ance.

ginning. An intercourse originally unlawful and lustful from choice undoubtedly raises the presumption that its character remains such during its continuBut this is a presumption not of law, but of fact, for the consideration of the jury in connection with the particular facts and circumstances of the case. In the case at bar it appears that the cohabitation between the parties had its origin, in part at least, in a desire for marriage, and under the promise that such a relation should be assumed as soon as defendant could procure a divorce from his then wife. This indicates that the parties regarded the married state as one preferable to that of concubinage, and weakens somewhat the force of the presumption ordinarily attaching to an original illicit cohabitation. The weight which is to be given to it however in this as in every other case, rest, exclusively with the jury in the exercise of its best judgment under proper instructions from the court."

We think the following rules may be fairly deduced from the cases cited and reviewed:

1st. That an illicit connection is presumed to continue until there is evidence to the contrary.

2d. That where the parties have manifested a desire to form a matrimonial union, the presumption will be rebutted, so as to make the question one of fact, by the slightest circumstance; and that a mere continuance of the cohabitation without any apparent change after the parties have the right to contract a valid marriage, will suffice to justify a submission of the question of marriage to a jury. Nay, the court must under such circumstances submit the question to the jury.

3d. That where the parties are shown to have preferred a meretricious connection, something more than

the woman was a common prostitute. Conran v. Lowe, 1 Lee, 630-638; Chamberlain v. Chamberlain, 71 N. Y. 423-427.

But the presumption of marriage from cohabitation between a white and a colored person is undoubtedly sufficient to warrant a finding of a valid marriage. Honey v. Clark, 37 Tex. 686; Bonds v. Foster, 36 id. 68. However this presumption will not arise where the statute forbids such marriage. Oldham v. McIver, 49 Tex. 556.

Even divorces have been presumed to sustain a marriage made while the partner of one of the parties to a former marriage was living. Blanchard v. Lambert, 43 Iowa, 228; Carroll v. Carroll, 20 Tex. 731; McCarty v. McCarty, 2 Strobh. 6-10; and see generally on this subject, Best Presump. 144, 145; 1 Bish. Mar. & Div. §§ 514-518. GUY C. H. CORLISS

REPLEVIN-CUSTODIA LEGIS.

NEW YORK COURT OF APPEALS, OCT. 28, 1884. FIRST NATIONAL BANK OF OSWEGO v. DUNN. SECOND NATIONAL BANK OF OSWEGO V. DUNN. Where a chattel has been replevied, it may not, while in the possession, either of the sheriff or of the plaintiff awaiting the result of the action, be levied upon by virtue of an execution against the defendant. The judgment creditor can only claim through the title of his debtor, and the property having been lawfully removed from the possession of the latter, and being held in the custody of the law for final adjudication, he cannot disturb it, but is confined to such remedy as will not interfere with it. Dunlop v. P. F. Ins. Co., 74 N. Y. 145, distinguished.

marriage has been removed, will be necessary to rebut the inference of the continuance of the original char. acter of the cohabitation. There must be evidence to satisfy the mind of an actual change in the relation between the parties, or at least of a desire for a change. Although it has never been authoritatively settled, it is yet safe to assert that should there be any evidence warranting the conclusion that the parties to a deliberately preferred illicit connection have come to desire a matrimonial alliance in place of their former illegal and lustful union, mere evidence of their cohabitation as husband and wife subsequently to their change of sentiment in this regard would make the issue of marriage one of fact, just the same as though the parties had desired marriage from the commencement of their cohabitation.

4th. That where there is any evidence to rebut this inference of continuance of an illicit union, the question is one of fact.

5th. That where the parties have manifested a preference for an illegal connection, the court is bound to decide against a marriage in the absence of evidence of a change in the relation between the parties, or of a desire for such a change.

6th. That to convert an illicit union into a valid marriage the parties must do something more than recognize as valid the unlawful marriage, where consents have been interchanged when an impediment to a lawful marriage existed; they must enter into a new marriage contract after the impediment has been removed.

fourth judicial department, made April 19, 1883, which reversed an order of Special Term, staying proceedings upon an execution issued upon a judgment recovered in the action second above entitled, and setting aside a levy made by the sheriff of Oswego county in virtue of such execution.

