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If the issue of marriage depended upou evidence tion," he says, “ for the argument that the matrimonthat there was a marriage according to the forms of ial cousent must of necessity be referred to the comthe English law, the plaintiffs could not recover. mencement of the cohabitation, uor any warrant for

* Mr. and Mrs. Hynes, as has been stated, were the appellant's ingenious argument, that as the conin Paris during the summer of 1871.

The sent interchanged must be referred to some particular jury, in additiou to their general verdict, made a spec period, which he insisted was at the commencement ial finding that the parties, while in France, entered of the cohabitation, and therefore insufficient, the cointo an agreement in presenti to take each other as habitation, which continued afterward without interman and wife, and thenceforward cohabited together ruption, would warrant no other conclusion tban that as such in France and England. There is no direct evi which would be warranted by the consent interdence of the interchange of consents during their stay in changed at a time when it was ipsufficient. I should Paris. There was evidence that they lived together undoubtedly oppose to that another, and I think a there in the apparent relation of marriage, and assum sounder rule and principle of law, namely, that you ing that what occurred between them in Cleveland must infer the consent to have been given at the first street did not constitute a valid marriage by the law moment when you find the parties able to enter into the of this State, for the reason that the law of England contract.In all the foregoing cases and in the case to can only be resorted to, to determine the effect of that be reviewed next, the impediment to the formation of transaction, we are nevertheless of the opinion that a matrimonial union at the inception of the cohabitathe jury were authorized to find that in Franco the tion was the existence of a valid prior marriage berequisite consents were interchanged and that the tween one of the parties and another person. But as parties then and there became husband and wife.” in all these cases the conduct of the parties to the secThat this authority is a strong one is apparent. It was ond union evinced a desire on their part to dwell highly improbable that the parties, having performed together as husband and wife, the courts have, in what they seemed to consider a valid marriage cere every one of them, permitted and even urged a findmony, should go through a second ceremony in Paris ing of a valid marriage after the impediment was rewhile there.

moved. Indeed Lord Westbury boldly enunciated Next in order in point of strength comes Donnelly v. the doctrine in Campbell v. Campbell, tbat under such Donnelly. In that caso it appeared that a man, know circumstarices the law would presume a valid marriage ing his wife to be alive, entered into a form of mar at the very moment when the parties could lawfully riage with another woman who did not know of the marry. He says: “The conclusion therefore that I other marriage. They continued to cohabit together derive, and which unquestionably is consistent with as husband and wife, until after the death of the first the language of the cases which have been referred to wife. The court, on appeal, sustained a finding of a is, that the consent between these parties was given, valid marriage between them subsequent to the death and that the marriage therefore in theory of law took of the first wife. The Breadulbane case is a still place at the time, when by the death of the first husband stronger authority on this point. It was decided by they became competent to enter into the contract." Lord the House of Lords after very great consideration. Westbury was clearly wrong in asserting that the law The question involved was one of legitimacy, depend would presume the marriage to have made at the first ing upon the fact whether James Campbell, who in possible moment. A finding of fact to that effect will 1781 eloped with the wife of one Ludlow, and with be supported; but the question cannot be determined whom Campbell cohabited until his death in 1806, was as a question of law. The authorities are uniform in married to her after the death of her first husband in holding that the issue of marriage is to be decided by 1781, and prior to the birth of their eldest son in 1788. the jury under these circumstances. IVilkinson v. A marriage was celebrated between them in Scotland Payne, 4 T. R. 468; Campbell v. Campbell, supra; Hynes in 1782, which was clearly void, because of the exist V. McDermott, supra; Fenton v. Reed, supra; Rose ing marriage between Ludlow and Mrs. Ludlow. There v. Clark, supra; Donnelly v. Donnelly, supra; Slate was no direct evidence of the interchange of consents v. Worthingham, 23 Minn. 528. between James Campbell and his alleged wife after Of course extreme cases can be imagined in which the death of her first husband, but they continued to the court would be justified in taking the question reside in Scotland down to the birth of their eldest from the jury and deciding it as a question of law. son, and were reputed to be husband and wife. It was Some have arisen and will be discussed hereafter. We certainly not very probable that the parties performed now come to two cases in which the presumption of a second marriage ceremony or interchanged consents marriage was indulged where the original connection after the death of Ludlow, as they had already gone between the parties was illicil, although it was very through one ceremony which they probably deemed apparent that no marriage was ever made after the sufficient. It was strenuously urged that the inter impediment to a legal marriage had been removed. course between the parties having been illicit in its In Wilkinson v. Payne, 4 T. R. 468, it appeared that origin, and the cohabitation having continued after the parties to the marriage contract were both minors, the death of Ludlow without marked change in its and that the marriage between them was void because character, the presumption was that it continued to be they had not obtained the consent of their parents. illicit down to and after the birth of tho eldest son When the young man came of age his alleged wife was whose legitimacy was in question. But this argument lying on her death bed, and in three weeks thereafter was not allowed to prevail, Lord Cranworth saying: sbe died. But the jury found a valid marriage be“In such circumstances we ought to infer, after their tween them made during this short time, and on apdeaths, that at some time during the long period dur peal the King's Bench refused to disturb the verdict. which they lived together, and in some manner how Lord Kenyon, C. J., remarked : “In this case, though ever informal, they did that which they could do with the first marriage was defective, a subsequent one out any difficulty, viz., enter into an agreement to be might have taken place. If there was any ground of or become married persons, and 80 to acquire for presumption it is sufficient in a case like this. Iu this themselves and their children the status which the caso the parties did not intend to elude the marriage evidence satisfies me they wished to enjoy.” And act; but all their friends were fully informed of and Lord Westbury went even further, and declared that concurred in the former marriage. And I think we the interchange of consents must be inferred to have should ill exercise the discretion vested in the court, been given at the first moment when the parties are if after the jury bad presumed a subsequent legal marable to enter into the contract." There is no founda- riage under all the circumstances of this case, we were


