Turner v. Jones. son v. Jarvis, 4 Bing., 66), BEST., Ch. J., said: "From reason, justice and sound policy, the rule that wrong doers cannot have redress or contribution against each other, is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act." See the note and the cases cited in it. In Coventry v. Barton (17 J. R., 142), SPENCER, Ch. J., after referring to many cases, says: "I have no hesitation in saying that it is a true and just distinction between promises of indemnity, which are and those which are not void; that if the act directed or agreed to be done is known, at the time, to be a trespass, an express promise to indemnify would be illegal and void; but if it was not known at the time to be a trespass, the promise of indemnity is a good and valid promise." In that case the evidence tended to show an express promise, but the learned judge does not notice any distinction between an express and implied promise. It is a rule that where there is an express promise, the law will not imply one. The parties have chosen to fix the terms of liability. But in the absence of an express promise, I understand it to be a general principle to imply a promise if the facts are such, as in equity and good conscience, to require a promise. Promises are implied in a large portion of the transactions of life. A works for B, at B's request. Nothing being said about pay, the law at once implies a promise to pay, and gives a rule as to the amount of compensation. So A becomes surety for B, and pays the debt; the law implies a promise to indemnify A. What can be more equitable and just than that he, who claims a right to a thing, or to do an act, and employs another to take the thing, or do the act-such person, believing that it was needful thus to serve his employershould indemnify the person employed, in case it should turn out that his employer could not defend him successfully in an action brought by a third person? In my opinion, under proper circumstances, the law will imply the promise of indemnity in the class of cases we are considering. 1 150 82h 198 Johnson v. Hicks. In St. John v. St. John's Church (15 Barb., 346), Justice MASON, with his usual diligence and ability, examines the question of implying a promise of indemnity in cases of trespass, and comes to the conclusion that no promise can be implied. This case was decided in 1851. Horwe v. Buffalo N. Y. & E. R. R. Co. (38 Barb., 124), was decided in 1862. WELLES, J., delivered the opinion of the court. The promise of indemnity was implied in that case, though the point was made that there is no implied obligation on the part of the principal to indemnify his agent against the consequences of obedience of a lawful command. This case was carried to the Court of Appeals, and is decided in 37 N. Y. R., 297. It is said in the opinion: "There is an implied obligation on the part of the principal to indemnify an innocent agent for obeying his orders, where the act would have been lawful in respect to both, if the principal really had the authority which he claimed." Several authorities are cited. The principle here enunciated embraces the present casc. The judgment should be affirmed. CYNTHIA A. JOHNSON with JOHN JOHNSON, her husband, and WILLIAM M. BOWEN, Appellants, v. ABNER HICKS and others, Respondents. (GENERAL TERM, EIGHTH DISTRICT, SEPTEMBER, 1869.) The joining of law and equity jurisdiction, in the same court, has not changed the practice, nor effected a repeal of any of the provisions of the statute, regulating the course of proceedings on appeals from surrogates' decrees, admitting or refusing probate of wills. In such cases, when an appeal might formerly have been taken from the decision of the circuit judge to the Court of Chancery. (2 R. S., 609, § 100), the review on appeal is still in the nature of a rehearing in equity. But when the surrogate's decision is reversed upon a question of fact, the Supreme Court, on reversal, should direct an issue to be made up, to try the questions arising upon the application to prove such will, and direct the same to be tried at the circuit. (2 R. S., 66, § 57; 609 § 98.) And until the final determination of such issue, the case proceeds as an action at law, and is to be so considered on a motion for a new trial. Johnson v. Hicks. The award of such an issue to be tried by a jury, is a matter of right. And the Supreme Court in reversing, on the facts, a surrogate's decree admit. ting or refusing probate of a will, cannot, at its discretion, direct the surrogate to enter a final decree in accordance with the terms of the order of reversal. The case of Pilling v. Pilling (45 Barb., 86), reviewed and disapproved, so far as it conflicts with the foregoing. On the trial of an issue to determine whether an alleged testator's signature is genuine or simulated, it seems that his declaration made before the date of the alleged will, that he intended to give his property to the legatees therein named; and his declaration made after that date, that he had made such will, are inadmissible as evidence to sustain the genuineness of the signature. The rule excluding the opinion of experts, whether a signature is genuine or simulated, formed by comparing it with other writings, not in