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have been tried at special term. A trial was afterwards nad on the equity side at the special term, where the two findings above stated were adopted and the complaint was dismissed. Judgment was entered and the plaintiff appealed to this court.

The complaint in this action alleges in substance the recovery of the judgment, the appointment of the plaintiff as receiver, the execution of the chattel mortgages, the sale of the property under them, and then alleges that Avery was president of the said bank, and that "the said mortgages were given by the said Beck and to the said Avery with intent to hinder, delay and defraud the creditors of said Beck, and particularly the said Ross. That they were executed for more than the amount due from the said Beck; that they were not accompanied by an immediate delivery, or followed by an actual or continued change of possession of the chattels mentioned; that when the same were made it was understood and agreed between the parties thereto that the mortgagor should continue to deal with the mortgaged property and sell the same in the course of business as his own property, and the said Beck did, in fact, after the execution of said mortgages and for some period thereafter, with the consent of the mortgagees, dispose of said property or a part thereof and appropriate the proceeds of the sale thereof to his own use by selling as a retail merchant to his customers."

The complaint further alleges that Avery never accounted to Beck or the plaintiff as receiver; the insolvency of Beck and that the judgment remained unpaid. The prayer is to the effect that the mortgages be adjudged fraudulent and void, and that Avery be required to account for the property or its proceeds.

On the trial it appeared that when Ross heard of the mortgages he sent his agent Gordon to Auburn to get an explanation from Avery; that a conversation occurred between them which was to the effect that Gordon asked Avery why he took the mortgage after he was given to understand that the liens for which the mortgage was taken should be without security; that Avery replied that Beck was pressed by other creditors and offered to secure the debt by mortgage, which he did; that the bank would let him go on the same as if no mortgage had been made; that Gordon replied to the effect that if Beck would continue in business and pay Ross a little now and then he would be satisfied, and that Beck had some goods left which were out of season and that if he would return them he would get credit. Avery replied he had no objections. None of the goods were returned, nor did Beck afterwards make any payments. The trial justice held in substance that the debts secured by the mortgage were honest, and that after hearing Avery's statement, Ross concluded to acquiesce in the mortgages, and that he assented to them with full knowledge of all the facts.

It will be noticed that the goods were taken by virtue of the two mortgages. It is agreed that the second mortgage of $290 was valid. It was adjudged in the replevin suit that as against the attachment Avery was in the lawful possession of the property under his mortgages. There is no question as to the validity

of the mortgages between Ross and the bank or him and Avery. They were given to secure honest debts, and as against the mortgagor valid and enforceable. In the case at bar the property was sold and the debts paid before any lien was acquired by the receiver. No lien was obtained by virtue of the attachment, because Avery succeeded as against the sheriff in establishing his superior right to the property. Judgment had been recovered, execution issued and returned nulla bona, so there was no lien by virtue of any levy at the time the receiver was appointed, which was not until long after the sale under the chattel mortgages, and the application of the proceeds in the payment of the debts they were given to secure. This action was not commenced until more than two months after the debts secured by the chattel mortgages had been paid by the sale of the property, and nothing appears that the sale was not in all respects regular, or that the debts they were given to secure were not extinguished to the extent of pay

ment.

The learned and diligent counsel for the appellant has not called attention to any authority going to the length of holding that when an honest debt has once been paid out of the debtor's property, another creditor can compel him to refund because, as against creditors, the mortgage given to secure a paid debt would have been adjudged void. In a controversy between different creditors, the one who is most vigilant and prior in point of time usually has the advantage. Where a creditor is so diligent as to acquire a lien on property applicable to his debt before payment of another secured by a mortgage void as against creditors, he is in a position to show that his lien is superior, and remove the fraudulent obstruction. But no such question is involved in the case at bar; all these debts were honest; the judgment was valid against everybody; the mortgages between the parties were valid; the debts they were given to secure bona fide; and although one of the mortgages could be adjudged void against creditors, it being valid between the parties, and the debt it was given to secure paid before proceedings commenced or lien acquired, the law will leave the parties where it finds them, and such seems to be the reasoning of the authorities. Hone v. Henriquez, 13 Wend., 240; Brown v. Platt, 8 Bosw., 324; Haggerty v. Palmer, 6 Johns. Chan., 437; Grover v. Wakeman, 11 Wend., 187; Averill v. Loucks, 6 Barb., 470. The judgment must be affirmed.