to set aside their verdict." The other case is De virtue, and that in the weakness of human frailty she Thoren 1. Attorney-General, supra. It appeared in bad originally yielded to the acts and seductions of that case that one William E. Wall obtained on the the deceased; yet the conclusion does not necessarily 1st of July, 1862, a decree of divorce nisi dissolving his follow that the latter would be unwilling to repair as then marriage. This decree however did not become far as possible the wrongs he had inflicted, or that the final until the expiration of the time allowed for an fornier would of choice continue in a position so huappeal, and during all this time he was prohibited | miliating. The judgment which would presume that from marrying again, just the same as if no decree had erring humanity would not repent is too harsh to have been granted. In ignorance of his temporary disabil a place in any beneficent system of law, and we canity he went through a ceremony of marriage with a not yield our assent to any such doctrine." See also Miss Ogg, on the 16th of July, 1862, before the time for Piers v. Piers, 2 H. L. Cas. 331, and observations of appealing bad expired, both parties believing that Campbell at pages 379-381. there was no obstacle to the marriage. The marriage The presumption of the continuance of an illicit cowas of course absolutely void. They continued to habitation is not so easily overcome where it appears live together and cohabit as husband and wife after that the parties have manifested a preference for a the expiration of the time to appeal. There was no meretricious union. In such a case the authorities evidence of an interchange of consenis after the mar seem to be uniform that in the absence of some eviriage in 1862, and neither of the parties ever had any dence of a change in the relation between the parties suspicion prior to the husband's death of the invalidity they are presumed to continue in that relation. of that marriage. Yet the court held that the parties Lapsley v. Grierson, 1 H. L. Cas. 498; Cunninghams v. must be presumed to have interchanged consents as Cunninghams, 2 Dow. 482, 50:2; ('ollins v. Collins, 80 soon as the impediment to their marriage was re N. Y.9; Hyde v. Hyde, 3 Bradf. 509; Badger v. Bucla moved. In this case the presumption was indulged jer, 88 N. Y. 5.53; Brinkley v. Brinkley, 50 id. 198; contrary to all probabilities. It is absurd to say that Williams v. Williams, 18 Am. Law Keg. (N. S.) 629; persons who consider themselves legally married will Burnum v. Barnum, 42 Md. 251; Redgrave v. Redgrave, ever interchange consents a second time during their 38 id. 93; Jones v. Jones, 45 id. 141; Port r. Port, 70 joint lives. Yet the decision is clearly correct. But Ill. 181; State v. Worthingham, 23 Mim. 5:28; Floyd v. we do not think that the true reason to support it was Calvert, 53 Miss. 37; Rundle v. Pegram, 19 id. 751; stated by the court in its opinion. It is opposed to all Yardley's Estute, 75 Penn. St. 207; Canjolle v. Ferrie, experience and knowledge of human nature, to assume 23 N. Y. 90; Foster v. Hawley, 8 Ilu, 68. that those who dcem themselves lawfully married, Where there is any evidence of a change the queswill enter into a second marriage contract so long as tion of marriage then becomes a question of fact. this belief continues. The parties in this case unques. Ilymes r. DeDermotl, 91 N. Y. 157-160; Ilyde v. Ilyde, tionably considered that they wero husband and 3 Bradf. 509-519; Williams v. Williams, suprii; State v. wife from performance of the marriage Worthingham, :23 Mimn. 528. In this last case the court ceremony in 1862 down to the time of the said: “An iutercourse originally unlawful and lustful husband's death. It is therefore so highly improb). from choice undoubtedly raises tbe presumption that able that the parties ever expressly entered into a sec its character remains during its continuance. But ond marriage contract that it would be doing violence this is a presumption, not of law, but of fact, for the to reason to presumo so. But an express agreement is consideration of the jury, in connection with the parnot necessary. Marriage does not differ in most juris- ticular facts and circumstances of the case." dictions, and it does not in Scotland, where these par However it is not necessary, in order to establish a ties resided, from other coutracts in the formalities marriage in such a case, to adduce direct evidence of a requisite to its validity. Bishop says: “Not even marriage, or show when or under what circumstances words are in all circumstances necessary.” 1 Bish. tbe meretricious connection was converted into a matMar. & Div., $ 2:29.

