text:
    Albert G. Bagley v. Charles B. Peddie & Thos. B. Peddie.
    Wien a sum certain is stipulated to be paid for the breach of any one of several covenants, although stated to be the stipulated damages, it must be construed as a penalty, if the damages for the breach of any one of the covenants are capable of being ascertained by a jury.
    Upon this principle judgment of non-suit affirmed.
    (Before Sandford & Mason, J. J.)
    May 13,
    Nov. 8, 1851.
    This was an action upon a sealed instrument, by which the defendants agreed to pay to the plaintiff the sum of $3000, as stipulated damages for the breach of any one of the covenants contained in an agreement, bearing the same date, between the defendant, Charles B. Peddie, and the plaintiff.
    The complaint assigned several breaches by the defendant, 0. B. Peddie, upon which issue was joined, and the cause was tried before Mr. Justice Paine and a jury, in June, 1850.
    After the evidence applicable to the issues was closed upon both sides, the judge dismissed the complaint, upon the ground that the sum agreed to be paid as stipulated damages, was to be construed as a penalty, and that the plaintiff was not at liberty to prove any special damages, as none such were averred in the complaint.
    To this decision the counsel for the plaintiff excepted, and the only question now before the court was whether this exception was well taken.

      W. Hutchins, for the plaintiff,
    argued, that the sum specified in the bond of the defendants was, strictly, liquidated damages, and not a penalty, or in the nature of a penalty. That it was declared to be so by the express words of the instrument, and no other intent could be drawn from the language used. All and each of the stipulations in the agreement, to secure the performance of which the bond was given, he insisted, were of such a character, that damages for a breach were necessarily uncertain, and incapable of being ascertained by a jury with reasonable accuracy. He cited—7 J. R. 92; 7 Cowen 307; 4 Wend. 468; 13 Wend. 589; 19 do. 449; 22 do. 201; 1 Denio 464; 4 Burr. 2226-2233. He also contended that the plaintiff was not precluded from offering evidence of special damage, by reason of the want of a proper averment or of any other defect in the complaint. The learned judge had therefore erred in dismissing the complaint, and a new trial ought to be granted.
    D. D. Field, for the defendants.
    The sum of $3000 mentioned in the bond, although declared to be liquidated damages, was rightly construed by the judge to be a penalty, and if so, it was clear that no special damages could be recovered, as none were alleged in the complaint. He cited and relied on Spear v. Smith, 22 Wend. 103; Hoag v. McGinnis, 1 Denio 464; Kemble v. Farren, 6 Bing. 141; Boyes v. Ancell, 5 Bing. N. C. 390. The counsel added, that even should it be thought that the plaintiff was entitled to nominal damages, the judgment ought not to be disturbed for that reason, since the court will never set aside a judgment, in order that a verdict for nominal damages may be entered. (Brantinham v. Fay, 1 John. C. R. 225; Ferze v. Thompson, 1 Taunt. 121; Regina v. Fall, 1 Ad. & Ellis, N. S. 636.)
   By the Court.

Sandford, J.

The courts have leaned very hard in favor of construing covenants of this kind to be in the nature of penalties, instead of damages, fixed and stipulated between the parties ; and,' in so doing, have established certain rules, which will serve to guide us in determining this case. It may, perhaps, be justly said, that in this struggle to relieve parties from what, on a different construction, would be most improvident and absurd agreements, the courts have sometimes gone very far towards making new contracts for them, somewhat varied from the stipulations, which, under other circumstances, would be deduced from the language they used ; but we believe no common law court has yet gone so far as to reduce the damages, conceded to have been liquidated and stipulated between the parties, to such an amount as the judges deem reasonable, which is the course in countries where the civil law prevails.

Among the principles, that appear to be well established, are these :—

1. Where it is doubtful on the face of the instrument, whether the sum mentioned was intended to be stipulated damages, or a penalty to cover actual damages, the courts hold it to be the latter.

2. On the contrary, where the language used is clear and explicit, to that effect, the amount is to be deemed liquidated damages, however extravagant it may appear, unless the instrument be qualified by some of the circumstances hereafter mentioned.

3. If the instrument provide that a larger sum shall be paid, on the failure of the party to pay a less sum, in the manner prescribed, the larger sum is a penalty, whatever may be the-language used in describing it.

4. When the covenant is for the performance of a single act, or several acts, or the abstaining from doing some particular act, or acts, which are not measurable by any exact pecuniary standard, and it is agreed that the party covenanting shall pay a stipulated sum, as damages for a violation of any of such cov enants, that sum is to be deemed liquidated damages, and not a • penalty. The cases of Reilly v. Jones, 1 Bing. 302; Smith v. Smith, 4 Wend. 468; Knapp v. Maltby, 13 ibid. 587; and Dakin v. Williams, 17 ibid. 447; S. C. in error, 22 ibid. 201, were of this class.

5. Where the agreement secures the performance, or omission, of various acts, of the kind mentioned in the last proposition, together with one or more acts, in respect of which the damages, on a breach of the covenant, are certain, or readily ascertainable by a jury, and there is a sum stipulated as damages, to be paid by each party to the other, for a breach of any one of the covenants, such sum is held to be a penalty merely. This was the principle of the leading case, Astley v. Weldon, 2 Bos. & Pull. 346; and of Davies v. Denton, 6 B. & Cr. 216; Kemble v. Farren, 6 Bing. 141; and Boys v. Ancell, 5 Bing. N. C. 390. The latter case is a little remarkable, for the reasons assigned by some of the judges for the decision of Kemble v. Farren, by the same court, ten years before. As neither of those judges were, then members of the court, and as no such reasons appear in Mr ..Bingham’s report of the case, we do not consider the statement in Boys v. Ancell to be sufficient to establish those reasons as the ground for its decision. It is true that Tindal, 0. J„, in pronouncing the judgment in Kemble v. Farren, relied on Astley v.. Weldon, and that Heath, J., in the latter case, took a distinction between a sum stipulated as damages, in respect of a single act, and a like stipulation for the performance of each of several acts, and said that the latter was to be considered a penalty. But this was clearly not the ground upon which Astley v. Weldon proceeded, nor was Kemble v. Farren decided upon any such distinction. The decision in Reilly v. Jones (1 Bing. 302), was adverse to that doctrine, as was Knapp v. Maltby (13 Wend. 587). In the case of Boys v. Ancell, there was a covenant to pay the expenses of the lease, to which the-sum claimed as stipulated damages was applicable, as well as to> the covenant which had been broken on the other side ; and as those expenses were of a certain nature, the case was, in principle, like Kemble v. Farren.

Now let us apply the rules we have ascertained, to the case at bar. We prefer to pass over the first and second, and it is not claimed by the defendants that the third rule is applicable, except in connexion with the fifth. They insist that the case is within the latter,, and the plaintiff insists it is within the fourth proposition.

The instrument binds the defendants to pay the “ three thousand dollars liquidated damages,” in case Charles B. Peddie should refuse to continue with, or serve the plaintiff, or should violate any of the covenants mentioned in the recited agreement between him and the plaintiff. The agreement they recited bound C. B. Peddie to the performance of numerous acts, ■among which he covenanted to be just, true, and faithful 'to the plaintiff, in all matters and things, and in nowise to wrongfully detain, embezzle, or purloin any moneys, goods, or things whatever, belonging to the plaintiff; to keep a just account of all things relating to the plaintiff’s business committed to his care or management, and to give a true account of the same when required.

We think that some of these covenants are clearly certain in their nature, and that the damages for their breach may be readily ascertained by a jury. Such is the covenant against wrongfully detaining the plaintiff’s moneys or property, and that •requiring C. B. Peddie to give a true account of the things committed to his management.

■The sum stipulated in the agreement as damages, applies, equally, to a breach of each of these covenants, and to those, upon which the complaint is "'founded.

The defendants contend that this circumstance brings the case within the principle of the cases cited, in support of the ■fifth rule above laid down ; while the plaintiff insists that those cases do not apply,'where the stipulated damages are not mutually payable on a breach, by either party.

Ther'e is ho covenant here, on the part of the plaintiff, to pay any 'stipulated damages. But that circumstance seems to have been of no further importance in the cases referred to, than its showing a covenant certain in its nature, which was covered by the same stipulated sum. The point on which those decisions turned, was, that the agreement contained some clauses sounding in uncertain damages, and others, relating to pecuniary payments, dr measurable by a pecuniary standard, to all of which clauses, the sum stipulated as damages, applied alike, and was to become payable on a breach of any one of them.' Then, inasmuch as that sum could be regarded only as a penalty, in réápect of th'e clauses "payable in money, or of a certain nature, it cdiild "not be considered as anything "more than a penalty, in "reSpeCt of the clauses which /Were "in their nature uncertain. The "same sum" expressed as damages, payable for a breach of ány’of several Covenants," cannot be deemed a penalty in respect of one, and liquidated damages, for a breach of another, of those covenants. If it be stipulated damages in respect of one covenant, it must be the same as to all.