MACOMBER, J., concurs; DWIGHT, P. J., not sitting.

EMILY J. WARD, Resp't, v. BENJAMIN S. DEANE, App'lt. (Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) 1. LIBEL EVIDENCE.

Defendant published two libelous articles concerning plaintiff in his newspaper, and also on subsequent days two articles referring to a threatened action and demand for retraction, in which he stated that the previous publication was well founded. The complaint set out the first two articles in full and portions of two of the others. Held, that as all the articles, including one not set forth in the complaint, were published before the commencement of the action, related to the same subject and

were substantially a repetition of the same charge, they were admissible in evidence on the question of malice.

2. SAME.

Evidence of plaintiff's character in the building where she lived is available only in mitigation of damages, and is inadmissible, unless pleaded. 3. SAME-PARTIES-WAIVER OF OBJECTION.

It appearing on the face of the complaint that plaintiff was the wife of one W., and no objection having been taken by demurrer or answer, the objection to his nonjoinder was waived, and could not be taken advantage of on the trial.

4. SAME-DAMAGES.

In such an action it is not error to refuse to charge that plaintiff cannot recover for mental anxiety.

APPEAL by defendant from a judgment in favor of plaintiff entered in Chautauqua county.

E. R. Bootey, for app'lt; F. W. Stevens, for resp't.

CORLETT, J.-In March, 1888, the defendant was the editor and publisher of the Morning News, a newspaper, in the city of Jamestown, having a large circulation. The plaintiff is the wife of James H. Ward, to whom she was married in February, 1881. She resided with her husband in Schenectady until they moved to the city of Jamestown in April, 1886, where they kept an art wall paper and artists supply store at No. 13 West Second street in the new Allen block. Their residence was at No. 11 of the same block. The family consisted of the plaintiff, her husband and Ethel Claire Ward, her step-daughter, who, at the time she went to Jamestown, was thirteen years of age. The plaintiff gave instructions in painting and drawing, for which she received compensation.

On the 8th of March, 1888, an article was published in the defendant's newspaper, which was a morning issue, headed, "An Outrage." It was to the effect that the plaintiff had improperly treated her step-daughter in depriving her of society, proper schooling and clothing, and beating her, subjecting her to drudg ery and unreasonable labor, and also improperly treating her in other respects. It purported to be based upon information derived from reliable sources. Another article to the same effect was published in the same paper in another column on the same day. On the 9th of March another article was published, headed "A Bluff Pure and Simple," which was to the effect that the defendant had been threatened with a libel suit, and that it would not withdraw the first publications, the substantial accuracy of which were based upon reliable data.

On the 12th of March another article was published headed "A Weakening Bluff," which contained a communication signed by the plaintiff and her husband, written by B. A. Barlow, the plaintiff's attorney, claiming great injury by the previous publications, and asking a withdrawal of the charges. After inserting this request, it stated in substance that the previous publications were well founded, that there would be no withdrawal or retraction, and that if vindication was desired resort must be had to the courts. On the morning of the 12th another article was pubblished, entitled "We Are Seven," in which appeared a communi

cation from seven ladies stating in substance that the articles previously published were not well founded and were unjust to the plaintiff, her husband and her daughter. This communication was commented upon at some length, to the effect that the ladies labored under a misapprehension and that the previous articles were well founded and inflicted no injustice.

The plaintiff brought an action to recover damages for libel. The complaint contains the first two articles in full and a portion of those published on the 9th and 12th, but the one containing the letters from the ladies was not inserted in the complaint. The answer admitted the publications alleged in the complaint,. denied malice and justified.