evidence in the cause or admitted to be genuine, stated and applied in this case. An instrument purporting to be the last will and testament of Mason Hicks, deceased, was presented by the appellants, the devisees, and legatees, therein named, to the acting surrogate of Niagara county for probate. The same was contested by the respondents, the heirs-at-law and next of kin of the deceased. The surrogate refused to admit the will to probate, on the grounds that the deceased never executed it; that his signature had been forged; and that the signature of A. T. Richardson, one of the witnesses, had also been forged. Richardson was dead at the time the will was offered. Philip Young, the other witness, was produced and examined on the hearing. Evidence was given tending to prove that the testator's signature was genuine, and that the will had been executed in the manner and form required by the statute. And the contestants gave evidence tending to prove that the signatures of the testator and Richardson were both forgeries. On appeal to the Supreme Court, the decree of the surrogate was reversed on a question of fact, and issues were settled to be tried at a Circuit Court in Niagara county, involving the questions. 1st. Did Mason Hicks in his lifetime subscribe his name to said instrument? Johnson v. Hicks. 2d. Did he in the presence of Philip Young and A. T Richardson, subscribe the same? 3d. Did each of the attesting witnesses sign his name as a witness at the end of said instrument at the request of said Mason Hicks? The issues were tried at a Circuit Court in Niagara county on the 6th day of December, 1868, and the jury answered each of the questions in the negative. Upon the trial the appellant took several exceptions to rulings of the court in receiving evidence offered by the respondents, and rejecting evidence offered by the appellants, and also upon a refusal to charge the jury as requested. A case containing exceptions and purporting to contain all the testimony given on the trial was prepared, and an order entered that the case and exceptions be heard at a General Term in the first instance. The appellants brought on the hearing and moved for a new trial, as on a bill of exceptions. S. F. Brown & Farrell, for the appellants. Hiram Gardner & S. E. Church, for the respondents. Present-MARVIN, LAMONT and BARKER, JJ. By the Court.-BARKER, J. Before investigating the several exceptions contained in the case, an important question is to be considered and determined, as to the nature and character of the proceedings before the court, and the rules and practice, that are to guide and govern in the disposition of the same. On the part of the appellant, it is insisted, that the questions presented by the exceptions to the rulings of the court on the trial, shall be regarded the same as if they arose in an action at law. On the part of the respondents it is claimed, that the proceedings are now before the court, in the nature of a rehear ing in equity, and that the court is as free from the strict and Johnson v. Hicks. technical rules of the common law, as if it was a motion for a new trial in an equity action, where feigned issues have been awarded and trial had thereon by a jury; that error in receiving evidence is not ground for granting a new trial, if the facts, established by competent testimony, are sufficient to uphold the verdict; nor will the rejection of evidence furnish ground for reversal, provided the court can see that such rejected evidence should not change the result; and that, this court has the power to disregard the finding of the jury, and to order the will to be admitted to probate, if it is satisfied, upon a perusal of the evidence, that the verdiet of the jury is erroneous, and the facts proved establish the validity of the will. In equity actions, where issues of fact have been awarded and tried by a jury, so long as the verdict of the jury stands, the court is bound by the same, and must follow the findings, upon the final hearing, or in any subsequent proceeding therein. If either party to the suit desires to review the proceedings on the trial, he must prepare a case, and exceptions, and bring them to a hearing and decision before the action is heard on the equities reserved. On such review and motion, for a new trial, the equity court may grant or refuse a new trial within its discretion. It may disregard errors that would certainly lead to a new trial, in a common law action, and it may order a new trial without pointing out any error. (Forrest v. Forrest, 25 N. Y., 511; Lansing v Russell, 2 Coms., 563.) Prior to the adoption of the 33d rule, it was within the power of the judge, and frequently exercised, on the final hearing, to disregard the finding of the jury, and, on the minutes of the trial, certified to him by the circuit judge, to arrive at a different and adverse result from that of the jury, and make such conclusions the basis of the decree. This power in the equity judge, led to much just complaint, and often to great injustice. Suitors, relying upon the verdict of the jury, sought a final decree based thereon, and guided thereby. For the first time, they were informed, that the conscience of the court, was LANSING-VOL. I. 20 |