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faith, believing that the bonds were in the possession of Riggs & Co., without knowledge of the fact that they had been sold and disposed of, a court of equity may properly retain jurisdiction of their action to award them such relief as they are entitled to. But what relief can they have? The bonds are gone, and can be no longer reached. Prior to the sale of the bonds, Riggs & Co. were under no obligation to the plaintiffs, and no judgment in personam could be recovered against them. They held the bonds subject to the lien. But after the sale the relation of the parties was changed. The bonds were converted into money, and Riggs & Co. held the money in the place of the bonds, and having the money, must account to the plaintiffs for the value of their lien. But the lien only covered a portion of the bonds. It did not cover their entire value, and consequently only a portion of the money received upon the sale could be claimed by the plaintiffs. But this portion cannot be separated or identified from the rest of the money, so that we cannot determine that the lien attached to any particular part or portion of the money received; and it does not appear that it has ever been kept separate and distinct from other moneys, so that any particular fund or money can be proceeded against in rem. must therefore treat it as money had and received, for which Riggs & Co. are liable to account to the plaintiffs for the value of their lien. It consequently appears to us that the only relief that could be given would be a money judgment for the amount of the lien. Might not this relief have been obtained by an action at law? The defendants had an interest in the bonds as owners. The plaintiffs had an interest in them as lienors. Both parties were interested. They were not tenants in common, or joint owners, and yet their relations after the sale were in some respects similar to a case where one joint owner had disposed of the entire property, and had received the proceeds thereof. It may have been disposed of under circumstances which would constitute a conversion, or it may have been disposed of under circumstances in which the seller recognized the joint ownership, and received the proceeds as the agent or trustee of such joint owner. In either case, the joint owner had the right to treat the sale as made for his benefit and on his account, and recover in an action of assumpsit the amount of his interest. Riggs & Co. sold the bonds in the open market to strangers, for full value, under circumstances making it difficult, if not impossible, to further trace them. The plaintiffs' lien was thereby made unavailable, and was in effect destroyed. Riggs & Co. having received the full value, must be deemed to have received the plaintiffs' interest, and to hold it for and on their account. It might be called a constructive trust, or perhaps it would be more accurately described as analogous to a trust in which the law implied a promise to pay, and an action in assumpsit would lie therefor as for money had and received. Pierson v. McCurdy, 33 Hun, 520; affirmed, 100 N. Y. 608; 3 Pom. Eq. Jur., § 1234.

It is also contended that the transfer of the bonds destroyed the plaintiffs' lien, and that an action on the case for such destruction could be maintained. Yates v. Joyce, 11 Johns. 136; Lane v. Hitchcock, 14 id. 213; Van Pelt v. McGraw, 4 N. Y. 110; Manning v. Monaghan, 23 id. 539; Hale v. Bank, 49 id. 626; 64 id. 555; Husted v. Ingraham, 75 id. 259. But we do not care to consider this question, for under our views of the case. it becomes unimportant. Our conclusions are, that if an action in equity can be maintained at all, it can be only for a money judgment to the amount of the plaintiffs' claim, and that an action at law may be maintained for the same relief, and that the remedies are concurrent. Prior to the adoption of the Code of Procedure, it was provided by the Revised

Statutes, that "whenever there is a concurrent jurisdiction in courts of common law and in courts of equity of any cause of action, the provisions of this title limiting a time for the commencement of a suit for such cause of action, in a court of common law, shall apply to all suits hereafter to be brought for the same cause in the Court of Chancery." 2 R. S. 301. The adoption of the Code did away with this provision of the statute, but it was not intended to change the law in this respect. The Court of Chancery has been abolished, and it was not necessary to continue this section in the Code, for the provisions of the Code were so framed as to include all actions not excepted, and prescribed uniform rules declaratory of the time within which they might be brought; and the limita tions of actions in equity follow that prescribed in actions at law of concurrent jurisdiction, where the remedy at law is complete and effectual. Pierson v. McCurdy, supra; Butler v. Johnson, 111 N. Y. 204.

