Cheritree v. Roggen.

sworn himself and secondary evidence be admitted. As the case then stood, I think the ruling was right. It would not at all follow that because the envelope was in the same or a different handwriting, the libel was not his. Upon the plaintiff's theory of the case, as it then stood proved, the defendant had concocted the libels, and had them placed in the post office, directed to himself, and had received them from the post office in the envelopes he had prepared. It was this theory which he was called upon to defend and disprove; it did not help to disprove it that the envelope was in any particular handwriting, nor that it was in the same handwriting as the libels.

The next, and only further objection to the ruling of the judge complained of, is that upon the questions put to a witness called to impeach Frank Graham, a a witness for the plaintiff, as follows: Q. "Do you know this boy, Frank Graham?" A. "I know him by sight." Q. "Have you heard him talked about by the community?'' A. "I did a year ago last summer." Q. "Have you heard people speak of his general character ?"" A. "I did then." Q. "From what people said of him, what is his general character, good or bad?" Court. "How long have you known him?" A. "I knew him then, I never saw him before or since until this court." Court. "How long before this trial?" A. "This was in 1867, in the month of June, a year ago last summer." Court. "Did you learn his general character?" A. "I don't know that I did." Court. "Was it at the place where you lived that you' heard these people talk?" A. "No sir, that was at Oak Hill." Court. "How far is it from where you reside?" A. "Three miles and a half." Court. "I don't think that is general character at all. The transactions that arise and surround a particular case don't make general character." To which ruling and decision the defendant's counsel excepted. Counsel for defenVOL. LXVII.

9

Cheritree v. Roggen.

dant. "I propose to show that on a given day in 1867 numerous persons residing at Oak Hill stated in witness' hearing that Frank Graham's general character was bad." Court. "I don't think that it will do." And the court excluded the evidence so offered, and the defendant's counsel excepted.

It is a very simple proposition, and sound as it is simple, that a witness cannot swear to general character, unless he knows it. This knowledge is a thing acquired by time, and by the general speech of the people who know, and who have the opportunity of knowing and of forming an opinion from that knowledge. The witness neither knew the person attempted to be impeached, or his general character, nor was there any evidence that the person so speaking knew. If the fact that a few or a number of persons, on a single occasion, speak ill of another, in the absence of evidence that the persons so speaking knew the person they were speaking of, were sufficient to establish character, few persons could be found to pass that ordeal unharmed in reputation. The ruling of the judge was right.

There were no exceptions to the charge of the judge. On a full examination of the case I do not find any error that requires a reversal. The judgment should be affirmed, and also the order appealed from.

Judgment and order affirmed.

[THIRD DEPARTMENT, GENERAL TERM at Binghamton, December 2, 1873. Miller, Potter and Parker, Justices.]

AITKEN VS. MEYER.

The plaintiff, having in his possession certain papers upon which he claimed a lien for money loaned to P. & S. for the defendant, P. & S. borrowed of the defendant his check, and passed the same to the plaintiff to discharge the debt and obtain possession of the papers, the defendant knowing, at the time of delivering the check, that it was to be used by P. & S. Held, that these facts constituted the plaintiff a bona fide holder of the check. Held, also, that it was entirely immaterial that the check was made payable to P. & S. That it was sufficient that the plaintiff had possession of papers upon which he claimed a lien, and that he took the check, and in consideration thereof delivered up the papers.

A

PPEAL, by the defendant, from a judgment en

tered upon the report of a referee. The action was upon a check made by the defendant, payable to the order of Peters & Schierloh, and indorsed by them to the plaintiff.

By the Court, PRATT, J. There is no exception to any finding of fact, and each fact found is material to the decision of the case. The plaintiff had in his possession certain papers upon which he claimed a lien for money loaned to Peters & Schierloh for the defendant, and the check in suit was borrowed by them of the defendant and passed to the plaintiff to discharge that debt and obtain possession of the papers. The defendant knew, when he delivered the check, that it was to be so used by Peters & Schierloh.