January 7, 1882, John Dunn made a general assignment for the benefit of his creditors to John Dorsey, Jr., his book-keeper and clerk, who took possession of the assigned property, consisting among other things of a malthouse in which were eighteen thousand to twenty thousand bushels of malt in bulk. Two days later the First National Bank brought replevin for ten thousand bushels of said malt, against Dunn and Dorsey, which is the action first above entitled. The plaintiff in that action claimed title under warehouse receipts, executed to it by Dunn, on December 13, 1881. Upɔn the mandate in that action, the sheriff of Oswego seized the ten thousand bushels of malt and kept possession of it until January 13, 1882, when (as no bond had been given by the defendants and time therefor had expired) the sheriff went to the president of the First National Bank at his banking rooms and told him he had come to deliver the malt named in the replevin papers, and that he did then and there deliver it (though it had not been separated or removed from the other portions of the eighteen thousand to twenty thousand bushels in the malthouse. The president accepted it, and requested the sheriff to separate the ten thousand bushels and to deliver it at a designated place, who complied with that request. On the same day the Second National Bank recovered a judgment against John Dunn upon a debt held by it, for $15,415.23, besides costs, and forthwith issued an execution to the sheriff of Oswego county, who was engaged in separating the malt for the purpose of delivering as

more, Ferg. Consist. Law Rep.); or a negro with a white person (Armstrong v. Hodges, 2 B. Mon. 69); or where

and other property of the assignor and judgment debtor, January 17, 1882, the First National Bank in

demnified the sherriff against the claim of the Second National Bank.

Louis Marshall, for appellant.

S. C. Huntington, for respondent.

FINCH, J. If the General Term were right in sustaining the levy upon the property held under the writ of replevin the sheriff occupies a very awkward and anomalous position, and the law is made to demand a seeming impossibility. The sheriff took possession of the malt in obedience to process requiring him to take that specific property. The defendants in replevin, Dunn and Dorsey, not giving a bond for the return of the property within the prescribed three days, it became the imperative duty of the sheriff to deliver such property to the First National Bank of Oswego, the plaintiff in the action; while preparing to make such delivery, but before it had been actually accomplished, the Second National Bank of Oswego issued to him an execution against Dunn, and required him to levy upon the same property. He made the levy and so found himself at one and the same instant required to deliver up the malt on one mandate and retain and sell it on another. He cannot do both. The two duties, each equally imperative, are utterly inconsistent, and the performance of either inevitably involves the non-performance of the other. The difficulty, too, does not end with the sheriff but extends to the plaintiff in replevin. He sues Duun to recover the identical property, claiming to be its owner, and obtains for the safety of his title a lawful possession. But that safety is weak and brittle 'if Dunn can confess a judgment to a creditor, who alleging his debtor's ownership, can again put in jeopardy the possession of the property. The law compels the plaintiff in the replevin, as the price of his temporary possession, to give a bond for the return of the property, if such return is in the end adjudged, and yet if levies may be made in behalf of creditors the law prevents the very return which it at the same time requires. It is a similar inconsistency to which the Federal court called attention in Hagan v. Lucas, 10 Pet. 404. Justice McLean said: "If the property be liable to execution a levy must always produce a forfeiture of the bond. For a levy takes the property out of the possession of the claimant and renders the performance of his bond impossible. Can a result so repugnant to equity and propriety as this be sanctioned? Is the law so inconsistent as to authorize the means by which the discharge of a legal obligation is defeated and at the same time exact a penalty for the failure?"

From these inconsistencies there must be some avenue of escape. The right of the Second National Bank, as a judgment creditor of Dunn, to contest the validity of his assignment to Dorsey, and the alleged title of the First National Bank by virtue of its warehouse receipt is undoubted. Claiming the malt to be in truth the property of Dun, it may levy upon it and seek to maintain its hold, unless met by the obstruction of an existing custody of the law. That obstruction the appellants interpose, and assert it to be effectual whether at the moment of the attempted levy the malt was in the custody of the officer, or had been delivered to the temporary possession of the bank during the pendency of its proceedings in replevin. The precise question does not seem to have been decided by any court of last resort, but the authorities approach it from several directions and indicate the principles which should govern its determination. The old action of replevin and its modern substitute are alike in the nature of proceedings in rem. The court fastens upon the identical property and holds it subject to its own ultimate disposition. If by its own rules it cannot hold the res against other process

which it has power to control, the action loses its character and becomes merely one for damages.

