentioned in the- assignment, being $6,873, and thereby made himself personally answerable for that amount. That Brunei died 29th July, 1833, having made his will whereby the defendant Bouchaud was appointed his executor, and that Bouchaud as such executor took possession of a lai-ge amount of the property of his testator, including the effects assigned to him by Castro and Henifiques which had not- been applied to the payment of their debts; also, that the said executor paid sundry simple contract creditors of Brunei, without regard to the preference due to the United States, and mingled the trust fund with the individual property of Brunei; and the bill insisted that Bouchaud was personally liable, to the extent of the assets received by him, for the debts of Castro and Henifiques which Brunei in his lifetime had fraudulently failed to discharge.
    Bouchaud, Castro and Henifiques, and the United States, were made defendants to the bill and the prayer was, that the complainants might be paid the amounts which they had respectively paid as sureties upon the bonds, and interest, from the estate of Brunell if that should be sufficient, and if not then that Bouchaud might be personally charged.
    It was claimed on the part of the complainants, that the right of the United States to priority of payment of the Custom House bonds, arose under the act of Congress, passed March 2, 1799, § 65, (1 Story’s Ld. Laws U. S. 630) which enacts, “ that in all cases of insolvency, or where any estate in the hands of executors, administrators or assignees, shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States on any such bond or bonds shall be first paid, and any executor, administrator, or assignee, or other person' who shall pay any debt due by the person or estate, for whom or for which they are acting, previous to the debt or debts so due to the United States from such person or estate being first duly satisfied and paid, shall become answerable in their own person or estate for the debt or debts so due to the United States, or so much thereof as may remain due and unpaid; and actions or suits at law may be commenced against them for the recovery of the said debt or debts in the proper Court having cognizance thereof. ” A subsequent clause in the same section declares, “ The cases of insolvency mentioned in this section, shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his or her debts, shall have made a voluntary assignment thereof for the benefit of his or her creditors, or in which the estate and effects of an absconding, concealed or absent debtor, shall have been attached by process of law, as to cases in which an act of legal bankruptcy shall have been committed.
    The defendant, Bouchaud, put in a demurrer to the bill for want of equity, which was overruled .by the Vice Chancellor, whose decision was affirmed by the Chancellor on appeal. Bouchaud appeals to this Court.

      F. Sandford, for Appellant.

      J. L. Mason, for Respondents.

      B. F. Butler, for the United States.
   Bronson, J.

The Act of Congress, (1799, Chap. 128, § 65.) so far as it touches the present question, only gives a priority to the United States in cases of insolvency, where a “debtor, not having sufficient property to pay all his or her debts, shall have made a voluntary assignment thereof, for the benefit of his or her creditors.” This provision never has been, and 1 think never should be, carried beyond cases where the debtor has made an assignment for the benefit of his creditors in general. Here the assignment ^as made for the benefit of Brunei; and for no one else. No debts were to be paid, ex cept such as were due to him, and those for which he had made himselif liable, either as endorser or surety, for the assignors. It is true that paying the debts for which Brunei stood as endorser or surety would in effect satisfy the creditors to whom those debts belonged. But that was only an incidental effect of an assignment which was made for the benefit of Brunei alone. No fair and reasonable construction of. the act of Congress will give the government a preference when the debtor has only assigned his property for the purpose of paying or indemnifying a single creditor or surety. This question was considered, and the authorities were examined in the U. S. vs. McLellan, (3 Sumner 345) and although this case may be distinguished from that, the reasoning of Mr. Justice Story goes, the whole length of deciding that this bill cannot be maintained, and I am fully of that opinion.

The assignment states very distinctly the object for which it was made; and there is nothing in the case to impeach the statement.

The decree of the Court of Chancery should be reversed; and a decree should be entered allowing the demurrer and dismissing the complainants’ bill, with costs in the Court of Chancery. Costs on the appeal are in the discretion of- the Court; (2 R. S. 618, § 25) and where a decree is reversed, I think no costs should be given. That was the rule of the late Court of " Errors for a long time, and until within a very recent period.

Such are my views of the case, and such is the judgment of the Court.

Decree accordingly.

