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fully issue such notes for a legitimate purpose, until prohibited by the act of 1840, Laws of 1843, 306, sec. 4.

DENIO, C. J., was also in favor of affirming the judgment, on substantially the same grounds as those stated by Judge MITCHELI

COMSTOCK, HUBBARD, T. A. JOHNSON, and WRIGHT, JJ., concurred in the foregoing opinion delivered by Judge SELDEN, and were in favor of modifying the judgment in accordance with the principles stated in that opinion.

A. S. JOHNSON, J., dissented.

Judgment modified.

ILLEGAL CONTRACTS, RIGHTS OF PARTIES TO: See Buck v. Albee, 62 Am. Dec. 564, and cases collected in the note thereto. To the point that where a contract is not malum in se, but merely malum prohibitum, and the parties are not equally guilty the less guilty may have relief, the principal case is cited and followed in Commissioners v. Backus, 29 How. Pr. 40; Sistare v. Best, 16 Hun, 615; Oneida Bank v. Ontario Bank, 21 N. Y. 490; City Bank v. Perkins, 4 Bosw. 446; S. C., 29 N. Y. 554, 571; Curtis v. Leavitt, 15 Id. 45; Sackett's Harbor Bank v. Codd, 18 Id. 240-245; Ganson v. Tifft, 71 Id. 57; and in other cases hereinafter mentioned. Thus a city issuing negotiable paper contrary to law has been held liable for money advanced thereon by an innocent holder: Mayor v. Ray, 19 Wall. 484. So where a bank issues paper which it is forbidden by law to issue, it is nevertheless liable for the consideration received therefor: Curtis v. Leavitt, 15 N. Y. 45; Sackett's Harbor Bank v. Codd, 18 Id. 244. Where the contract is merely in excess of corporate power, and is not immoral or opposed to public policy, the defense of ultra vires on the part of the corporation, where it has received the entire consideration, is not to be tolerated: De Groff v. American Linen Thread Co., 21 Id. 128; see also Gould v. Oneonta, 3 Hun, 406; S. C., 6 Thomp. & C. 646. Mere knowledge by the vendor of liquors that they are intended to be sold by the vendee in violation of law will not prevent his recovering the price: Webber v. Donnelly, 33 Mich. 172. A broker instrumental in bringing parties together, who afterwards make a contract illegally to advertise a lottery, may recover his commissions, if he took no part in making or carrying out the contract: Ormes v. Dauchy, 13 Jones & S. 87. So where bills are borrowed to circulate as money in another state, contrary to its laws, but the lender does not stipulate for anything to be done in violation of such laws, he is not in pari delicto, and may enforce the contract of which the lending of such bills was a part: City Bank v. Perkins, 4 Bosw. 446; S. C., 29 N. Y. 554, 571. A carrier of smuggled goods doing nothing to facilitate the smuggling is not a particeps criminis, and may recover his freight, and is also liable for the loss of the goods: Donovan v. Compagnie Generale Trans Atlantique, 7 Jones & S. 521. But where a vendor sells an article with intent that it shall be illegally used, and does anything to further the illegal design, as by counterfeiting labels or the like, he cannot recover the price: Materne v. Horwitz, 18 Id. 45; Hull v. Ruggles, 56 N. Y. 428; Knowl ton v. Congress etc. Co., 57 Id. 532; Arnott v. Pittston etc. Coal Co., 68 Id. 567. So where one leases a hotel bar and gives his lessce the right to sell

liquors under his license, contrary to law, an assignee of the lease having knowledge of the facts is particeps criminis, and cannot recover: Sanderson v. Goodrich, 46 Barb. 618. Where a contract is void as against public policy, both parties being in pari delicto, neither can have relief: Martin v. Wade, 37 Cal. 175; Kerrison v. Kerrison, 8 Abb. N. C. 449; Saratoga County Bank v. King, 44 N. Y. 91, 92; Richardson v. Crandall, 30 How. Pr. 144, citing the principal case.