In Hagan v. Lucas, supra, it was ruled that the property taken on the writ is in the custody of the law, both while held by the officer, and after delivery to the plaintiff, and so remains during the pendency of the action awaiting the final disposition of the court. Aud it was further said that this custody could not be disturbed by any process, and especially not by that emanating from another jurisdiction. This case and its doctrine, as stated, were approved by the same court in a very recent decision. Covell v. Heyman, 111 U. S. 176. It is true, as the General Term say, that the case cited was one in which the writ under which a bond was given for the return of the property was issued from the State court while the disturbing execution came from the Federal court, and the avoidance of a conflict of jurisdictions was assigned as the principal ground of decision. But at the foundation of that conflict was the inconsistency of a legal requirement that an officer should hold the property for one purpose and yet be compelled to surrender it for another. That the hostile mandates came from different courts only emphasized the inconsistency.

It was early held, and has been steadily maintained, that property levied upon by an officer, when found in and taken from the possession of the defendant in the execution, cannot be replevied unless in a case where the taking was tortious, and the officer liable in trespass. Thompson v. Button, 14 Johns. 86; Pangburn v. Partridge, 7 id. 142. And that illustrates the difference between a taking on execution and on a writ of replevin. In the former case he is required to take only the property of the debtor, and is a trespasser if he takes that of a stranger; but in the latter he is required to take certain specific property, and is not a trespasser, and cannot be sued for taking it. His possession under the writ and his power to obey it are thus perfectly protected, and his taking is entirely unaffected by the question of ownership.

In Acker v. White, 25 Wend. 614, the property was levied upon in 1837 as the property of Jessup. Thereafter White took out a writ of replevin and gave the necessary bond, but left the property in the possession of Jessup. In 1839 Acker, as sheriff, levied upon the same property, while the replevin suit remained undecided. White recovered the property from Acker, the court saying that "the bond was substituted for the goods," and "assuming that the plaintiff acquired, by virtue of the bond and replevin, the property in question, then though it still continued in the possession of Jessup, it would not be subject to execution against him."

The case of Burkle v. Luce, 1 N. Y. 239, cited by the General Term, decided only that where the replevin suit had abated, and could not be revived because of the death of the plaintiff, the levy made by the sheriff, from whose possession the replevin had taken the property at once revived, and he could retake it from the possession of the plaintiff's executors. There the replevin was at an end, and the custody of the law discharged. We fail to find anywhere authority for the doctrine that by the issue of an execution a sheriff holding property under a writ of replevin can be forced to disobey the mandate of the writ. The case of successive executions issued to the same officer stands upon different principles. Even there it is said, that having levied under the first execution, be cannot and does not levy under the second, but its issue to him operates a constructive levy. Seymour v. Newton, 17 Hun, 30. But in such case he is not charged with inconsistent duties, or his lawful possession disturbed. The later executions in no manner alter or interfere

with his duty under the first. He can obey all the mandates, and is not driven to disobey any, but an execution following a writ of replevin sets the officer at once at war with himself.

The Code has made provision for the case of a claimant whose claim existed prior to the replevin (§ 1709), but has made none for a case where, as here, the creditors judgment was obtained and his execution issued after the replevin. In such case he can only claim through the title of the debtor. If there be none in him, there can be no right of the creditor. If that title is already in dispute, he must abide its issue; or if need be, in a lawful manner take part in its determination. If the property be lawfully removed from the possession of his debtor, and held by the law for a final adjudication, he cannot disturb that custody or invade it with inconsistent process. He must take such remedy as will not interfere with the custody lawfully acquired and maintained. Cases of attach

fraud or express warranty; the law will presume that the buyer exercised his own judgment, and the rule of carcat emptor applies.

An exception is found however in cases of executory contracts for the manufacture and sale of goods in futuro where from the nature of the case it is impossible, or where by the contract it is the duty of the seller to ascertain and judge of the quality of the article, as when he agrees to furnish an article for a specified purpose or of a particular kind.

Appellant, a manufacturer of steam boilers, submitted to appellee a proposal to make for him two boilers, the shells of which were to be made of a particular brand of iron, known in the market as charcoal hammered iron of a certain grade. The boilers were made according to the specifications, and after being used for a time, one gave out by reason of an inherent defect in the iron. Held, that the seller was not liable as upon an implied warranty.

to whom the warrant has been issued is to take and retain the property till final judgment and execution. Hence it is said that property in custodia legis cannot be attached. Drake on Attach., § 251, and the case of Read v. Sprague, 34 Ala. 101, is cited. There an attachment was placed in the hands of the sheriff, and before its levy a writ of seizure from a court of chancery was issued to the same officer. He tried to execute both. Of course he could not, and the court held that since he could not execute the attachment except by taking the property, and the moment he took it the property was in the custody of the court under the writ of seizure, therefore the attachment could not be levied. If the courts of this State have modified this rule, it is only in a manner which preserves its substantial elements.

In Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145, money deposited with the clerk of a court, in lieu of an undertaking on appeal, was held liable to an attachment in an action by a third person against the depositor. But this went upon the ground that the attachment operated not upon the money itself, but upon the intangible right of the depositor to so much of it as might remain after the exigencies of the appeal were satisfied; and the court carefully and sedulously guarded itself against a construction that would interfere with the custody of the fund.

The creditor, in the present case, must pursue a remedy consistent with the sheriff's duty under the replevin, and with the hold which the law has upon the property. The issue of his execution gave him a general lien against the property of his debtor. He meets with an obstruction to his levy. We see no reason why he may not proceed in equity, making all the rival claimants parties, preventing if need be a transfer of the property by the plaintiff in replevin, avoiding a multiplicity of suits, and so determining in one action the whole controversy. We think the Special Term was right in setting aside the levy.

The order of the General Term should be reversed, and that of the Special Term affirmed, with costs. All concur, except Ruger, C. J., taking no part, and Rapallo, J., absent.

states the case.

R. Biddle Roberts and F. J. Loesch, for appellant. Abbott, Oliver & Showalter, for appellee.

WILSON, P. J. This was assumpsit brought by ap pellant Shoenberger against appellee McEwen on s promissory note for $386.24, given by McEwen to appellant in part payment for two boilers made by appellant to appellee.

Appellant was a manufacturer of steam boilers, and in response to an invitation from appellee sent to the latter a written proposal to make for him two tubular boilers for the sum of $1,750. The proposal contained full specifications as to the size, manner of construction, and the material to be used; and among other things it was specified that the shells of the boilers were to be made of "5-16 in. C. H. No. 1 iron," by which was meant a particular brand of iron known in the market as charcoal hammered iron of a certain grade. Appellant's bid was accepted by appellee, and the boilers were made and put in place in conformity with the specifications. After being used for a time one of the boilers gave out by reason of an inherent defect in the iron of which the shell was constructed, caused by improper rolling at the furnace when made.

Upon the trial in the court below appellee, under the plea of the general issue and notice of special matter by way of recoupment, offered proof of damages sustained by him by reason of the defect in the boiler; and under the instructions of the court the jury deducted $222 from the amount of the note, and rendered a verdict in favor of the appellant for the balance of $177.75.

No complaint was made as to the workmanship or as to the manner in which the boilers were constructed: nor was it claimed that appellant knew of any defect in the quality of the iron, nor that the defect was discoverable by any of the tests used by boiler manufacturers. The boilers were tested by hydrostatic pressure before leaving the works to 125 pounds to the square inch, as specified in the proposals. The iron of which the boilers were made was manufactured at a furnace in Pennsylvania, and purchased by appellant, who was not a manufacturer of iron, to be used in their construction. The only ground of complaint was that the iron was unsound and unfit for the purpose intended. The court ruled that appellant was liable for the damage caused by the defect in the iron on the ground that he was a manufacturer of the boilers, and as such must be held to have impliedly warranted the soundness of all the material used by him in their construction.

The general rule of the common law is that upon an

could be discovered by the exercise of reasonable care and skill, but did not extend to natural defects in timber which are incident to its process of growth, and which cannot be discovered by the exercise of such skill and care.

*

This ruling was approved by the Supreme Court on appeal. In delivering the opinion of the court, Merrick, J., said: "It is undoubtedly now a well-settled rule that if an article be ordered of a manufacturer for an especial purpose or a particular use, and he agrees to furnish it, and nothing is said by the parties as to the materials of or the manner in which it shall be made, there is an implied warranty on his part that it shall be fit for that use. * * But if an article or fabric in the particular line of his profession be ordered of a manufacturer for a special and designated purpose, and the parties agree that it shall be constructed of a certain kind of material, but the selection of the particular articles to be used, and the way and manner of using and adapting them to the fabric, are left to the choice and the judgment of the latter without any special stipulations relative thereto, he will not in that case be liable for any loss or damage which may result from the Imperfection of or natural defects in that kind of material. If the defendant in his contract with the plaintiffs had simply agreed that he would finish and complete the ship then on the stocks and deliver it so finished to them at a stipulated price, there would have been an implied warranty on his part that it should be, both as to the workmanship and materials used in its construction, fit for the service for which it was sold. But the contract was in fact modified by a stipulation that it should be planked with pine plank. Under this modification, what would otherwise have created a general liability, the defendant was bound only to use reasonable care and skill in the selection and preparation in that kind of plank, and they could afterward only hold the defendant responsible for damages resulting for his failure to exercise reasonable skill and care in the selection of the plank which he used."