Jewett, Ch. J., dissented.


author: Jewett, Ch. J.

text:
    John T. Stagg, Executor, &c., Appellant, vs. James Jackson and Mary E., his wife, Respondents.
    Where a testator devised and bequeathed all his real and personal estate to his executors, in trust, to sell the same whenever they should see lit; also with authority to lease the same, and directed the executors to divide the whole trust estáte into nine equal parts, and pay over and convey one of said parts to each of his four children who were of age, and to hold the remaining five parts until his minor children should respectively becomje of age, and to pay over and convey to them their shares as they should become of age; held, that the executor could be compelled to account before the Surrogate, not only for the personal estate bequeathed to him, b.ut also for the rents and profits of the rea estate, and for the proceeds of such real estate as he had sold pursuant to the ‘ directions contained in the will.

      It seems, upon the doctrine of equitable conversion, that under such a will the whole estate is to be considered as personal estate from the death of the testa* tor, so that the rents and profits of the real estate received by the executor, and the proceeds of a sale thereof made by him, become legal assets in his handS| for which he is bound to account as personal estate.
    Appeal from Chancery. Ahraham Stagg died in 1835, having first made his last will and testament whereby he devised and bequeathed to his executors all his estate, real and personal, in trust, to sell such estate, or any part of it, whenever they should see fit, with authority also to lease the same for a life or lives or for years, and to invest the monies arising from the sale or the leasing, in bonds and mortgages, or in stocks, and to change the investment as often as they should see fit. The will also directed the trustees to divide the trust estate, and the proceeds and income thereof, into nine parts for his children, and to pay over and convey one part to each of his children, Anna Matilda, Mary Elizabeth, and John T.; to hold one other part as the share of Hannah Augusta upon certain specified trusts; and to .hold the remaining five parts until the testator’s five minor children should respectively become of age, and then to pay over and convey to them respectively their shares. During their minority the trustees were directed to pay out, from the income of the share of each child, such sum for the education and support of such child, as they should think proper. In case either of the minors should die under age without leaving lawful issue, then the share of the one so dying was to be divided among the surviving children, and the children of such as should be dead, the child or children of a deceased child, taking the part which the parent if living would be entitled to.
    The appellant, John T. Stagg, who was appointed by the will one of the executors and trustees, proved the will and took out letters testamentary. The respondents are one of the daughters of the testator and her husband.
    The appellant was cited before the Surrogate of the' city and county of New York, on the petition of the respondents, to render his account as executor, and such proceedings were had that in August, 1843, he filed his account, omitting therein all mention of the rents and profits of the testator’s real estate, and the proceeds of the sale-of such real estate which nad come to his hands. The respondents took exceptions to he account, alleging, among other things, that certain real estate had been sold pursuant, to the directions contained in the will, and insisting that the executor should charge himself with the proceeds of such sale, and with the rents and profits of the real estate received by him. The executor demurred, insisting, that the Surrogate’s Court had not jurisdiction to compel an account of the funds arising out of the real estate, and that the settlement thereof could not be legally had in that Court. The Surrogate made an order overruling the demurrer of the executor, and directing him, among other things, to account for the rents and profits and the proceeds of the sale of the real estate. From this part "of the order the executor appealed to the Chancellor, who affirmed the decision of the Surrogate, and further directed the executor to pay certain interest, by way of damages, for the delay and vexation caused by the appeal. The executor appeals tó this Court.
    If. II. Davies, for appellant.

      L. B. Woodruff, for respondents.

      Points for Appellant:

    I. The Surrogate’s Court, by its original constitution had no concern with or jurisdiction over real estate, and whatever jurisdiction it at present possesses over real property is de-" rived exclusively from statutory enactments. (Dakin vs. Hudson, 6 Cow. 221; Bloom vs. Burdick, 1 Hill 139.)
    II. If the Surrogate has any jurisdiction in this case, it is ' derived from the statute which enacts that “where, by any last will a sale of real estate shall be ordered to be made, either for the payment of debts or legacies, the Surrogate, in whose office the will shall be proved, shall have power to cite the executors in such will named to account for the proceeds of the sales, and to compel distributions thereof, and to make all necessary orders and decrees thereon, with the like power of enforcing them, as if the said proceeds had originally been personal property of the deceased in the hands of an administrator. (2 R. S.110, § 57).
    III. The will of Abraham Stagg devises the real estate to his executors to sell. all or any part of the trust estate whenever they shall see fit—thus leaving the sale to rest entirely in the discretion of the executors. The case therefore does not come within the statute above cited, and the whole will shows a case of trust, in which the trustee is accountable only in a Court of Equity.
    IY. The trustees may in their discretion lease the real estate, and in that case the rents and profits are to be paid over to certain persons. ' This is a clear devise and not a legacy, and if a devise the Surrogate has no jurisdiction over it.