Certainly the more blameworthy of two persons concerned in an illegal transaction can have no relief from the law, at least, so far as such relief depends upon affirmance of the transaction. Hence a bank lending money at a prohibited rate of interest on a note cannot recover against an indorser of the note: Bank of Salina v. Alvord, 31 N. Y. 476. Brown, J., in that case quotes with approval what is said by Selden, J., in the principal case, distinguishing between those cases in which relief is granted to a party to an illegal contract because he is not in pari delicto, and those in which relief is awarded on the ground of disaffirmance of the contract. In Pratt v. Short, 53 How. Pr. 511, S. C., 79 N. Y. 447, it is held, citing the principal case, that a bank discounting paper contrary to a provision in its charter may recover the money loaned as money had and received, though it cannot recover on the contract. But the contrary is held in In re Jaycox, 12 Blatchf. 215, S. C., 13 Nat. Bank. Reg. 127, quoting what is said in Tracy v. Talmage, as to the doubt thrown on the Utica Insurance Company cases by later decisions. The case is cited to the same point in Pratt v. Eaton, 18 Hun, 295, where it was held that the assignees of a bank discounting paper contrary to law could not enforce a mortgage given as security in such a transaction, but that decision was overruled in S. C., 79 N. Y. 450. In Stewart v. National Union Bank, 2 Abb. 433, it was held, citing and explaining the principal case, that a national bank having loaned money in excess of a statutory restriction could recover it back, or if not, that the court would not cancel the contract at the suit of a judgment creditor of the borrower, and compel the bank to relinquish securities received on it. In Hurd v. Green, 17 Hun, 335, it was decided that where a bank had taken a bond ultra vires, the obliger could not defend against it on that ground, citing Tracy v. Talmage to the point that the doctrine of ultra vires cannot be allowed to prevail either for or against a corporation where it would work a legal wrong. So a city loaning its bonds without lawful authority may, it seems, recover damages for their non-return: Memphis v. Brown, 20 Wall. 306, citing the principal case. The case is distinguished in Haynes v. Rudd, 17 Hun, 479, as affording no aid in the solution of the question in the case at bar, which was, whether or not one who had given a note to compound a felony, and had been compelled to pay it to a bona fide holder, could recover the money back from the original payee. The question was answered in the affirmative. In Lafferty v. Jeeley, 22 Ind. 473, the principal case was cited upon the question, which was, however, left undecided, as to whether or not an attorney having made a champertous contract could rescind it and recover on a quantum meruit for his services.

THAT ASSIGNEE OF PRINCIPAL SUBJECT TAKES IT WITH ALL INCIDENTS, COLLATERALS, and rights attaching to it in the hands of the assignor, is a principle to which Tracy v. Talmage is cited in McMahon v. Allen, 35 N. Y. 407, S. C., 3 Abb. Pr., N. S., 79, 32 How. Pr. 331, where it was held that an assignee for the benefit of creditors could sue to set aside a prior assignment fraudulently procured from the assignor. The case is cited and applied as an authority for the same general doctrine, in Freeman v. Auld, 44 N. Y. 57; Allen v. Brown, Id. 233; and Memphis v. Brown, 20 Wall. 319.

SHELDON V. HUDSON RIVER R. R. Co.

[14 NEW YORK (4 KERNAN), 218.]

ACTION AGAINST RAILROAD COMPANY FOR SETTING BUILDING ON FIRE BY SPARKS from a locomotive may be sustained (where direct evidence as to the cause of the fire is lacking) by proof that on other occasions engines of the company, in passing the spot, emitted sparks and coals which fell farther from the track than the building in question. Such evidence, even without connecting it with the particular engine supposed to have set the fire complained of, might suffice to cast the burden of showing that the fire was not set by the locomotives upon the company. APPEAL from a judgment of nonsuit. The facts are stated in the opinion; and a report of the decision below may be found in 29 Barb. 226.

S. E. Lyon, for the appellant, the owner of the building destroyed.

John Thompson, for the respondents, the railroad company.

By Court, DENIO, C. J. The plaintiff owned and possessed a building used as a storehouse in Greenburgh, Westchester county, standing on the easterly side of the defendants' railroad, and about sixty-seven and one half feet from the track. It was in the charge of two of the plaintiff's servants. The outer doors were kept locked, and no fire was used in it. On the seventh of February, 1852, it took fire and was consumed; it was proved that about twenty-five minutes before the fire was discovered a train of cars of the defendants, drawn by a locomotive-engine called the Oneida, passed the place. first floor of the building there was a parcel of shavings and a quantity of lumber, and some of the glass in the windows of that story had been broken. As I understand the testimony, the place where the fire was first seen was on this floor, and not far from one of the windows. Having proved these facts, and that the day on which the fire took place was windy, the direction of the wind being towards the building, and the persons in charge having sworn that no person, to their knowledge, had been in it during that day, the plaintiff proposed to prove by a witness who lived close to the railroad, and about one fourth of a mile from the building, that shortly before it was burned he had seen sparks and fire thrown from the engines used by the defendants in running their trains through the witness's premises a greater distance than this building stood from the track of the railroad, and that he had picked up from the track, after the passage of the trains, lighted coals more than two inches in