This being the rule, it can make no difference whether the certain covenant was one of those to be performed by the party guilty of a breach of the uncertain covenant, which is the subject of the suit, or was one to be kept by the plaintiff, and, therefore, it is of no consequence whether there was, or was not, any covenant of that description, on the part of the plaintiff, covered by the sum stipulated as damages, or, in short, whether the plaintiff agreed to pay any stipulated damages at all. The principle applies, if there be any covenant, covered by the amount expressed to be paid as stipulated damages, which is certain in its nature, although all the covenants are made by the defendant.

We are satisfied that the judge was right in his decision at the trial, that the sum payable by this agreement, was a penalty, and not stipulated damages.

The plaintiff makes a point that he should have, been permitted to prove special damages, on the judge ruling that the sum stipulated was a penalty. But it does not appear that he offered to make any such proof at the trial, or that he asked a judgment for nominal damages. His complaint averred no damages, either special or nominal, and as he did not raise the question of its amendment, by motion, or of the admission of the evidence, at the trial, it is now too late to bring it forward.

The judgment must be affirmed.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    The North American Fire Insurance Company v. James Lorimer Graham, and others.
    A judgment creditor cannot file a bill to set aside conveyances, which are alleged to be an obstruction to an execution, until such execution has been actually issued.
    Such is the well settled rule in England, in reference to an elegit, and there is a perfect analogy between an elegit in England, and a fi. fa. in this state.

      There is a manifest distinction between acts which are unlawful under the bankrupt act of 1841, and acts which are in themselves fraudulent.
    Thus the giving of preferences by the bankrupt, are unlawful acts, and would have prevented the granting of the discharge; but such preferences are not such fraudulent acts as will impeach a discharge when obtained.
    Even in eases where the defendants are entitled to a decree, if the answers are •unnecessarily voluminous and prolix, the court will not allow full costs.
    (Before Dunn, Mason, & Campbell, J.J.)
    March 20, 22, 24, 28;
    November 8, 1851.
    This case was transferred to this court, from the supreme court, under the provisions of the act of 1849. The -trial was had at bar.. The pleadings were very voluminous, and a great number of witnesses were examined, and numerous questions of law and fact were discussed, with great learning and ability, by the counsel on both sides. It is not deemed important, however, to state any of the facts except those upon which the decision actually turned, and these are sufficiently stated in the opinion of the court.

      W. C. Noyes J. Van Buren, for plaintiffs.

      E. Sandford, F. B. Cutting, & M. Hoffman, for defendants.
   By the Court.

Campbell, J.

In December, 1841, the complainants obtained a decree in chancery, for a deficiency on a sale of mortgaged premises in the city of New York, against the defendants, Jones and Graham, who were the original debtors. The decree was docketed, and subsequently transcripts filed in the counties of New York, Montgomery, and Monroe, but no execution was ever issued. The bill charges that at the time of the contracting of the original debt, and for a long time subsequent, the debtors were the owners of a large amount of real estate in all those counties, and that the same was conveyed away fraudulently, prior to the docketing of their decree, and they insist that such decree was, and is, a lien upon such real estate.

The prayer of the bill is, among other things, that Jones and Graham be decreed to pay the debt of the complainants, or that the conveyances made by them, be set aside. That the discharge of James L. Graham, (he having, subsequent to the obtaining the decree, been discharged under the bankrupt act of 1841,) be set aside, and decreed fraudulent and void as against the complainants, and all other creditors who may come in, and contribute to the expenses of the suit, and that hindrances and impediments being removed, the complainants may issue execution upon their decree, and levy upon, and by that means, or under a decree of this court, be allowed to sell all, or so much, of the real and personal estate of Jones & Graham, as may be necessary to pay their debt, and that a receiver may be appointed of the property of Jones and Graham.

The bill, in its general scope and objects, is analogous to what is known, technically, as a judgment creditor’s bill, but there is wanting an essential ingredient, namely, the issue and return of an execution unsatisfied. All the authorities agree that this is absolutely necessary, in order to reach any equitable interests of the debtors in personal estate. The serious question then arises, whether, in the late court of chancery, a bill could be sustained to set aside alleged fraudulent conveyances, or incumbrances of lands, where the party who has obtained a judgment or a decree, which he claims to be a lien on such lands, seeks to remove the obstructions in a court of equity, before he has endeavored to enforce his remedy, at law, by the issue of an execution. The statutes of this state make judgments and decrees, when docketed, liens upon all the lands of the debtor in the respective counties where such judgments and decrees are docketed ; but these liens are general, not specific. They rest upon all the real property of the debtor. The creditor obtains, by such lien, no title to the lands. True, in the case of the distribution of the estate of an intestate, or of an insolvent’s estate in the hands of trustees, his lien would be recognised, and paid according to its priority. But, under other circumstances, if the creditor wishes to enforce his lien, either to sell the lands of his debtor to others, or to obtain title himself, he must proceed further, and by execution, duly issued and levied, cause such lien to be enforced by a sale. Until he docs that, he neither acquires title nor possession, nor the right to possession—he can neither enter upon the lands, ñor bring ejectment for their recovery. If the creditor issues an execution for the purpose of enforcing his judgment, the sheriff must first levy and collect the amount out of the personal property of the debtor, and failing personal property, he must then proceed to the sale of the real estate. But how is it to be ascertained whether the debtor has or has not personal estate which may be applied to the satisfaction of the judgment? An averment, in a judgment creditor’s bill, that the debtor has no property, is not'Sufficient. That question must be determined by the issue and return of an execution, and by that process alone. Until an execution is issued, therefore, and it has been learned that the judgment debtor has no personal property out of which the judgment can be satisfied, it would seem that the creditor could have no right to enforce his lien against the real estate. In England; by force of ancient statutes, as under the laws of this state, the judgment becomes, from the time of its docket, a lien upon the freehold estate of the debtor. There, however, if the creditor sues out a fi. fa., the sheriff is commanded to make the amount-of the judgment out of the personal estate alone. If he wishes to enforce Ms lien against the freehold estate of his debtor, he may sue out an elegit. By that writ of elegit, authorized by ancient statute, the sheriff is commanded to take the personal property of the debtor, and to appraise the same, and to deliver it, at its appraised value, to the creditor, and also to deliver to the creditor, formerly, one half, but now, by a recent statute, the whole of the judgment debtor’s freehold estate, of which he was seized at the time of the docket of the judgment. (West. 2 (13 Edw. I.), c. 18; 1 and 2 Victoria, c. 110, § 11; Wentworth’s Pleading, vol. 10, p. 355; Jacob Law, Dic. title Elegit.) If the debtor has sufficient personal estate, at its appraised value, to satisfy the judgment, then the sheriff does not proceed to deliver the freehold estate. It will be seen that the elegit, in England, is analogous to our writ of fi. fa. In both cases the operation is the same. If a fi.fa. in this state, or an elegit in England, be issued, and the debtor has no personal property, which here can be levied on and sold, or there, appraised and delivered in satisfaction of the judgment, then the sheriff proceeds against the real estate; and the lien, by his action under the writs, which was before general, becomes specific, and if, then, he finds obstructions to the execution of the writs, he may be delayed until these obstructions shall be removed by a court of equity, but when thus removed, he can then proceed to enforce the specific lien, acquired by the writs, without reference to the question, whether or not the debtor may not, in the meantime, have become possessed off sufficient personal property to satisfy the judgment. Suppose it to be true, that when a bill is filed to remove obstructions, the judgment debtor has no personal estate, and that an averment to that effect is made in the bill, but no execution is issued ; suppose, further, that after a protracted litigation in equity the obstructions are removed, but, in the meantime, in the mutations of fortune, the judgment debtor has become possessed of ample personal property to satisfy the judgment, then, when an execution should be issued, the sheriff would levy and collect the amount out of the personal property, and the whole proceedings to remove the obstructions upon the real estate would be nugatory, and of no practical effect. In England the question has repeatedly been raised, whether a bill can be filed to remove obstructions upon freehold estate before the issuing of an elegit, analogous, as we have seen, to our writ of fi.fa., and it is believed that no case can be found where it has been so held. All the English cases support and lay down the rule, that an elegit must first be issued. In a recent case (Neate v. Duke of Marlborough, 3 Mylne & Craig 401), the doctrine is fully discussed, and all the leading cases examined, and the rule that an elegit must be .issued, shown to be founded on correct principles, and completely sustained by authority. See that case in 3 Myl. & Craig, S. C.; 9th Simons, 60; Milford’s Pleading, 114 Dublin ed.; 2d Story’s Equity Juris., § 1216.