The trial court and the General Term appear to have reached the conclusion that the plaintiffs' lien was property, and that the sale of the bonds in the market was a destruction of the plaintiffs' lien, and that it constituted an injury to property within the 'meaning of subdivision 3, section 382, Code. We do not consider or question these conclusions, for if we are right in the view which we have taken, that there was an implied promise to pay, and than an action in assumpsit would lie thereon, the case would be controlled by subdivision 1, section 382, which prescribes a limitation of six years in an action upon a contract, obligation or liability, expressed or implied, except a judgment or sealed instrument. There is no pretense that this case is brought within the exceptions mentioned. It consequently remains to be determined as to when the statute commenced to run. Ordinarily, an action for money had and received accrues as soon as the defendant has received the money. It is contended however that in this case no cause of action accrued to the plaintiffs until they obtained their decree in their action against McDonald and White in the Supreme Court of the District of Columbia, which was on the 17th day of April, 1878. But we do not understand that the plaintiffs' lien was created by the decree in that action. It was created by the contract which the plaintiffs made with McDonald to prosecute his claim before the commission, and has existed ever since by virtue of that contract. When the money was paid over to the receiver, to be invested in bouds, the lien was, by the contract and agreement of the parties, transferred to such bonds. The decree of the court adjudged and determined that there was such a contract and lien existing. It was not necessary for the plaintiffs to delay the bringing of this action until that action was determined. They were at liberty to prosecute the defendants immediately upon their disposing of the bonds. All the facts in reference to the making of the contract, the obtaining of the award, and the existence of the lien, could have been shown in this action as well as in that. It is possible that the plaintiffs would have been prejudiced by the decrees entered upon the sustaining of the demurrer, during the time that those decrees were in force, unreversed. But those decrees were reversed on the fourth day of March, 1876, more than eight years before the commencement of this action. The plaintiffs claim that they did not know of the sale, but ignorance of the fact that they had a cause of action against the defendants does not prevent the running of the statute in cases of this character. The provisions of subdivis ion 5 of the section of the Code under consideration have no application to actions brought upon implied contracts to pay.

We are consequently of the opinion that the statute of limitations had run at the time this action was

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HALPIN V. PHENIX INS. Co.*

A building, insured as a morocco factory, vacated by the tenants, and its key given to the owner's renting agent, who visits it occasionally, is unoccupied, within the meaning of a clause in the policy making it void if the building becomes vacant or unoccupied.

A tender of the amount due on a mortgage debt is not invalidated by being conditioned upon the mortgage being satisfied, since the condition is one which the mortgagee, on being paid, is bound to perform.

A statement that all the evidence is contained in the case is not essential to present for review in the Court of Appeals a finding alleged to be unsupported by evidence, such a finding being a ruling upon a question of law.

APPEAL from a judgment of the General Term of

the Second Judicial Department, affirming a judgment entered upon the decision of the Special Term. The action was to compel the defendant to execute and deliver to the plaintiff a satisfaction of a mortgage executed by the plaintiff and his wife to the East Brooklyn Savings Bank, and subsequently assigned to defendant, and to deliver up the bond secured by said mortgage. The defendant had issued a policy of insurance for $2.500 to the plaintiff upon the building on the mortgaged premises, which contained a condition making it void in case said building became vacant or unoccupied without the consent of the company, which policy was assigned to the mortgagee. The mortgagee also held a policy for like amount in the Williamsburgh City Fire Insurance Company. The buildings were destroyed by fire on January 4, 1884, and soon thereafter the Williamsburgh company paid the amount of its policy to the mortgagee; and such amount was indorsed upon the mortgage. The defendant refused to pay its policy, on the ground that at the time of the fire the buildings were unoccupied, and on or about April 17, 1884, took from the mortgagee an assignment of the bond and mortgage held by it, paying therefor the sum of $2,585.63. On December 31, 1884, the plaintiff, claiming that he was entitled to have credited on the bond and mortgage the amount of the policy issued by defendant, tendered to it the sum of $100 for interest and expenses incurred in and about the assignment, and demanded that defendant deliver to him the boud and mortgage, and execute and deliver to him a satisfaction of the mortgage, which defendant refused to do. The trial court found as a fact "that at the time of the fire the insured premises were in charge of, and in the occupancy of, the plaintiff," and gave judgment for the plaintiff.

