St. Paul's Church v. Ford.

create any servitude or easement upon the common property without the consent of the other. (3 id. 436.) Neither could bind the other by an agreement in respect to the common property, but either could charge his separate and several estate, or could convey it or mortgage it, or become personally liable upon an undertaking respecting it. When the defendant Pomeroy signed the agreement of November, 1856, he charged his several estate or interest in the pew with the additional rate or assessment provided for, whether Ford became a party to it or not, and if any personal liability was created by signing the paper he bound himself only. The charge and liability was then several, and not joint. Pomeroy did not undertake to bind Ford, or charge his moiety of the pew. When Ford subsequently became a party to the agreement he undertook for himself and in respect to his moiety of the pew, but his liability and the charge upon his share of the common property, resulted from his individual and several undertaking. He did not become the surety of Pomeroy or charge his share of the pew for Pomeroy's portion of the tax or assessment. In no sense did any one of the signers of the paper become jointly bound with or, sureties for the others. A joint liability cannot result from the ownership of a pew in common, any more than a joint liability of all the pew owners results from a quasi tenancy in common of the whole church, The nonsuit was right and the motion for a new trial must be denied.

MULLIN, J. concurred.

MORGAN, J. dissented, on the ground that the fair import of the transaction is, that the new assessment upon the increased valuation of the pew, should be a charge upon the defendants jointly, as before, Both could separately agree to this. New trial denied.

[ONONDAGA GENERAL TERM, October 2, 1860. Allen, Mullin and Morgan, Justices.]

BARRET VS. GRACIE.

When the facts upon which an order of arrest is granted are the same facts which constitute the cause of action, the order of arrest cannot be discharged; unless the defendant clearly makes out such a case as would call on the judge presiding at the trial to either nonsuit the plaintiff, or direct a verdict for the defendant.

The decision in Frost v. McCarger, (14 How. Pr. 131,) approved. The cases of Union Bank v. Mott, (6 Ab. 315,) Hernandez v. Carnobeli, (4 Duer, 642,) and Republic of Mexico v. Arrangois, (11 How. Pr. Rep. 1,) commented on. If A. places an article in the hands of B. to sell, the proceeds over and above the compensation of B., to be paid to A., B. becomes vested with a fiduciary capacity, and in the event of his selling the article, receiving the proceeds, and neglecting to pay over, he is liable to arrest.

Nor is the principle different where a price is fixed, which the agent is directed to realize, net. A principal may limit his agent, as to price, without destroying the fiduciary character.

OTION to discharge an order of arrest. The complaint

MOTI

alleges that the plaintiff, at divers times in the month of November, 1860, to wit, on the 6th, 9th and 12th days of said November, by his agents, delivered to the defendant, who was doing business in the city of New York as a broker, divers bills of exchange on parties in England, for the aggregate sum of £9600 sterling, upon an agreement made with the defendant, whereby he agreed to sell said bills of exchange at certain specified rates per cent over and above his commissions for selling, and to pay the amounts so received by him, on the receipt thereof, to Wilbur & Price, agents for the plaintiff. That the total sum at which said Gracie was authorized to sell said bills of exchange, over and above his commissions, was $45,762.22. That said Gracie, prior to the 17th of November, 1860, sold all of said bills of exchange, and, on and prior to that date, received therefor the said sum of $45,762.22. That said Gracie, on and prior to the 16th of November, 1860, of the said money so received by him, paid to the plaintiff's said agents the sum of $33,873.33; but has failed to pay the balance of the money received by him for said bills, to wit, the sum of $11,888.89, and has appropriated the same to his own use. That the defendant is

Barret v. Gracie.

indebted to the plaintiff in said sum of $11,888.89, with interest from November 17, 1860, for said money so received by him belonging to the plaintiff. The judgment prayed for by the complaint is for the said sum of $11,888.89 with interest from November 17, 1860, besides costs of action.

BARNARD, J. The dates of the delivery of these bills with the number thereof delivered on those dates, the aggregate amount thereof, the rate at which they were to be sold, and the sum which they would produce if sold at those rates as the same are alleged in the complaint, will appear by the following schedule.