The court cites with approval Hoe v. Sanborn, supra, and other cases to which it is unnecessary to here refer.

In Beck v. Sheldon, 48 N. Y. 365, it was held that where a manufacturer of goods which are known in the market, and the different qualities distinguished by numbers, contracts to sell and deliver goods from his factory of certain numbers, in a suit upon the contract it is not material whether the goods delivered are of equal or inferior quality to those of corresponding numbers manufactured at other factories, or whether or not they are merchantable. If they are the numbers contracted for as manufactured at the contractor's factory the contract is fulfilled.

A leading English case on the subject of implied warranties is Jones v. Clarke, 3 Q. B. 197, referred to by Mr. Benjamin, in which the court, upon an extended review of the authorities, classified the cases on the subject, and one class is where a defined article is ordered of a manufacturer, although it is stated to be required for a designated purpose, if the thing ordered be furnished, there is no warranty that it shall answer the purpose intended by the buyer. See cases there cited. See also Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, where is found at least an indirect recognition of the same principle.

Numerous other cases of like import to the foregoing might be referred to, but as they are cited in the foregoing cases, it is unnecessary to refer to them here. Suffice it to say that in such examination as we have been able to make we have found no cases in conflict with those above cited.

In the present case the plaintiff used the brand of

iron agreed upon, and tested the boilers by hydrostatic pressure to 125 pounds to the square inch, as stipulated in the contract. From an inherent defect in the iron caused by improper rolling when made, and which only developed by use, the boiler proved defective. The plaintiff appears to have used all reasonable care and skill in selecting the iron, and was guilty of no fraud.

Under this state of facts we are of opinion that the court below erred in holding and instructing the jury that the plaintiff was liable as upon an implied warranty.

The judgment must be reversed, and the cause remanded for a new trial. Reversed and remanded.

NEW YORK COURT OF APPEALS ABSTRACT.

PARTNERSHIP-LIMITED PAYMENT OF CAPITAL NOT IN CASH-ESTOPPEL-JUDGMENT IN REM-BANKRUPTCY-ADJUDICATION BINDING ONLY ON PARTIES. (1) Where at the time of the filing of the certificate and affidavits for the purpose of forming a limited partnership under the statute (1 Rev. Stat. 763, § 1 et seq.), the special partner had not in fact paid in the sum to be contributed by him, but had given his check therefor payable thereafter, held, that although the check was duly paid, the misstatement rendered the special partner liable as a general partner for all the engagements of the firm. Durant v. Abendroth, 69 N. Y. 148; S. C., 25 Am. Rep. 158. A judgment in rem of a domestic as well as a foreign court, where jurisdiction over the person of a party has not been obtained, except as to his interest in the property af fected by the judgment, is not conclusive or bluding upon him by way of estoppel in another action. (2) The general rule as to proceedings in rem is that when the property is within the jurisdiction of the court pronouncing the judgment, whether a domestic or foreign tribunal, whatever the court settles as to the right or title, or whatever disposition it makes of the property, is valid in every country. Story Couf. L., § 592; 1 Greenl. Ev. 543; 2 Wend. 64. But it is not universally settled that the judgment is conclusive as to the facts or allegations on which it is founded. In some of the States of the Union, and especially in the State of New York, though there are decisions to the contrary in the court of England and in the United States, it has long been settled that foreign judgments in rem are conclusive only as to the property involved, and may be controverted as to all the grounds and incidental facts on which they profess to be founded. Vandenheuvel v. United Ins. Co., 2 Johns. Cas.451; reversing S. C., 127. So the judgment even of a neighboring State on foreign attachment, if the defendant has not appeared and litigated, is treated as a proceeding in rem and not personally binding on the party, as a decree or judgment in personam. It only binds the property seized or attached in the suit. 1 Greenl. Ev., $542, and cases cited: Story Confi. L., § 549. And it is not conclusive evidence of the debt in another suit between the same parties. Phelps v. Holker, 1 Dall. 251; Betts v. Death, Add. 265. In such cases the action is regarded, as to the absent defendant, as a proceeding in rem (Schwinger v. Hickok, 53 N. Y. 280), and it would be contrary to all principle to hold him personally bound, as to any fact determined in such a proceeding in his absence, so that he should be forever precluded from denying it in a subsequent litigation concerning matters other than his interest in the prop erty affected by the judgment. Certain creditors of the firm presented a petition to the register in bankruptcy, setting forth that two days before the filing of