rimonial union. Badger v. Budger, 88 N. Y. 551; ('uiTherefore if Aand B. cohabittogether with the tacit jolle v. Ferrie, supra; Ilyde r. Ilyde, supra; Physick's understanding that they are then and ever thereafter Estule, 4 Am. Law Reg. 418; Foster v. Harley, 8 lun, are to be husband and wife, a valid marriage exists 68; Queen v. Jillis, 10 ('1. & Fin. 749; IIynes v. Ncas much as if the understanding had been expressed in Dermoll, 91 N. Y. 151, 158, 462. words. Now where two persons have so clearly mani. In Bauger v. Budger the court say: “ But a change fested the desire to live together in a matrimonial may occur and be satisfactorily established, although union, as did the parties in this case, it is not only the precise time or occasion cannot be clearly ascerprobable, it is absolutely certain that from the mo tained. If the facts show there was or must haro ment the impediment to their lawful marriage is re been a change, that the illicit beginning has become mored down to the last day of their cohabitation, they transformed into a cohabitation matrimonial in its mutually declaro to each other by their daily conduct character, it is not imperative that we should be able and intercourse that they are dwelling together, not to say precisely when or exactly why the change ocin a state of concubinage, but in the sacred relation of curred.” husband and wife.

As has been already stated, there are cases in which In conclusion on this point the reasoning of the the ques:ion of marriage—the parties having exhibited court in Yutes v. Ilouston, 3 Tex. 13:3–150, will be al preference for an illicit connection-is one of law for quoted. Heinphill, C. J., says: “But admitting that the court. Such are the cases of Lapsley v. Grierson, 1 their original intercourse was illicit with the knowl. H. L. ('as. 498 ; ('unninghams v. (undinghams, 2 Dow. edge of both parties, it would be urging the presump- 48%, 502 The court in each of these cases decided that tion to an unreasonable extent to suppose that the un there was no valid marriage on the ground that thero lawful character of the connection was imsusceptible was nothing in the case to rebut the inference of a conof change, and that when all legal disabilities had tinuance of an illicit union roluntarily chosen in prefceased to operate, they would voluntarily decline all erence to the relation of husband and wife. the honors, advantages and rights of matrimony, and The true doctrine seems to be accurately stated in prefer an association disgraceful to both parties, but State v. Worthinghum, in which the court said: “The peculiarly degrading, to the fenale, and which in- | point is presented by counsel for the State that no preflicted upon their innocent offspring the stigma and sumption of marriage can arise in this case from any penalties of illegitimacy. Let it be admitted that this cohabitation of the parties occurring after the defendwoman had knowiugly waudered from the paths of ant's divorce, because of its illicit character in the be