H. C. M. Ingraham, for appellant.

N. C. Moak, for respondent.

BROWN, J. The appellant excepted to the finding that "the insured property at the time of the fire was in the occupation of the plaintiff," and asks this court to review that finding, on the ground that it is without evidence tending to sustain it. It is claimed by the respondent that that question is not reviewable here, for the reason that the case contains no statement that all the evidence given on the trial is con* Reversing 42 Hun, 655.

tained within it, and cites Porter v. Smith, 107 N. Y. 531, in support of his contention. In the case cited it was sought to have the General Term review a finding of fact made upon conflicting testimony, and this the General Term refused to do, in the absence of a statement in the case that it contained all the evidence given on the trial; and this court sustained that ruling. The case has no application to the question now presented, as a finding without evidence to sustain it is a ruling upon a question of law (Code, § 993), while a finding upon conflicting testimony is a ruling upon a question of fact (id., § 992). This court reviews rulings upon questions of fact on appeals from judgments entered upon reports of referees, or on decision of a court without a jury, in the single instance of a reversal of the judgment by the General Term upon the facts. But a finding of fact without evidence to support it has always been regarded as a ruling upon a question of law, and, if excepted to, presents a legal question reviewable in this court. Muson v. Lord, 40 N. Y. 477;

Cox v. James, 45 id. 557; Perkins v. Hill, 56 id. 87; Pollock v. Pollock, 71 id. 137; Sickles v. Flanagan, 79 id. 224. Under the old Code, exceptions to findings of fact were essential to their review upon appeal, whether they presented rulings upon questions of fact or rulings upon questions of law; and it was not necessary to their proper presentation to the General Term that the case on appeal should show affirmatively that it contained all the evidence given upon the trial. Perkins v. Hill, 56 N. Y. 87. In the case cited it was held that when exceptions were taken to findings of fact, and a case made for the purpose of reviewing them, that it would be assumed that all the evidence iu support of the findings excepted to was inserted in the case; that, if any evidence was omitted by the party making up the case, it was the duty of the respondent to cause to be inserted by amendment all evidence which he deemed material to sustain the findings excepted to. The new Code made no change in the mode of reviewing rulings upon questions of law. Exceptions must now be taken, or the appellate court will not review such ruling. $$ 992-997. But, as to rulings on questions of fact, exceptions are not, under the present Code, permitted, and hence there is nothing to notify or warn the successful party of his opponent's intention to ask the appellate court to review such finding, unless there is a statement in the case on appeal that it contains all the evidence; and hence it was decided in Porter v. Smith, supra, that in the absence of such a statement the respondent might rely on the assumption that there was no intention to ask a review of rulings on questions of fact. But, as to rulings on questions of law, there is no need to depart from the practice sanctioned in Perkins v. Hill. An exception appearing in the proposed case serves as a notice to the respondent of an intention to raise the question of error in the ruling excepted to, and puts on him the responsibility of adding by amendment any needed proof upon the particular question, just as a certificate that the case contains all the evidence notifies him of an intention to review the question of error in findings of fact based on the allegation of insufficient proof.

I have been unable to find any authority to the effect that this court would not review a finding of fact excepted to on the ground that there was no evidence to support it, unless the case affirmatively showed that it contained all the evidence, except the dictum to that effect in Cox v. James, 45 N. Y. 557; and this ruling must be deemed to be overruled in Perkins v. Hill. The learned judge who wrote the opinion in Cox v. James concurred in the decision in the case last cited. In the recent case of Bedlow v. Dry Dock Co., 112 N. Y. 269, the chief judge says: Exceptions to alleged findings of fact, when they are unsupported by evidence, * * present questions of law reviewable

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in this court." In that case there was no certificate or statement to the effect that the case contained all the evidence.

