Plato v. Reynolds. York, 2 Kern., 586; Western v. The Genesee Mutual Insurance Company, 2 id., 258.) He has found that Miles & Bartlett did not, on the sale of the hogs to the defendants, warrant them to be sound, healthy and free from disease, but refused to do so; and that before such sale they had not been exposed to, and at the time thereof were not affected with any cholera, and that those of them which died after the sale and delivery to defendants did not die of any contagious disease contracted before the sale. This is substantially a finding that the hogs were sold without any warranty that they were free from dis ease, and that in fact at the time of the sale and delivery, they were not infected with any contagious disease, subsequently causing the death of any of them. Of course, if they were sold without warranty, and were not infected at the time of such sale with the disease of which some of them afterwards died, occasioning thereby a loss to the defendants, there could be no pretext for repudiating the contract of sale, or alleging a total or partial failure of consideration for the draft. So, also, if there were a warranty, and the hogs were free from disease and infection at the time of sale and delivery, but subsequently contracted a contagious disease, of which some of them died, there would be no breach of warranty, and no ground for questioning the consideration of the draft. There was no error, therefore, in the legal conclusion of the referee, upon the facts found by him, that the sale and delivery of the 393 hogs were a good consideration for the drawing of the bill in question, and that such consideration had not failed wholly or in part. There was a single objection by the defendants on the trial to the admission of evidence. This objection the court regards as well taken, and of sufficient importance to require a re-trial of the case. One Cassius Stiles, a hog dealer in the city, about the time of the purchase from Miles & Bartlett, sold to the defendants, for Uhler, 133 hogs. Dalton, who acted for defendants in the purchase of both lots, and who swore to Miles & Bartlett's warranty, and what Miles said about the hogs, on his cross-examination by plaintiff's counsel, testified Plato v. Reynolds. "that he bought a lot of hogs of Cassius Stiles the same day; he warranted them; he believed that he gave about the same warranty Miles gave." Subsequently Stiles was produced as a witness by the defendants. On his cross-examination by the plaintiff he testified to the sale of his lot of hogs. The question was then put to him: "What was said between you and Dalton about warranting the hogs? The question was objected to by defendant's counsel, the objection overruled, and the witness proceeded to narrate the conversation and statements made at the time his hogs were sold. Any inquiry as to Stile's sale was, of course, collateral and irrelevant to the issue, and the plaintiff could not cross-examine Dalton as to a warranty made by Stiles, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony. If a question relative to a distinct collateral fact be put and answered, evidence cannot afterwards be adduced for the purpose of contradiction. This was the effect of the question objected to and the reply. On the plaintiff's cross-examination, Dalton had testified "that Stiles warranted his hogs; he believed he gave about the same warranty Miles gave." This was a collateral fact; and it was not competent to contradict the witness in respect thereto. He could not thus be impeached or discredited. It was important to discredit Dalton, as he was the only witness who testified to Miles & Bartlett's warranty; but it could not be done by contradicting him as to a collateral matter. For this error the judgment must be reversed, and a new trial ordered, with costs to abide the event. All the judges, except MARVIN, J., agreed that a refusal to accept on the day payment is due is equivalent to a refusal to pay, and renders a demand of payment unnecessary. On the question of evidence, all the judges concurred. Judgment reversed, and new trial ordered, One sued for seizing goods under an attachment may defend by proving that a prior sale by the defendant in the attachment to the claimant was made in fraud of creditors. In the affidavit to procure the attachment, it is a sufficient statement of the applicant's title that he is the owner of the demand against the debtor, "under assignment to F. H.," an assignee of the original creditor. Whether the plaintiff in the action for seizing the goods is at liberty to controvert the indebtedness of the defendant in the attachment suit to the plaintiff therein, quære. It seems that, as against third persons, the affidavits on which the attachment issued, if sufficient to give jurisdiction to the officer granting it, establish the character of the plaintiff therein as a creditor, and that it lies upon a claimant of the goods to establish the validity of the transfer to himself. APPEAL from the Supreme Court. The action, which was commenced December 31, 1857, was in the nature of trespass de bonis asportatis, for a quantity of household furniture, two wagons, &c. The defendant justified the taking, as sheriff of Kings county, under an attachment issued by a justice of the Supreme Court, according to