ginning. An intercourse originally unlawful and lust the woman was a common prostitute. Conran v. Lowe, ful from choice undoubtedly raises the presumption 1 Lee, 630-638; Chamberlain v. Chamberlain, 71 N. Y. that its character remains such during its continu 423-427. ance. But this is a presumption not of law, but of But the presumption of marriage from cohabitation fact, for the consideration of the jury in connection between a white and a colored person is undoubtedly with the particular facts and circumstances of the case. sufficient to warrant a finding of a valid marriage. In the case at bar it appears that the cohabitation be Honey v. Clark, 37 Tex. 686; Bonds v. Foster, 36 id. 68. tween the parties had its origin, in part at least, iu a However this presumption will not arise wbere the desire for marriage, and under the promise that such statute forbids such marriage. Oldham v. McIver, 49 a relation should be assumed as soon as defendant Tex. 556. could procure a divorce from his then wife. This in Even divorces have been presumed to sustain a mardicates that the parties regarded the married state as riage made while the partner of one of the parties to a one preferable to that of concubinage, and weakens former marriage was living. Blanchard v. Lambert, 43 somewhat the force of the presumption ordinarily at Iowa, 228; Carroll v. Carroll, 20 Tex. 731; McCarty v. taching to an original illicit cohabitation. The weight McCarty, 2 Strobh. 6-10; and see generally on this subwhich is to be given to it however in this as in every ject, Best Presump. 144, 145; 1 Bish. Mar. & Div. $$ other case, rest, exclusively with the jury in the exer 514-518. cise of its best judgment under proper instructions

GUY C. H. CORLISS from the court." We think the following rules may be fairly deduced

REPLEVINCUSTODIA LEGIS. from the cases cited and reviewed: 1st. That an illicit connection is presumed to con

NEW YORK COURT OF APPEALS, OCT. 28, 1884. tinue until there is evidence to the contrary.

FIRST NATIONAL BANK OF OSWEGO V. Dunn. 2.1. That where the parties have manifested a desire

SECOND NATIONAL BANK OF OSWEGO V. DUNN. to form a matrimonial union, the presumption will be rebutted, so as to make the question one of fact, by

Where a chattel has been replevied, it may not, while in the the slightest circumstance; and that a mere continu

possession, either of the sheriff or of the plaintiff awaitance of the cohabitation without any apparent change

ing the result of the action, be levied upon by virtue of an after the parties have the right to contract a valid

execution against the defendant. The judgment creditor marriage, will suffice to justify a submission of the

can only claim through the title of his debtor, and the question of marriage to a jury. Nay, the court must

property having been lawfully removed from the possesunder such circumstances submit the question to the

sion of the latter, and being held in the custody of the law jury.

for final adjudication, he cannot disturb it, but is con3d. That where the parties are shown to have pre

fined to such remedy as will not interfere with it. ferred a meretricious connection, something more than

Dunlop v. P. F. Ins. Co., 74 N. Y. 145, distinguished. continued cohabitation after the impediment to a legal marriage has been removed, will be necessary to rebut fourth judicial department, made A pril 19, 1883, the inference of the continuance of the original char which reversed an order of Special Term, staying proacter of the cobabitation. There must be evidence to ceedings upon an execution issued upon a judgment satisfy the mind of an actual change in the relation be. recovered in the action second above entitled, and settween the parties, or at least of a desire for a change. ting aside a levy made by the sheriff of Oswego county Although it has never been authoritatively settled, it in virtue of such execution. is yet safe to assert that should there be any evideuce January 1, 1882, John Dumn made a general assignwarranting the conclusion that the parties to a delib ment for the benefit of his creditors to John Dorsey, erately preferred illicit connection have come to desire Jr., his book-keeper and clerk, who took possession of a matrimonial alliance in place of their former illegal the assigned property,consisting among other things of and lustful wion, mere evidence of their cohabitation a malthouse in which were eighteen thousand to twenas husband and wife subsequently to their change of ty thousand bushels of malt in bulk. Two days later sentiment in this regard would make the issue of mar the First National Bank brought replevin for ten thouriage one of fact, just the same as though the parties sand bushels of said malt, against Dunn and Dorsey, had desired marriage from the commencement of their which is the action first above entitled. The plaintiff cohabitation.

in that action claimed title under warehouse receipts, 4th. That where there is any evidence to rebut this executed to it by Dunn, on December 13, 1881. Upon inference of continuance of an illicit union, the ques. the mandate in that action, the sheriff of Oswego tion is one of fact.