These views lead to the conclusion that a statement that all the evidence given on the trial is contained in the case is not essential to present for review in this court a finding alleged to be without evidence to sustain it. The appellant is therefore correct in his claim that the finding excepted to is properly before the court for review, and we must assume that all the evidence introduced on the trial bearing upon the fact of occupancy has been inserted in the case.

temporary, and the condition was held not to have been violated; the court saying: "Delays and interruptions incident to the business of conducting a sawmill, although involving a temporary discontinuance of the active use of the mill for sawing purposes, would not, we think, make the mill ‘vacant and unoccupied,' within the meaning of the policy. * **The evi. dence would not have justified the finding that the plaintiff had abandoned, or intended to abandon, the use of the mill."

In Lead-Works v. Insurance Co., 2 Fed. Rep. 488, the works had been stopped for five days before the fire, but were still used for storage and delivery of goods requiring daily visits of one or more persons. It was said by the court that "the condition avoiding the policy if the premises became unoccupied' without the consent of the company must likewise refer to something more than a mere temporary suspension of work in a mill."

and it was held that "it was not sufficient to constitute occupancy that the tools remained in the shop, and that the plaintiff's son went through the shop al most every day to look around, and see if things were right, but some practical use must have been made of the building." This case was followed in Ashworth v. Insurance Co., 112 Mass. 422, a case of insurance upon a house and barn; the court saying that "*"occupancy,' as applied to such buildings, implies an actual use of the house as a dwelling-place, and such use of the barn as is ordinarily incident to a barn belonging to an oc

We think the evidence does not justify the conclusion that the premises, at the time of the fire, were occupied, within the meaning and contemplation of the parties to the contract. The property is described in the policy as "occupied as a morocco factory." Manufacturing business was carried on there until July previous to the fire. The plaintiff lived in Newark, N. J., and he testified that he received rent up to July, and Keith v. Insurance Co., 10 Allen, 228, was a case of after that no business was carried on there. All the insurance on a trip-hammer shop, the policy contain machinery remained on the property; but the build-ing a condition making it void in case the building reing was closed and locked, and was in the hands of Ed-mained unoccupied for thirty days without notice; ward Falkner, as agent for the plaintiff, for rent. Falkner had a key, and made frequent visits to the property, sometimes to show it to applicants who came to rent it. John Halpin lived next door, and was a watchman there; but at what time or how often he visited the property does not appear. The plaintiff had not visited the building within a month preceding the fire, which occurred on January 4, 1884. It has been decided that a dwelling-house, to be in a state of occupation, must be the customary abode of human beings; not absolutely and uninterruptedly continuous, but the house must be the place of usual return and habit-cupied house, or at least something more than a use of ual stoppage. Herrman v. Insurance Co., 85 N. Y. 162; Cummins v. Insurance Co., 67 id. 260. It was not in the contemplation of the parties to the contract under consideration that the building insured should be the house or place of abode of any person; and the decisions relating to similar provisions in policies upon dwellings are not material, except to show, that while a dwelling-house will not be regarded as occupied unless it is the home or dwelling-place of some person, yet temporary absence, leaving the property for a short period unoccupied, will not be regarded as a breach of the condition, while absence for a fixed, definite period, even with an intention to return and occupy the property, will violate the condition, and render the policy void.

Thus, in Johnson v. Insurance Co., 39 Hun, 410, a temporary absence of eight or ten days before the fire was held not to violate a condition similar to the one we are considering; and in Paine v. Insurance Co., 5 Thomp. & C. 619, it was said: "It is not necessary that some person should live in it every moment during the life of a policy, but there must not be a cessation of occupancy for any considerable portion of time."