the provisions of section 227 and the succeeding sections of the Code of Procedure, in an action brought by DeWitt & Hay against Robert Hall, the brother of the plaintiff, who was alleged to be the owner of the goods. On the trial, the plaintiff proved the taking of the property by a deputy of the defendant, on the 1st day of December, 1857, at 10 o'clock in the morning, at R. Hall's house in Flatbush; and she produced a bill of sale to her, purporting to have been executed by Hall, dated the day of Novem ber, 1857, and proved, by him, that it was executed on the 30th of that month. He also testified that its consideration was $1,000, which he owed her for money lent. The bill of sale embraced other property besides that which was taken by the deputy, and was expressed to be in consideration of one dollar. Hall v. Stryker. The defendant gave in evidence the attachment issued under the hand of a justice of the Supreme Court, dated the 30th November, 1857, and proved its delivery to the sheriff at 4 o'clock on that day. It recited an application made to the justice by DeWitt C. Hay, the plaintiff, for an attachment against Robert Hall, defendant; that it appeared, by affidavit, that a cause of action existed in said action in favor of the plaintiff against the defendant, for the recovery of $3,500 and interest, which affidavit, it was stated, specified the amount of said claim and the grounds thereof, and showed that the said Robert Hall had disposed of, or was about to dispose of his property, with intent to defraud his creditors; and it also recited that the plaintiff had given the undertaking required by law. It thereupon commanded the sheriff to attach the defendant's property, or so much thereof, &c., and to proceed according to law. The defendant also, pursuant to the ruling of the judge, holding it to be necessary, produced the affidavits on which the attachment was issued. The only point made upon them related to the transfer of the demand to the plaintiff, it being shown to have been originally a demand existing against Hall in favor of one Angus Cameron. The statement on that subject in the plaintiff's affidavit was, "that deponent is now the owner and holder of said demand, under assignment to Frank Hay, to whom said Cameron had transferred it by assignment, bearing date said 1st May, 1857." There was also an affidavit of Frank Hay, relating an interview had by him with the defendant Hall, at a time when the defendant had called upon him in relation to the demand of Cameron, "which (the affidavit states) was then owned by deponent under an assignment dated said May 1, 1857.". The plaintiff's counsel objected that the affidavits did not show the plaintiff, D. C. Hay, to be the owner of the demand. The judge allowed the exception, and excluded the affidavits; upon which the defendant, after excepting to the ruling, offered in evidence an order of the Supreme Court at special term, on a motion made by the defendant Hall, in the action in which the attachment was issued, to set it aside. It was to the effect that upon Hall v. Stryker. reading and filing affidavits, and hearing counsel for both parties, it was ordered "that on plaintiff filing an affidavit, by way of amendment to the affidavit on which the attachment was granted, showing that the plaintiff was owner by assignment of the demand sued on, and paying the defendant seven dollars costs of the motion, said motion be denied." In connection with this order, the defendant in the present action offered to produce the affidavits used on the motion; and to show a compliance with its terms by filing the affidavit and paying the costs; and he also offered to make proof of the debt of Cameron against Hall, and of the two assignments by which it was transferred to Hay, the plaintiff in the suit commenced by attachment. The judge excluded the evidence, on an objection by the plaintiff's counsel, and the defendant excepted. The defendant gave further evidence touching the bona fides of the bill of sale; and he offered evidence tending to show that it was not actually executed until after the attachment was delivered to the sheriff to be executed, which was excluded by the judge, on the plaintiff's objection, on the ground that the attachment bound the goods only from the time of their actual seizure, and the defendant's counsel excepted. The Case closed by a statement that "the cause was submitted to the jury, the court instructing them that as the right of the creditors had, by the rulings during the trial, been excluded from the case, the only questions in issue were the taking of the property, the title of the plaintiff to it, and its value; that there was no reason to doubt the delivery of the bill of sale as Hall had testified to it, and the possession of the plaintiff under it. To so much of the charge as related to the value of the property, the defendant's counsel then and there excepted, claiming that the measure of the damages was only the loss by reason of the deprivation of the use of the property." The verdict was for the plaintiff for $1,178.96; and it was ordered that the exceptions should be first heard at a general term, and that judgment should be there rendered. The court at general term ordered judgment for the plain tiff with costs, and the defendant appealed. |