seized the ten thousand bushels of malt and kept pos5th. That where the parties have manifested a pref session of it until January 13, 1882, when (as no bond erence for an illegal comection, the court is bound to had been given by the defendants and time therefor decide against a marriage in the absence of evidence of had expired) the sheriff went to the presideut of the a change in the relation between the parties, or of a First National Bank at his banking rooms and told desire for such a change.

him he had come to deliver the malt vamed in the re6th. That to convert an illicit union into a valid mar plevin papers, and that he did then and there deliver riage the parties must do something more than recog it (though it had not been separated or removed from nize as valid the unlawful marriage, where consents the other portions of the eighteen thousand to twenty have been interchanged when an impediment to a law thousand bushels in the malthouse. The president ful marriage existed; they must enter into a new mar accepted it, and requested the sheriff to separate the riage contract after the impediment has been re ten thousand bushels and to deliver it at a designated moved.

place, who complied with that request. On the same mth. Another rule is well settled by decisions which day the Second National Bank recovered a judgment have not yet been cited; and that is that wbere a mu against John Dumn upon a debt held by it, for $15,tual desire for marriage is, under the peculiar circum 415.23, besides costs, and forthwith issued an execustances of any case, improbable, the presumption of tion to the sheriff of Oswego county, who was engaged marriage will not be very readily indulged, as where a in separating the malt for the purpose of delivering as countess cohabited with ber footman (Forbes v. Struth-requested, he at once levied on the malt in question, more, Ferg. Consist. Law Rep.); or a negro with a white and other property of the assignor avd judgment person (Arinstrong v. Hodges, 2 B. Mon. 69); or where debtor. January 17, 1882, the First National Bank in

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demnified the sherriff against the claim of the Second National Bank. Louis Marshall, for appellant. S. C. Huntington, for respondent. FINCH, J. If the General Term were right in sustaining the lery upon the property held under the writ of replevin the sheriff occupies a very awkward and anomalous position, and the law is made to demand a seeming impossibility. The sheriff took possession of the malt in obedience to process requiring him to take that specific property. The defendants in replevin, Dunn and Dorsey, not giving a bond for the return of the property within the prescribed three days, it became the imperative duty of the sheriff to deliver such property to the First National Bank of Oswego, the plaintiff iu the action; while preparing to make such delivery, but before it had been actually accomplished, the Second National Bank of Oswego issued to him an execution against Duw, and required him to levy upon the same property. He made tho levy and so found himself at one and the same instant required to deliver up the malt on one mandate and retain and sell it ou another. He cannot do both. The two daties, each equally imperative, are utterly inconsistent, and the performance of either inevitably involves the non-performance of the other. The difficulty, too, does not end with the sheriff but extends to the plaintiff in replevin. He sues Duun to recover the identical property, claiming to be its owner, and obtains for the safety of his title a lawful possession. But that safety is weak and brittle 'if Dunn can confess a judgment to a creditor, who alleging his debtor's ownership, can again put in jeopardy the possession of the property. The law compels the plaintiff in the replevin, as the price of his temporary possession, to give a bond for the return of the property, if such return is in the end adjudged, and yet if levies may be made in behalf of creditors the law prevents the very return which it at the same time requires. It is a similar inconsistency to which the Federal court called attention in Hugan v. Lucas, 10 Pet. 404. Justice McLean said: “If the property be liable to execution a levy must always produce a forfeiture of the boud. For a levy takes the property out of the possession of the claimant and renders the performance of his bond impossible. Can a result so repugnant to equity and propriety as this be sanctioned ? Is the law 80 inconsistent as to authorize the means by which the discharge of a legal obligation is defeated and at the same time exact a penalty for the failure?

From these inconsistencies there must be some avenue of escapo. The right of the Second National Bank, as a judgment creditor of Dunn, to contest the validity of his assigament to Dorsey, and the alleged title of the First National Bank by virtue of its warehouse receipt is undoubted. Claiming the malt to be in truth the property of Dun, it may levy upon it and seek to maintain its hold, unless met by the obstruction of an existing custody of the law. That obstruction the appellants interpose, and assert it to be effectual whether at the moment of the attempted lery the malt was in the custody of the officer, or had been delivered to the temporary possession of the bank during the pendency of its proceedings in replevin. The precise question does not seem to have been decided by any court of last resort, but the authorities approach it from several directions and indicate the principles which should gorern its determination. The old action of replerin and its modern substitute are alike in the nature of proceedings in rem. The court fastens upon the id entical property and holds it subject to its owu ultimate disposition. If by its own rules it cannot hold the res agaiust other process

which it has power to control, the action loses its character and becomes merely one for damages.

