Van Rensselaer v. Akin.

ple which led Bayard to execute the release now in question. In this, it is true, he refuses to join; but he transfers his authority to Boudinot, and the latter, as it is very natural he should, acts in the spirit of the original understanding, by treating the release as valid. I will not say that a contrary course would have been wanting in legal good faith. Perhaps the understanding, not having been reduced to writing, was void. But still, the consideration of morals and honor is in the case, and leads the mind more willingly to suppose that Boudinot meant what his course of conduct in the suit appears so strongly to indicate. The whole is, to my mind, about equivalent to an answer in chancery, which, though in another suit, may be treated as a sworn confession of the party. Then, clogged with this evidence, the title comes back to these appellants. They themselves. give in evidence a conveyance from Boudinot's representatives. They must succeed through a title derived from him, if they succeed at all. They come as privies. They claim under him, and must be bound by his acts. All that he has said and done and omitted in relation to the release. of Bayard, are imputable to the appellants as their sayings and their acts. In Lady Dartmouth v. Roberts, 16 East, 344, the defendant claimed to have derived his title from one Leathley, who had answered in chancery at the suit of another, to a fact materially affecting his title. Lord Ellenborough said: "It appears to me this was not res inter alios acta, but inter eosdem acta; and was not only evidence, but strong evidence against the defendant, who stood in the same place by derivation of title and by legal obligation, as Leathley."

I do not forget that the force of this reasoning was sought to be broken by several considerations. One was, that Boudinot was a mere pledgee, having but a limited authority not authority which would enable him to validate the release; another, that the whole transaction with him was usurious and void. Several answers might be given to these and the like objections raised in the course of the argument, but the one already in part noticed is sufficient for all. The appellants, by claiming under and taking title

his title was void.

Van Rensselaer v. Akin.

from Boudinot, shall not be received, at this day, to say that Their own act has made it good. Even if it were void for usury, they have chosen, instead of revoking it for that reason, to allow the usurer his course. He obtained a title on foreclosure and sale, admitting at every step of the proceeding that he had not foreclosed Akin, because he held a valid release. Boudinot made purchases at the master's sale of most of the land, which the appellants now say in their bill he conveyed to Mr. Van Rensselaer, the very trustee who refused originally to execute the release. After that, the appellants, the cestuis que trust, took an assignment of the mortgages from Boudinot's devisees in trust, evidently with a view to this suit, for the bill was filed within a few days after. It is too late now to question the power of Boudinot to release Akin, if the right to question it ever existed.

But there is another feature in this case which ought not to be passed without notice. After the assignment to Boudinot and his foreclosure and sale, we find the cestuis que trust, these very appellants, filing their bill against Bayard and Stephen Van Rensselaer, in which they charged Bayard alone, not Van Rensselaer, with having improvidently released land from the lien of the mortgages in question; and they pursued him and compelled him to account on that assumption. The same proceedings also recognize the assignment to Boudinot as a valid one. But, what is more material, looking at the course of that suit, I think it acknowledges a general agency in Bayard to execute releases in respect to the Greenbush property. At least it manifests an election by these appellants to consider such releases as valid, and charge Bayard with the consequent loss, instead of disavowing his authority, and enforcing the mortgage or mortgages on the land released. Of such general agency or election, Akin has a right to avail himself; and I think that, on the principle established by the cases already cited, he may invoke the chancery suit of the appellants as evidence against them, although he was not a party to that suit. I do not mean to say that the bill was evidence in the same sense that we receive an answer, even if it had

Miln v. Patty.

been sworn to by all the appellants. It was in fact attested by only one of them. But a bill is always receivable as a part of the whole proceedings, to explain the nature and object of the suit, where that is material and relevant. It was here used in connection with the ulterior proceedings, in order to raise a defence upon Bayard's release, by shewing either that he was a general agent, or that the appellants intended to confirm his act. It was said of like evidence by a learned judge, "although these records were not directly between the plaintiff and defendant, yet they were a part of the res gesta out of which the present action has grown. They were circumstances from which the jury might properly deduce facts; and the court very properly permitted them to go to the jury." Nicholson, J. in Michael v. Wells, Walker's R. 353, 354, 355. The bill brought by these appellants was a part of the res gesta from which, I think, taken in connection with Bayard's release, a complete defence has accrued to Akin. The decree of the court of chancery should be affirmed.

The decree was unanimously AFFIRMED.

CHILD VS. BEACH and others.

ERROR from the supreme court. This case, with the names of the parties reversed, will be found in 13 Wendell, 343, et seq., where the supreme court rendered judgment for the plaintiffs. The defendant sued out a writ of error, and this court unanimously affirmed the judgment.

MILN US. PATTY.

ERROR from the supreme court. This case, with the names of the parties reversed, will be found in 16 Wendell, 557, et seq., where the supreme court rendered judgment for the plaintiff. The defendant sued out a writ of error, and this court unanimously affirmed the judgment.

Murray v. Graham.

WILKINSON v. DOUGLASS & DUNN.

ERROR from the supreme court. This case, with the names of the parties reversed, will be found in 17 Wendell, 431, et seq., where a new trial was denied, upon which judgment was rendered for the plaintiffs. The defendant sued out a writ of error. After argument in this court, the CHANCELLOR delivered an opinion in favor of an affirmance of the judgment of the supreme court-he holding that the plaintiffs were entitled to recover under the money counts, but not upon the special count, describing the note as a note for $750. Senator MAYNARD delivered an opinion for a reversal of the judgment of the supreme court. The members of the court divided: 17 being for affirmance and 6 for reversal. Whereupon the judgment of the supreme court was affirmed.

HEWLETT VS. PEARSALL.

ERROR from the supreme court. This case, with the names of the parties reversed, will be fonnd in 20 Wendell, 111, et seq. The defendant sued out a writ of error, and this court affirmed the judgment below by a vote of 19 to 4. See the case of Post v. Pearsall, ante, 425.

MURRAY, appellant, and GRAHAM and others, respondents.

APPEAL from chancery. This case will be found in 6 Paige, 622. Murray appealed from the decree of the chancellor reversing the decree of the vice chancellor of the third circuit, and this court reversed the decree of the chancellor, and modified that made by the vice chancellor.

Murray v. Graham.

Senator MAYNARD delivered an opinion for reversal; neither of the judges of the supreme court delivered an opinion or voted upon the decision of the case. The vote stood for reversal, 10; for affirmance, 7.

END OF CASES IN ERROR.

For the purpose of laying before the profession a number of non-enumerated cases decided since the publication of the last volume, the report of the cases decided in the court for the correction of errors arising under the GENERAL BANKING ACT, are postponed until the next volume.