“Suppose,” says the lord chancellor, in Neate v. Duke of Marlborough, “ the creditor never sues out the writ, and never, therefore, exercises his option in this court, to give him the benefit of a lien to which he has never chosen to assert his right; the reasoning would seem very strong, that, as this court is lending its aid to the legal right, the party must have previously armed himself with that which constitutes his legal right; and that which constitutes the legal right is the writ.” There are some dicta in our courts to the contrary, though as we understand the law, the point has not been expressly adjudicated. In Hendricks v. Robinson, 2d John. C. R. 284, a decree was made, setting aside fraudulent conveyances, but in that case it was expressly averred in the hill, that the complainant had issued his execution, but by reason of the fraudulent transfers so made, he could not obtain satisfaction of his judgment. This, we suppose, to have been the correct practice. In Brinckerkoff v. Brown, 4 J. C. R. 671, the complainant filed his bill before he obtained judgment, though it was admitted on the hearing, that a judgment had then been recovered. The point was not adjudicated in that case ; but it is conceded that Chancellor Kent seems' to admit that a bill might be filed without the previous issue of an execution; yet the scope and reasoning of the case would seem to lead to a contrary conclusion. Thus, he says, v the legal remedy, by execution, must first be tried. This court is not to know by anticipation that it will be ineffectual.” And,” he adds further, “ it is sufficient, however, to observe, that I find the rule, to have been long and uniformly established, that to procure relief in equity by a bill brought to assist the execution of a judgment at law, the creditor must show that he has proceeded at law to the extent necessary to give him a complete title. The rule referred to is that stated by Lord Redesdale (Mitford’s Pleadings, 115), and is understood in England as fully sustaining the doctrine that an elegit must first be issued (see note to Duke of Marlborough before referred to). We think we have already shown that the docket of a judgment gives the creditor no title to the real estate. In doing that, he has not proceeded as far as he can towards obtaining a title ; and yet this case of Brinckerkoff v. Brown, seems to have been principally relied upon in the subsequent cases in our courts, and hereafter referred to.

In the case of McElwain v. Willis, 9th Wendell, 548, the complainant had obtained two judgments. On the first, an execution had been issued, and returned unsatisfied, and on the‘second judgment, an execution had been issued, and was in the hands of the sheriff, at the time of the filing of the supplemental bill. The object of the bill was to set aside an assignment made by the judgment debtors, and which was alleged to be fraudulent and void; the bill was taken as confessed, against one of the judgment debtors, but was answered by some of the assignees, and demurrers were interposed by others. The demurrer of the defendant Willis, was to the supplemental bill, and for want of equity. The demurrer was allowed ; and so far as the question arose in relation to real estate, it was allowed because there was no averment in the bill, that the judgment debtors had then, or had previously had, any real estate, upon which the judgment was, or might have been, a lien ; and as to any equitable interests or property, not liable to execution, the demurrer was allowed, because the execution had not been returned unsatisfied. It is conceded that in this case, Mr. Senator Tracy makes the remark, that “ a judgment creditor may file a bill in respect to his lien on freehold estates, without proceeding to execution but that was not one of the points arising in the case, and was not passed upon by the court. The reference which he makes, is to 1 Atkinson on Conveyances, 513. And whatever may be the text of that writer, he is certainly not sustained by the decisions in England ; but, as we have before remarked, all these decisions are directly the other way. The text of the most eminent elementary writers is to the contrary. Thus Lord Redesdale, in his treatise (Mitford on Pleading), says, “ Thus in the cases alluded to, of an elegit and fieri facias, he must show that he has sued out the writs, the execution of which is avoided, or the defendants may demur ; but it is not necessary for the plaintiff to procure returns to those writs,” and also (page 114), “ courts of equity will also lend their aid to enforce the judgments of courts of ordinary jurisdiction, and, therefore, a bill may be brought to assist the execution of an elegit or fieri facias, when defeated by a prior title.” And also, in Cooper’s Pleading, 148 : “ But in those cases where the court lends its aid to enforce judgments, it must appear that the plaintiff has done every thing in his own power, before he prays for the aid and assistance of a court of equity. If, therefore, he does not state that he has actually sued out execution, and taken out his fieri facias or elegit, the bill may be demurred to.” In Clarkson v. De Peyster, 3d Paige 320, the chancellor says, that for the purpose of removing obstructions, it is not necessary for the creditor to issue an execution, and he cites also 1 Atkinson on Conveyances, and 1 Paige, and Brinckerhoff v. Brown, 4 John. C. R. above referred to. In the case of Clarkson v. De Peyster, one judgment creditor had issued an execution, which was returned unsatisfied; the other held a, decree, and execution had been, issued, and was in the hands, of the sheriff, when the bill was filed. The question did not arise, in that case, and its determination was not necessary. No roaspns are given in any of these cases in our courts, and we think we have shown that the authorities upon which the dicta-, haye. rested, do not support the positions.

We are satisfied that the rule, as settled by many adjudicated cases in England, that the execution must first be issued,, before, a bill can be filed, to set aside incumbrances or obstructions upon real estate, is. correct, and is founded upon principle,, a,n.d we- yield to it. our assent. This objection to the complainants.’ bill of a want of equity, would have been fatal upon demurrer, and is equally fatal when raised upon the hearing.

The objections which we have now considered, apply generally to the bill, so far as it seeks to set aside any conveyances made by the defendants, or to reach any property in the hands of any of the defendants,, except the. defendant James L. Graham. As to bim, it prays that his discharge in bankruptcy may be set aside, and that the debt of the complainants may be. reinstated against him, and satisfied, and paid, out of any property now owned by him. The grounds upon which the. complainants rely, to avoid this discharge, are, that subsequent to the passage of the act, and after it went into operation, he gave preferences to some of his creditors, and that he did so, in. contemplation of availing himself of the-benefit of its provisions, and, also, that he fraudulently and wilfully concealed property. Upon the hearing, we were called upon, to determine whether a bill could be filed, to set aside a bankrupt’s discharge, and upon the authority of the case of Alcott v. Avery, 1 Bor. Ch. R. 347, we decided that such a bill, for the purpose of reaching subsequently acquired property, might be filed. Our examinations and reflections since the hearing, have led us to doubt the correctness of that ruling, and to consider, whether an action at law, should not have been commenced. Still, as under the change of proceedings in this state, the question is not now of practical importance, and as we shall proceed, to determine the matter upon the construction of the several pravisiQns of the bankrupt act, we have concluded to consider the bill as rightly filed, according to our previous ruling, and therefore forbear a discussion of the question.

There is a manifest distinction between acts, which are a fraud upon the bankrupt act, and acts, which are in themselves fraudulent; that is, cases of actual fraud. Now, it seems always to have been held in England, that preferences given by the debtor in contemplation of bankruptcy, were a fraud upon the bankrupt act, and the assignees could sue for, and recover back, the sums paid to preferred creditors. The preferences are void, it is said, because they tend to defeat the equality of the bankrupt law. Rust and others, assignees, &c. v. Cooper, Cowper 629; Devon, &c., assignees, v. Watts, Douglass 86. Buller, Justice, “ The motive, perhaps, was not culpable, but the transaction was contrary to the general policy of the law.” Hossels, &c., assignees, v. Simpson, Douglass 89 (note); Poland and others, assignees, v. Glyn, 2 Dow and Ry. 310; Wilson, assignee, v. Balfour, 2 Camp. 519. There are many other cases to the same effect, running through the English reports. The preferences are declared to be a fraud upon the bankrupt act, and the assignees in bankruptcy, may sue for, and recover back from the preferred creditor, the amounts paid or assigned to him. Such preferences also constitute acts of bankruptcy, but do not, in England, prevent the discharge of the bankrupt. The act of United States of 1841, § 2, makes such preferences void as a fraud upon the act, when made in contemplation of bankruptcy, and authorizes the assignee to sue for, and recover the amount; and it also declares that “ the person making such unlawful preferences and payments, shall receive no discharge under the provisions of this act.” Though the bankrupt, in the language of Bayley, Justice, in Poland v. Glyn, pay “ the money upon motives honorable, certainly to him, as an individual, but which cannot be recognised as a defence at law, yet the payment is unlawful.” It would be no defence, to a suit by the assignee, and no answer to an objection interposed to prevent the bankrupt’s discharge at the time of the proceedings in bankruptcy. It is not a case of actual fraud ; but, it is a fraud upon the act. The preferences may be unlawful. But though they may be unlawful, and though, if the question had been raised in the courts of the United States, when the bankrupt applied for his discharge, his application would have been denied ; still, is the fact, if admitted, that the bankrupt in contemplation of bankruptcy, made unlawful preferences, a ground for, after-wards, before another tribunal, impeaching his discharge ? It was said by Lord Eldon, in ex parte Mawson, 6 Vesey 614, in a case, where by the statute, the charge of gambling would prevent the certificate or even be a good ground for impeaching it: “I do not think you can get rid of a certificate that has been obtained, in every case in which you can stay a certificate.” And under the U. S. act of 1841, there would seem to be very manifest differences made between those transactions of the bankrupt, which would prevent his obtaining a certificate, and those, which would impeach it after it was obtained. We have referred to the § 2 of the act. In the § 4, the causes of objection to the obtaining of a certificate, are enumerated as follows:

“ And if any such bankrupt shall be guilty of any fraud, or WILFUL CONCEALMENT OF HIS PROPERTY, OR RIGHTS OF PROPERTY, or shall have. preferred any of his creditors, contrary to the provisions of this act, or shall wilfully omit or refuse to comply with any orders or directions of such court, or to conform to any other requisites of this act, or shall in the proceedings under this act, admit a false or fictitious debt against his estate, he shall not be entitled to any such discharge or certificate ; nor shall any person, being a merchant, banker, factor, broker, underwriter, or marine insurer, be entitled to any such discharge, or certificate, who shall become bankrupt, and who shall not have kept proper books of account, after the passing of this act; nor any person, who, after the passing of this act, shall apply trust funds to his own use.”