In Flagan v. Lucas, supra, it was ruled that the property taken on the writ is in the custody of the law, both while held by the officer, and after delivery to the plaintiff, and so remains during the pendency of the action awaiting the final disposition of the court. Aud it was further said that this custody could not be disturbed by any process, and especially not by that emanating from another jurisdiction. This case and its doctrine, as stated, were approved by the same court in a very recent decision. Covell. v. Heyman, 111 U. S. 176. It is true, as the General Term say, that the case cited was one in which the writ under which a bond was given for the return of the property was issued froin the State court while the disturbing execution came from the Federal court, and the avoidance of a conflict of jurisdictions was assigned as the principal ground of decision. But at the foundation of that conflict was the inconsistency of a legal requirement that an officer should hold the property for one purpose and yet be compelled to surrender it for another. That the hostile mandates carne from different courts only emphasized the inconsistency.

It was early held, and has been steadily maintained, that property levied upon by an officer, when found in and taken from the possession of the defendant in the execution, cannot be replevied unless in a case where the taking was tortious, and the officer liable in trespass. Thompson v. Button, 14 Johns. 86; Punyburn v. Purtridge, 7 id. 14... And that illustrates the difference between a taking on execution and on a writ of replevin. In the former case he is required to take only the property of the debtor, and is a trespasser if he takes that of a stranger; but in the latter he is required to take certain specific property, and is not a trespasser, and cannot be sued for taking it. His possession under the writ and his power to obey it are thus perfectly protected, aud his taking is entirely unaffected by the question of ownership.

In Acker v. White, 25 Wend. 614, the property was levied upon in 1837 as the property of Jessup. Thereafter White took out a writ of replevin and gave the necessary bond, but left the property in the possession of Jessup. In 1839 Acker, as sheriff, Jevied upon the samo property, while the replevin suit remained undecided. White recovered the property from Acker, the court saying that “the bond was substituted for the goods,” and “assuming that the plaintiff acquired, by virtue of the bond and replevin, the property in question, then though it still continued in the possession of Jessup, it would not be subject to execution against him."

The case of Burkle v. Luce, 1 N. Y. 239, cited by the General Term, decided only that where the replevin suit had abated, and could not be revived because of the death of the plaintiff, the lors made by the sheriff, from whose possession the replevin had taken the property at once revived, and he could retake it from the possession of the plaintiff's executors. There the replevin was at an end, and the custody of the law discharged. We fail to find anywhere authority for the doctrine that by the issue of an execution a sheriff holding property under a writ of replevin can be forced to disobey the mandate of the writ. The case of suocessive executions issued to the same officer stands upon different principles. Even there it is said, that having levied under the first execution, be cannot and does not lery under the second, but its issue to him operates a constructive levy. Seymour v. Neuton, 17 Hun, 30. But in such case he is not charged with inconsistent duties, or his lawful possession disturbed. The later executious in no manner alter or iuterfere

with his duty under the first. We can obey all the mandates, aud is not driveu to disobey any, but an execution following a writ of replevin sets the officer at once at war with himself.

The Code has made provision for the case of a claimant whose claim existed prior to the replevin ($ 1709), but has made none for a caso where, as here, the creditors judgment was obtained and his execution issued after the replevin. In such caso be can only claim through the title of the debtor. If there be none in him, there can be no right of the creditor. If tbat title is already in dispute, he must abide its issue; or if need be, in a lawful manner take part in its deterwination. If the property be lawfully removed from the possession of his debtor, and held by the law for a final adjudication, he cannot disturb that custody or invade it with inconsistent process. Ile must take such remedy as will not interfere with the custody lawfully acquired and maintained. Cases of attach

fraud or express warranty; the law will presume that the buyer exercised his own judgment, and the rule of caveat

emptor applies. An exception is found however in cases of executory con

tracts for the manufacture and sale of goods in futuro, where from the nature of the case it is impossible, or where by the contract it is the duty of the seller to ascertain and judge of the quality of the article, as when he agrees to furnish an article for a specified purpose or of a

particular kind. Appellant, a manufacturer of steam boilers, submitted to ap

pellee a proposal to make for him two boilers, the shells of which were to be made of a particular brand of jron, known in the market as charcoal hammered iron of a certain grade. The boilers were made according to the specifications, and after being used for a time, one gave out by reason of an inherent defect in the iron. Held, that the seller was not liable as upon an implied warranty. PPEAL from Cook Superior Court. The opinion

states the case.