Date. No. of bills. Aggr. amount. Rate per cent. Sum produced. 1860, Nov. 6

3

£2500

107

$11,992 22

It will thus be perceived that the proceeds of the bills delivered on the 6th and 9th of November have been paid to the plaintiff, and that this action is in fact brought for the proceeds of the bills delivered on the 12th. Upon the complaint and an affidavit supporting the allegations contained in it, an order of arrest was obtained by the plaintiff and the defendant arrested thereunder.

same.

It will be seen that the facts constituting the cause of action and those constituting the grounds for arrest are the The defendant now moves on his own affidavit to vacate the order of arrest. The plaintiff, to sustain the order, reads his own affidavit and those of his agents, Jeremiah Wilbur and Joseph W. Price. The defendant's affidavit does not contradict or vary the case made by the complaint, except in the following three particulars: 1st. The defendant

Barret v. Gracie.

swears that the various bills of exchange were sold to him by Wilbur & Price as their own property, at fixed prices, on a credit, and were not delivered to him as a broker to sell for the plaintiff, and to pay the proceeds of the sale over to the plaintiff or to Wilbur & Price, as agents for the plaintiff; and in this connection he sets out in his affidavit several instruments which he swears were given him by Wilbur & Price, and which he terms bills of sale of said bills of exchange. The following is a copy of that one of such instruments which refers to the bills of exchange delivered on the 12th of November, 1860:

"ROB'T GRACIE

Bought of WILBUR & PRICE, 1860. November 13. £2500 stg. on London, at 107.00, $11,888.89. Cash Saturday, 17th.”

2d. The defendant swears that he did not know the plaintiff in any of the transactions, but dealt with Wilbur & Price as principals. 3d. The defendant swears that he did not receive, on the sale of the bills of November 12th, the sum of $11,888.89, but only the sum of $11,666.67. It is alleged in the affidavits on behalf of the plaintiff, and not controverted by the defendant's affidavit, and therefore, for the purpose of this motion, must be taken as true, that the plaintiff was the owner of the bills of exchange, and was and is entitled to the proceeds thereof; that Messrs. Wilbur & Price were the agents of the plaintiff; that the defendant was a broker doing business in the city of New York; that Wilbur & Price delivered to the defendant the bills of exchange above mentioned, at the dates and at the rates specified; that the defendant has sold all of said bills of exchange, and has paid to Wilbur & Price the sum of $33,873.33. That said sum of $33,873.33 is the net amount, less commissions, which the sale of those bills of exchange that were delivered prior to November 12th, at the rates at which they were delivered to the defendant, would have produced. That the defendant has received, on the sale of the bills delivered on the 12th of

Barret v. Gracie.

November, the sum of $11,666.67, which he has not paid over. The two questions in the case therefore are,

1st. Were the bills of exchange delivered to the defendant on an absolute sale thereof to him on credit; or were they delivered to him as a broker, in a fiduciary capacity, to be by him sold for the plaintiff, and when sold the proceeds of the sale to be paid over by him to the plaintiff or his agent?

2d. Was the transaction one between the defendant and the plaintiff through his agents, Wilbur & Price, or one between the defendant and Wilbur & Price ?

On these two points the case stands thus: The defendant swears that the bills were delivered to him on an absolute sale thereof to him, and that he never knew or heard of the plaintiff in all of his transactions with Wilbur & Price, but that on the contrary all of his transactions with Wilbur & Price were with them as principals and not as agents. Messrs. Wilbur & Price both swear that the bills were delivered to the defendant in his capacity as broker, to sell the same at not less than a certain rate over and above his commissions, and to pay so much of the proceeds of the sales as should amount to said rates, to them as the agents of the plaintiff. They also swear that as to the bills delivered on the 12th of November they informed the defendant that the plaintiff was the owner of the bills, and that they could not permit him to sell them for less than 107 per cent, net, to his customers, and if he did not sell for that amount he must return the bills. It may be conceded that the defendant by his affidavits contradicts all these statements of Messrs. Wilbur & Price. The preponderance of the testimony, however, (there being two oaths to one,) is clearly in favor of the plaintiff, unless there are some facts and circumstances sustaining the defendant's affidavit so strongly as to outweigh the force of the two opposing oaths. The defendant's counsel insists that such a fact and circumstance is to be found in the form of the instruments called bills of sale. I will not inquire into