      Points for Respondents:

    I. By the provisions of his will the entire property of the testator-, real and personal, was blended in one common fund; real estate to be converted into money, and the whole, together with the income thereof, to be applied to the payment of debts and legacies, and to be divided among his children.

      1. This amounted to a conversion of the real estate into personalty at the death of the testator, upon the doctrine of equitable conversion.
    2. This would be true, even if there bad been no devise of the legal estate, but only a power to sell, See. to pay debts and legacies, &c. (Ram on Assets, p. 139, (205,) and eases cited; 2 Pow. on Dev. p. 60, and onward ; Leigh & Dalzell on Eq. Conversion, 5 Law Library, 1st Series ; Marsh vs. Wheeler, 2 Ewd. Ch. R. 157 ; Lorrillard vs. Coster, 6 Paige, 218 ; Bunce vs. Vandergrift, 8 Paige, 37).
    II. In accordance with the above principles, which apply in equity to the whole estate before it is actually converted into money, the rents and profits, when collected, and the proceeds of sales actually made,- are legal assets in the hands of the executor.
    1. The powers conferred by the will appertain to John T. Stagg, in his representative character (i. e. as executor).
    2. And upon the principle that whatever goes to the executor as executor is legal assets, both the income before a sale and the proceeds after the sale are deemed legal assets in his hands. (1 Cruise, 61; 1 Atk. 484; 1 P. Wms. 430; Hard. 404. 133; 1 Vern. 63; 2 Vern. 106, 248, 405; Prec. Ch. 117, 136; 2 P. Wm. 415, Deg vs. Deg ; 1 Lev. 224 Dethicke vs. Caravan).

    III. The interest of the respondents (in right of Mrs. Jackson, the daughter of the testator) is that of legatee, entitled to an immediate division of the estate. And the trusts created for the protection of the minor children and grandchildren of the testator do not impair the respondents’ right to treat the moneys received by the executor as legal assets, received for their use.
    IV. Real estate, when converted into money for the payment of debts and legacies and distribution, is not only legal and personal assets 'in the hands of the executor, but is to be-accounted for 'before the Surrogate.

      1. The statute is explicit in regard to proceeds of sales.
    2. There is no foundation for any distinction between the rents collected before the sale and the money received on the sale; both are the result of the conversion contemplated by the will.
    3. The accounting must therefore be as executor. (2 R. S. 109-110; § 55,57, 61; id. 92, § 52, 53; id. 90§ 45, 48; id. § 18, 19 ; Bogert vs. Hertell, 4 Hill, p. 492; Toller on Exrs. p. 413, and onward; Sess. Laws of 1837, Ch. 460, § 75, p. 537).
    V. There is nothing meritorious in the objections by the executor to the order appealed from. The nature of these objections—the previous decision of the Court of Chancery upon the appellant’s own application in regard to this estate, acquiesced in by him, and the lapse of twelve years, during which the executor has held this estate in his own hands, all show that this appeal is taken for the mere purpose of vexation and delay, while the executor retains the money for his private use and benefit. (2 R. S. 618, §35, Boyd vs. Brisban, 11 Wend. 529).
   Jewett, Ch. J.

The principal question made on the argument was, whether the Surrogate’s Court had jurisdiction to compel an account and payment against the executor of the proceeds of the real estate sold by him under the power contained in the will of -his testator and of the rents and profits of such real estate received by him before such sale under it.

In behalf of the appellant it was insisted, that that Court did not possess any jurisdiction over the subject, tfnless it was derived from 2 R. S. 110, § 57, which provides that where by any last will, a sale of real estate shall be ordered to be made, either for the payment of debts or legacies, the Surrogate in whose office such will was proved, shall have power to cite the executors in such will named, to account for the proceeds of the sales, and to compel distribution thereof; and to make all necessary orders and decrees thereon, with the like power of enforcing them,' as if the said proceeds had been originally personal property of the deceased in the hands of an administrator.”