of AP:

to whom the warrant has been issued is to take and retain the property till final judgment and execution. llence it is said that property in custodia legis cannot be attached. Drake on Attach., $ 251, and the case of Read v. Sprague, 34 Ala. 101, is cited. There an attachment was placed in the hands of the sheriff, and before its levy a writ of seizure from a court of chancery was issued to the same officer. He tried to execute both. Of course he could not, and the court held that since he could not execute the attachment ercept by taking the property, and the moment he took it the property was in the custody of the court under the writ of seizure, therefore the attachment could not be levied. If the courts of this Stato have modified this rule, it is only in a manner which preserves its substantial elements.

In Dunlop v. Patterson Fire Ins. ('0., 74 N. Y. 145, money deposited with the clerk of a court, in lieu of an undertaking on appeal, was held liable to an attachment in an action by a third person against the dopositor. But this went upon the ground that the attachment operated not upon the money itself, but upon the intangible right of the depositor to so much of it as might remain after the exigencies of the appeal were satisfied; and the court carefully and sedulously guarded itself against a construction that would interfere with the custody of the fund.

The creditor, in the present case, must pursue a remedy consistent with the sheriff's duty under the replevin, and with the holl which the law has upon the property. The issue of his execution gave him a general lien against the property of his debtor. Ho meets with an obstruction to his levy. We see no reason why he may not proceed in equity, making all the rival claimants parties, preventing if need be a transfer of the property by the plaintiff in replovin, avoiding a multiplicity of suits, and so determining in one action the whole controversy. We think the Special Term was right in setting aside the levy.

The order of the General Term should be reversed, and that of the Special Term aflirmed, with costs.

All concur, except Ruger, C. J., taking no part, and Rapallo, J., absent.

[Seo 28 Eng. Rep. 197.]

R. Biddle Roberts and F.J. Loesch, for appellant.
Abbott, Oliver & Showalter, for appellee.

Wilson, P. J. This was assumpsit brought by ap. pellant Shoenberger against appellee McEwen on a promissory note for $386.24, given by McEwen to appellant in part payment for two boilers made by appellant to appellee.

Appellant was a manufacturer of steam boilers, and in response to an invitation from appellee sent to the latter a written proposal to make for him two tubular boilers for the sum of $1,750. The proposal contained full specifications as to the size, manner of construction, and the material to be used; and among other things it was specified that the shells of the boilers were to be made of “5-16 in. C. H. No. 1 iron,” by which was meant a particular brand of iron known in the market as charcoal hammered iron of a certain grade. Appellant's bid was accepted by appellee, and the boilers were made and put in place in conformity with the specifications. After being used for a time one of the boilers gave out by reason of an inherent defect in the iron of which the shell was constructed, caused by improper rolling at the furnace when made.

l'pon the trial in the court below appellee, under the plea of the general issue and notice of special matter by way of recoupment, offered proof of damages sustained by him by reason of the defect in the boiler; and under tho instructions of the court the jury deducted $222 from the amount of the note, aud rendered a verdict in favor of the appellaut for the balance of $177.75.

No complaint was made as to the workmansbip or as to the manner in which the boilers were constructed: nor was it claimed that appellant knew of any defect in the quality of the iron, nor that the defect was discoverable by any of the tests used by boiler manufacturers. The boilers were tested by hydrostatic pressure before leaving the works to 125 pounds to the square inch, as specified in the proposals. The iron of which the boilers were made was manufactured at a furnaco in Pennsylvania, and purchased by appellant, who was not a manufacturer of iron, to be used in their construction. The only ground of complaint was that the iron was unsound and unfit for the purpose intended. The court ruled that appellant was liable for the damage caused by the defect in the iron on the ground that ho was a manufacturer of tho boilers, and as such must be held to have impliedly warranted the soundness of all the material used by him in their construction.

The general rule of the common law is that upon au




SHOESBERGER V. MCEWEN. At common law upon an crecuted sale of specific chattels the

seller is not liable for defects of quality in the absence of

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