It will be seen that all the causes of objection to the obtaining of the discharge, are enumerated. The same section after-wards prescribes as follows:

“And such discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a- full and complete discharge of all debts, contracts, and other engagements, of such bankrupt, which are proveable under this act, and shall be, and may be pleaded as a full and complete bar to all suits, brought in. any court of judicature whatever, and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for some fraud o'r wilful concealment by him, of his property, or rights of property, as aforesaid, contrary to the provisions of this act, on prior reasonable notice, specifying in writing, such fraud or concealment.” It will be observed, that the expressions, “ fraud or wilful concealment of property,” are precisely the same, as those used in the foregoing part of the section, as indicating some of the grounds, which should prevent a bankrupt’s discharge. The other enumerated objections to the allowance of the certificate, such as preferences, not keeping proper books of account, not obeying the orders of the court, &c., seem to be studiously omitted. We could not construe the expressions “fraud or wilful concealment of property,” as meaning “or shall have preferred any of his creditors, contrary to the provisions of this act,” without construing them also to mean, “ or who shall wilfully omit or refuse to comply with any order or direction of such court,” and also, “ who shall not have kept proper books of account.” All the grounds of objection to obtaining the certificate, are distinctly enumerated. The discharge, when obtained, can be impeached only on one of those first mentioned, “ fraud or wilful concealment.” The language of the act, seems to us, to be clear and unambiguous. A preference made by a failing and insolvent debtor, though it may be unlawful, and contrary to the provisions of the bankrupt act, was, never, in this country, or, so far as we know, in any other, considered to be a case of actual fraud. It may be a malum prohibitum, but not a malum in se. The word fraud, as used in the § 2, and generally in the act, so far as it is used in connexion with the preference of creditors, seems to be used in the same sense as the word unlawful. The preferences, by the act, were rendered void and unlawful. They prevented the issue of the certificate, but only actual fraud operated to set it aside. The debtor who had parted with all his property to his creditors, but who had given to one more than to another, could not have obtained a certificate, if those creditors, not preferred, interposed an objection at the time of his application in bankruptcy. Then was the time to interpose such objections. The case of fraud, of wilful concealment of " the bankrupt’s property, to be retained 'for his own 'benefit, is widely different. The very "first step which he took, the petition which he would present, would be stamped with perjury ; a certificate of discharge thus obtained could always be impeached. It must be borne .in mind, however, that in commercial countries, discharges in bankruptcy are always impeached with great caution. After the lapse tif years, petitions to set "aside discharges, are sometimes at once rejected ; and they are seldom granted, -Avithout a reference to ascertain how far the proceeding may affect other Iona, fide creditors, who may have traded with, and trusted the bankrupt, after Ms discharge, and upon the faith of his certificate.

In the case now before us, if it were conceded that preferences in contemplation of bankruptcy, were acts of fraud, and vitiated the discharge, we should still think that this discharge would be good; as we feel fully Avarranted by the proof in saying, that when the preferences were made, the defendant did not contemplate availing himself of the -provisions of the act. We were satisfied fully upon the hearing, that there was no foundation for the charge of concealment of property. Laying aside the question as to preferences, there is not, in our judgment, the slightest ground for impeaching this discharge. Though we have preferred to place our decision upon the grounds which we have noAV considered, we feel it our duty to say, that if a determination of the entire merits of the case had been rendered necessary, we should have directed the same decree to-be entered. The complainants, in our judgment, have failed, on -the merits, in making out their ease.

The bill must therefore be dismissed as to all the defendants.

The question of costs, in this case, is one not free from embarrassment. While Ave think that the bill must be dismissed, as against all the defendants, with costs, we -cannot consent to allow a taxation in the usual manner, and thus give to -the defendants the benefit of their voluminous answers. The pleadings and proofs are for magnitude, it is believed, unequalled by those of any leg'al controversy in this country. The defendants, except the defendant Jones, have all -put in-separate answers; and the extent of these answers may be judged of from the fact, that-five of them, if printed, would make nearly or quite twelve volumes of the ordinary size of our volumes of reports. The answer of the principal defendant, Graham, contains a full record of his various transactions for a period of thirteen years, embracing contracts, deeds, and mortgages, and going oftentimes into great detail; and others of their answers, although only on information and belief, repeat the same story, and set.out the various transactions in the like detail. Though .the bill is a very searching one, and the interrogatories.numerous and minute, still we find many things, in these answers, unnecessary and uncalled for. Especially is this true of some of the answers, where the knowledge of the defendants was almost entirely upon information. . We cannot allow these answers in full. There must be large deductions made, and in order to avoid a reference,, which .could not fail to be protracted and expensive, even if we w.ere able to fix any precise rule which should govern the referee, and being also anxious, to put an end, if possible, to a controversy which has already occupied so much of the time of this court, we have, after examination and reflection, concluded .to fix ourselves the allowances to be made tó the defendants for their answers as follows. The answer of James L. Graham is allowed at twenty-five hundred folio. The answer of James Graham five hundred folio of draft, and five hundred folio of copy—in all one thousand folio. The answer of Paschal W¿ Turney also five, hundred folio of draft, and five hundred folio of copy—in all one thousand folio. The answer of Alexander Kelsey four hundred folio of draft, and four hundred- folio. of copy—in all. eight hundred .folio. And" the answer of Joseph B. Varnum two. hundred folio .of draft, and two hundred folio of copy—in all four hundred folio. Charges of course to be made for the usual copies of the answers, at the above enumerated folios. The other costs to which these "defendants are entitled, are, to be allowed them, and taxed according to the rules -of the late court of chancery. The. remaining defendants are entitled to their full costs.


author: Sandford, J.

text:
    George Bridge, Respondent, v. Ira F. Payson, Appellant.
    In an answer, under the code, each statement intended as a defence must be complete in itself, but to mark it as a separate defence, no formal commencement or conclusion is required,
    A prayer for relief in an answer, is only necessary when an affirmative relief is sought. It is needless when the only object of a defence is to prevent the plaintiff's recovery.
    Nor is it necessary that a defence should be accompanied with the reason why it should operate as a bar.
    When a fact is stated, in a pleading under the code, which constitutes of itself a cause of action, or a defence, the intent to rely upon it as such is a necessary inference. No allegation to that effect is requisite in the complaint or answer.
    As there can be but one answer under the code, it must contain every defence, whether operating in abatement, or as a perpetual bar, upon which the defendant means to rely.
    Hence, it is no objection to an answer, that after taking issue upon the material allegations in the complaint, it allegeá, as a defence, matter in abatement.
    The omission of a defendant to move for a judgment dismissing the complaint, under § 154 of the code, does not preclude him from demanding such a judgment upon the trial.
    Ás a judgment contrary to an admission in the pleadings, would be certainly erroneous, the objection, if made on the trial, must be allowed.
    When a person, liable only as a partner, is sued alone, the non-joinder of his. co-partner is a valid defence.
    The rules of law applicable to the ease have not been altered by the provisions of the code.
    In this case the defendant was sued alone, in an action for goods sold and delivered. In his answer he denied the sale, and alleged, that if liable at all, be was only so as one of a firm, composed of himself and one Rogers. To this allegation the plaintiff omitted to reply. Yet upon the trial, the jury, under the direction of the judge, found a verdict in his favor, upon which judgment was entered for him with costs.
    Held that this judgment was erroneous, and that unless the plaintiff should elect to amend, by making Rogers a party, the complaint must be dismissed.
    (Before Sandford & Mason, J. J.)
    October 8,
    November 8, 1851.
    This was an appeal, by the defendant,.from a judgment at a special term, in favor of the plaintiff.
    It is necessary to state the pleadings, in order that the questions raised, and the decision of the court, may be clearly understood.