* * *

In Herrman v. Insurance Co., supra, it was held that a dwelling-house which was the summer residence of the plaintiff was not occupied, within the meaning of the parties, during the winter months, although a farmer living on the plaintiff's farm, or some member of his family, visited the house regularly once a week, and plaintiff and his wife made fortnightly visits, but did not remain over night.

Whitney v. Insurance Co., 72 N. Y. 118, is a case of insurance upon a saw-mill operated by water-power, where the policy was to be void if the premises became "vacant and unoccupied." No sawing had been done for sixteen or eighteen days before the fire; but there were logs at the mill which the plaintiff intended to saw. Lumber was piled in the yard, and a small quan. tity was in the mill, from which, up to the time of the fire, sales were made. The suspension of work was

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it for mere storage."

This citation of authorities is sufficient to show that to constitute occupancy of a building used for manufacturing purposes there must be some practical use or employment of the property. Its use as a place of storage merely is not sufficient. The condition against non-occupancy must be construed and applied in ref erence to the subject-matter of the contract, and of the ordinary incidents attending the use of the insured property. The insurer has a right, by the terms of the policy, to the care and supervision which is involved in the use of the property contemplated by the parties at the time of entering into the contract. Thus, as has been said, a policy on a church would not be deemed violated from non-occupation because it was only used on Sundays; nor would a school-house be deemed unoccupied during vacation time; nor a manufactory during suspension of business at night, or ou Sundays or holidays, or from breakage of machinery, or from any other temporary cause, because these periods of nonoccupation are incident to the uses of the property, and in contemplation of the parties to the contract. But in this case there was a total and absolute suspension of business. The tenants who had used the prop erty had moved away, and the property was placed in the hands of an agent for rent. The owner was seeking for it new uses and new occupants. There is noth ing in the evidence to indicate that the business of manufacturing leather would necessarily be resumed by any one; but, even if it was intended to rent it for such purpose only, it was at the time of the fire abandoned as a place of business, and without practical use or employment, and the insurer was therefore deprived of the care which would have been exercised over the property had it been so employed. Under such circumstances, we think it was "unoccupied," within the meaning of the policy. That this interpretation was the one understood by the parties finds strong cor roboration in the fact that Falkner, the agent, was notified by the Williamsburgh company that the property was unoccupied, and, under a similar condition in the

policy issued by that company, obtained its consent that the "buildings remain unoccupied commencing from November 1, 1883," and paid an additional premium for such consent. These views must lead to a reversal of the judgment; but, inasmuch as upon another trial other evidence may be produced, it is deemed proper to refer briefly to the other points raised by the appellant.