length. The evidence was objected to by the defendants' counsel, and excluded by the court. The plaintiff's counsel excepted. The plaintiff also gave evidence which, as his counsel insists, tended to show that the engines used by the defendants lacked some apparatus which was in use upon some other locomotive engines, and which rendered the latter less liable to communicate fire to substances at the side of the road than those which were without that apparatus. The judge in the first instance denied a motion made by the defendants for a nonsuit, but after the defendants had proceeded at some length in the examination of witnesses in their behalf, he stopped the further examination of a witness and nonsuited the plaintiff.

It is argued by the defendants' counsel that the evidence offered and rejected was too remote and indefinite to have a just influence upon the particular question in issue in the case; that it did not refer to any particular engine, and that it may be that the one which ran past the plaintiff's premises, just before the discovery of the fire, was quite a different one from those which scattered fire on the occasion to which the evidence offered would apply. This argument is not without force; but, at the same time, I think it is met by the peculiar circumstances of this case. These engines run night and day, and with such speed that no particular note can be taken of them as they pass. Moreover, there is such a general resemblance among them that a stranger to the business cannot readily distinguish one from another. It will therefore generally happen that when the property of a person is set on fire by an engine, the owner, though he may be perfectly satisfied that it was caused by an engine, and may be able to show facts sufficiently legitimate to establish it, yet he may be utterly ignorant what particular engine, or even what particular train, did the mischief. It would be practically quite impossible by any inquiries to find out the offending engine, for a large proportion of those owned by the company are constantly in rapid motion. The business of running the trains on a railroad supposes a unity of management and a general similarity in the fashion of the engines and the character of the operation. I think, therefore, it is competent prima facie evidence for a person seeking to establish the responsibility of the company for a burning upon the track of the road, after refuting every other probable cause of the fire, to show that, about the time when it happened, the trains which the company was running past the location of the fire were so managed in respect to the premises as to be likely to set on fire

objects not more remote than the property burned. It is presumed to be in the power of the company, which has intimate relations with all its engineers and conductors, to controvert the fact sworn to, if it is untrue, or, if true in a particular instance, that it was not so in respect to the engines which passed the place, at a proper time, before the occurrence of the fire. The effect of the evidence would only be to shift the onus probandi upon the company; and that, under the circumstances of this case, seems to me to be unavoidable. The rule respecting the onus often depends upon the special circumstances of the case, and it not unfrequently happens that a party is obliged to establish a negative proposition: Phill. Ev., Cowen & Hill's Notes, 490, and cases. For instance, if it were proved to be universally true that the engines on the defendants' road scattered fire upon both sides, so as to endanger property as near the track as this building was, and it was established, as was done in this case, that the property claimed to have been set on fire by the negligence of the defendants was actually burned without any known cause or circumstance of suspicion besides the engines, it would clearly be incumbent on the defendants to show that they were not the cause. The present case is only less strong in degree. It was offered to be shown that a practice on the part of the company, which would have endangered this building, was indulged in about the time and near the place where the building was burned. That fact rendered it probable to a certain degree that the injury was attributable to that cause, but it left it in the power of the defendants not only to controvert the evidence generally, but to show that the special facts applicable directly to the occurrence of the fire were such as to overcome the general inference from the plaintiff's evidence, and avoid the presumption which that evidence created. I am of opinion, therefore, that the judge erred in this ruling.

The evidence excluded had a bearing upon both branches of the case which the plaintiff undertook to establish. It not only rendered it probable that the fire was communicated from the furnace of one of the defendant's engines, but it raised an inference, of some weight, that there was something unsuitable and improper in the construction or management of the engine which caused the fire.

It is unnecessary to express an opinion upon the case as it stood, without the evidence of which the plaintiff was deprived. It may be that when the case is tried upon the principle indi

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