      The complaint and answer are as follows :—
    George Bridge, the plaintiff in this action, complains of I. F. Payson, defendant, a resident of the city and county of New York, and says that the said I. F. Payson, defendant, is indebted to him for goods, wares, and merchandise, sold and delivered to the said defendant, by the plaintiff, in the city of New York ; that the plaintiff sold to the defendant, on the 13th day of October, one thousand eight hundred and forty-nine, a bill of goods and merchandise, amounting to the sum of four hundred and fifteen dollars and seventy-three cents ; and on the ninth day of May, one thousand eight hundred and forty-nine, another bill, amounting to the sum of forty dollars and fifty-nine cents-, the whole of which is still due and unpaid, with interest after six months from the time of delivery.
    The plaintiff, therefore, claims judgment for the sum of four hundred and fifty-six dollars and thirty-two cents, with interest on the respective amounts, as follows :—On the small bill, from the ninth day of November, one thousand eight hundred and forty-nine, and on the large bill from the thirteenth day of April, one thousand eight hundred and fifty, besides the costs-of this action.
    The defendant, Ira F. Payson, answers the complaint of George Bridge, the plaintiff, that he has no knowledge sufficient to form a belief, whether the goods, wares, and merchandise, mentioned in plaintiff’s complaint, were sold and delivered tollina ; and he cannot, therefore, admit that he is indebted to th& plaintiff. That if defendant is indebted to said plaintiff, it is as one of the firm of Payson & Co., a firm doing business at Flint, Genesee co., Michigan, and composed of Ira Payson (this defendant) and Thomas V. Rogers; that this defendant now resides temporarily in the city of New York, and that Thomas V. Rogers, his co-partner, now lives at said Flint, Michigan; that said Rogers has the whole control and attention of the business of said firm, and if any merchandise has been purchased of said plaintiff, it has been for the business of said firm, and under the knowledge and advisement of said Rogers, and this defendant has no knowledge sufficient to form a belief, whether said merchandise, or ány óf it, has been delivered to Payson &' Go., or if delivered, if it has not been paid for already, and before the commencement of this action.
    To this answer there was no reply.
    " Upon these pleadings, the cause" came on" to be tried1 at' a special term, before the chief justice, and a jury, on the 30th May, 1851, and the following proceedings were had :
    The counsel'for the defendant', upon the pleadings’,'moved that the complaint of the plaintiff be dismissed, or a non-suit granted for a non-joinder of parties defendants. The court denied' the motion, and the counsel for the defendant excepted.
    The counsel for the plaintiff then produced witnesses, who proved that the goods and merchandise mentioned in' said complaint, were sold to Payson & Co., a" firm composed of Ira F. Payson, the defendant, and Thomas Y. Rogers. The place of business of said firm was Flint, Genesee county,"Michigan, to which place the said goods were shipped, and where the said Rogers then did, and now does reside; that the said goods were charged on the books of said plaintiff, to Payson' & Co.
    " The counsel for the plaintiff then rested his cause. The counsel for the defendant then renewed his motion for á non-suit, or dismissal of plaintiff’s complaint, upon the pleadings, and plaintiff’s proof. ,
    The court denied the motion,' and the counsel for the defendant excepted.
    The judge then directed the jury to find for the plaintiff, and 'to this direction the counsel for the defendant also excepted.
    The verdict of the jury Was for the sum'of $490 91, for which amount, with'$50'81 for costs and disbursements, judgméníwas entered for'the plaintiff.
    ' ; The cause'was now heard upon the exceptions taken on the trial.

      H. R. Pierson, for the defendant.
    .The law is settled, that where a partnership' debt is sought to be recovered, all the living members of the' có'pártnership ¡^j-musibe joined’gs defendant's in the action,! Chi tty on'Part. *28. Here the plaintiff’s only cause of action, not' only' a’s shown by the answer, to which there was no reply, but as proved by himself upon the trial, was against the firm of Payson & Co. The answer was equivalent to a plea in abatement for the non-joinder of a joint debtor, and as such plea, it was both admitted and proved to be true. The judge therefore erred in refusing to dismiss the complaint, and the judgment must bo reversed.

      H. Brewster, for the plaintiff, made and argued the following " points:
    I. The counsel for the defendant asked for a dismissal of the _ complaint, because issue was not joined.
    An objection of this kind should be taken by motion, under § 154. Going to trial is an admission that issue is properly* joined.
    Trial is an examination of the issues, Sections 248 to 253, óf the code. "'
    II. The averment in the first five lines of the answer forms' an issue on the principal fact in the complaint within the rule in subdivision 1 of § 149, and is equivalent to the old general issue. ‘ '•
    The other parts of the answer are made up of the reasons for so faint a denial of the allegations of the complaint. This' mode of pleading to prevent inferences, is quite common under our new system.
    III. Having thus set up one defence, if he intended to make any other, he was bound to state it separately, code § 150. By attending to this rule the intention would be clear, and the op-: posite party not misled.
    IV. After having thus taken issue, it is too late for the defendant to allege matter in abatement, 1 John Cas. 101; 2 Cow. 417; 13 Wen. 285; Steph. Pleading, 430 to 433.
    There is nothing in this rule inconsistent with the code, and" § 469 applies.
    V. The answer does not sufficiently show an intent to raise, an objection on the ground of non-joinder, nor is the answer good in form. Only the forms inconsistent with the code are" abolished, § 140,; (Dollner v. Gibson, 3 Code Rep. 153; Boyce v. Brown, 7 Barb. S. C. R. 80, 85.)

      It is not inconsistent with the code to require an answer in abatement to state the matter with precision, and show clearly what judgment the party seeks to obtain. Here is no statement that Rogers ought to. be a party, as was always required in equity, nor a prayer that the complaint be quashed, nor even an objection to the maintenance of the suit against the defendant alone, 13 Wen. 495; 1 Ch. Pl. 460; Steph. Pl. 48; Ch. Forms, 3 vol. 900; Eq. Drftsmn. 452; Gra. Pr. 2 Ed. 229 & 230; Trinder v. Durant, 5 Wen. 72; 10 Johns. Rep. 49.
    VI. Abatement for non-joinder has been abolished by the code. The code declares who shall and who may be parties.
    Within the provisions of § 118, Rogers might be a party ; but § 122 declares who must be parties.
    That section read as follows :—
    § 119.—The court may determine any controversy between parties before it, where it can be done without prejudice to the rights of others, or by saving their rights ; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in.
    The question is, whether the court can determine the controversy between these parties, without prejudice to the rights of Rogers. As I shall show, he will not be prejudiced.
    1. The judgment will not affect him. The commissioners on the code, say (Comm.’s Report, 123 to 125), “ No person can be affected by a judgment, but a party, or one-who claims under him.” Nor will it work any injustice to the defendant.
    If both defendants are brought in, the court will not settle the partnership accounts or their rights between themselves.
    2. Where process is only served on one of several parties, the one before the court represents all the parties as to the joint interest; therefore complete justice may be done (Mason v. Denison, 11 Wen. 612).
    This defendant can just as well represent the interests of both, as if process issued against the other which could not be served.
    3. The origin of the defence of non-joinder, was a supposed variance between the contract as laid, and the contract as proved (Sheppard v. Baille, 6 T. R. 327; 1 Saund. Rep. 291); and on account of the injustice of the old rule the courts, modifying it, required it to be pleaded in abatement. (Rice v. Shute, 5 Burr. 2611; 1 Saund. Rep. 291, 6 note (4) 1 Ch. Pl. 46; Steph. on Pl. Phil. Ed. 1841. App. xxix. note 23.)
    It was much earlier held that the defendant must plead the non-joinder in case of a specialty. (Whelpdale’s case, 5 Coke, 119; Burgess v. Abbott, 6 Hill, 135, and cases cited.)
    Non-joinder is said to be an ungracious defence. (1 Hill, 478, per Cow. Justice, cases above; also Williams v. Allen, 7 Cowen 316, 9 Cowen 44.)
    Was it ever doubted that complete justice could be done in the case referred to ? (Mechanics’ and Farmers’ Bank v. Rider, 5 Pr. R. 401.)
    4. This defence cannot abate the suit if taken by plea, in any action not directly on contract. (Mitchell v. Tarbut, 5 T. R. 659; Orange County Bank v. Brown, 3 Wen. 158.)
    It is doubtful if the non-residence should not be allowed to control. (Dennet v. Chick, 2 Greenl. R. 191; Sto. Eq. Plead. § 78 and § 82.)
    5. The report of the commissioners shows what they intended by these provisions, and we think that intention indicated in the act itself.
    They say :—“ Having prescribed these rules, we have intended to leave suitors very much at liberty to choose whom to make defendants, and whom to join as plaintiffs.” (5 Prac. Rep. 101 & 102; Report of Commissioners, 124 & 125.)