It is claimed that the tender was not effectual to entitle plaintiff to the judgment, for the reason that it was conditioned on the execution by defendant of a satisfaction of the mortgage. The cases cited by the learned counsel for the appellant do not sustain this claim. The distinction must be observed between cases in which terms are added not embraced in the contract, or which the acceptance of the tender would cause the creditor to admit, and those in which the conditions are such as the debtor, on payment of the debt, has a right to insist upon, and to which the creditor has no right to object. In the first class are all cases in which the tender is made on condition that it pay or extinguish the debt. The acceptance of such a tender binds the creditor, and compels him to admit that the sum tendered is the whole amount due, and estops him from asserting the contrary. This distinction is tersely stated by Lord Denman in Bowen v. Owen, 11 Q. B. 130, as follows: "All persons who make a tender in form do so for the purpose of extinguishing the debts. If, in tendering for that purpose, they merely propose that the creditor shall take the sum offered, and leave it open to him to persist in his claim for more, such a tender is free from objection; but if a party says, I will not pay this money unless you give a receipt for it as the whole amount due,' that is no legal tender." Of this class of cases are Noyes v. Wyckoff, 114 N. Y. 204; Bank v. DeGrauw, 23 Wend. 342; Wood v. Hitchcock, 20 id. 47, and the English cases cited in the opinion. But where there is no dispute as to the amount of the debt a teuder may always be restricted by such conditions as by the terms of the contract are conditions precedent or simultaneous to the payment of the debt, or proper to be performed by the party to whom the tender is made. Wheelock v. Tanner, 39 N. Y. 481; Cass v. Higenbotam, 100 id. 253; Saunders v. Frost, 5 Pick. 259; Bank v. Fant, 50 id. 474; Cutler v. Goold Co., 43 Hun, 516; Bailey v. Buchanan Co., 115 N. Y. 297; Smith v. Rockwell, 2 Hill, 482. In the case first cited the condition was that a mortgage should be discharged. In Cass v. Higenbotam the condition was that certain diamonds deposited as collateral to the debt should be returned. In Saunders v. Frost a release was demanded. In Bank v. Fant it was held that a demand of payment of a promissory note without an offer to return collateral securities was insufficient to charge an indorser. In Smith v. Rockwell it was held that a maker or indorser is not bound to pay a negotiable promissory note without receiving it as his voucher. In Cutler v. Goold Co. it was held that the plaintiff was justified in requiring that certain negotiable notes given to defendant, and not due, should be delivered up to him as a condition of parting with the money tendered. And in Bailey v. Buchanan Co. it was recently held by this court that the obligee of a bond, having the option to redeem, has a right to demand as a condition of payment the surrender of the bond, and all the coupons in the holders' possession. In all these cases the party making the tender had a legal right to insist as a condition of payment that the party to whom the tender was made do the things demanded; and, for that reason, coupling such condition to the acceptance of the tender did not destroy its effect.

A debtor who has transferred securities as collateral to the debt has a legal right, upon payment of the debt, to have such collaterals reassigned to him; and a tender of the debt is not destroyed by making it a condi

tion of its acceptance that the creditor transfer the collaterals to him, because that condition is one the debtor has a right to insist upon, and the creditor no right to refuse. So a mortgagor who pays a bond and mortgage has a legal right to have the mortgage satisfied on the record. In no way except by a certificate of the holder of the mortgage can that result be accomplished. It is within the terms of the contract between the parties, and is a thing which, on payment of the debt, the mortgagee is under an obligation to do, and one which a court of equity would compel him to do. It is a condition therefore which the mortgagor has a right to attach to the tender of the debt, and does not destroy its effect. The tender found by the trial court was therefore sufficient.

It was incumbent upon the plaintiff to keep his tender good, and, upon the commencement of the action, to have deposited the money in court. The effect of the tender is to stop interest aud prevent costs; and to be effectual for such purpose it must be kept good by the debtor, and whenever he seeks to make it the basis of affirmative relief it must be paid into court, where the creditor can get it, and that fact must be alleged in the pleadings. It then becomes the creditor's money, and the debtor cannot dispute his right to it. Becker v. Boon, 61 N. Y. 322; Tuthill v. Morris, 81 id. 100; Sheriden v. Smith, 2 Hill, 538; Storer v. McGaw, 11 Allen, 527. No objection was taken in the answer to the failure to allege a payment into court; and we think that act could, in the absence of any objection in the pleadings, have been performed on the trial; and, as no objection was taken at the trial, the assumption must now be that it was performed. Opportunity was there given for objections, and when none are made, and the party whose duty it is to object remains silent, all reasonable intendments will be made by the appellate court to uphold the judgment. Jencks v. Smith, 1 N. Y. 90; Ford v. Monroe, 20 Wend. 210; Carman v. Pultz, 21 N. Y. 547. We cannot therefore assume that an act so essential to the relief sought by the plaintiff was not performed. The judgment should be reversed, and a new trial granted, with costs to abide the event.

BRADLEY, HAIGHT and PARKER, JJ., concur; POTTER, J., coucurs in result; FOLLETT, C. J., and VANN, J., dissent.

NEW YORK COURT OF APPEALS ABSTRACTS.