I am of opinion that, independent .of that statute, and the provisions of §75 of the statute of 1837, chap..460,"the Surrogate’s Court had the jurisdiction claimed by it. By the provisions of 2 R. S. 92, § 52, the Surrogate has jurisdiction, upon application from some person having a demand against the personal estate of the deceased, either as credit- or, legatee or next of kin, &c.; or without such application, to compel the executor or administrator to render an account of his proceedings; and by the provision of 2 R. S. p. 90, §§ 45, 48, p. 116, §§ 18, 19, he has jurisdiction to decree payment, of debts, legacies, and distributive shares against the executor or administrator, in the following cases :

1. Upon the application of a creditor, the payment, &c., may be decreed at any time after six months shall have elapsed from the granting of the letters testamentary or of administration.

. 2. Upon the application of a legatee, sc., payment of such legacy, &e., may be decreed and enforced at any time after one year shall have elapsed from the granting such letters.

The testator by his will devised and bequeathed all his estate, real and personal, to his executors, their heirs, executors, administrators and assigns, as joint tenants and not as tenants in common, forever,in trust to sell the same, and until such sale, to reóeive the rents, profits and income thereof, for the purposes of his will, and upon the following trust: First, to invest the proceeds of the real and personal estate, and to pay out of the same |50 annually, for the maintenance and education of his daughter Helena and his son Junius Theodore, respectively, until tfiey should attain the age of fifteen years, over and above their respective distributive shares of the estate and the income thereof. -Secondly, to divide the trust fund and the income thereof, subject to those charges thereon, into nine equal parts, and to pay over and convey one part thereof to his daughter Anna Matilda and her heirs, one equal part to his daughter Mary Elizabeth and her heirs, and one equal part to John T. the appellant, and his heirs; to hold one other part thereof in trust for his daughter Hannah Augusta Gautier, and to hold the remaining five parts thereof in equal shares for his other five children, Abraham, Benjamin Charles, Frederick, Helena, and Junius Theodore, who were then minors, as in the next clause of his will mentioned. Thirdly, to hold the shares of such minor children respectively, until they should arrive at full age, and then to pay over the same to them or their heirs or assigns; and during the minority of each, to pay so much of the income of his or her share, for his or her support and education, as the executors should think proper; and if either of said minor children should die under age and without leaving lawful issue, the will directed that his or her share should go to, and be divided among the surviving children of the testator and the issue of such of his children as should have died leaving children.

By these provisions it is manifest, that the testator intended that his whole estate, real and personal, together with the rents, profits, and income, intermediate the sale, should become united in one common money fund for the sole purpose of division and distribution among the objects of his bounty; and upon the principle of equitable conversion, the real estate was converted, by the devise and direction to sell, into personalty, from the death of the testator; the money arising from the sale thereof became legal assets in the, hands of the executor when received by him, and for which, as such executor, he was bound to account as personal estate. The intent and direction of the testator to sell the land was absolute, or “ out and out” for all purposes. The discretion of the executor in respect to the sale related merely "to the time when, &c. (Bogert vs. Hertell, 4 Hill 492; Ram. on assets 206; Leigh vs. Dalsell, on Con. of Prop. chap. 1, 2, 3; Smith vs. Claxton, 4 Mad.484; Marsh vs. Wheeler, 2 Eden. Ch. R. 157; Doughty vs. Bull, 2 P. Wms. 320; Deg vs. Deg, Ib. 415, 1 Jarmin on Wills, chap. 19.)

Mary Elizabeth, one of the daughters of the testator, who is the wife of Jackson, is a legatee of one ninth of the whole estate, real and personal, including the rents, profits, and income thereof received by the appellant, subject to the payment of the debts and funeral charges of the testator and expenses of the' administration, and the directions contained in the will. I agree with the Chancellor that the Surrogate was right in the sentence and decree which he made directing the appellant to account for the rents and profits and proceeds of the sales of the real estate as well as the personal effects of the testator.

2 R. S. 618, § 35, authorises the Court of Chancery, upon affirming any decree, upon appeal from a Surrogate’s Court, to that Court, in its discretion to award damages to the respondent for the delay and vexation caused by such appeal. That discretion was exercised by the Court of Chancery on the affirmance of the decree of the Surrogate in this case, and upon correct principles as I think. I am therefore of opinion that the decree of the Court of Chancery should be affirmed, and, under the circumstances, with costs to be paid by the appellant personally.

Ordered accordingly.