      Pierson was heard in reply.
   By the Court.

Sandford, J.

The plaintiff makes several objections to the form in which the defence was presented and urged. We will consider them in their order.

I. Part of the answer putting in issue the sale to the defendant, sets up one defence, and if any other were intended, it should have been stated separately. This is amplified by insisting that the manner in which the subsequent defence is pleaded, does not sufficiently show an intent to raise an objection on the ground of a non-joinder of the defendant’s copartner ; that if properly pleaded, the defence would allege in terms that the copartner ought to be made a party, or would cóútáí'n' a:,pfayéf that the complaint be quashed.

' As to all this, the code • requires' séparate defeiicés to ■ be' separately stated ; but wé apprehend this means nothing more'' than that there shall be “a plain and concise statement of any nfew matter constituting a defence.” Each statement intended as a defence, must be complete in itself; but the code does not réqñire any formal commencement or conclusion' of such statements. On the contrary, the whole spirit of the code is'hostile to" both; There is no occasion for the answer to contain any prayei; for relief, or to demand relief, where hone "is'sought by the defendant. Here the defence was to the plaintiff’s ‘c'laitii'; it made’no-' affirmative claim on the part of the defendant, ■ and all he desired was to prevent the plaintiff from recovering a judgment against him. Nor is it necessary", after inserting in ah' answer a statement, which shows that thé plaintiff ought not to recover,to*accompany it with the reason ; as in this instance, because he had omitted to bring before the court the necessary parties."

We think that this answer sufficiently shows the intent tor rely upon the objection of nonjoinder. Where a fact is stated in a pleading, which of itself constitutes a cause of action, or a defence to the action, the intent to rely upon it is a necessary inference. No allegation to that effect is requisite, either iií a complaint or answer. Here, the defendant, after traversing'the salé to himself, which made one complete defence, stated as a distinct and positive" fact, that‘if the goods in question were purchased of the plaintiff, it was by the defendant, and one Rogers, as partners, and that Rogers is still living. This fact constituted another separate and complete ground of defence, and ■vfe think it was sufficiently' pleaded.

2. It is objected that; after taking issue on the principal-fact in the complaint, it is too late to allege matter in abate-: ment. This is clearly an error. If the matter in abatément constitute a defence, it must be stated-in: the answer. There, cannot,be two answers1,'and the answer may set forth as many: grounds of defence as: the defendant shall have. (Code of Proc. §-‘ 150.) A defect óf parties, apparent in the complaint,' iáground of demurrer : if not so apparent, it may be set up in; the añswer. (Code,- 144, Aid. 4/ and § 141.)

3. The objection to the recovery, it is said, should have been taken by motion, under section 154 of the code. It is probable, the defendant might have made this motion, but his omission did not alter the case made by the pleadings, or create any bar to his relying upon it, whenever the plaintiff moved in the cause. We do not say, that he ought to recover costs, when he prevails at the trial upon a ground which was available to him on such a motion. But a judgment entered upon a trial, in the face of an admission by the pleadings, showing that there ought to be no such judgment, would be erroneous, and, of course, the objection, if made at the trial, ought to prevail. In this case, the plaintiff proved on the trial the fact set up in the answer, and therefore established the latter, even if the omission to move for judgment be deemed to be an admission that the fact was in issue.

This brings us to the substantial point in the case—Can a defendant, sued alone on a contract, set up as a defence, that hiscopartner, equally liable with himself, is not joined as a party defendant ?

After considering the question, with the benefit of a consultation with our brethren, who all concur with us, we think that fhis constitutes a defence.

It is not denied, that before the code, when properly pleaded, it was a perfect defence to any recovery, in the action against the parties sued. What was a defence before the code, is still a defence, except in the instances where the code itself, has altered the law. The plaintiff relies upon section 122, as having, made this alteration, in the provision that the court may determine any controversy between the parties before it,, when it can be done without prejudice to the rights of others, &c.

It is quite apparent that the rights of other partners might be prejudiced by the omission to make them parties, as where they have paid the debt sued, or have some other defence to the claim, of which the partner sued is ignorant, or chooses not to avail himself. In the event of a judgment against him, and its collection, the amount of it becomes a proper item of account between him and his copartners, and they cannot avoid its allowance by proving that the recovery was wrong and unjust, nor in any mode short of proof of bad faith in their partner, against whom it was recovered.

It will often be a serious prejudice to a joint debtor, sued alone, to be compelled to pay the whole debt, and resort to his associate debtor for contribution. Partners after a dissolution, are merely joint debtors, and after a settlement between themselves, stand precisely in the same relation, in respect of their outstanding liabilities. The same reasoning that is applicable to joint debtors, will apply to such partners, and the same rule of practice, it is believed, must be applied to partners, both before and after dissolution.

There are some provisions in the code, which indicate that there was no intention to change the rule of law requiring all joint contractors to be sued together. We refer to sections 136, 375, 397, the second sentence of section 274, and the portions of sections 144 and 147, applicable to a defect of parties. No serious inconvenience can result to plaintiffs, by requiring them to make all the joint debtors parties defendant in a suit upon contract. If they are ignorant of the debtors’ names, as may often- happen in suits against a partnership, they can, by an amendment, made of course and without costs, bring in the omitted partners, on their names being disclosed by the answer of those who were sued.

In this case, the plaintiff was informed by the answer, that Rogers -was jointly liable for his demand, if any he had, and he should have amended, instead of going to trial with that fact admitted.

The judgment in his favor must be reversed, and unless he will amend, so as to make Rogers a party, his complaint must be dismissed.


author: Mason, J.

text:
    George S. Howland v. Isaac Willetts, Sheriff of Queen’s County.

      (Transferredfrom Supreme Court.)

    A witness may refresh his memory by looking at extracts from his own books, or the books of a firm, of which he is a member.
    If the witness, after thus refreshing his recollection, is able to swear positively to the facts, the production of the books is unnecessary.
    Nor does it matter whether the entries, to which he refers to refresh his recollection, were made by himself, or by a third person.
    The permission given by a judge to the jury, to take out with them, when retiring to deliberate upon their verdict, the deposition of a witness that had been read in evidence, is not a proper subject for an exception.
    Such a proceeding may be irregular, but the remedy of the party objecting, where he is entitled to any, must be sought by motion, and rests in the sound discretion of the court.
    A public officer, when sued for an official act, may waive the benefit of the statutory provision, that unless it appears upon the trial that the act was done within the county, where the trial was had, the jury shall be discharged, and a judgment of discontinuance be entered.
    It is upon the trial that the objection must be raised, and the omission of the defendant to raise it then, is to be regarded as a waiver, by which he is concluded.
    Motion for new trial denied, and judgment for plaintiff with costs.
    (Before Oakley, Ch. J., Mason & Paine, J. J.)
    8th Oct.,
    10th Nov., 1851.
    This was an action of replevin, 'commenced before the code, and is the same in which a new trial was heretofore granted by this court (3 Sand. S. C. Rep. p. 607). It came on again to be tried before Mr. Justice Paine, and a jury, on the 4th March, and a verdict was rendered for the plaintiff.
    Upon the trial, one John H. Smith, a witness for the plaintiff, being examined as to the acts of Caleb Smith & Co., a firm of which he was a member, looked on a paper, which, he said, was extracts from the books of the firm. The defendant’s counsel objected to his looking at, or testifying from such paper, without the production of the books themselves. The judge overruled the objection, and the counsel excepted.
    On the retirement of the jury, the judge allowed the deposition of one Henry W. Scott, which had been read in evidence, to be handed to the jury, and taken out with them.
    The counsel for the defendant objected.
    His objection was overruled, and he excepted'to the decision.
    A bill of exceptions was sealed on the behalf of the defendant, and on this, a motion for a new trial was now made.
    The bill contained other exceptions in addition to those that have been stated, but it was to these that the argument was.confinecl.

      D. D. Field, for the defendant,
    cited, in support of the,first, exception, Jones v. Strand, 2 Carr & Payne 196; Doe v. Perkins, 3 Jerm. R. 749; Lawrence v. Baker, 5 Wend. 301; Murrill v. Ithaca & Owego R. R. Co. 16 Wend. 591, 600; 2 Cowan & Hill’s notes, 755-6; and in support of the second, he referred to the case of the Farmers’ & Manufacturers’ Bank v. Whinfield, 24 Wend. 419. He stated that there was another. objection which, although not stated in the bill' of exceptions, was manifestly fatal. It was that, the action being against the. sheriff of Queens county, for an act done by him within his county., by virtue of his office, it was the duty of the court, as soon as the fact was in evidence, to discharge the jury, and to render against the plaintiff a. judgment of discontinuance (2 R. S. 353, 428, id. 494, § 2; Code of 1849, §§ 33-124. Hull v. Southworth, 5 Wend. 265; Lorr v. Humphrey, 9 Wend, 204);

      A. Childs, for the plaintiff—contra.
   By the Court.

Mason, J.