These facts constituted the plaintiff a bona fide holder of the check in suit. It is entirely immaterial that the check was made payable to Peters & Schierloh. It is sufficient that the plaintiff had possession of papers upon which he claimed a lien, and that he took the check, and in consideration thereof delivered up the papers.

The referee was correct in holding that the burthen of proof was upon the defendant, after the plaintiff had produced the check.

Neither are the exceptions to the admission of evidence well taken.

Pease v. Copp.

All the material facts are admitted or proved by evidence that is unobjectionable.

The judgment must be affirmed with costs.

Judgment affirmed.

[SECOND DEPARTMENT, GENERAL TERM at Brooklyn, December 8, 1873. Barnard, Tappen and Pratt, Justices.]

PEASE VS. COPP.

Where, by the terms of an executory agreement, the delivery of goods is to be at a specified place, to a specified person, who, as between him and the buyer, is not authorized to inspect the goods, but has a general authority to receive, weigh and forward such goods as the purchaser sends, and goods are in fact received by the agent and by him consigned to another agent of the buyer, at a distant place for sale, the purchaser will be held to have accepted the goods, and is precluded, in the absence of fraud, from subsequently calling in question the quantity, or quality, of the property sold, in an action brought by the vendor, for the contract price.

It seems that it is the duty of the purchaser of an article of merchandise which, in its nature, is open to ready inspection, and which is, by the terms of the contract of sale, to be delivered at a specified place, to provide for the inspection of the commodity before it has been transported from the place of delivery, in pursuance of the buyer's directions.

The defendant contracted with the plaintiff for all the cheese the latter should make, in his dairy, during a specified term, the cheese to be delivered to A., an agent of the defendant at D., who had instructions from the defendant to receive such cheese as should be sent to him, and to weigh and forward the same to the defendant's agent or consignee, in New York, for sale. Under this contract a quantity of cheese was received from the plaintiff, by A., and was by him weighed and forwarded to New York in pursuance of the defendant's directions. Held, that there was a delivery and acceptance of the cheese. That it was an article that could be inspected, and its quality ascertained; and this should have been done, at A.'s warehouse. And that after the goods had been accepted by the purchaser's agent, and forwarded to New York, it was too late for the defendant to raise any question as to the quality of the cheese.

A

PPEAL, by the defendant, from a judgment entered upon the report of a referee.

The action was brought to recover a balance of pur

Pease v. Copp.

chase-money claimed as due upon a sale and purchase of a quantity of cheese. The complaint alleged the sale and delivery by the plaintiff to the defendant, at divers times during the summer and fall of the year 1857, of large quantities of cheese, at a specified price per pound. The answer, in addition to a general denial of the alleged contract, and a plea of payment, set up an agreement between the parties that such cheese as should be delivered by the plaintiff should be of a good and merchantable quality, and charged a breach of such agreement, and alleged that the cheese which had been delivered was of little or no value. The answer also contained a plea of accord and satisfaction.

On the hearing before the referee, the plaintiff proved that an executory agreement was entered into, between the parties, in August, 1857, by which the defendant agreed to take, of the plaintiff, such cheeses as he then had on hand, to the number of about seventy, and such others as he should thereafter make in his dairy prior to the 20th day of October of that season; for all of which the defendant was to pay at the rate of nine cents. per pound. The cheese was to be put up in boxes by the plaintiff and to be delivered as soon as it should become four weeks old, at the warehouse of George M. Abell in Dunkirk, the price to be paid on delivery. The cheese was shown to have been taken to the place designated in the contract, in parcels, at different times during the summer and fall of the same year. The last load, consisting of thirty-three boxes, weighing 3,087 pounds, was deposited at the warehouse on the 27th of November, 1857. Abell was present at the time, and gave his receipt in the following form:

"Received from H. G. Pease, in store, for T. D. Copp, thirty-three boxes cheese. 33 boxes, 3,391-304. GEO. M. ABELL.”

Nov. 27, 1857.

The giving of the receipt in evidence was objected to by the defendant as hearsay evidence, but the objection