APPEAL- -BOND FORECLOSURE OF MORTGAGE.Under Code of Civil Procedure of New York, section 1331, which provides that an appeal from a judgment directing the sale or delivery of possession of land shall not stay execution unless the appellant gives boud to commit no waste, and to pay for use and occupation in case of affirmance, and also provides that in case of a mortgage foreclosure a bond conditioned for the payment of any deficiency that may occur at the sale is sufficient, a bond against waste, and for the value of the use and occupation, is sufficient to stay proceedings on appeal from a decree of mortgage foreclosure without any covenant to pay the deficiency. Jan. 31, 1890. Werner v. Tuch. Opinion per Curiam. Affirming 5 N. Y. Supp. 219.

RESETTLEMENT OF CASE.-Where it appears from plaintiff's affidavit, and from the papers in the case, that a requested instruction was first marked "Refused," and was again refused in open court after the conclusion of the charge, plaintiff is entitled to have the case settled on appeal so as to show that the request was refused, though the justice states that he supposed he marked an assent to all the requests, and

passed back the paper in silence, and then charged the jury, plaintiff's attorney making no objection to the charge, as this is not inconsistent with the marking of the request as "Refused," and the refusal to give it after the charge; it further appearing from an affidavit | of defendants' counsel that plaintiff's attorney did read some requests in writing after the charge. Jan. 31, 1890. New York Rubber Co. v. Rothery. Opinion by Gray, J.; Ruger, C. J., dissenting. Reversing 6 N. Y. Supp. 954.

ASSIGNMENT FOR CREDITORS-ACTION BY ASSIGNEE -SET-OFF.-(1) In an action by the assignee of an insolvent debtor to foreclose a mortgage, the defendant

ion, was, we think, wrongly decided, because it refused a set-off of the debt due by the insolvent, at the time he made the assignment, simply because the debt from the village to the insolvent was not then due. The very fact of the insolvency gave to the party to whom the insolvent owed the debt the right to regard his own debt to the insolvent as due at once, and to offset the two debts against each other. (2) Where the debt sought to be offset consists of a certificate of deposit, the defendant's rights to have the same offset cannot be defeated by the fact that it had not been presented to the insolvent, and payment demanded, prior to the assignment. (3) Nor can defendant's right to an offset be defeated on the ground that he has already,

by an action at law, recovered a judgment on his claim against the insolvent subsequent to the assignment. Jan. 14, 1890. Richards v. La Tourette. Opinion by Peckham, J. Reversing 6 N. Y. Supp. 937.

ASSIGNMENT FOR CREDITORS - DELIVERY OF DEED -ACTIONS BY ASSIGNEE.—(1) Under Laws of New York of 1877, chapter 466, section 2, relating to assignments for the benefit of creditors, and providing that the assent of the assignee, subscribed and acknowledged by him, must appear in writing embraced in or indorsed upon the instrument, actual delivery of the deed of assignment is essential to render it operative to pass title. (2) In an action by an assignee to recover goods taken under execution, it is not competent for the defendant to introduce in evidence the accounts of sales made by the auctioneer who sold the goods, for the purpose of showing the value. Churchman v. Lewis, 34 N. Y. 444. Dec. 20, 1889. Mclthargy v. Chambers. Opinion by Danforth, J. Reversing 4 N. Y. Supp. 698.

ATTACHMENT--AFFIDAVIT-SOURCES OF INFORMATION.-(1) Under the Code of Civil Procedure of New York, section 636, requiring an affidavit for attachment, in actions to recover damages for breach of con tract, to show that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims

may offset a debt due him from the insolvent, though at the time of the assignment the mortgage upon which plaintiff sues was not due. It is not claimed that this offset comes within the statute in regard to offset, where it would be allowed in a court of law. It is allowed upon equitable principles by a court of equity for the furtherance of justice, and in carrying out what such a court states is one of the principles which guide it, viz. The principle of offsetting cross-demands against each other, in which, as it is stated, there is a natural equity. This case cannot be distinguished in principle from that of Rothschild v. Mack, 115 N. Y. 1. In that case the debt to the insolvent was not due at the time of the assignment, and still it was held that the debt due from the insolvent at the time of the assignment was properly offset against the debt to him. It was in that case stated that it has been frequently held, that as to the right of set-off in equity, the fact that the debt owing to the insolvent is not due when he makes the assignment is entirely immaterial. The cases of Lindsay v. Jackson, 2 Paige, 581, and Smith v. Felton, 43 N. N. 419, are cited in support of this proposition. Chance v. Isaacs, 5 Paige, 592, is distinguished, and it is seen that in that case the mere fact that the debt to the insolvent was not due would have furnished no excuse for refusing an offset. The cases cited by the learned judge at General Term are not, we think, in point. They are Bradley v. Angel, 3 N. Y. 475; Myers v. Davis, 22 id. 492; Martin v. Kuuzmuller, 37 id. 397; Jordan v. Bauk, 74 id. 470; Munger v. Bank, 85 id. 580. In most of those cases it was a debt from the insolvent to the party desiring to avail himself of the offset that was not yet due. The distinction is of course very obvious. To allow a set-off against au estate of an insolvent by setting off a debt from that estate, not yet by the terms of the contract due, as against a debt then immediately due to the estate, is to effect a change in the contract between the parties, and in the most vital and material portion of it, in order to meet, as is stated by Judge Gardiner, a supposed equity arising from matters ex post facto. Whether it be equitable or not, the power of a court might well be doubted to absolutely change a contract entered into by the parties, without the consent of the one who was to make the payment at the time and in the manner prescribed by the contract. But where a debt is due from the insolvent, and it is a debt from the other party to the insolvent which is not due, the court does not change the contract against the will of the parties, but it simply takes the waiver of the debtor whose debt is not yet due, and by his consent and at BANKS -FORGED DRAFTS ·PLEADING.-(1) After a his request treats it as due at once. Where the insol- bank draft which had been paid to one who held vent holds a demand against his creditor, not due, he it under a forged indorsement was returned to the has no right to retain it as an investment. Id. All of drawer, the latter delivered it to the payee, who dehis estate is to be used at once for the payment of his manded payment, which was refused, whereupon the debts, and the party who owes the debt which has not drawer paid the draft after protest. Held, that the yet matured, under the circumstances of the insol- drawer had a right of action against the drawee for its vency, and where third persons are not injured, has the refusal of payment. In the first place, we must regard right, if he desire it, to treat his obligation to the insol- the paper as never having been paid by defendant to vent as due at once, and therefore, if the insolvent's the order of the plaintiff, for the rule is well and long debt to him is also due, he has the right to offset the established that a forged indorsement does not pass a two demands. The case of Richards v. Village of Un- title to commercial paper, negotiable only by indorse ion, 48 Hun, 263, cited by the learned judge in his opin-ment; and payment by the drawee, although in good

known to him, it is sufficient to allege the existence of a cause of action, that the amount of plaintiffs' claim in the action is $817.13 and interest from June 11, 1888, over and above all counter-claims and set-offs known to deponent; setting forth as the grounds of the cause of action that on January 13, 1888, and between that date and May 18, 1888, plaintiffs sold and delivered to defendant groceries to the amount of $420.46, including interest, which defendant failed to pay; that on February 18, 1888, defendant executed his promissory note to plaintiffs for $389.17 for value received, which note is now owned by them. (2) An affidavit for attachment on the ground that defendant had departed from the State to defraud his creditors, made on information and belief, is sufficient though stating that the source of information is affidavits of third persons, taken in another proceeding, showing that defendant was not found at his home, but had been seen on a train going toward Canada, whither it was currently reported he had gone. Jan. 28, 1890. Buell v. Van Camp. Opinion by Earl, J. Dismissing appeal from 6 N. Y. Supp. 365.

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