There, were several, exceptions taken on the trial of this cause¡ only two,of which were.insisted upon on the argument before us..

The first of these was to the decision of the court, overruling the objection taken. to: the testimony of, John H. Sinith.He was examined as to the account of Caleb H. Smith,& Co., a firm of which he,, the. witness, was a inember, and- looked at a paper in his. hand, which he- said was an abstract from entries in the books of Caleb, N. Smith & Co., of which, firm,, he, the- witness,, was also a. member. The, defend-. ant’s "counsel objected to his looking at, or testifying from-such paper, without- the production of the books themselves, ’ which objection' was overruled by the - court, and the defendant excepted.

The exception was • too broad. It’does not • appear from the case that the witness testified from the paper; or that he did anything more than merely look- at it, in order to refresh his memory, and then testify from his recollection thus refreshed. This he had "an undoubted right to do. It is not possible for "witnesses to carry in their heads details of dates and accounts, or even of business matters in which they have been engaged ; and if they are not permitted to refresh their recollection, by reference to books ' or memoranda of the transaction about which they are examined, it would be extremely difficult, if not impossible, often, to obtain reliable testimony in relation to ordinary business transactions. If the witness, after looking at the books themselves or memoranda taken from them, is able to swear positively to the’facts, the evidence is competent without the production of the books, and it matters not whether the entries have been -made by the witness himself, or by another person. These are familiar principles which are acted upon every day, and "are too well settled to be seriously .disputed (1 Greenleaf Evid. § 436, 437; Cowen’s & Hill’s notes, vol. 2, p. 757).

The next exception was to the permission given by the judge to the jury", to take "out with them when they -retired the deposition of Henry" W. Scott, which had been read in evidence by the plaintiff.

We do not think that this was a subject for an exception. If the permission was wrongly" given, it was rather an irregularity, which would not of itself avoid the verdict. It is laid down by Lord Coke, that if the jury carry away any writing unsealed, which was given in evidence in open court, this shall not avoid their verdict, "albeit they should not have carried it with: them (Co. Litt. p. 227, b.) Assuming that Lord Coke refers to the jury taking away such a writing without the permission of "the judge, we do' not see how the judge’s permission can fender the’verdict void, when it would not be so, if his-per"mission had "not béeü given.

The remedy of the defendant, if he is entitled to any, is bv motion to the court. And then upon hearing both sides, the verdict would be set aside, or sustained, as justice between the parties might require. This course was pursued in Hackley v. Hastie, 3 J. R. 252, in which case the jury had carried with them depositions under a commission, without the consent of the counsel. The court denied the motion, because it appeared from the affidavits of several of the jurors that the papers had not been read by the jury. The same fact, or something equally conclusive, might possibly be shown in this case, if an opportunity were afforded, to resist a motion to set aside the verdict.

These were all the exceptions taken on the trial, whicn were argued before us on the hearing, and neither of them, in our judgment, was well taken

An objection, however, was made for the first time, on the hearing of the bill of exceptions, to judgment being rendered on the verdict, because the action was brought against the sheriff of the county of Queens for an act done by virtue of his office, and by the statute it could only be tried in the county of Queens.

This action was originally commenced in the supreme court, and the venue laid in the city and county of New York. It was tried before one of the justices of the supreme court, and carried up to the general term of that court, on a bill of exceptions. While it was on the calendar of the general term, it was transferred to this court, and argued at one of the general terms held for transferred causes. A new trial was ordered, and the cause tried again at a trial term of this court; and it was heard before us on exceptions taken at such second trial. The objection to the venue was taken, for the first time, on the argument before us. It was either waived by mutual agreement between the parties, or it did not occur to the counsel on the former trials, or to the judges who presided at those trials, or heard the argument at the general term. If it is to prevail, it must be solely because the statute imperatively requires it.

The section of the statute on which the objection is founded enacts, that in suits against public officers, &c., for acts done by them in virtue of their office, if it shall not appear on the trial, that the cause of action arose within the county where such trial was had, the jury shall be discharged, and judgment of discontinuance shall be rendered against the plaintiff (2 R. S. 409, § 3).

' The statute was intended to promote the convenience of public officers, and to prevent their being compelled to attend to suits of this description, at a distance from home and the sphere of their public duties. It would not be necessary for them, if sued in a foreign county, for any acts done by them in virtue of their office, to adduce witnesses, or to prepare for trial, further than to bring out the fact, that the thing complained of was done by them in their official capacity. On this being made to appear, the jury, on motion of defendant, would be discharged as a matter of course. But when a sheriff, who is sued out of his own county, makes his defence, brings forward his witnesses, submits his cause to the jury, and suffers a verdict and judgment to be rendered against him, without asking for the benefit secured to him by the statute, and then appeals from the judgment on other grounds, there seems to be no reasonable propriety in turning the plaintiff out of court, on the hearing of the appeal, merely, because the trial was had in the wrong county.

Had the defendant in this cause asked the judge to discharge the jury, on the ground specified in the statute, if the fact had been made distinctly to appear, the request would undoubtedly have been granted; and if it had been refused, the refusal would have formed good cause for exception. The defendant, however, did not think proper to do so, but submitted the case to the jury. If, in fact, he was sued for an act done by him, as" sheriff of the county of Queens, we think that he has passed, the point at which he might have availed himself of the benefit of the statute.

The supreme court, in the case of Lowe v. Humphrey, (9 Wend. 204,) held that they would not, in a suit against a public officer, give judgment on demurrer, in 1ns favor, on the ground that the venue was laid in the wrong county. The party, they held, was confined to his statutory remedy. In accordance with the principle of that decision, we should feel bound to refuse to render judgment on this bill of exceptions in favor of the defendant, even if it clearly appeared- that .the- defendant/was ■ sued for acts doné by him; In his official capacity.

. But that does not appear on this record. . Neither the; plead-' ings, nor the evidence, disclose the fact. The notice annexed to the plea is no part of .-the record, and: if it were, it does not establish any fact. Edmund Dwight,, who might, perhaps have ■proved the fact, was clearly an incompetent'witness, and his testimony was properly excluded. . There is nothing in. the, case then, as presented to us, inconsistent, with the idea,- that the -trespass complained of, was committed by the defendant, in the city - and county .of New York, and in his private, as distinguished from his public and official- character. He is styled in ■the complaint, Sheriff of Queens county, but that is a mere description. It is impossible for us to infer, simply.from that designation- or title given, to the defendant,, that ■ he t,ook the goods mentioned in the complaint, by virtue of a process issued and delivered to him,, as sheriff of Queens county, or in the discharge of his official duty. The: objection is therefore unsupported by any evidence, and must be overruled. The judgment at the special term is affirmed, with costs.


text:
    Joshua W. Brown & William H. Brown v. William McCune.
    The defendant, in an action upon a contract, is not estopped from pleading his infancy, by any declaration as to his age made by him, at the time of the contract.
    The doctrine of estoppel is not applicable to infants.
    AYhen the complaint is upon a contract as the cause of action, evidence of a fraudulent representation or intent, as a ground for-the recovery of damages, cannot be received, although the fraud is alleged in the-reply.
    The cause of -action set forth in' the complaint, .cannot be altered by the reply; ■. nor is the objection waived by the defendant’s proceeding to trial without demurring.
    The denial .by the judge, upon the trial, of a motion to amend a pleading, is pot the subject of an exception.
    B is settled law, that no action as for a deceit, can be maintained against an infant, even when he has attained his age, grounded upon a false representation of his age.
    The observance of the rule seems to be necessary to the protection, which the law designs to throw around infants.
    (Before- Sandfokd, Mason, and Paine, J. J.)
    (Oct. 15;
    Nov. 15, 1851.)
    This was an action for the price of goods, sold and delivered to the defendants, in June, 1846. The only defence set up in the answer, was infancy. The plaintiffs, in their reply, took issue upon the infancy, and also averred, that if the defendant was an infant at the time of the sale, he falsely and fraudulently represented himself to be of age, and thereby induced the plaintiffs to sell, and deliver to him the goods.
    Upon these pleadings, the cause was brought to a trial before Mr. Justice Duer, and a jury, on the 16th of May, 1851. Upon the trial, an aunt of the defendant, who was called as a witness, swore that he was born in her house, on the 14th October, 1825, and consequently did not attain the age of twenty-one, until the 14th October, 1846, and was an infant at the time of the sale made to him by the plaintiffs.
    The plaintiffs then offered to prove that the defendant fraudulently represented himself to be of age, at the time of the purchase of the goods, and thereby induced them-to make the sale.
    The judge said that the admissions of the defendant, in respect to his age, might be received as evidence of the fact, but that he would not receive them, as creating an estoppel, or as evidence of fraud.
    To this decision, the counsel for the plaintiffs duly excepted.
    The plaintiffs' then offered to prove that the defendant purchased goods fraudulently, with an intention not to pay for them—the judge rejected the evidence, and the plaintiffs, by their counsel, again excepted.
    Under the restriction laid down by the judge, the admissions of the defendant • were then given, in evidence, and it was clearly proved, that at the time of the sale of the goods, he represented himself to be of full age, and that it was upon the faith of this representation, that the sale was made. It was also proved, that the defendant had made an assignment of his property, which he had ratified after lie came of age, and that this assignment included the goods purchased from the plaintiffs.
    ; The counsel for the plaintiffs then moved to amend the complaint, by inserting the necessary allegations, to enable them to recover damages, for the unlawful detention of the goods. The judge denied the motion, but gave them liberty to appeal, as from the denial of a motion at chambers, to the general term.
    The counsel on both sides having summed up, the judge told the jury,,that the only question for their determination, was, whether the defendant was, or was not, of age, when the goods were, purchased. The jury found a verdict for the defendant, but added a recommendation to him, “ to pay his honest debts.”
    The plaintiffs appealed from the judgment at special term, upon this verdict, and the cause was now heard upon the exceptions taken at the trial.

