take them away, and if not removed within a reasonable time the carrier would be liable as a warehouseman only. But this decision was overruled in Conkey v. Milwaukee etc. R'y Co., 31 Id. 631, and it was said, per Dixon, C. J., that the first carrier would have his remedy against the next carrier in case of his failure to remove the goods within due time. The above cases cite the principal case. The liability of a railroad company as carrier and as forwarding agent is not the same: Maybin v. South Carolina R. R. Co., 64 Am. Dec. 753.

FORD V. WILLIAMS.

[13 NEW YORK (3 KERNAN), 577.]

CHATTEL MORTGAGE CANNOT BE IMPEACHED BY EVIDENCE THAT MORTGAGOR, AFTER EXECUTING IT, EXECUTED MORTGAGES of the same property to other persons, which were fraudulent towards his creditors. CHATTEL MORTGAGE ON STOCK OF GOODS WHICH PERMITS MORTGAGOR TO CONTINUE BUSINESS, make sales of the goods, and use the proceeds as his own, is void per se, for fraud towards creditors, unless the proceeds are applied to the mortgage debt, in which case it may be upheld. ATTORNEY DOES NOT MAKE HIMSELF LIABLE AS TRESPASSER by communicating to the sheriff on behalf of his client instructions to levy an execution upon specified property afterwards proved not to be the property of the execution debtor; nor by executing, in his client's name and by his authority, a bond of indemnity to the sheriff.

BOND OF INDEMNITY UNDER SEAL, EXECUTED BY ATTORNEY WHOSE AU THORITY WAS BY PAROL, is valid against his client as a simple contract, without regard to the seal.

FACT THAT ATTORNEY EXECUTES FOR HIS CLIENT BOND OF INDEMNITY UNDER SEAL, when his authority is by parol, does not make him personally liable for the wrongful taking of goods by the sheriff, since the specialty is binding upon his client as a simple contract.

APPEAL from a judgment for damages for taking and carrying away personal property. The property in question was a stock of goods in the store and set of furniture in the house of one Sutherland, who gave a chattel mortgage upon them to plaintiffs, but was allowed to continue his sales; he, however, swore that this permission was conditioned on his applying the proceeds to the mortgage debt, and that he did so. The goods were seized and sold by the sheriff on an execution against the mortgagor, which was the trespass complained of. The action was brought against the attorney who directed the execution proceedings. There were verdict and judgment for plaintiffs, and defendant appealed. A subsequent decision in the cause on somewhat different proofs is reported in 24 N. Y. 359.

Nicholas Hill, jun., for the appellant.

B. Davis Noxon, for the respondents.

By Court, DENIO, C. J. The judge was, in my opinion, correct in excluding the evidence offered to show that Sutherland, after giving the mortgage to the plaintiffs, executed mortgages upon the same property to other persons, which were fraudulent as to his creditors. These subsequent mortgages were given about a month after the plaintiffs' mortgage, and it was not offered to be shown that they had any knowledge of them. The rule contended for by the defendant's counsel would place it in the power of a debtor, who had in entire good faith given a security to a creditor for an honest debt, by his own act to create evidence which might invalidate the security without any fault on the part of the creditor. The only influence which such evidence could have upon the minds of the jury would be to create a belief that as the debtor was shown to be capable of a dishonest act, very probably his transaction with the plaintiff was induced by the same bad disposition. This would not be a legal inference, but a bare conjecture. Contemporaneous acts of the parties to a conveyance alleged to be fraudulent may in general be shown; but these subsequent mortgages were not connected as to time with the plaintiffs' security. I do not perceive that the fact that Sutherland was permitted to sell the goods by retail has any influence upon this particular question. That circumstance did not aid him in making the fraudulent mortgages. Had he even been out of possession, he could have again mortgaged the equity of redemption for an honest purpose, and the subsequent mortgagee could have redeemed the prior mortgage. The possession of Sutherland, and the power of disposition in other respects which he was allowed to exercise over the property, presented another question, but did not tend to render his fraudulent conduct, in giving the other mortgages, evidence against the plaintiffs.

The defendant clearly had a right to show, upon the question of fraud, that the value of the goods mortgaged to the plaintiffs was disproportioned to the amount of their debt. It might tend with other circumstances to show an intention to hinder and embarrass the other creditors of Sutherland by covering up his property. But I do not think the evidence which the judge excluded could have been understood to be offered with that view. The offer was to show that the sheriff left goods enough, which were included in the plaintiffs' mortgage, to satisfy their debt. The apparent object was to show that the plaintiffs were not injured, because they might still realize the amount of their demand out of the goods which remained. It could not, I think,

have occurred to the judge that the motive was, as now argued, to show the aggregate amount of the property levied on with a view to contrast that amount with the debt intended to be secured. It was not contended on the argument that the evidence was material for any other purpose, and it clearly was not. The plaintiffs' mortgage was forfeited before the seizure by the sheriff, and they had become the owners of the property embraced in it.

This court has decided that where, upon the giving of a chattel mortgage on the stock of goods in a store, the mortgagor is permitted, by the assent of the mortgagee, to continue to sell them by retail at his discretion for his own use as he had done before, the mortgage is fraudulent and void against the creditors of the mortgagor: Edgell v. Hart, 9 N. Y. 213 [59 Am. Dec. 532]. There was considerable evidence in this case to bring it within the principle of that decision; but Sutherland's testimony tended in some degree to show that his sales, subsequent to the mortgage, were made in pursuance of an arrangement between the parties that Sutherland might dispose of the goods for cash, and apply it on the plaintiffs' debt, and that he applied the money in that way. The judge was requested to charge in accordance with the doctrine upon the subject which we laid down in Edgell v. Hart, supra; and he responded to that request by saying that such was the effect of the charge which he had given. The defendant, therefore, had the benefit of the rule to the extent of having it laid down correctly to the jury. If they failed to find in accordance with it, the error is one of fact, which we cannot review.