The cause was tried in May, 1889, before the court and a jury in Mayville, Chautauqua county. On the trial the first two articles were read in evidence. That of the 9th of March, headed "An Outrage," was offered in evidence by the plaintiff. Its reception was objected to by the defendant, because only a portion was set out in the complaint, and that it was not material to the issues. The objection was overruled and the defendant excepted. The plaintiff also put in evidence the article entitled "A Weakening Bluff," published on the 12th. The plaintiff offered in evidence the article headed "We Are Seven," which was objected to on the ground that it was not pertinent to the issues, was hearsay, and was not set out in the complaint. The objections were overruled, the articles admitted, and the defendant's counsel excepted. The plaintiff was sworn as a witness on her own behalf, and she was asked: "What was your condition of health immediately prior to the publication of these articles?" This was objected to by the defendant on the ground that it was not proper evidence, that no damage could be given for such a cause, and that the plaintiff was not the proper party to recover such damages. The objections were overruled and the defendant's counsel excepted.

The answer was: "I was able to work from day to day, which I did." The plaintiff's counsel then asked: "What was your condition of health after the publication of these articles?" to which the defendant objected on the same ground. She answered "I was prostrated by the shame and disgrace brought upon me." The defendant asked to have the answers stricken out, which the court refused, and the defendant excepted. The plaintiff then rested, and the defendant moved for a dismissal of the complaint on the ground that the cause of action was in favor of the husband, and that it should have been brought by him and that he should be joined with the plaintiff; second, that the wife could not maintain the action as sole plaintiff; that the articles were not libelous per se. The court denied the motion, to which the defendant's counsel excepted.

Various witnesses were sworn on the part of the defendant, their evidence tending to show improper treatment of the girl by the plaintiff. This was rebutted by witnesses on the part of the plaintiff, which included the girl. At the close of the evidence the defendant renewed his motion for the direction of a verdict on the same grounds. The court denied the motion; the defendant

excepted. The defendant also asked the court to charge that the plaintiff could not recover damages on account of ill-feeling or grief in mind, or loss of society. The court refused and the defendant excepted. The jury found a verdict of $475 for the plaintiff. No motion for a new trial was made, and the case comes before this court on exceptions.

The defendant contends that the court erred in admitting in evidence the articles not set out in full in the complaint; also the one no part of which was inserted. All the articles were published before the commencement of this action, related to the same subject, and were substantially a repetition of the same charge. They were, therefore, admissible on the question of malice. Fry v. Bennett, 28 N. Y., 327; Bush v. Prosser, 11 id., 360; Distin v. Rose, 69 id., 124; Bassil v. Elmore, 65 Barb., 627; Gott v. Pulsijer, 122 Mass., 235.

The objection that the action could not be maintained without the joinder of the plaintiff's husband, cannot be sustained. Section 488 of the Code of Civil Procedure provides that the defendant may demur where the defect appears upon the face of the complaint, and § 498 provides that when such is not the case, the objection may be taken by answer. Section 499 provides that any objection not taken by answer or demurrer is waived. De Puy v. Strong, 37 N.Y., 372; Straus v. Tradesman's Nat. Bank, 36 Hun, 451; Spooner v. D. L. & W. R. R. Co., 115 N. Y., 22-30; 23 N. Y. State Rep., 554.

The fact that the plaintiff was the wife of James H. Ward appeared on the face of the complaint, and no objection having been taken by demurrer, it was not available on the trial.

The defendant's offer to prove the character of the plaintiff in the building in which she lived was properly excluded. It was only available by way of mitigating damages, and should have been pleaded; besides, it is not claimed that the matters sought to be proved were known or believed by the defendant before publication. Hatfield v. Lasher, 81 N. Y., 246; Morey v. Morning Journal, 17 N. Y. State Rep., 266.

The defendant's counsel asked the court to charge that the plaintiff could not recover for mental anxiety, etc. This was refused, and the defendant's counsel excepted. The ruling of the trial court is sustained by the authorities. Hamilton v. Eno, 16 Hun, 599; affirmed, 81 N. Y., 116.

The other exceptions have been examined, but require no special comment. No errors to the prejudice of the defendant were committed by the trial court, and the judgment must be affirmed. DWIGHT, P. J., and MACOMBER, J., concur.

FRANCIS X. BRENNAN, Ex'r, App'lt, v. GEORGE W. CROUCH, Impl'd, Resp't.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) INSURANCE (LIFE) - WHEN ASSIGNMENT OF POLICY WILL BE CONSTRUed a

SALE AND NOT A MORTGAGE.

Plaintiff's testator assigned to defendants a paid-up policy on his life in
N. Y. STATE REP., VOL. XXXII. 35

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