      J. J. Tyler for plaintiffs and appellants, moved for the reversal of the judgment, and a new trial, relying upon the following points and authorities :—
    1st. Where a party, either by his declaration or conduct, has induced another person to act in a particular manner, he will not be permitted to deny the truth of his admission. (Dezell v. Odell, 3 Hill, 221.)
    2d. This rule applies to; infants and femmes coverts, and is particularly applicable to this case; for the defendant, by his declaration that he was of age, procured the credit, and was guilty of gross fraud. (Cowen v. Hill’s Notes, p. 207; 1 Story’s Equity, § 385; 2 Kent Comm., p. 239; Jennings v. Whitaker, 4 Monroe R. 51 & 53; Davis v. Tingle et al., 8 B. Monroe, 542; Hall v. Tinmans, 2 Richdn. S. C. 120; Story’s Rep. 478; Savage v. Foster, 9 Modern R. 35; Becket v. Cordley, 1 Brown Chy. R. 358; Lord Teynham v. Webb, 2 Vesey, sen., 212; Evroy v. Nicholas, 2 Equity Cases, 489; Fonblanque, Equity 4 (Am. Ed.), 80 Note, z.; In Bacon’s Abrg. Title Infancy, I. 3; Briston v. Eastman, 1 Esp. R. 172; 2 Sugd. on Vend. 515.)
    . 3d. The code has abolished the distinction between legal and equitable relief, so far as the remedy is concerned. And the allegations in this complaint, answer and reply, being all true, the court must give such relief as the facts warrant, whether it be in its nature legal or equitable. See opinions, &c., collected in Voorhees’ Code of Practice, p. 55 and 111 to 118,. and Code, § 69.
    4th. An infant who fraudulently obtains goods upon credit with intent not to pay for them, is liable. (Wallace v. Morss, 5 Hill, 391.)
    5th. The defendant having assigned the-property before-he was of age, and having ratified it after, (see foL 17,) cannot now repudiate the contract—because he in effect retains the property by placing it beyond his control. (Kitchen v. Lee, 11 Paige, 107.)
    6th. The defendant’s omission to demur to the new matters in the reply, precludes him from objecting to its insufficiency on the trial; and if the'new matter is proved, plaintiff must succeed. (Code, § 155, § 168 ; Monell’s Practice, p. 158; Mann v. Fairchild, 5 Barb. 108; Bogardus v. Trinity Church, 4 Paige, 178.)
    7th. If necessary, the court should permit plaintiffs to amend the pleadings in furtherance of justice, and on liberal terms.. (Code, § 173; Voorhees’ Practice, 152, and cases cited; Balcom v. Woodruff, 7 Bank. 13.)
    8th. If the plaintiffs are wrong, they should be permitted to-discontinue, without costs, and the judgment be vacated. (Van Buren v. Fort, 4 Wend. 209..),

      Geo. W. Stevens, for defendant, made and argued the following points.
    I. The last two allegations of the plaintiff’s reply are inconsistent with the allegations of the complaint, and they were not entitled to give evidence under them.
    II. Evidence of the representations of the defendant as to his; age was admitted, and there was no request on the part of the-plaintiffs to the court, to charge that the defendant was estopped,, by such representations. There is no exception by the plaintiffs, to the charge of the judge.
    III. The denial of the motion to amend was not an appropr'iate ground for exception. (Roth v. Schloss, 6 Barb. 308; White v. Stevenson, 4 Denio, 193.)
   By the Court.

Sandford, J.

The plaintiffs excepted to the decision of the judge, at the trial, on two grounds :

1. Because he held that the defendant's false representation, as to his age, was not conclusive upon him by way of estoppel; and,

2.. Because that fact was not received as evidence of fraud.

There was a further offer to prove that the defendant purchased the goods fraudulently, with an intention of not paying for them, which was, undoubtedly, founded upon the same misrepresentations.

1. In respect of the estoppel. We are not aware that any case has gone the length of holding a party estopped, by any thing he has said or done while he was under age ; and we think it would be repugnant to the principle, upon which the law protects infants from civil liabilities, in general. It is true, that courts of equity have sometimes refused relief, on the ground of fraud or suppression of the parties seeking it, while they were minors ; and we do not deem it necessary to dissent from those decisions. At the same time, we are clear that the doctrine of estoppel is inapplicable to infants. In nearly every ease where litigation has ensued, in consequence of the contracts of infants, such contracts have been made, either on the express statement, or the tacit assumption, that such infants were of full age ; and in the latter instance, the suppression of the truth is as base, as the falsehood, in the former. Yet there is no case to be found in which it has been held, that the infant, on such a statement or assumption, was bound by his contract. If he were thereby estopped from denying his majority, the contract would, of course, be adjudged valid and obligatory upon him.

A contrary doctrine would overturn the whole law relative to the contracts of infants. From, holding that an infant was estopped by a falsehood as to his age, the next step would be to hold him estopped by a suppression of the fact that he was under age, when he was silent on that point, while he knew that the party with whom he was contracting supposed him to be of age. There is no difference in principle between the direct, and the inferential falsehood; the one is as fraudulent, as the other. Then, if we hold that an infant, buying merchandise on his statement that he is twenty-one years of age, is bound by his own contract, we must next hold that an infant executing a deed or mortgage of his real estate, is bound by it, because the act assumed that he was legally capable of executing such an instrument, and he omitted to inform the grantee, that his age incapacitated him from so doing.

Note.—Infants not bound by any forfeiture, even in obligation for necessaries. Ch. Litt. 172; and Tindal, Ch. J., in Cooper; Overton in Bing. 252. See 4 Sand. Ch. R. 37, 43.

We think, that the judge was right in holding that the defendant was not estopped, by his statement as to his age.

2. In the next place, ought the judge to have received that fact as evidence of fraud in obtaining the goods ?

The first objection to this is found in the circumstance- that the plaintiffs did not bring their action for damages by reason of fraud. The complaint is simply for goods sold and delivered. .The reply, it is true, alleges the false representation as to the defendant’s age, and that by that, and other fraudulent pretences, he obtained the goods. But that does not obviate the objection. It is in the complaint, and not in the reply, that we are to look for the cause of action. If the plaintiffs had intended to change their ground of action from a demand upon contract, to one for a fraud, they should have amended their complaint. The statement of the fraud for the first time in the reply, did not avail to make it a cause of action. This objection is fatal to the offer to prove the purchase with the fraudulent intent of not paying for the goods, as well as to the rejection of the false-representation as warranting of itself a recovery.

The application to amend was addressed to the discretion of the judge, and his denial of the motion is not the subject of an exception.

If, however, the complaint had been amended, so as to make it a claim for damages by reason of the false representation as-to the defendant’s age, on the score of fraud, it would not have enabled the plaintiffs to recover.

We believe the law remains as it was laid down in Johnson v. Pie, 1 Kel. 905 and 913 (S. C. on its first argument in 1 Lev. 169), which was an action on the case for a fraudulent representation, by the defendant, that he was of full age, whereby he induced the plaintiff to lend him money on a mortgage, when, in fact, he was only twenty years and six months old, and he afterwards avoided the mortgage for infancy. After a verdict for the plaintiff, judgment was arrested, on the ground, that the action could not be maintained for such a false statement, made by an infant. It is stated in that case that the same point was held the previous term, in the case of Grove v. Nevil.

These decisions have remained the law in Ehgland to the present day (Macpherson on Inf. 482), and we are disposed to acquiesce in them, as well adapted to maintain the protection, which the common law has thrown around infants.

The judgment at the special term must be affirmed.