The judgment ought, therefore, to be affirmed unless an error was committed in that part of the charge which related to the defendant's complicity in the alleged trespass. The defendant was allowed the benefit of the position, that he would not be responsible for conveying to the sheriff the instructions of his clients to seize the goods in question, if he did nothing more. That was the view of the judge, and in that I think he was correct. In general, all who aid and abet the commission of a trespass are liable jointly or severally at the election of the party entitled to the action. But where one acts only in the execution of the duties of his calling or profession, and does not go beyond it, and does not actually participate in the trespass, he is not liable, though what he does may aid another party in its commission. The rule was carried far enough when it was held that the sureties in an indemnity bond, of a party wishing to

procure property to be seized upon legal process, were responsible in trespass, the seizure being unwarrantable: Davis v. Newkirk, 5 Denio, 92. I do not affirm that that case was incorrectly decided; for there was force in saying that all the obligors in the bond might be held to have requested the seizure; but the principle clearly would not extend to the scrivener who drew the bond, or the attorney who made out the execution, though they knew the purpose to which they were to be applied. Upon the same principle which shields the attorney, who simply conveys to the officer the instructions of his clients, I should hold that where the party directing the seizure finds it convenient to empower his attorney to execute the instrument of indemnity in his name and behalf as his agent, the attorney so executing as agent would not be a party to the seizure, so as to make him a trespasser, if it should turn out to be unwarranted; and such I understand to have been the view of the judge. He assumed that the act of executing the bond as attorney would be harmless, provided the defendant had sufficient authority from the principles. But the instrument which the defendant did execute was under seal, and his authority was an unsealed letter. Clearly he could not under that authority execute a specialty, and he therefore exceeded his authority. The judge instructed the jury that if he had gone beyond his authority in this regard, that circumstance alone made him liable, if the plaintiffs in other respects were entitled to recover. Now, although he could not, under the letter which his clients wrote to him, bind them by a covenant, the power was ample to enter into a written promise, on their behalf, to indemnify the sheriff; and the paper which he signed in their names sufficiently expressed the consideration to render the agreement valid without regard to the seal; and this court has decided that in such cases the instrument is valid as a simple contract, though executed under seal, provided the law did not require the particular contract or conveyance to be a sealed instrument: Worrall v. Munn, 5 N. Y. 229 [55 Am. Dec. 330]. The question then arises whether the fact that the attorney used a seal when he had no right to do so, and when that circumstance did not impair the contract which he made-that contract being, after all, the precise one which he was authorized to make-so changes his relation to the seizure as to render him liable to the plaintiffs as a party aiding or abetting its commission. I am of opinion that it does not. If he would not have been liable had he executed the paper in form as a simple contract, or if executing it

as he did his authority had been under seal, I do not think the formal defect in the execution of the paper will make him responsible. I do not perceive that this circumstance in any way affected the plaintiffs. It is merely a question between the defendant and the sheriff. The latter did not get an instrument of the precise legal character which he supposed he received, but the one he did get gave him a remedy against the principals substantially the same as though it had been a specialty. The principle upon which an indemnitor is made liable in those cases is, that the instrument is equivalent to a request to make the seizure. This instrument concluded the plaintiffs in the execution from denying that they requested the seizure. It conveyed to the sheriff their request to make the levy as effectually as though the seals had not been affixed to it. The defendant was simply their agent to put that request in writing in their names, and this he effectually did, though not in the exact legal form which they contemplated. If I am correct in this view, the judgment ought to be reversed and a new trial granted.

COMSTOCK, J., having been counsel in the cause, took no part in the decision.

Judgment reversed,

FRAUD IN CONVEYANCE IS NOT PRESUMED BECAUSE OF FRAUDULENT CONVEYANCE Soon afterwards made between the same parties: Bumpas v. Dotson, 46 Am. Dec. 81.

AGREEMENT BETWEEN MORTGAGOR AND MORTGAGEE OF CHATTELS THAT FORMER SHALL CONTINUE IN POSSESSION, and that while thus in possession he shall sell the goods from time to time and pay over the proceeds to the latter, is not unlawful or fraudulent per se: Conkling v. Shelley, 28 N. Y. 363. If it is made clearly to appear that upon the giving of the mortgage the mortgagor was permitted, by the assent of the mortgagee, to continue to sell the goods at retail, at their discretion, and for their own use, the mortgage will be fraudulent, but the mere fact that the mortgagor for a time retained possession, and during this period made sales, is not conclusive, but merely a fact to be considered by the jury upon the question of fraud: Williston v. Jones, 6 Duer, 507; Davis v. Ransom, 18 Ill. 396. The above cases cite the principal case. So a mortgage is not fraudulent per se, though it provides that the mortgagor may make sale, and apply the proceeds to his own use, where he promises that if he makes large sales he will replace the goods so gold, and where the property mortgaged is more than sufficient to pay the debt: Briggs v. Parkman, 37 Am. Dec. 89, and note 94; so in Bumpas v. Dotson, 46 Id. 81, and see note thereto 85; notes to Harding v. Coburn, Id. 686; Ranlett v. Blodgett, 43 Id. 606; but see note to Pulcifer v. Page, 54 Id. 595. The question of the fraudulency of a chattel mortgage, where the mortgagor is left in charge, is for the jury: Ostrander v. Fay, 2 Keyes, 588, citing the principal caso.